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Case Laws
Showing 201 to 220 of 604 Records
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2005 (5) TMI 493 - CESTAT, BANGALORE
Demand - SSI Exemption - Value of clearances ... ... ... ... ..... bmitted that they had already paid the duty on those goods and have indicated the Gate Pass Nos. and date, which has already been given in the appellant rsquo s submissions. In view of this we hold, that duty cannot be demanded second time. Since we have held that the goods under seizure form part of the goods already cleared on payment of duty the demands for the period 1985-86 and 1986-87 are not tenable. They are also set aside. As regards the permission for utilising Rs.16.00 lakhs in foreign exchange, in our view, the same cannot be considered as an additional consideration. It is only a transfer of permit. In view of the observations the duty liability if any, on the appellants has to be recalculated. Since there is no finding of removal with an intention to evade payment of duty the confiscation of the goods/vehicle seized and consequent imposition of fine and penalty is set aside. The appeal is disposed of in the above terms. (Pronounced in open Court on 13 May, 2005)
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2005 (5) TMI 492 - CESTAT, NEW DELHI
Rectification of mistake - Valuation ... ... ... ... ..... e to so-called sister-concern and based on this submission, we accepted the contention that there was no undervaluation. Today, when this application came up, the ld. Consultant appearing for the assessee has also produced invoice No. 4059, dated 10-1-2002 relating to sale to Asian Health Food (unconnected buyer) and sale invoices to Acqua Mineral (a connected party). Thus, the submission remains substantiated by documentary evidence also. The ld. Consultant has also pointed out that the present objection is a new ground and that the objection of the Revenue in the proceedings before the lower authorities was that the appellant was buying the same goods at a higher price from other parties. Purchase at a higher price from another manufacturer is by itself, no ground for a finding of undervaluation of goods. emsp 2.In the above circumstances, we find no reason to interfere with our earlier order. The application is rejected. (Dictated and pronounced in open Court on 13-5-2005)
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2005 (5) TMI 491 - CESTAT, NEW DELHI
Interest - Wrong availment of Cenvat/Modvat credit on HSD oil ... ... ... ... ..... ociated Cement Cos. Ltd. reported in 2005 (180) E.L.T. 3 wherein credit on HSD oil which was permissible prior to the amendment of Rule 57B was taken/availed by the assessee and the dispute relating the validity of the amendment, went up to the Apex Court who ultimately decided the issue in favour of the Government. However, the Apex Court regarding the liability of the assessee to make payment, observed as under ldquo The time to make payment under Section 112(2)(b) of the Finance Act has to commence from the date of the review order of this Apex Court rdquo . 3.Therefore, the demand of interest by the Revenue from the date of retrospective amendment of Rule 57B is not legally tenable. The interest is payable by the appellants after one month of the date of dismissal of their writ petition by the Hon rsquo ble High Court till the date of payment. The impugned order stands accordingly modified. The appeal of the appellants stands disposed of. Order dictated in the open Court.
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2005 (5) TMI 490 - CESTAT, CHENNAI
Cenvat/Modvat - Capital goods ... ... ... ... ..... specified in the Schedule to Central Excise tariff Act 1985 (5 of 1986) other than the following namely (i), (ii) and (iii). 2. All goods falling under Chapter 84...................................... 3. All goods falling under Chapter 85 (other than those falling under Heading Nos. 85.09 to 85.13, 85.16 to 85.31, 85.39, 85.40. It is clear from the above provision that, for the purpose of availment of Modvat credit on any capital goods, the manufacturer of final products should only show that the capital goods is one specified in Column (2) of the Table annexed to sub-rule (1) of the Rule and was used in his factory. Nothing contained in the above rule qualified ldquo use rdquo of the capital goods in anyway. Therefore, the Revenue rsquo s contention that the telephone cable should have been used for the manufacture of final products cannot be accepted. 4.In view of the above, the impugned order is set aside and this appeal is allowed. (Dictated and pronounced in open Court)
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2005 (5) TMI 489 - CESTAT, KOLKATA
Stay/dispensation of pre-deposit - Demand and penalty ... ... ... ... ..... be granted unconditional stay in their favour. emsp 2.Learned D.R. insists for payment of entire duty and penalty. emsp 3.In present case the unutilized inputs are lying in the factory. It is upto appellant to declare this or get it destroyed with the permission of the authority concerned. In view of above, the recovery of duty and penalty is stayed till further order. Case to come up for regular hearing on ..... Pronounced in the open court.
