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Showing 201 to 220 of 686 Records
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2006 (2) TMI 527 - CESTAT, NEW DELHI
Valuation - Cost of packing whether includible ... ... ... ... ..... 36. 9. emsp We have gone through the order passed by the Tribunal. In Para 5, the Tribunal specifically noted the contention of the appellant where the reliance was placed on letter dt. 15-12-70, 1-2-71 and 2-4-71 and other evidence produced by the appellant and after going through the evidence, the Tribunal rejected the claim and held that value of gunny bags used for packing of soda ash manufactured by the appellant are includible in the assessable value of soda ash. The same evidence is now relied upon by the appellant before us to show that there was arrangement for return of the packing material. We find that on appreciation of the same evidence, the Tribunal in appellant rsquo s own case for the subsequent period rejected the claim and held that there was no arrangement for return of durable packing. Therefore, we find no infirmity in the impugned order whereby this finding is arrived at for the present period. The appeal is dismissed. (Order dictated in the open Court)
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2006 (2) TMI 526 - CESTAT, MUMBAI
Refund - Duty paid on short-shipped goods ... ... ... ... ..... ns of the Tribunal in support of the rejection of refund claim in similar cases - (i) Uniferro International Ltd. v. CC, Bombay - 1986 (26) E.L.T. 652 (Tri) (ii) Tata Hydro Electric Power Supply Co. Ltd. v. CC ACC, Mumbai - 2003 (161) E.L.T. 1028 (Tri). (iii) CC, Madras v. Guindy Machine Tools Ltd. - 2004 (171) E.L.T. 424 (Tri). 4. emsp After going through the case records and cited case laws and considering submissions from both sides, I find that the impugned goods were assessed on second check basis and no shortage was detected or reported before out-of-charge was given from customs control. Therefore, I am of the view that no refund can be allowed in this case. My view as above, finds support in the Tribunal rsquo s decisions in the case of Guindy Machine Tools (cited supra), where it was held that the subsequent supply of short-shipped goods by the supplier would not render the importer eligible for refund of duty. Accordingly, the appeal is rejected. (Dictated in Court)
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2006 (2) TMI 525 - CESTAT, CHENNAI
Interest on demand ... ... ... ... ..... the amount paid by the person under this sub shy section and also on the amount of short payment of duty, if any, as may be determined by the Central Excise Officer, but for this sub-section. rdquo It is clear from the above Explanation that, in respect of an amount of duty paid by a person prior to issuance of show cause notice under sub-section (2B) of Section 11A, interest is leviable under Section 11AB. The decisions cited by learned Counsel were rendered in respect of periods prior to 11-5-2001 and without reference to sub-section (2B) along with Explanation (2) ibid. 5. emsp In the result, the Revenue rsquo s appeal succeeds insofar as claim for levy of interest on duty paid for the period from 11-5-2001 is concerned. To this extent, the impugned order stands set aside. The original authority shall demand the correct amount of interest from the respondents in terms of this order. 6. emsp The appeal is allowed to the above extent. (Pronounced in open Court on 13-2-2006)
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2006 (2) TMI 524 - CESTAT, NEW DELHI
Cenvat/Modvat - Capital goods ... ... ... ... ..... ies on the decision of the Tribunal in the case of Dewas Metals Section Ltd. v. C.C.E. - 2002 (148) E.L.T. 1165. 6. emsp A perusal of the records makes it clear that the invoices in question had mentioned the unit claiming the credit. Further, is no dispute about the receipt of the goods in the claiming unit as well as its eligibility. To a case like this, the Tribunal rsquo s decision in the case of Snow Cem India Ltd. is applicable. The decision in the case of Dewas Metal Section Ltd. does not seem to be relevant inasmuch as in that case all the invoices were in the name of ldquo some other party rdquo i.e. party other than the one claiming credit. Here, the buyer is the same, namely, A.C.C. Ltd. as the one claiming Modvat credit (a multi unit factory). In these circumstances, the denial of credit is not justified. Appeal is allowed with consequential relief to the assessee. 7. emsp Both the appeals are disposed of as indicated above. (Dictated and pronounced in open Court)
