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Showing 201 to 220 of 655 Records
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2005 (7) TMI 531 - CESTAT, MUMBAI
Valuation - Related person - Demand - Misdeclaration - Confiscation - Imposition of - Penalty
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2005 (7) TMI 530 - CESTAT,MUMBAI
Battery - Molecular Sieve Battery (MSB) - Excisability of ... ... ... ... ..... iance also placed on the decision of Tega Industries Ltd. 2004 (164) E.L.T. 390 (S.C.), para 9 will lead one to conclude that since the Heading 8421.00 makes no distinction between, refitted and recharged entities therein, no manufacturer and/or levy would take place on refit/recharge/tests done at the appellants premises on MSB received fully fabricated from job workers. 2.2 emsp In view of the findings, the levy of duty proposed and upheld on the appellants premises on MSB cannot be upheld under 8421.00 2.3 emsp Since duty is not being upheld, as no levy arises at appellants premises is called for. The CCE (A) has not indicated any reasons for not considering the condonation of delay the delay is considered in appeal E/882/2001 and the appeal is also to be disposed on same grounds. Therefore, we find that both the appeals are to be allowed after setting aside the orders. 3. emsp In view of the findings, the orders are set aside and appeals are allowed. (Pronounced in Court)
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2005 (7) TMI 529 - CESTAT, NEW DELHI
... ... ... ... ..... o this Court in C.A. No. 14618/96 was dismissed on 14-3-97 Collector of Central Excise, Chandigarh v. M/s. Pepsi Foods Ltd. 1997 (91) E.L.T. 544 (S.C.) . 6. emsp As against the above submission of the learned Senior counsel for the appellants, the learned SDR has pointed out that in the present case since the advertisement cost was recovered by the manufacturer of NABB itself, the decision of the Apex Court is not applicable to the present case. 7. emsp A perusal of the record of the case and the judgment of the Apex Court makes it clear that the rule contained in the judgment is that the cost incurred towards marketing of beverages cannot find a place in the assessment of the beverage base. Thus the issue remains settled in favour of the appellants. Accordingly, the present appeals are allowed after setting aside the impugned order. The appellants shall be entitled to consequential relief, if any. Both the appeals are ordered accordingly. (Dictated in open Court on 1-7-2005)
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2005 (7) TMI 528 - CESTAT, NEW DELHI
Demand - Clandestine removal by registered dealer ... ... ... ... ..... ced in the impugned order. The Commissioner (Appeals) held that appellants suppressed the fact of removal of the kraft paper to other unregistered premises without prior permission, therefore, they contravened the provisions of Central Excise rules. In this case, the Revenue is disputed the fact that kraft paper which was shown in the balance stock was stored at a godown which is not registered with the Revenue authorities. In this situation, the credit in respect of such kraft paper cannot be denied, therefore, the demand is set aside. However, taking into consideration the facts and circumstances of the case as the goods were removed from the registered godown without intimation to the Revenue, therefore, the appellants are liabie for penal action. Keeping in view the penalty of Rs. 5,000/- will meet the ends of justice. The appellants are liable to pay penalty of Rs. 5,000/-. The appeal is disposed of as indicated above. (Dictated and pronounced in open Court on 29-7-2005)
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2005 (7) TMI 527 - CESTAT, MUMBAI