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2005 (5) TMI 488 - CESTAT, NEW DELHI
Stay/Dispensation of pre-deposit ... ... ... ... ..... hat the concerned authorities of the Department are bound to follow these directions of the Board and, therefore, no coercive action will be taken. In this view of the matter, the question of staying the impugned order will not arise so long as the Circular of the Board applies to the present case. 2.The learned Counsel for the applicant states that in view of this statement, he does not press for stay, in all these stay applications, at this stage. All the stay applications therefore stand disposed of as not pressed. The learned Counsel states that the applicants reserve their liberty to file fresh applications. (Order dictated and pronounced in open Court on 12-5-2005).
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2005 (5) TMI 487 - CESTAT, BANGALORE
Stay/Dispensation of pre-deposit ... ... ... ... ..... terms of Section 112(a)(iii) of the Service Tax Act (sic) the person, who pays freight either himself or through his agent for the transportation of goods by road in a goods carriage is liable to pay service tax. The Commissioner has held the appellants to be agent which the appellants are denying and contesting. They contend that they are manufacturers and not agents for transportation of goods to the purchasers. 2.We have heard both sides. Prima facie, we find force in the appellants rsquo submission that they are manufacturers and suppliers of transformers. They have not acted as ldquo agent for the transportation of goods by road in a goods carriage rdquo in terms of proviso (iii) of Section 112(a) of the Service Tax Act. As the appellants have a strong prima facie case, the stay application is allowed unconditionally granting waiver of pre-deposit and staying recovery till the disposal of the appeal. Appeal to come up in its turn. (Pronounced and dictated in open Court)
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2005 (5) TMI 486 - CESTAT, NEW DELHI
Stay/Dispensation of pre-deposit - Cenvat/Modvat - Duty paying documents ... ... ... ... ..... r Bill of Entry or any other documents as may be prescribed under Rule 57Q of the Central Excise Rules evidently payment of duty. The contention is that for taking credit in respect of inputs, there is a specific provision under Rule 57G of the Central Excise Rules that credit can be taken only on the strength of triplicate copy of the Bill of Entry, whereas no such provisions under the Rules in respect of the credit on capital goods. 4.To counter the arguments, the Revenue relied upon the provisions of Rule 57G of the Central Excise Rules. Prima facie, we find that under Rule 57G of the Central Excise Rules relates to the credit in respect of inputs and under Rule 57T of the Central Excise Rules in respect of capital goods, only Bill of Entry is mentioned. In these circumstances, prima facie, we find that appellants had a strong case in their favour. Therefore, the pre-deposit of whole of the duty and penalty is waived for hearing of the appeal. The Stay petition is allowed.
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2005 (5) TMI 485 - CESTAT, MUMBAI
Cenvat/Modvat - Delay in filing declaration for availment of Modvat credit ... ... ... ... ..... r decision on merits. Proforma credit was availed in May 1994 and June 1994, which during the period from 20-5-94 to 6-6-94 has been held to be inadmissible on the ground that the proforma credit scheme had come to an end on 20-5-94 and even though Modvat scheme had been introduced with effect from the same date, the appellants instead of filing Rule 57A declaration for availment of Modvat credit, filed deduction for availment of proforma credit. I note that Modvat declaration under Rule 57A was filed by the appellant in June 1994 and the delay in filing the declaration was condoned. There is no other dispute namely as to the duty paid nature of the inputs and the use thereof in the manufacture of final product of the appellants. Therefore substantive right to earn Modvat credit cannot be denied, particularly when the delay in filing Modvat declaration has been condoned. emsp 4.I therefore set aside the impugned order and allow the appeal. (Operative part pronounced in Court)
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2005 (5) TMI 484 - CESTAT, MUMBAI
Cenvat/Modvat ... ... ... ... ..... sted right, although it was raised before the Commissioner, no finding has been recorded thereon by the Adjudicating Authority. The first argument viz. that of recasting of accounts does not appear to have been raised by the appellants before the Commissioner but since it is a legal plea the appellants are permitted to raise it before us. In the absence of any finding on these two contentions, as regards the demand of basic excise duty, we see no alternative but to remand the case to the jurisdictional Commissioner for fresh decision in the interest of justice, on the appellants rsquo stand that basic excise duty liability is not sustainable in view of their submissions. He shall pass fresh orders after extending them a reasonable opportunity of being heard in their defence. emsp 8.In the result we set aside the demand of additional duty of excise and remand the issue of liability to basic excise duty to the Commissioner as above. emsp 9.The appeal is disposed of accordingly.