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2006 (2) TMI 523 - CESTAT, BANGALORE
Order beyond show cause notice not sustainable ... ... ... ... ..... agraph 60 of the Order-in-Original wherein the Commissioner has dropped the duty demand. Hence, no penalty can be levied under Section 112 of the Customs Act. He said that the case laws relied on by the Commissioner for non-invocation of Section 114 are not relevant to the facts of this case. 6. emsp The learned Departmental Representative contended that the Commissioner has rightly imposed the penalty on the appellant under Section 114 of the Customs Act, 1962. 7. emsp We have gone through the records of the case carefully. The department has committed a serious blunder in not invoking the relevant Section 114 for imposing penalty on the appellant in the show cause notice. Therefore, the invocation of the Section in the Order-in-Original amounts to going beyond the scope of the show cause notice. On this legal point, the Order-in-Original is not sustainable. Hence, we allow the appeal with consequential relief. (Pronounced in the Court on 13-2-2006, on completion of hearing)
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2006 (2) TMI 522 - CESTAT, MUMBAI
Refund - Unjust enrichment, Bar of ... ... ... ... ..... , it is not in dispute that the contract was renewed for this period for supply Rs. 13,282/- PMT and that the appellants have paid back the excess amount and excess duty to M/s. CIL. Hence, the impugned order passed by the lower appellate authority allowing the refund to the appellants appears to be in order and is also in confirmity with the precedent decisions of the Tribunal cited by him. Hence, the same requires no interference. 2. emsp Accordingly, the department rsquo s appeal is dismissed. The stay application also stands disposed off. (Dictated in Court)
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2006 (2) TMI 521 - CESTAT, BANGALORE
Penalty - Duty paid before issue of show cause notice - Judicial discipline - Precedent ... ... ... ... ..... -ordinate court or Tribunal or High Court to distinguish a judgment of the Apex Court, which has reached finality on the same issue. Once the Apex Court has confirmed the view of the Tribunal on the point that penalty is not required to be levied when duty has been paid before the issue of the show cause notice, then it is not proper for the Tribunal to over-rule the Larger Bench judgments rendered in the case of Machino Montell (I) Limited and the Rashtriya Ispat Nigam Ltd. and also Karnataka High Court judgment rendered in the case of Shree Krishna Pipes Industries. As a sub-ordinate court, I am bound by the judgment of the Karnataka High Court as well as the Larger Bench of the Tribunal and the Supreme Court judgments rendered in the case of Rashtriya Ispat Nigam Ltd. The order passed by the Commissioner (A) imposing penalty in the present case is not as per law and hence the impugned orders are set aside by allowing all the appeals. (Pronounced and dictated in open Court)
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2006 (2) TMI 520 - CESTAT, NEW DELHI
Stay/Dispensation of pre-deposit - Compounded levy scheme ... ... ... ... ..... A/1444-1446/WZB/2005/C-III dated 12-8-2005 held that such scheme has been omitted, therefore, no recovery can be made under the scheme. The applicants relied on the Stay Order Nos. S/86/WZB/MUM/2005/C-III dated 17-8-2005 whereby following the decision in the case of Mitra Steel and Alloys Pvt. Ltd. v. C.C.E., Raigad, the stay petition was allowed. In this case, the amount already deposited is sufficient for hearing of the appeal. The pre-deposit the remaining amount of duty and penalty is waived. Stay petition is allowed. (Dictated and pronounced in open court)
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2006 (2) TMI 519 - CESTAT, NEW DELHI
Cenvat/Modvat - Proforma credit ... ... ... ... ..... condition that no credit of duty is taken under Rule 56A. The contention of the learned counsel is that once the notification specifically recognizes the alternate benefit under Rule 56A, the assesses were are at liberty to either follow 56A procedure or to avail of Notification 70/94. Learned counsel also submits that the decision of the Commissioner (Appeals) is based on the judgment of the Supreme Court in the case of Formica India Division. 4. emsp We find that during the entire period, the assesses were at liberty to either work under 56A or to pay duty at the notified rate. Reference in Notification No. 70/94 to Rule 56A makes it clear that even during the validity period of that notification, Rule 56A option was available to an assessee. In the present case, the appellant is only claiming the benefit of Rule 56A in regard to inputs received by them. There is no error in the order of the Commissioner. Appeal fails and is rejected. (Dictated and pronounced in open Court)
