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Showing 201 to 220 of 576 Records

• 2005 (10) TMI 412 - CESTAT, BANGALORE
  

  Penalty - Quantum of

  
  
  ... ...
  ... ... ..... lectricals - 1998 (99) E.L.T. 33 (S.C.) wherein the Apex Court has held that maximum penalty is not to be levied and the authorities have got discretion to waive penalty as well. Even in terms of the relevant provisions, the penalty can be waived by the officer if sufficient reasons have been given. As the imposition of penalty it is not contested but only the quantum is being contested, we are of the considered view that the penalty imposed of Rs. 1,000/- on each IGM is very excessive. In the light of the Apex Court judgment, we uphold the imposition of penalty but reduce the same to Rs. 200/- per each IGM. The computation of penalty has to be done in terms of number of IGMs arrived by the Commissioner (Appeals) in his order. After due appropriation of the penalties, if any excess payment has been paid, then the appellants are entitled for refund of the same. The appeals are allowed in the above terms with consequential relief, if any. (Pronounced and dictated in open Court)

  ---

• 2005 (10) TMI 411 - CESTAT, BANGALORE
  
  ... ...
  ... ... ..... s for remand the matter to the Commissioner. 2. emsp The learned DR files a report received from the Assistant Commissioner (Legal). In the submissions, it is clearly admitted that the appellants have approached the Settlement Commissioner. 3. emsp On a careful consideration of the submissions made by both the sides, we are of the considered opinion that the Commissioner ought to have kept the matter pending till the decision of the Settlement Commissioner in the matter or otherwise he should have granted another opportunity of hearing instead of deciding the matter exparte. There is a clear violation of principles of lsquo Natural Justice rsquo and hence the stay application and the appeal are allowed by way of remand to the Commissioner of Customs, Bangalore. The Commissioner shall grant an opportunity of hearing to the appellants and also shall keep the matter in abeyance till the matter is decided by the Settlement Commissioner. (Pronounced and dictated in the open Court)

  ---

• 2005 (10) TMI 410 - CESTAT, CHENNAI
  

  Classifiaction

  
  
  ... ...
  ... ... ..... terials that the goods in question is a special purpose tank meant for nuclear reactors. It is a facility for storage of nuclear waste. By no stretch of imagination can such a storage tank be held classifiable as a general purpose storage tank under Heading 73.09. To be classified under this Heading, a tank of iron or steel should not be fitted with mechanical or thermal equipment. The purchase order coupled with the photographs of the tank in question indicates that it is fitted with thermal equipment. Hence there is no question of the subject goods getting classified under Heading 73.09. The specifications of the item in the purchase order indicate that it was manufactured and supplied for exclusive use as part of a nuclear reactor. The item thus attracts Heading 84.01. Ld. Commissioner (Appeals) has correctly classified the item. 4. emsp The impugned order is sustained and this appeal is dismissed. (Operative portion of the order was pronounced in Open court on 28-10-2005)

  ---

• 2005 (10) TMI 409 - CESTAT, MUMBAI
  

  Cenvat/Modvat - Capital goods -

  
  
  ... ...
  ... ... ..... ut they are actually panel coolers and CNC machines, necessary verification may be conducted by the adjudicating authority, if necessary after visiting the factory, where they installed. 6. emsp As regards item No. (ii) above, pertaining to testing and measuring equipments received by the appellants in February 1995, the learned Advocate has referred to the Tribunal s order in the case of CCE, Meerut v. Nav Bharat Paper Mills - 1996 (86) E.L.T. 501 (T) which has clearly held that electrical transformers are included in the definition of capital goods under Rule 57Q of Central Excise Rules w.e.f. 16-3-1995 and that there is no logic to deny the modvat benefit to such goods prior to this date. In the circumstances, I do not see any reason why such benefit could not be extended to the Appellant rsquo s testing and measuring equipment as well. In view of the above, I allow modvat facility to this item. In the result, the impugned order is set aside. (Pronounced in the open Court)

