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Case Laws
Showing 201 to 220 of 645 Records
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2007 (5) TMI 491 - CESTAT, MUMBAI
Refund - Consequential relief - Unjust enrichment - Cenvat/Modvat ... ... ... ... ..... e case of Nelco Ltd. - 2002 (144) E.L.T. 56 (Bom) wherein an appeal filed by the Department was dismissed by the Supreme Court - 2002 (144) E.L.T. A104 would support the view that the deposits do not bear a character of duty and have to be returned the day the appeals are disposed. The board rsquo s instructions issued under 275/37/2K-CX 8A, dt. 2-1-2002 wherein it has been clarified that cases of refunds of pre-deposit consequential to orders of higher authority are required to be granted even without filing of a formal refund application. Since it is not the question of levy of duty on capital goods the applicability of Solar Pesticide rsquo s decision 2000 (116) E.L.T. 401 (S.C.) would not be applicable to the facts of this case. 7. emsp In the light of aforesaid decision the impugned order is hereby set aside and the Order of Asst. Commissioner is restored. In the result appeal is allowed. The stay application is disposed of accordingly. (Pronounced in Court on 11-5-2007)
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2007 (5) TMI 490 - CESTAT, MUMBAI
Stay of order - Recovery of dues - Coercive action ... ... ... ... ..... to stand helpless without challenging the proceedings before the appropriate authorities or the Tribunal concerned as the matter arises under the Central Excise Law. Lastly he also relied upon the Rule 41 of the CEGAT Procedure Rules, 1982. 5. emsp Having considered the submissions made by both sides and appreciating the contentions, I am of the view that there exists prima facie case in favour of the appellants in staying the impugned order from its operation. If the impugned order is not stayed it is certain that the authorities below would proceed to auction the goods under seizure and appropriate the sale proceeds towards interest amount which is very much disputed by the appellant. Therefore, the impugned order is herby stayed and as well as the auction of all seized goods, pending disposal of this appeal. As the matter appears to be urgent nature granting of early hearing is required to solve the issue. Therefore, early hearing is fixed on 27-6-2007. (Dictated in Court)
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2007 (5) TMI 489 - CESTAT, CHENNAI
Stay/Dispensation of pre-deposit - Excisability - Marketability ... ... ... ... ..... arketability of the item. Though the process of preparation of the solution was furnished by the assessee, which indicated the process to be purely a chemical process, no chemical expert was consulted by any of the authorities, nor any chemical literature examined. It is the assessee rsquo s case that they are the only party engaged in preparing Gold Potassium Cyanide Solution for electroplating purposes and that this item was neither marketed nor marketable during the period of dispute. Apparently, this view of the assessee has not been demolished by the lower authorities with reliable evidence. It is trite law that marketability is a question to be settled by the Revenue for the purpose of levy of duty of excise. Prima facie, this function has not been successfully discharged by the Revenue. Therefore, we are inclined to grant waiver of pre-deposit and stay of recovery in respect of the above amount of duty. It is ordered accordingly. (Dictated and pronounced in open Court)
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2007 (5) TMI 488 - CESTAT, BANGALORE
Stay order - Recovery proceedings by Revenue - Legality of ... ... ... ... ..... es, the Tribunal by invoking inherent power can grant extension of the stay order 4. emsp We agree with the contention of the learned Counsel that the Department ought not to have issued the letter dated 4-5-2007 threatening recovery of the amount when the matter has already been listed for final hearing. The Revenue rsquo s appeal is to be linked up with this appeal for final hearing. In the circumstances like this, the Revenue is barred from the recovery of the amount till the disposal of the appeal. The Stay Order No. 1207 to 1211/2006, dated 31-10-2006 will continue to remain in operation in terms of the Apex Court judgment cited supra. 5. emsp Registry to issue this order today itself. The learned DR to inform the Superintendent by fax not to proceed for recovery of the amount till disposal of the appeal. Registry to link up this appeal with the Revenue rsquo s appeal and to list the matter for final hearing on 29th June, 2007. (Pronounced and dictated in the open Court)