SSI Exemption - Option for availment of benefit, exercise of ... ... ... ... ..... during the particular financial year, he can not withdraw their willingness within the ambit of the said Notification for the remaining part of the financial year. 2. emsp Further, it is observed that the lapse on the part of assessee in exercising the option in writing is nothing but procedural lapse, as it was in the knowledge of the Department, in so much as, by way of the declaration under Rule 173B, that they were about to embark upon the fold of the Notification No. 9/99-C.E. The observations made by the Commissioner (Appeals) in his impugned order are under no way erroneous and do not call for any interfere by the Tribunal. We find no merits in his appeal, hence this appeal is dismissed. (Pronounced in Court)
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2005 (7) TMI 526 - CESTAT, MUMBAI
Yarn - Synthetic or blended yarn - Dutiability of ... ... ... ... ..... .3 emsp Revenue is aggrieved on account of - (i) the budgetary changes (1996-97 Budget) in Rule 9, 49A permit deferment of payment of excise duty. (ii) the Chief Commissioner in Conference minute No. 7 of the Tariff Conference held in Mumbai on 29-8-2000 had held that deferment of duty till fabric stage was not allowed or provided for synthetic or blended yarn and duty was payable before such yarn was used for fabric weaving. 2.1 emsp This Chief Commissioners, tariff Conference minutes relied have not been circulated by a Trade Notice nor the earlier Trade Notice No. 40/96 dated 23-7-96 withdrawn and or amended. There is no ground taken to urge that the Trade Notice 40/96 relied by the Commissioner is not called for. 2.2 emsp In this view, we cannot upset the findings on basis of Tariff Conference minutes not circulated and published for the benefit of trade. The orders of CCE (Appeals) cannot be upset. Appeals found bereft of valid grounds are rejected. (Pronounced in Court)
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2005 (7) TMI 525 - CESTAT, MUMBAI
Machinery - V-SAT Equipments ... ... ... ... ..... ject for the exploration for oil or other minerals, and (6) such other projects as the Central Government may, having regard to the economic development of the country notify in the Official Gazette in this behalf and spare parts, other raw materials (including semi-finished materials of consumable stores) not exceeding 10 of the value of the goods specified above, provided that such spare parts, raw materials or consumable stores are essential for the maintenance of the plant or project mentioned in (1) to (6) above rdquo . 3. emsp We find that by no stretch of imagination the V-SAT equipments which are installed in different places and are used for communication purposes only can be considered to be covered under the said heading 9801.00. As such, we are of the view that the lower appellate authority has correctly decided the appeal against the appellants and the same does not require any interference. 4. emsp We dismiss the appeal as it has no merits. (Pronounced in Court)
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2005 (7) TMI 524 - CESTAT, NEW DELHI
Valuation - Confiscation ... ... ... ... ..... oods, we find that the Commissioner had dis-regarded the value mentioned in the invoice as well as arrived at by the Chartered Engineer. The Commissioner had taken into consideration the manufacturer value and applied the method of depreciation. In the impugned, there is no mention of the manufacturer value or source of manufacturer value. In the impugned order, in para-10, it is only mentioned that since there was a conflict of opinion regarding the value in the Chartered Engineer certificate supplied by the supplier and goods examined by M/s. Moody International (India) Pvt. Ltd., therefore, only alternative to adopt the manufacturer value. But there is no mention at what price the manufacturer is supplying the goods. In absence of material particularly, regarding manufacturer value and method of depreciation adopted by the adjudicating authority, the value determined in the order is not sustainable and set aside. The impugned order is set aside and the appeals are allowed.