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2005 (5) TMI 483 - CESTAT, BANGALORE
Valuation - Discount ... ... ... ... ..... venue that there is some flow back from M/s. RIL to the appellants. Even if the higher discount is disallowed, the duty paid by the appellants would be taken as Cenvat by M/s. RIL. Thus the entire exercise appears to be revenue neutral. There is no justification for invoking the longer period as there is no suppression of facts. The appellants have not suppressed the price at which the goods have been sold to their customers. The case laws relied on by the appellants are very relevant. Summing up, in view of the fact that the price at which the tips were sold to M/s. RIL compares favourably with that charged by the other manufacturers of tips, we hold that the discount of 58 allowed to M/s. RIL is admissible as per Section 4 of the Central Excise Act. There is no evidence to show that the transactions are not at arms length. For the reasons stated above, longer period is not applicable. Hence we allow the appeal with consequential relief. (Pronounced in the court on 9-5-2005)
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2005 (5) TMI 482 - CESTAT, BANGALORE
Exemption Notification ... ... ... ... ..... ioner rsquo s finding that the end use consumption certificate cannot be accepted as which has been produced belatedly is concerned, we are of the considered opinion that such strict restriction cannot be laid down. Production of end use consumption certificate is a procedural requirement and so long as the same has been produced, the benefit of the exemption notification cannot be denied as has been consistently held by the Tribunal and High Courts. Therefore, the impugned order is modified to the extent that assessee is eligible for availment of benefit of notification to the extent of 551.760 MTs of steel melting scrap out of 974.710 MTs imported by them in terms of Notification No. 83/90-Cus., dt. 23-3-90. They are not eligible to avail the benefit for the balance quantity of steel melting scrap lying unutilized. The impugned order is modified accordingly. The appeal is partly allowed. (Operative portion of this Order was pronounced in open court on conclusion of hearing)
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2005 (5) TMI 481 - CESTAT, NEW DELHI
Cenvat/Modvat - Capital goods ... ... ... ... ..... the Table below Rule 57Q. The goods were specified chapterwise/headingwise of the Schedule to the Central Excise Tariff Act. Serial Nos. (i) to (iv) of the Table specify the goods falling under Chapter Nos. 82, 84, 85 and 90 of the Tariff respectively. Serial No. (v) of the table mentions Components, spares and accessories of the goods specified at serial Nos. (i) to (iv). Serial No. (vi) refers to ldquo Moulds and dies rdquo . As Moulds and dies are specified at serial No. (vi) of the Table without mentioning components/parts thereof, the Respondents are not eligible to take Modvat credit of the specified duty paid on such components since components of moulds have not been specified in the Table given below Rule 57Q of the Central Excise Rules, 1944. Accordingly, I set aside the impugned Order as far as it allows the Modvat credit in respect of components of moulds. No penalty is, however, imposable in the present matter. The appeal is thus disposed of in the above manner.
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2005 (5) TMI 480 - CESTAT, MUMBAI
Valuation - Related person ... ... ... ... ..... nd the Show Cause Notice issued is was submitted by the ld. Advocate for the appellant, but also the reasoning adopted by the Commissioner is not as per the law laid down by the Apex Court as regards valuation under the Central Excise Act, 1944 in the case of Metal Box India Ltd., 1995 (75) E.L.T. 449. In this case, while approving the decision of the Gujarat High Court in the case of Gujarat State Fertilizers Ltd., 1980 (6) E.L.T. 397 wherein the concept of lsquo uniformity rsquo was not upheld as no such basis found in Section 4, The Apex Court also held that a bulk buyer when he gets special discount cannot be treated as viewed by the Commissioner to reload the price for the purpose of duty by notional value in view of the settled position of law and the fact that the Commissioner has proceeded beyond the issue raised in the Show Cause Notice, order cannot be sustained. The same is set aside except as regards the finding on related person. 2.Appeals allowed in above terms.