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2006 (2) TMI 518 - CESTAT, BANGALORE
Valuation of crude petroleum - demand - Bill of Lading quantity - Whether the actual freight paid to the shipping company or the freight in respect of the quantity received in the shore tank is to be taken for assessment purposes - HELD THAT:- In the present case, the price actually paid or payable is on the basis of the Bill of Lading quantity. On account of the losses, the appellant is not entitled for any reduction in price. In that case, the amount paid or payable on the Bill of Lading quantity is the transaction value for the purposes of Customs duty irrespective of the fact that the quantity received in the shore tank is different from the Bill of Lading quantity. In a product like petroleum crude, due to various causes, losses occur. This is considered natural. That is the reason for not giving any reduction in the price payable. In these circumstances, there is absolutely no provision to reduce the value to that attributable to the quantity received in the shore tank. It was contended by the learned Advocate for the appellants that in certain cases, the quantity received is more and they are paying more duty. We feel that even in those cases where the quantity received is more, it is enough if the appellants discharge duty liability on the actual amount paid on the basis of the Bill of Lading quantity. There is no legal sanction for collecting more duty when the levy is ad valorem.
The learned Advocate further contended that if the stand of the Revenue is accepted, Sections 13 & 23 of the Customs Act would be rendered redundant. We do not agree. Section 13 of the Customs Act makes a provision for waiver of duty on goods pilferaged after their unloading and before the proper officer has made an order for clearance for home consumption or deposit in a warehouse. But if the goods are restored to the importer after pilferage he has to discharge the duty liability. In order to emphasis the point that no duty need be paid on goods not received, the learned Advocate has referred to Section 13 & Section 23. We want to make it clear that it is not the question of demanding duty on goods not received. But it is the demand of duty on the transaction value. In spite of the ocean loss, the appellant has to make payment on the basis of the Bill of Lading quantity. Therefore this is the case where the transaction value arrived at based on the Bill of Lading quantity is payable as price for the quantity received in shore tank.
The learned Advocate for the appellants and the learned Consultant for the Revenue both pleaded that if their contentions are not accepted, the issue may be referred to a Larger Bench. We hold that this Bench in the appellant’s own case [2002 (1) TMI 114 - CEGAT, BANGALORE] in the Final Order, has decided the issue only in the context of specific rate of duty. In other words, the said decision did not decide the question of transaction value on the basis of levy on ad-valorem basis. We hold the view that so long as the appellants make payment on the basis of Bill of Lading quantity, there is no case for determining the value for assessment purpose on the basis of quantity received in shore tanks. This is in consonance with the decision in the case of Exim India Oil Co. Ltd. [2000 (12) TMI 169 - CEGAT, KOLKATA]. In no way, this decision is contradictory to the decision of the Final Order for the simple reason that the earlier order is applicable only when the duty at specific rate.
Therefore, we are inclined to dismiss the appeal of M/s. MRPL. However, the learned Advocate pointed out that lot of mistakes crept in the calculation of duty liability. Therefore while upholding the decision of the adjudicating authority, we remand the matter only for proper computation of duty liability on the basis of the payment made by the appellants to M/s. IOC based on Bill of Lading quantity. We dispose of the appeal in the above terms.
