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Case Laws
Showing 201 to 220 of 709 Records
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2010 (11) TMI 930 - CESTAT KOLKATA
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... ... ..... ls”. It is not the case of the Department that the respondent has not incurred the freight in transporting the LPG cylinders. It is also not the case of the Department that the freight collected is in excess of the freight actually incurred. The Department sought to rely upon the decision of the Tribunal in the case of Wearwell Tyres & Tubes Indus. Pvt. Ltd. v. Commissioner of Central Excise, Bhopal reported in 2010 (257) E.L.T. 126 (Tri.-Del.). The said decision does not support the case of the Department as it held that the freight actually incurred was permissible to be deducted. In the present case, it is not in dispute that the freight collected by the respondent is the actual freight as it is evident from the purchase orders and commercial bills relied upon by the Commissioner (Appeals). 6. In view of the above, we do not find any merit in the appeal filed by the Department and the same is, therefore, rejected. (Dictated and pronounced in the open Court)
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2010 (11) TMI 929 - GOVERNMENT OF INDIA
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... ... ..... tioned above. 9. Government notes that the examination report states as under - “Inspected a lot of 8 plastic Drums and found sticker on drums showing Patchouli Oil CAS No. 8014-09-3 which are also mentioned in B/E. However, identify of the contents of drums cannot be established.” In this regard, it is observed that no reason is given to explain as to why identity of goods cannot be established. The description/quantity of the goods is admitted to be the same. On perusal of Shipping Bill, it is noted that respondent had declared in the S/B as “goods in original packing and not used in India”. The statement is not disputed by the department when the goods are in original packing and not used in India, there is no reason to dispute identity of goods. As such, Government agrees with the finding of Commissioner (Appeals) and uphold the impugned order-in-appeal. 10. The revision application is rejected being devoid of merit. 11. So ordered.
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2010 (11) TMI 928 - CESTAT MUMBAI
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... ... ..... the classification list and the department proved suppression with intent to evade payment of duty against them. In the case of Debes Industries (supra) the assessee claimed benefit of SSI exemption but did not disclose the clearances of their other unit. In the case of Vishal Malleable Limited (supra) the correct description of goods was not disclosed by the appellant and that the fact of sending rough castings by assessee under their private gate passes to different job workers were also not disclosed nor any permission was taken from Collector as required under Rule 56B of the Central Excise Rules. The facts of the cases are not similar to the facts of the case in hand. Therefore, the case law cited by the department are of no avail to them. We do not find any infirmity with the findings of both the lower authorities, regarding limitation of time is concerned. 5. In the result, we uphold the ld. Commissioner (Appeals) order and dismiss the department’s appeal.
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2010 (11) TMI 927 - CESTAT NEW DELHI
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... ... ..... rt in relation to the decision in the matter of Jaypee Rewa Plant (supra) as well as in the matter of SAIL (supra) do not appear to be in consonance with the decision of the Apex Court. Once the order of the Tribunal merges in the order of the Supreme Court, it ultimately assumes the character of binding precedent and considering the same, therefore, we are bound by the decision of the Larger Bench in Jaypee Rewa Plant’s case (supra) as well as in Triveni Engg & Indus. Ltd.’s case (supra). 8. It is pertinent to note that the finding in relation to the welding electrodes being not capital goods and that the same are used in repairs and maintenance of the machinery and not in the manufacture or in relation to the maintenance arrived at by the Commissioner (Appeals) has not been challenged by the appellants. 9. For the reasons stated above, therefore, we do not find any infirmity in the impugned order and hence the appeal fails and is hereby dismissed.