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2005 (5) TMI 479 - CESTAT, CHENNAI
Stay/Dispensation of pre-deposit - Demand ... ... ... ... ..... f case law. It is submitted by ld. DR that what does not amount to manufacture is cutting-to-size of marble slabs and not cutting of blocks into slabs. In the instant case, it is pointed out, blocks of granites are cut into slabs and one side thereof is polished by using imported raw materials. There is no dispute regarding the nature of this activity performed by the appellants. Prima facie, the plea of non-excisability is not acceptable. The appellants are, therefore, directed to pre-deposit the amount of duty within 4 weeks and report compliance on 24-6-2005. There will be waiver of pre-deposit and stay of recovery in respect of the amount of penalty imposed on them. (Dictated and pronounced in open Court)
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2005 (5) TMI 478 - CESTAT, NEW DELHI
Demand - Failure to pay duty as per approved price list ... ... ... ... ..... authorities have examined the correctness of the demand as per settled legal position. The contention of the Revenue is that against the approval of price list the respondents had not filed any appeal, therefore, they are liable to pay as per approved price list and this demand is only in respect of the duty as per the approved price list. 3.We find that in this case in pursuance to the price list, the demand was made in respect of the goods cleared by the respondents. The respondents had not challenged the approved price list, therefore, consequentially the demand is justified. In these circumstances, we find that the finding of the Commissioner (Appeals) is that in absence of challenge to the approval of price list, the assessee can challenge the approval of price list in the consequentially demand are not sustainable and set aside. The appeal is allowed. The cross-objections filed by the respondents are also disposed of. (Dictated and pronounced in open Court on 6-4-2005)
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2005 (5) TMI 477 - CESTAT, NEW DELHI
Stay/Dispensation of pre-deposit - Cenvat/Modvat - Duty paying documents ... ... ... ... ..... sfer the goods, a declaration by the manufacturer/importer can be made on the reverse of triplicate copy of Bill of Entry/duplicate copy of the Bill of Entry generated on EDI system by the manufacturer/importer that consignments are being delivered to the unit (name of the unit) for availing credit and endorsed by the Proper Officer of Customs for enabling the manufacturing unit to avail credit. rdquo As the appellants availed the benefit of credit on the strength of endorsed Bills of Entry on which no endorsement is made by the Customs Officer regarding diversion/transfer of the goods, therefore, prima facie, it is not a fit case for total waiver of duty and penalty. Taking into facts and circumstances of the case, the appellants are directed to deposit Rs. 20 lakhs (Rupees twenty lakhs only) within a period of eight weeks. On deposit of the above-mentioned amount, the pre-deposit of duty and penalty is waived for hearing of the appeal. Adjourned to 12-7-2005 for compliance.
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2005 (5) TMI 476 - CESTAT, CHENNAI
Penalty - Interest on demand ... ... ... ... ..... C being invoked for penalizing the party for their fraudulent act. This argument was rejected by the Larger Bench which held that, whatever be the circumstances, no penalty was imposable on an assessee under Section 11AC, where the duty was paid prior to the issuance of the show cause notice. The facts of the instant case squarely attract the Larger Bench decision. emsp 3.For the reason noted above, the penalty imposed on the appellants under Section 11AC is vacated. The question, which remains to be examined is whether interest on duty, was demandable from the appellants under Section 11AB of the Act. Both Sections 11AB and 11AC were enacted simultaneously and were intended to be applied to similar set of facts. Where Section 11AC is not applicable, Section 11AB also is inapplicable. Therefore, the demand of interest under Section 11AB is also vacated. 4.In the result, the impugned order stands set aside and the appeal stands allowed. (Dictated and pronounced in open Court).
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2005 (5) TMI 475 - CESTAT, BANGALORE
Cenvat/Modvat - Duty paying documents ... ... ... ... ..... 29,980/-, which has already been paid. On the issue pertaining to taking Modvat credit on the documents issued by the Dealers who were not Registered one, we find that the provision for availing credit on the basis of documents issued by Registered Dealers was introduced only on 4-7-1994 while the period in question is April, 1994 to June, 1994. Therefore, the findings recorded by the Commissioner that the documents are all in the prescribed format and merely because the documents referred to Stock Transfer Memos instead of ldquo invoices rdquo is no ground to deny the Modvat credit as all the prescribed statutory details were available in the document. The Commissioner rsquo s findings on time bar is a correct finding as all the details were furnished and there is no suppression of facts. We do not find any infirmity in the order and hence confirm the same by rejecting the Revenue appeal. (Operative portion of this Order was pronounced in open court on conclusion of hearing)
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2005 (5) TMI 474 - CESTAT, NEW DELHI
Confiscation of gold ... ... ... ... ..... gold ornaments could not be legally confiscated as the possession of the same is not prohibited under any provision of law. Mere non-accountability of the same did not attract the provisions of Section 110 of the Act. Therefore, the impugned order regarding the absolute confiscation of these goods is set aside. 4.The confiscation of the motorcycle which was with the appellants at that time, in my view, has been wrongly ordered as the motorcycle belonged to another person, Shri Amit Kumar, to whom no notice had been given before ordering the confiscation. Therefore, the impugned order in this regard is set aside. 5.Keeping in view the facts and circumstances of the case, the personal penalties on both the appellants are also reduced to Rs. 10,000/- (rupees ten thousand only) each. The impugned order accordingly stands modified. The appeals of the appellants stands disposed of in the above terms with consequential relief, as per law. (Dictated and pronounced in the open Court)
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