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2006 (2) TMI 517 - CESTAT, BANGALORE
Stay/Dispensation of pre-deposit - Cenvat/Modvat ... ... ... ... ..... No. 97/2005-CE dated 20-9-2005 passed by the same Commissioner dismissing the Revenue rsquo s appeal on this point. He submits that the matter pertains to Single Member Bench and it can be taken up for out of turn hearing on 10-2-2006. 2. emsp Heard learned SDR who does not oppose the prayer for listing the matter for out of turn. 3. emsp On a careful consideration, we notice that in terms of Rule 9, the credit has already lapsed in respect of use of the inputs in Work in progress. They have not utilized the credit. Therefore, the question of depositing the duty does not arise. On the same point, the Commissioner (Appeals) has dismissed the Revenue rsquo s appeal. The appellants have made out a strong case for grant of waiver of pre-deposit and stay of its recovery. The stay application is allowed. Matter to come up for hearing before Single Member Bench on 10th February, 2006. There shall be no recovery till the disposal of the appeal. (Pronounced and dictated in open Court)
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2006 (2) TMI 516 - CESTAT, NEW DELHI
Valuation - Captively consumed goods - Demand - Limitation ... ... ... ... ..... sale prices are very close to the costs of production. In the circumstances, the appellant rsquo s submission regarding limitation merits acceptance. 4. emsp There is also merit in the contention that overall profit of a manufacturer cannot be the basis for valuation of a captively consumed item. Such inclusion is contrary to the provision of Rule 6(b)(2) of the Central Excise Valuation Rules, 1975. That Rule speaks of ldquo profit, if any, that would have normally been earned on the sale of such goods rdquo . Thus, what is relevant is the profit earned on the sale of such goods. Overall profitability or loss of a manufacturer is altogether irrelevant. This position remains confirmed by the decision of the Larger bench of the Tribunal in the case of Raymonds Limited v. Commissioner of C. Ex., Aurangabad 2001 (129) E.L.T. 327 (Trib.-LB) 5. emsp In view of what is stated above, the appeal succeeds and is allowed after setting aside the impugned order. (Pronounced in the Court).
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2006 (2) TMI 515 - CESTAT, BANGALORE
Confiscation, fine and penalty ... ... ... ... ..... the facts of the case we do not find that there is any substance in the charge that the appellants had mis-declared the description of the goods. They filed the documents on the basis of the load port certificate and the contract. Even the Port Health Officer stated that the goods are of edible grade. When the results were different after test by the Chemical Examiner, Visakhapatnam, the appellants made all arrangements for re-export of the goods. In these circumstances, the bonafides of the appellants cannot be doubted. Hence, the imposition of fine and penalty on the appellants is not justified. No doubt the first appellant is liable to pay differential duty on the 500 MTs of oil already cleared, to this extent, the Order of the Original Authority is confirmed. As per the request of the appellants, the goods may be re-exported without payment of fine and penalty. Thus, we allow the appeals with consequential relief as mentioned above. (Pronounced in open Court on 3-2-2006)
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2006 (2) TMI 514 - CESTAT, BANGALORE
Demand, interest and penalty - Cenvat/Modvat ... ... ... ... ..... ea that the officers were visiting the unit and no irregularity was pointed out. Inasmuch as the Adjudicating Authority has given a finding that R and D is not an integral part of the manufacture and in the absence of evidence that the R and D activity resulted in the manufacture of final product, on which duty has been paid, the appellants are liable to pay the irregular Modvat credit availed. Hence, the confirmation of an amount of Rs. 38,91,220/- (Rupees Thirty Eight Lakhs Ninety One Thousand Two Hundred Twenty only) is upheld. However, the penalty under 57-I is limited to Rs. 4,00,000/- (Rupees Four Lakh Only). Interest under 57-I(5) is also confirmed. The penalty on M/s. Plant Organics is reduced to Rs. 50,000/- (Rupees Fifty Thousand Only) under Rule 173Q(1)(bb) of the CE Rules. Having record to facts and circumstances of the case, the penalty on Shri V. Rama Krishna Rao is set aside. The appeals are disposed of in the above terms. (Pronounced in open Court on 3-2-2006)
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2006 (2) TMI 513 - CESTAT, BANGALORE
Stay/Dispensation of pre-deposit ... ... ... ... ..... ce from the Tribunal. 2. emsp The learned Counsel submits that the amounts are less and the Commissioner has decided the issue in light of the several Tribunal rulings and he submits that the stay application be rejected. 3. emsp On a careful consideration, we notice that the matter has been referred to the Tribunal by the High Court to answer the question. In that view of the matter, the stay application is allowed by staying the operation of the impugned order. The appeal to come up in its turn. (Pronounced and dictated in open Court)
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2006 (2) TMI 512 - CESTAT, NEW DELHI
Stay/Dispensation of pre-deposit - Cenvat/Modvat ... ... ... ... ..... e definition of inputs under Rule 2 states that ldquo inputs includes goods used in the manufacture of capital goods which are further used in the factory of the manufacturer. rdquo It is not in dispute that all these items are used in the factory of the manufacturer i.e. applicants. The applicants have made out prima facie case for waiver of pre-deposit of duty and penalty. Pre-deposit of duty and penalty is waived and recovery thereof is stayed till the disposal of the appeal. (Dictated and pronounced in the Open Court.)