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2010 (11) TMI 926 - CESTAT MUMBAI
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... ... ..... ants in terms of the order of this Court would be entitled as a matter of restitution for refund of balance amount of redemption fine along with interest at the rate of 13 per annum as ordered by this Court by its order dated 25-10-1991. The third question is answered accordingly in favour of assessee. (emphasis supplied) 6. From the above, it follows that principles of unjust enrichment would not apply to redemption fine. Similarly, the principle of unjust enrichment would not apply to penalty also. From the above decision it also follows that the question before the Supreme Court in the case of Sahakari Khand Udyog Mandal Ltd. was refund of duty and not refund of fine and penalty. Therefore, the decision of the Apex Court is not applicable to the present case. Thus, the Commissioner (A)’s impugned order is not in consonance with law. Hence, the order which is also self-contradictory is set aside, and the appeal is allowed. (Dictated and Pronounced in open court)
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2010 (11) TMI 925 - CESTAT CHENNAI
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... ... ..... fication shall not apply to specified goods, where a manufacture affixes the specified goods with the brand name or trade name (registered or not) of another person who is not eligible for the grant of exemption under this notification. Since the use of the expression “A TTK Product” indicates a connection in the course of trade between the ‘TTK Group’ and the ‘mixies’, and since the brand name owners are not eligible for the grant of SSI exemption, the assessees herein are not eligible to the benefit of SSI exemption. 3. In the light of the above discussion, we uphold the demand; however, the benefit of cum-duty price is extended to the assessees and they shall also be eligible to MODVAT credit on verification of duty paid nature of inputs used in the manufacture of the mixies, by the adjudicating authority. 4. The appeal is thus partly allowed as above. (Operative portion of the order was pronounced in open court on 12-11-2010)
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2010 (11) TMI 924 - CESTAT MUMBAI
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... ... ..... is case also, by following the decision of the Polycab Wires P. Ltd. (supra), I hold that the clearance of goods have been made by the respondent relying on the certificate issued by WBSEB which were well within the knowledge of the department. Hence it cannot be termed out that the respondent has mala fide intention to suppress the facts from the department. Accordingly, in the absence of any ingredients like fraud, collusion, wilful misstatement and suppression of facts or in contravention of any provisions of law with intent to evade duty, the penalty under Section 11AC of the Central Excise Act, 1944 is not leviable on the respondent. Accordingly, I do not find any reason to interfere with the impugned order and the same is upheld. The appeal filed by the Revenue is rejected. 8. Penalties on the various representatives of the respondent under Section 11AC of Central Excise Act, 1944 and Rule 26 of Central Excise Rules, 2001 are also not leviable. (Dictated in Court)
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2010 (11) TMI 923 - CESTAT NEW DELHI
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... ... ..... to that effect. There is neither any confession by the concerned person admitting clandestine removal nor any evidence in the form of private records including transport of documents or any bill. Under these circumstances, the Commissioner (Appeals) has held that the finding of clandestine removal by the original authority was not corroborated. The said decision calls for no interference. However, the payment of duty before issuance of show cause notice cannot be the cause for setting aside the penalty. In the absence of any corroboration for clandestine removal, the ingredients for invoking Section 11AC are absent and therefore the order of the Commissioner (Appeals) in setting aside the penalty calls for no interference. 6. In the absence of specific role alleging any misdeed on the part of the authorised signatory, setting aside the penalty on him was also justified. 7. The appeals filed by the department are rejected. (Dictated and Pronounced in the open court)
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2010 (11) TMI 922 - CESTAT MUMBAI
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... ... ..... period. On the other hand, the Commissioner’s finding is that the property had vested in the aforesaid company as early as in April, 1993 and that there is no evidence of retransfer of the property to Shri Harish Chandra Gupta. It is this finding which is yet to be successfully rebutted. In any case, the attachment proceedings against M/s. Sensotherm (I) Pvt. Ltd. can, apparently, continue on the ground that that company has atleast exercised control over the property. In the absence of evidence to show late Shri Harish Chandra Gupta or his legal heirs had been in possession of the property during the material period, the attachment proceedings cannot be stayed at the instance of the appellants. For a stay order, the appellants have to establish, beyond doubt, that they have title over the property or atleast control over it. On both counts, prima facie, the appellants have not succeeded. 6. In the result, these applications stand dismissed. (Pronounced in Court)
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2010 (11) TMI 921 - MADRAS HIGH COURT
Compliance with necessary requirements to import goods - Nickel Chloride - Copper Sulphate - confiscation - penalty - Held that: - Section 38(1)(b) of Insecticides Act, 1968 states that import of insecticides for non-insecticidal use is not subject to the restrictions contained in the Act - as regards Copper Sulphate and Nickel Chloride under import, there was no such requirement to obtain registration certificate or import permit for their import as per EXIM policy - confiscation and penalty set aside - appeal dismissed - decided against Revenue.