  ---

• 2005 (10) TMI 408 - CESTAT, NEW DELHI
  

  Export - DEPB

  
  
  ... ...
  ... ... ..... tion is that this is in the nature of shaft or axle or spindle on which the paper or like material is wound for being worked upon, therefore, bottom anvil cannot be considered to be cutter in any form. The contention of the revenue is that these are spools/supports and they do not have any cutter or cutting edges. 4. emsp The respondent produced the product literature in respect of goods exported by them which shows that for enhance slitting they are manufacturer of bottom knives for slitting purposes and top and bottom knives are used to ensure perfect cutting. 5. emsp In view of the finding of fact arrived by the lower authorities that goods in question are slitting steel cutters and in view of the fact that the item in question is also relating to bottom knives. After going through the product literature in respect of the goods, I find that these only cutters. In these circumstances, I find no merit in the appeal. The appeal is dismissed. (Order dictated in the open Court)

  ---

• 2005 (10) TMI 407 - CESTAT, NEW DELHI
  

  Confiscation of goods - Misdeclaration of goods - Scrap - Valuation

  
  
  ... ...
  ... ... ..... . The sheets are of various length and various thickness 1 mm to 4 mm. The examination report also reveals that 30 of the goods are Stainless Steel Scrap. Only 70 can be considered as serviceable sheets in respect of valuation. We find that the imported goods are of 400 grade whereas the revenue enhanced the value after comparing the same with the grade of 430 and 409. As these goods are not comparable with the goods on the basis of which value is enhanced, therefore, the impugned order enhancing the value is not sustainable. The appellant used these goods, after melting, into the manufacture of their final product. The appellant also produced a copy of their Modvat account whereby they had availed the credit in respect of C.V. Duty paid on the goods imported by the appellant. In these circumstances, I find merit in the contention of the appellant and the imported goods is only scrap. The impugned order is set aside and appeals are allowed. (Order dictated in the open Court.)

  ---

• 2005 (10) TMI 406 - CESTAT, NEW DELHI
  

  Stay/Dispensation of pre-deposit - Demand

  
  
  ... ...
  ... ... ..... ference in duty. It is submitted by both the sides that if the correct description of the goods exported were given then the value of the DEPB scrips, to the extent relevant for the present appellants, would have been about Rs. 13,16,000/- as against Rs. 21,35,333/- as shown in the show cause notice. Having regard to the fact that the appellant was not directly involved in fraud, and the relevant facts and circumstances of the case, we direct that on making a pre-deposit of Rs. 8 lakhs (Rupees Eight Lakhs), by the appellants within eight weeks from today the impugned order will be stayed during the pendency of the appeal and the pre-deposit of the rest of the amount payable under it will be waived. If, however, the amount is not so deposited, the appeal will stand dismissed. On such deposit being made, the appeal will come up for final hearing in its due course. Post the matter on 22-12-2005 for reporting compliance. (Order dictated and pronounced in open Court on 18-10-2005)

  ---

• 2005 (10) TMI 405 - CESTAT, CHENNAI
  

  Demand - Clandestine removal

  
  
  ... ...
  ... ... ..... his admission was never retracted. In the circumstances, as rightly pointed out by ld. SDR, it was not necessary for the Revenue to gather evidence of clandestine removal of goods. The contra finding recorded by ld. Commissioner (Appeals) cannot be accepted. 5. emsp In the result, neither the order recorded by the original authority nor the one recorded by the Commissioner (Appeals) can be sustained. I set aside both the orders and remand the case to the original authority with the direction that the input-output ratio for MCCP shall be 100 78 in terms of the expert rsquo s opinion and only ldquo gross weights rdquo of pulp shown in the relevant invoices of M/s. SIV shall be reckoned for the purpose of quantification of MCCP production for the period of dispute. Needless to say that the assessee shall be given a reasonable opportunity of being heard. 6. emsp The appeal stands allowed by way of remand. (Operative portion of the order was pronounced in open Court on 18-10-2005)