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2007 (5) TMI 487 - CESTAT, MUMBAI
Interest - Delayed refund of pre-deposit made ... ... ... ... ..... ication by all the forums. Ultimately the appellants were successful in the case and the demands were set aside. The deposit under Section 35F then become free for its payment. The board had instructed that even a formal refund application is not required in such case. In case of IPC Bhadrachalam Paper Boards Ltd. - 2000 (124) E.L.T. 1100 (T) 2000 (39) RLT 710 the interest amount is liable to be paid. In the case of CCE v. Reliance Industries Ltd. - 2003 (152) E.L.T. 379 (T) 2003 (54) RLT 708 it has been held that interest for delay in refunding the pre-deposit amount is payable in terms of Section 11BB. Therefore in the aforesaid circumstances the impugned order passed by the Commissioner is hereby set aside disallowing interest on delayed payment of pre-deposit amount. The Jurisdictional exercise authorities are hereby directed to pay interest of Rs. 8,12,500/- as claimed by the appellants. 5. emsp In result the appeal is allowed as prayed. (Pronounced in Court on 7-5-2007)
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2007 (5) TMI 486 - CESTAT, BANGALORE
Demand without show cause notice, not sustainable - issue of show cause notice is a mandatory requirement for raising demands
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2007 (5) TMI 485 - CESTAT, AHMEDABAD
Confiscation and penalty - Mis-declaration ... ... ... ... ..... ticed that what was described as mixed zinc scrap contained about 70 by weight, a costlier variety of aluminium scrap and thus both in terms of quantity and value, the aluminium scrap was the major item hence the appropriate description should have been mixed aluminium scrap rather than mixed zinc scrap. 5.3 emsp Therefore, the findings of the Commissioner that there has been mis-declaration in terms of description and value is sustainable. Therefore, confiscation adjudged by him is in order. Penalty is also warranted. 6. emsp However, I feel that taking the entire facts and circumstances into account, some leniency may be shown in matters relating to the quantum of redemption fine and penalty. Accordingly, I reduce the redemption fine from Rs. 3,00,000/- (Rupees three lakh) to Rs. 1,50,000/- (Rupees one lakh fifty thousand) and penalty reduced from Rs. 1,00,000/- to Rs. 50,000/-. 7. emsp Appeal is partly allowed on the above terms. (Dictated and pronounced in the open Court)
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2007 (5) TMI 484 - CESTAT, NEW DELHI
Cenvat/Modvat - Duty paying documents ... ... ... ... ..... the Commissioner at this regard. On a query from the Bench, the learned advocate failed to produce any evidence in respect of payment of duty by the inputs supplier and the certificate issued by the Commissioner of Central Excise, Jamshedpur. The learned advocate drew attention of the Bench to the annexure to the Settlement Commission order. But there is no mention that particular invoices were duty paid. So, there is no certificate issued by the Commissioner of Central Excise, Jamshedpur in respect of the payment of duty as demanded in the present proceedings. The contention of the learned advocate that the demand is barred by limitation is not tenable as there is no dispute that the appellant availed credit on the basis of the fake invoices and time was taken by the authorities for investigation and enquiry. Thus, I do not find any reason to interfere with the order of the Commissioner (Appeals). Accordingly, the appeal is rejected. (Dictated and pronounced in open Court).
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2007 (5) TMI 483 - CESTAT, MUMBAI
Customs House Agent licence - Suspension of ... ... ... ... ..... he grievance of the appellants is that this order has been passed without any notice of proposed suspension, which is a requirement under the Regulations. We find substance in the plea of the appellants, in the light of the language of the relevant Regulation, and the orders of the Tribunal have taken the view that notice was required under CHALR, 2004 prior even to suspension of CHA licence. We, therefore, set aside the impugned order and allow the appeal but make it clear that our order in no way will prevent the fresh action being taken in accordance with law against the CHA. (Pronounced in Court)
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2007 (5) TMI 482 - CESTAT, KOLKATA
Provisional assessment - Refund claim - Unjust enrichment - Words and Phrases - interpretation of statute - subsequent finalisation of assessment.