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2010 (11) TMI 920 - CESTAT MUMBAI
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... ... ..... ging in committing breach thereof. This Court would not be justified in invoking writ jurisdiction in favour of such persons. Writ jurisdiction is available to further the cause of regime of law, not to abrogate the same. In the facts of this case the consignments confiscated by the Customs authorities cannot be allowed to be released on the licence which were sought to be produced by the petitioners. The importers who are importing goods without licence and then seek to validate the import by obtaining subsequent licence or licences cannot be allowed to take advance of their own wrong. The petitioners are one of them”. The SLP filed by the assessee against the above decision was dismissed by the Apex Court. The above decision applies to the facts of this case. The redemption fine and penalty imposed are very reasonable in this case. Therefore, we do not find any infirmity in the orders of the Commissioner and accordingly they are upheld. 5. Appeals are dismissed.
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2010 (11) TMI 919 - CESTAT NEW DELHI
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... ... ..... perused the records. The terms of insurance policy relating to the nature of insurance and supply based on insurance policy are between the assessee - Appellant and insurance company. The show cause notice, order in original and order in appeal by the Commissioner (Appeals) clearly indicate that the appellants have taken credit on capital goods received along with duty paying documents. Who has funded the purchase of capital goods i.e. whether it was funded by the appellant or by the insurance company in view of special category of insurance policy, is not relevant to eligibility of credit on capital goods received by the appellants. Since the duty paid nature of the goods and the receipt of the same by the appellants for their use are not disputed, the denial of credit is not justified. 7. In view of the above, the order of the Commissioner (Appeals) is set aside and the appeal is allowed with consequential relief as per law. (Dictated and pronounced in the open Court)
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2010 (11) TMI 918 - CESTAT NEW DELHI
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... ... ..... cordingly rejected the Revenue’s appeal. Hence the present appeal. 6. After going through the impugned orders of the authorities below, I find that both the authorities i.e. original as well as appellate have come to a finding that inasmuch as there is no evidence on record indicating clandestine production, and shortages in physical stock and recorded balance has to be attributed to a number of factors like burning loss, entries in RG-1 register on estimated basis and sales on actual basis etc. The above findings of the authorities below do not stand effectively rebutted by the Revenue by production of any evidence to show that the shortages were on account of clandestine removals. In such a scenario, the findings of the authorities that it is a case of irregular maintenance of records cannot be faulted upon. Penalty of ₹ 15,000/- imposed by the authorities seems to be adequate. Accordingly, the appeal filed by the Revenue is rejected. (Pronounced in Court)
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2010 (11) TMI 917 - CESTAT MUMBAI
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... ... ..... t the respondents have failed to obtain necessary extension from the Asst. Collector. 7. I have gone through the Notification and as per the proviso, I find that this part is applicable where the assessee wants to re-export and if he has failed to re-export within six months and when not applied for extension of time to re-export. In this case, the facts are little bit different. At compelling circumstances, the respondents have not been able to re-export the said container hence they have opted to pay duty as per the above said Notification which has been paid by them. Hence the appellants have not violated any condition of the Notification. In these circumstances, confiscation of the impugned container is not justified. Consequently, the redemption fine and penalty is also not imposable. 8. With these observations, I do not find any reason to interfere with the impugned order and the same is upheld. The appeal filed by the Revenue is rejected. (Dictated in Court)
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2010 (11) TMI 916 - CESTAT NEW DELHI
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... ... ..... aid to the Government in accordance with the provisions of Section 11D of the Central Excise Act. This is not a case of non-levy, short-levy on non-levy short or erroneous refund of duty on account of any fraud, mis-statement, wilful suppression of facts, etc. on the part of the appellants. On being asked from the Departmental Representative, he fairly stated that there is no such allegation against the appellants. Since in this case, the appellants had complied with the provisions of Section 11D and there is no allegation of evasion of duty against them by taking recourse to fraud, wilful misstatement, etc. penalty under Section 11AC is not invokable and hence, the penalty under Section 11AC imposed on the appellants was not called for. The Commissioner’s order imposing penalty on the appellant under Section 11AC is, therefore, set aside and the impugned order stand modified accordingly. The appeal is allowed. (Operative part of the order pronounced in the open court)
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2010 (11) TMI 915 - CESTAT AHMEDABAD
CENVAT credit - manufacture of dutiable and exempted goods - non-maintenance of separate records - Rule 6(3)(b) of the Cenvat Credit Rules, 2002