  ---

• 2005 (10) TMI 404 - CESTAT, NEW DELHI
  

  Samples - Test-results - Show Cause Notice

  
  
  ... ...
  ... ... ..... as the Chemical Examiner only for giving the physical or chemical analysis of goods in dispute. In the present case we find that the appellants are also questioning whether the Chemical Examiner of IPCL examined one sample or 48 samples. It is necessary for cross-examination by the appellant that CRCL report is obtained by the Revenue during adjudication proceedings which was relied upon by the adjudicating authority. In these circumstances, the ratio of decision relied upon by revenue is not applicable on the facts of present case. In these circumstances, we find that it is a fit case for reconsideration by the adjudicating authority for affording an opportunity for cross-examining of Chemical Examiner i.e. IPCL and CRCL. The impugned order is set aside and the matter is sent back to decide afresh after affording an opportunity of cross-examination of Chemical Examiner and hearing to the appellants. The appeals are allowed by way of remand. (Order dictated in the open Court)

  ---

• 2005 (10) TMI 403 - CESTAT, CHENNAI
  

  Cenvat/Modvat - Capital goods

  
  
  ... ...
  ... ... ..... inal product and, thefefore, capital goods credit would be available to such pumps for the period of dispute. The Supreme Court rsquo s judgment in Jawahar Mills case is in support of the admissibility of capital goods credit to such pumps. However, in respect of one item viz. ldquo Toyo Submersible Agitator Sand Pump rdquo , which figures as one of the items at Sl. No. (v) above and as item No. 47 in the schedule to the show-cause notice, it is found that this item was used outside the factory. Hence the benefit of capital goods credit would not be available to this item. 2. emsp For the reasons noted above, we reject the Revenue rsquo s appeal in relation to all the capital goods except ldquo Toyo Submersible Agitator Sand Pump rdquo . The appeal is allowed to the limited extent of denying capital goods credit to the respondents in respect of the goods mentioned at Sl. No. 47 of the Schedule to the SCN. (Operative part of the order was pronounced in open Court on 6-10-2005)

  ---

• 2005 (10) TMI 402 - CESTAT, BANGALORE
  
  ... ...
  ... ... ..... ity had dealt with all the three issues in his order. The appellant accepted the tender conditions stipulated by M/s. BEL, classified the goods under Heading 7204.30 and removed them to the Company after payment of duty. It is not for the appellants to challenge classification. The appellants dispute the classification made by BEL. In that case, they should have taken up the matter with M/s. BEL even before purchase of the same. We find that the appellants do not have any locus standi to file the refund claim. Assuming that duty had been collected illegally, it is clearly seen in the findings of the adjudicating authority that the question of unjust enrichment on time bar would stand in the way of the appellants being entitled for the refund claim. The appellants who appeared before us in the Tribunal could not produce any documentary evidence to show that duty had been paid under protest. In view of this position, we reject the appeal. (Pronounced in open Court on 6-10-2005)

  ---

• 2005 (10) TMI 401 - CESTAT, MUMBAI
  

  Cenvat/Modvat

  
  
  ... ...
  ... ... ..... e that was obtained while manufacturing Zinc and yet is a subsidiary product. 6. emsp There appears to be conflicting views taken in the two decisions of this Tribunal and also in the matter of Indian Iron and Steel Co. - 2002 (141) E.L.T. 695 a similar issue was referred to the Larger Bench. However, the Larger Bench in its decision reported in 2002 (143) E.L.T. 442 disposed of the appeal by remand without deciding the issue posed to it. 7. emsp The matter is to be placed before the Hon rsquo ble President for constituting a Larger Bench to resolve the issue framed for the consideration and decision by the Larger Bench as - ldquo Whether 8 of the amount as per erstwhile Rule 57CC of Central Excise Rules, 1944 (now Rule 6 of Cenvat Credit Rules, 2002) is required to be discharged, before removal of by products/subsidiary products when such products are exempted from whole of duty therein in light of the conflicting view in the above two decisions. rdquo (Pronounced in Court.)