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2007 (5) TMI 481 - CESTAT, MUMBAI
Export Oriented Unit, 100% EOU - Refund ... ... ... ... ..... whether they are the subject matter in the Order-in-Appeal or not. 3. emsp It is only proper that all the duty paid during the period when the issue was under litigation be refunded to the appellant when the ratio of the appellate authorities decision is in their favour. 4. emsp I also find that the claims are not barred by limitation since the reason for claiming refund arose only on account of the Order-in-Appeal in their favour. I find that the Order-in-Appeal was passed on 21-6-2004 and the refund claim is filed on 29-11-2004 which is within one year from the order of the Appellate Authority and therefore, not hit by limitation. rdquo 4. emsp It is observed from the above reproduced findings that the Commissioner (A) has correctly held that the Respondents are eligible to refund of the duty paid on LDO. Accordingly I do not find any reason for interference to set aside the order. which is correct and legal, the appeal filed by the Revenue is dismissed. (Dictated in Court)
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2007 (5) TMI 480 - CESTAT, KOLKATA
Exemption - Option ... ... ... ... ..... e fact that the Notification 6/02 unconditionally exempts the impugned goods for the extended period up to 31-3-03, the appellants have the right to choose to avail the said exemption especially in the absence of any condition attached to such exemption. 2. emsp Shri B.N. Chattopadhyay, ld. Consultant, appearing for the appellants has rightly contended that in view of the Hon rsquo ble Supreme Court rsquo s decision in the case of H.C.L. Ltd. v. Collector of Customs, New Delhi - 2001 (130) E.L.T. 405 (S.C.), when there are two exemption notifications, the appellants are entitled to the benefit of that exemption which gives them greater relief. 3. emsp In view of the cited case law and our findings above, we find that the appellants are entitled to the exemption under Notification 6/02 for the impugned period i.e. March, 2003. We set aside the impugned order and allow all the three appeals with consequential benefit to the appellants. Dictated and pronounced in the open Court.
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2007 (5) TMI 479 - CESTAT, KOLKATA
Demand - Compounded levy scheme ... ... ... ... ..... n from 1-4-98 after a period of more than one year. The impugned order demand duty under the Compounded Levy Scheme from the appellants for the period 1-9-97 to 31-3-98. The only reason given in the impugned order is that the appellants did not surrender their registration certificate. We do not find any warrant in law that when the factory is closed on account of labour strike, the assessees should surrender the registration certificate. There is also no provision under the Compounded Levy Scheme that the Unit should surrender its registration certificate to claim abatement for any period for which it is not working. We also find that there is no evidence brought on record, that the appellants have opened the factory at any time after giving notice to the department on 16-3-97 till 31-3-98. As such, the impugned order cannot be sustained. Accordingly, we set aside the same along with the demand on the appellants. Appeal is allowed. (Dictated and pronounced in the open Court)
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2007 (5) TMI 478 - CESTAT, NEW DELHI
Stay/Dispensation of pre-deposit - Cenvat/Modvat - Reversal of credit ... ... ... ... ..... ase that processing amounts to manufacture. The dispute here is as to how Cenvat Credit Rules are to be operated. Rule 3(3)(b) (as amended) specifically states ldquo Cenvat credit may be utilized for payment of an amount equal to the Cenvat Credit taken on inputs if such inputs are removed as such or after being partially processed. rdquo This provision covers both utilization of credit and the measure of credit to be reversed. Thus, reversal of credit(s) involved is satisfaction of the Credit scheme. In the present case, credit taken was only in relation to the removed sheets. No credit was taken on the processing materials. So credit taken on the sheets alone was required to be paid/reversed. That has been done by the appellant. 8. emsp The earlier order of this Tribunal cannot have application to the present case in view of the amended provision. 9. emsp The application is allowed and recovery stayed till the disposal of the appeal. (Dictated and pronounced in open Court).
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2007 (5) TMI 477 - CESTAT, KOLKATA
Refund - Recovery of refund granted after finalisation of assessment ... ... ... ... ..... en allowed after finalisation of assessment, the demands pursuant to the retrospective amendment cannot be sustained. We further find that it is not possible to conclude from the cited judgments that interest is not payable from the date specified in view of the retrospective amendment. 3. emsp In view of our findings above, we are of the view that the lower Appellate Authority was not justified in allowing the appeals and setting aside the Order-in-Original, particularly in the light of the specific provision regarding non-maintainability of appeal contained in Section 154(3) of the Finance Act, 2003 and the Hon rsquo ble Supreme Court rsquo s decision in the case of R.C. Tobacco (cited supra). 4. emsp Accordingly, we set aside the impugned Order-in-Appeal and allow the appeals filed by the Department by restoring the Orders-in-Original. The appeals filed by M/s. Dharampal and Satyapal Ltd. are dismissed. (Operative part of the Order was pronounced in the court on 28-5-2007)
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2007 (5) TMI 476 - CESTAT, KOLKATA
Valuation - Free Delivery Zone (FDZ) charges - includibility - Held that: - In view of the fact that FDZ charges are separately shown along with the RPO charges, the charges have been transparently collected and included in the invoice as per the direction of the OCC. Hence, we are of opinion that the requirement at the material time under Rule 5 of the Central Excise (Valuation) Rules, 2000 that transport charges should be separately shown, has been met - we find no reason to uphold the impugned Order including FDZ charges in the assessable value - appeal allowed - decided in favor of appellant.