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2010 (11) TMI 914 - CESTAT MUMBAI
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... ... ..... made by the learned JDR. For better appreciation the relevant provision of law is reproduced hereunder - “In the case of goods in respect of which the value stated in the entry made under this Act or in the case of baggage, in the declaration made under Section 77 (in either case hereafter in this section referred to as the declared value) is higher than the value thereof to a penalty (not exceeding the difference between the declared value and the value thereof or five thousand rupees) whichever is the greater”. The above provision provides the mandatory upper-limit of penalty viz., not exceeding the difference between the declared value and the value thereof for ₹ 5,000/-, whichever is greater. There is nothing in the above provision regarding the mandatory lower-limit for imposition of penalty. Therefore, I do not find any infirmity in the impugned order which is upheld. The Revenue’s appeal, devoid of merits, is dismissed. (Dictated in open Court)
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2010 (11) TMI 913 - CESTAT CHENNAI
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... ... ..... pellants, they would be trading the imported goods as such and passing on the credit of additional duty to their customers, which they are not doing. 6. In the light of the foregoing, we are of the prima facie view that the appellants have not made out a case for complete waiver of pre-deposit either on merit or on limitation. The learned Advocate has also not advanced any arguments regarding financial hardship though the appellants in their stay application have referred to the cash liquidity crunch they would face for generating funds to pay the demanded duty and penalty. 7. Considering the foregoing, including the plea of financial hardships raised in the stay petition, we direct the appellants to pre-deposit 25 of the duty amount within a period of eight weeks from today and report compliance on 7-2-2011. Subject to compliance with the above direction, pre-deposit of the balance amount shall remain waived during pendency of the appeal. (Pronounced in the Court)
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2010 (11) TMI 912 - CESTAT KOLKATA
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... ... ..... ship, especially when in an identical matter relating to earlier period, the Tribunal has granted waiver of predeposit. 9. We have gone through the balance sheet for the year, 2008-09. The applicant has income from sales amounting to ₹ 24.00 crores; they have reserve appropriated to the tune of ₹ 64.00 lakhs; they have bank deposits in Deposit Account and Current Account amounting to over ₹ 2.00 crores as on 31-3-2009. 10. In view of the above, we hold that it may not be appropriate to follow the earlier Stay Order and taking the entire facts and circumstances of the case into consideration, we direct the applicant to deposit a sum of ₹ 50 lakhs (Rupees fifty lakhs) within six weeks from today and to report compliance on 20-12-2010. Subject to predeposit of the amount, we waive the predeposit of the balance amount of duty, interest and penalty, till disposal of the appeal and stay recovery thereof. (Pronounced and dictated in the open court)
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2010 (11) TMI 911 - CESTAT NEW DELHI
SSI exemption - N/N. 8/2002-C.E. during 2002-03 and under N/N. 8/2003-C.E., dated 1-3-2003 - clubbing of clearances - whether the price charged from the customers is to be treated as cum-duty price and duty liability must be recomputed by determining the assessable value after abating the duty from the sale price? - Held that: - the price charged by an assessee from his buyer including the money value of the additional consideration, if any, flowing from the buyer of the assessee, is deemed to be including the excise duty payable on such goods, since the period of dispute in this case is 2004-05, i.e. after 13-5-2003 the explanation added to Section 4(1) with effect from 14-5-2003 has to be taken into account and accordingly the price realised by the assessee has to be treated as including excise duty and the assessable value has to be determined after abating the element of duty from the sale price. The Commissioner (Appeals), while deciding this point against the Appellant, has not considered the provisions of Explanation to Section 4(1) and hence the part of the impugned order disallowing the abatement of Central Excise duty from the price charged is not correct and the matter has to be remanded to the adjudicating authority for re-computing the duty demand by treating the price charged by the Appellant as cum-duty price and determining assessable value after abating the Central Excise duty - matter on remand.
Whether Penalty u/r 25(1) of CER, 2002 is imposable on the Appellant? - Held that: - From the language of clause (a) (b) and (c) of Rule 25(1), it will be seen that for imposition of penalty for contraventions mentioned in these clauses, “intention to evade the payment of duty” is not required and mere contravention of the provisions of the Central Excise Rules or of the notification issued under the rule is sufficient for attracting penalty - Since in this case, the goods were cleared by the Appellant during April 2004-Jan. 2005 paid without discharging duty liability and thereby contravening the provisions of Rules 4, 6 & 8 of the CER, and this contravention has not been disputed, penalty under Rule 25(1)(a) would be attracted - penalty upheld.
Appeal disposed off - part matter on remand and part matter decided against assessee.
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