  ---

• 2005 (10) TMI 400 - CESTAT, NEW DELHI
  

  Cenvat/Modvat

  
  
  ... ...
  ... ... ..... wards payment of Central Excise Duty, therefore, the impugned order whereby the credit was disallowed on the ground that credit was taken in respect of duty payable prior to 1-4-2000 is not sustainable. As the credit has been taken on 24-4-04, therefore, the retrospective amendment or explanation of Rule 3(6) of Cenvat Credit Rules will not adversely affect the rights of the appellant. It is also contended that show cause notice was issued prior to the retrospective amendment and the Revenue has not issued any amendment to the show cause notice for asking for denial of the credit on this ground. Therefore, Commissioner wrongly relied upon the amendment while denying the credit, therefore, adjudication order is beyond the scope of show cause notice. In view of the fact that we are allowing the appeal on merit. We are not going into other issues raised by the appellant. The impugned order is set aside and the appeal is allowed. (Dictated and pronounced in open Court on 5-10-05)

  ---

• 2005 (10) TMI 399 - CESTAT, MUMBAI
  

  Penalty - Personal penalty - Demand - Clandestine removal - Evidence

  
  
  ... ...
  ... ... ..... handwriting or have been prepared by any person in employee or management of the assessee. The confessional statement of Shri Kaluram, Managing Director of the assessee, relied upon by the lower authorities cannot be relied upon to confirm the charges as arrived in absence of corroborative evidence of the cards being admitted to be in the handwriting of persons connected with the assessee. (c) I find that the duty demands have been paid in that view of the matter there was no reason even otherwise to call for and impose the penalty under Rule 173Q(1) read with Section 11AC in the facts of this case. Agent imposition of penalty under Rule 173Q read with Section 11AC has not met the approval of this Tribunal in a catena of decisions. 3. emsp When the duty demands and penalties are not being upheld the imposition of personal penalties on the Director also cannot be sustained on this ground. In view of the findings the order is set aside and appeals allowed. (Pronounced in Court)

  ---

• 2005 (10) TMI 398 - CESTAT, MUMBAI
  

  Refund of additional duty of customs

  
  
  ... ...
  ... ... ..... ed goods on the ground that no Cenvat credit has been taken and the impugned goods have suffered the duty a second time at the time of clearance for home consumption. Though, the appellants have suffered additional customs duty and again excise duty, I find that they have not claimed refund of the excise duty. Their claim is for refund of additional customs duty and there is no legal provision to allow the same. As such, the appeal is rejected. (Pronounced in Court)

  ---

• 2005 (10) TMI 397 - CESTAT, MUMBAI
  

  Dichloroquinoline (4.7 DEQ) - Exemption

  
  
  ... ...
  ... ... ..... mited v. Commissioner of Central Excise, Delhi-III - 2002 (140) E.L.T. 266 the Larger Bench of the Tribunal has held that duty exemption is available to bulk drug falling under Chapters 28 and 29 of the Schedule to the Central Excise Tariff Act, 1985 for the period 6-1-95 to 8-2-95 even though the 1987 Drug Price Control was repealed on 6th January, 1995 for the reason that the Notification No. 6/94-C.E., dated 1st March, 1994 providing for concessional rate of duty to bulk drugs continued to have effect. Therefore, the benefit is admissible to the respondents up to 8th February, 1995. For the period thereafter up to 26th March, 1995, the benefit is admissible for the reason that the Notification No. 8/95-C.E., dated 9th February, 1995 does not provide any link between the exemption benefit and the filing of classification list. We, therefore, hold that the benefit is admissible up to 26th March, 1995. 3. emsp In the result, we uphold the impugned order and reject the appeal.