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2006 (2) TMI 511 - CESTAT, MUMBAI
Res judicata - Interest on demand ... ... ... ... ..... e decision of such issues. rdquo 7. emsp The aforesaid notes given under the ratio decidendi connotes the principle of res judicata between parties and their successors and cannot be the subject of further dispute. In the instant case the subject matter in both writ petitions is one and the same. The contention of the appellants that the strictures passed by the Hon rsquo ble High Court in the earlier writ petitions cannot be applicable to them, is not correct. The Hon rsquo ble High Court while dismissing the writ petition of the appellants observed that this matter is squarely covered by the decision in Parekh Prints and others v. Union of India. Accordingly dismissed on the same terms. Thus, I find nothing erroneous in the observations made by the Commissioner (Appeals) while rejecting the appeal filed by the appellants and upholding the order in original. The contentions of the appellants do not stand to the merits. Hence the appeal is dismissed. (Pronounced in the Court)
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2006 (2) TMI 510 - ITAT DELHI
Business expenditure ... ... ... ... ..... e doubted. In the present case, the machinery sold at Rs. 1.5 crores to India Securities Ltd. was reduced by the assessee-company from its block of assets thereby giving up a claim of depreciation at 100 per cent thereon and the deduction claimed by it in respect of the lease rent paid for the said machinery being much less than the claim of depreciation so given up, it cannot be said by any stretch of imagination that it was a colourable device to defraud the Revenue. As such, considering all the facts of the lease, we are of the view that the genuineness of the lease transactions in question was duly established by the assessee on evidence and the learned CIT(A) was fully justified in directing the Assessing Officer to allow the claim of the assessee for lease rent paid in respect of such transaction. In that view of the matter, we uphold his impugned order on this issue and dismiss this appeal filed by the Revenue. 10. In the result, the appeal of the Revenue is dismissed.
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2006 (2) TMI 509 - ITAT DELHI
Educational institutions, Assessment - Issue of notice ... ... ... ... ..... ound Nos. 3 to 6 in appeals for other assessment years are allowed in favour of the assessee. 75. Ground No. 6 in assessment year 1995-96 and ground No. 8 in all other appeals challenge the levy of penalty under section 271(1)(c). It is alleged that the learned CIT(A) has exceeded his jurisdiction in regarding his satisfaction with respect to the levy of penalty under section 271(1)(c). 76. In view of our findings on various grounds, it is clear that the assessee-society is entitled to exemption under section 10(22) of the Income-tax Act and income cannot be assessed in the hands of the assessee as done in these cases. So far as the initiation of penalty under section 271(1)(c) is concerned, the issue has become totally non-significant and irrelevant and the same cannot be decided in these appeals. These grounds are, therefore, disposed of accordingly. 77. In the result, all the appeals of the assessee are allowed in the manner as above as indicated in the body of this order.
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2006 (2) TMI 508 - ITAT BANGALORE
Capital gains - Exemption of, in case of investment in residential house, Undisclosed investments
............
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