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2005 (7) TMI 523 - CESTAT, BANGALORE
Valuation - Design and engineering charges - Demand - Limitation ... ... ... ... ..... obligation fulfillment, we cannot uphold the Commissioner rsquo s findings. It is true that there was some delay in fulfilling the export obligations within the date specified by the DGFT. However, the appellants addressed the DGFT to extend the time and consequently, the DGFT themselves accepted the export made after the stipulated date. When the DGFT had issued the E.O. certificate by condoning the delay, the Customs authorities cannot reject the condonation and demand the duty on the appellants. If this is allowed, this would make the entire system of working of Government Departments a mockery. Therefore, we set aside the demand of Rs. 27,07,294/- on account of short fall of the demand. Since the duty demands have been set aside, the confiscation of impugned goods is also set aside. There is absolutely no justification in imposition of fine and penalty. In these circumstances, we allow the appeal with consequential relief. (Pronounced in the open Court on 5th July, 2005)
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2005 (7) TMI 522 - CESTAT, NEW DELHI
Confiscation ... ... ... ... ..... td. vide Misc. Order No. 117/05-NB(A) dated 11-5-2005 held that second-hand photocopier machines are not capital goods. We have gone through the Show cause notice where only proposal of confiscation is on account of trade restriction imposed under Foreign Trade Policy on the ground that consumer goods i.e. second-hand photocopier machines which were imported without import licence, are liable to confiscation under Section 111(d) of Customs Act. The adjudicating authority confiscated the goods on this ground only. In these circumstances and in view of the decision of the Larger Bench that as the goods are consumer goods and not capital goods and therefore, they are not liable to confiscation under Section 111(d) of the Customs Act. The impugned order whereby the goods are confiscated on this ground is set aside and the appeals are allowed as indicated above. The appellants are also entitled to consequential relief in accordance with law. (Dictated and pronounced in open Court)
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2005 (7) TMI 521 - CESTAT, CHENNAI
Penalty when main accused exonerated ... ... ... ... ..... appeared to be liable for penalty under Section 112(a) of Customs Act, 1962. 18. emsp Shri T.P. Rajmohan, who has aided and abetted in the aforesaid acts of fabrication of documents and mis-declaration of Shri K. Jayaram appeared to be liable for penalty under Section 112(a) of Customs Act, 1962. rdquo 4. emsp It is clear from the above part of the impugned order that, when the appellant was considered to be abettor, Shri K. Jayaram was the main offender in the Commissioner rsquo s mind. The offence, if any, of Shri K. Jayaram was overlooked and he was exonerated from penal liability. In the circumstances, there was no question of the appellant being held to have abetted the main offence. In other words, any penalty under Section 112(a) on the ground of abetment was not warranted against the appellant. The impugned order is set aside insofar as it relates to penalty on the appellant, and the appeal is allowed with consequential relief. (Dictated and pronounced in open court)
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2005 (7) TMI 520 - CESTAT, MUMBAI
Medical equipment ... ... ... ... ..... which covers all films such as CT Scan, MRI, Ultrasound, Radiography etc. The appellants have also submitted a certificate from the Department of Radiology, KEM Hospital to the effect that the impugned instrument is exclusively used by hospitals, clinics, and mobile hospitals for diagnosis. 3. emsp Considering the functions of the impugned goods, we are of the view that the same can not be categorized as a single scanner or digitizer meriting classification as a unit of ADP machines. On the contrary, it merits classification as a ldquo diagnostic apparatus incorporating or operating in conjunction with an ADP machine for processing and visualizing clinical data, rdquo under sub-heading 9018.19 as claimed by the appellants. We also note that in other cases similar equipment has been classified by the department under sub-heading 9018.19. 4. emsp Accordingly, we set aside the impugned order and allow the appeal with consequential benefit to the appellants. (Pronounced in Court)
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2005 (7) TMI 519 - CESTAT, MUMBAI
Valuation - Enhancement of value - Natural justice - Ex parte order ... ... ... ... ..... al goods. We, therefore, uphold this finding of the Commissioner. rdquo 7. emsp These decisions and reasoning given therein fully support enhancement of value of the impugned goods in this case from US 1.75 to US 3.75. As such, we set aside the impugned order-in-appeal and restore the order-in-original. 8. emsp We note from the submissions made in Revenue appeal that the Commissioner (Appeals) sent a communication on 2-2-2001 asking Revenue to file counter arguments and stating that the date of personal hearing would be intimated to Revenue. However, we find that on the very same day on 2-2-2001, the Commissioner (Appeals) heard the respondents and decided the appeal ex parte against the Revenue directing the release of the impugned goods immediately. We are of the view that Commissioner (Appeals) was in error in not allowing Revenue an effective opportunity to defend its case before him. 9. emsp The Revenue appeal is allowed with the above observations. (Pronounced in Court)