  ---

• 2005 (10) TMI 396 - CESTAT, NEW DELHI
  

  Refund claim - Goods returned to factory

  
  
  ... ...
  ... ... ..... s has been held by this Tribunal in the case of Metazinc (I) Ltd. - 1991 (53) E.L.T. 402 (T). This Tribunal in its order in the case of LML Ltd. (supra) has held that ldquo the goods returned after reprocessing, exported under Bond, refund is admissible since the goods were not exempted and duty was payable on them rdquo . It is a settled law that if the goods cleared by the appellants for export is not exported for any reason, the duty is demanded as such goods, which itself is an indication that the goods cleared for export under Bond are not exempted goods. Since the adjudicating authority has already come to a conclusion that the refund claim of the appellants has to be restricted to Rs. 1,07,128.28/- after verifying the claim of appellant, the refund claim to that extent is allowable to the appellants. 6. emsp In view of above situation, the impugned order-in-appeal deserves to be set aside. Accordingly, order-in-appeal dated 6-10-2003 is set aside and appeal is allowed.

  ---

• 2005 (10) TMI 395 - CESTAT, MUMBAI
  

  Manufacture - Explosives - Vehicle - Exemption - Demand

  
  
  ... ...
  ... ... ..... the appellant and its customer, it is well established that the customer was well aware of the fact that the appellant was claiming exemption of excise duty. Even the work order issued by the customer clearly mentioned that while a different rate was approved in case of other manufacturers in which excise duty was paid separately at the applicable rate, whereas in the case of the appellant the price was approved with a clear remark that such price had no excise duty implication. Further, the invoices raised by the appellant also indicate that no amount was charged separately representing as excise duty. We, therefore, hold that the appellant is neither a person who was liable to pay duty nor any amount representing as excise duty was collected by the appellant from the customer. Therefore, the provisions of Sections 11A and 11D are not attracted. In view of the above, we set aside the impugned order and allow the appeal filed by the appellant. (Pronounced in Court 25-10-2005)

  ---

• 2005 (10) TMI 394 - CESTAT, CHENNAI
  

  SSI Exemption - Brand name

  
  
  ... ...
  ... ... ..... pondents on their goods supplied to M/s. Maruti Udyog Ltd. during the period of dispute is as shown under The logo with the word lsquo MARUTI rsquo shown thereunder would create in anybody rsquo s mind a connection between the goods and M/s. Maruti Udyog Ltd. The mere fact that the word lsquo MARUTI rsquo in Devanagari was not shown on the label of the subject goods is not enough to dislodge this connection. Hence, as per the Supreme Court rsquo s ruling, the subject clearances should be held to be hit by para 7 of Notification No. 175/86-C.E. Accordingly, it is held that the respondents were not eligible for SSI benefit under the said notification in respect of the goods affixed with the above brand name, cleared to M/s. Maruti Udyog Ltd. during the period of dispute. The contra decision of the Collector of Central Excise is set aside. 5. emsp In the result, the Revenue rsquo s appeal stands allowed. (Operative portion of the order was pronounced in open Court on 24-10-2005)

  ---

• 2005 (10) TMI 393 - CESTAT, CHENNAI
  

  Cenvat/Modvat - Duty paying documents

  
  
  ... ...
  ... ... ..... ment. They have no case that the respondents had not utilized the input in the manufacture of final product within their factory or that they had not paid duty when they cleared the input for mercerization to their job worker. Their only objection is that they used their own invoice for availing Cenvat credit on the input. Had the respondents cleared yarns in cross reel hanks irreversibly to a customer, the latter would have taken Cenvat credit on the goods on the basis of the invoice issued by the former, which means the invoice issued by the respondents in such a situation would have been valid duty-paying document for Cenvat purpose. The department cannot have double standards. Hence in the facts of the this case, the invoice issued by the respondents evidencing payment of duty on the input were Cenvatable documents and the availment of credit by the respondents is in order. The impugned order is sustained and the appeal is rejected. (Dictated and pronounced in open Court)

  ---

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