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2007 (5) TMI 475 - CESTAT, MUMBAI
Refund of anti-dumping duty - Unjust enrichment ... ... ... ... ..... cating authority for examining the question of unjust enrichment. Question of unjust enrichment contained in Customs Act cannot have any impact on the special provisions contained in Section 9A(2) of the Customs Tariff Act. Since the Commissioner rsquo s order is clearly illegal we modify that order and direct the adjudicating authority to effect refund without going into the question of unjust enrichment contained in the Customs Act as that provision has nothing to do with the refund claim put forth by the importer rdquo . It can be noticed that the above reproduced portion of the Larger Bench settled the law that provisions of Section 9A of the Customs Tariff Act, 1975, will only apply to the case of anti dumping duty which is paid in excess during the relevant period. 7. emsp Respectfully, following the judgment of the Larger Bench which is directly on the issue, the appeal is allowed and revenue is directed to refund amount to the appellants forthwith. (Dictated in Court)
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2007 (5) TMI 474 - CESTAT, NEW DELHI
Confiscation - Goods unconditionally released and not available ... ... ... ... ..... cifically held that goods which have been cleared, cannot be confiscated or redemption fine imposed. Ld. Counsel would also point out that the reliance of the revenue on the decisions of the Tribunal in the cases of Mangala Textiles and R. Janardhanan is not correct inasmuch as those cases related to goods which had been provisionally cleared. 7. emsp The Commissioner has passed his order relying on the judgment of the Hon rsquo ble Supreme Court in the case of Weston Components. There is no error in his understanding of that judgment (Ram Khzana case, supra). 8. emsp The finding is also supported by the provisions of Section 126 of the Customs Act. Sub-section (1) of that Section, states that when goods are confiscated, such goods shall thereupon vest in the Central Govt. Obviously, goods which are not available cannot vest in anybody. 9. emsp In view of what is stated above, there is no merit in the revenue rsquo s appeal. It is rejected. (Order dictated in the open Court.)
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2007 (5) TMI 473 - CESTAT, NEW DELHI
Refund - Unjust enrichment ... ... ... ... ..... hment of the fact that produce price did not include the additional duty was required and since the appellant had failed to establish the same, the refund was rightly denied. 6. emsp There is no dispute between the parties that the excess duty amount was not forming part of the capital cost of the appellant at all. It was being shown as a recoverable amount. It is the capital cost of the company which gets allocated as fixed cost in the cost of a product. Since the appellant had not included the excess duty in the capital cost, naturally, that amount does not get reflected in the product price at all. In this view of the matter, the appellant is right in its contention that the verification has established that the duty had not been passed on. The appellant rsquo s case is also supported by the decision of the Tribunal in the case of Maruti Udyog. 7. emsp In the result, the appeals are allowed with consequential relief to the appellant. (Dictated and pronounced in open court)
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2007 (5) TMI 472 - CESTAT, CHENNAI
Stay/Dispensation of pre-deposit - Demand ... ... ... ... ..... order insofar as it relates to the goods imported by the appellants for the manufacture of lsquo P75 Model rsquo . It goes without saying that the withdrawal of Annexure-III in relation to such goods would have no legal effect during the pendency of this appeal. 6. emsp Now, we take up the application for out-of-turn disposal of the appeal. After hearing both sides, we are inclined to dispose of the appeal as early as possible, having regard to the high stake involved in the case. At this stage it is pointed out by both sides that appeals filed by the assessee and the Revenue (C/l 58/2007 and C/l43/2007 respectively) against the appellate Commissioner rsquo s order (Order-in-Appeal No. 101/2006 ibid) are also pending and the same also may be disposed of along with the present appeal. It is directed that the two appeals mentioned above be also posted to the same date for final hearing and disposal. Counsel takes notice for the assessee. (Dictated and pronounced in open court)
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