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2005 (7) TMI 518 - CESTAT, BANGALORE
EXIM Policy - DEPB Scheme - Packing material (Plastic) ... ... ... ... ..... ommissioner, in the impugned order, that the claim of DEPB was made with regard to Yeast is not correct as the appellants have clarified that the clearing agent by mistake had mentioned the same. They had clarified it subsequently by their letter dated 27-11-1999 and have claimed the DEPB benefit of 1 on the packing material alone. Therefore, on a consideration, we find that the findings arrived by the Commissioner of Customs that the assessee had mis-declared the description of packing material used for packing of export product with intention to claim more amount by way of DEPB credit than what was actually due to them is not correct as DEPB is not admissible on Yeast under the EXIM Policy and the appellants, had, by their letter dated 27-11-1999 claimed the benefit of 1 on plastic material only. Hence, their claim is justified and the appeal is allowed with consequential relief, if any. (Operative portion of this Order was pronounced in open Court on conclusion of hearing)
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2005 (7) TMI 517 - CESTAT, MUMBAI
Demand without jurisdiction not sustainable - Valuation ... ... ... ... ..... e to be set aside. 2.4 emsp The issue of erection and commissioning charges cannot be included when Boilers are being removed in knocked down condition i.e. parts and there being no separate entry for parts in the Tariff at that time, following the Supreme Court decision in case of M/s. Thermax Ltd. - 1998 (99) E.L.T. 481 (S.C.). 2.5 emsp Similarly, when there is no evidence of a full Boiler having come into existence in the factory of the assessee and then being removed in SKD or CKD state, as certain parts were directly procured and supplied to site, assessment of the removers has to be as Boiler in SKD/CKD parts and not as Boiler and value of bought out items cannot be included. 3.1 emsp In view of the findings, no duty demands can be upheld. The penalty as arrived therefore cannot be sustained. 3.2 emsp Order impugned is to be set aside and appeal allowed, as regards Boiler valuation and penalty only. 3.3 emsp Ordered accordingly and appeal disposed. (Pronounced in Court)
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2005 (7) TMI 516 - CESTAT, NEW DELHI
Paper - Waste paper ... ... ... ... ..... ssifying the goods under heading 4810.00 were neither examined nor test reports were obtained. We find that the respondents have produced before the Commissioner (Appeals) the utilisation certificate issued by Superintendent of Central Excise for using these waste papers for converting these into pulp and then making the paper. This clearly shows that the goods imported were utilised for converting it into pulp and then making paper. The respondents from the import documents and from the end-use certificate issued by the Superintendent of Central Excise has been able to establish that these imported goods were waste paper and these were used for converting it into pulp for manufacture of paper. Therefore, the goods were correctly classifiable under heading 4707.90 and were eligible for exemption under Notification No. 21/2002 dated 1-3-2002. Therefore, we uphold the order of the Commissioner (Appeals) and reject the appeals of the Revenue. (Dictated in open court on 6-7-2005)
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2005 (7) TMI 515 - CESTAT, BANGALORE
EXIM - Car, used car, Import of - Confiscation ... ... ... ... ..... wherein it was held that the condition is satisfied when the appellants showed that the car was purchased by him more than one year above. In other words, the fact of registration is not a criteria. The car was sold on 5-1-99 and passenger arrived in India after a year. It was submitted that the car was in the use of the respondent for more than a year. By following the ratio of the Tribunal rsquo s ruling, we are of the opinion that the respondent has satisfied the conditions of Public Notice No. 3/97-02, dated 31-3-1997. Therefore, we set aside the confiscation of the car by allowing the cross appeal. Hence, the fine and penalty are also set aside. As regards the valuation of the car, we find that the Commissioner (Appeals) has decided the valuation in accordance with law and hence, the prayer of the respondent to uphold Commissioner rsquo s (Appeals) valuation is accepted. Revenue rsquo s appeal is disposed of in the above terms. (Pronounced in the open Court on 5-7-2005)
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2005 (7) TMI 514 - CESTAT, BANGALORE
Manufacture - Marketability - Manufacture - Marketability ... ... ... ... ..... s which were folded through grooved rollers. Their contention that the process is not bringing into existence a new product appears to be correct as the goods have already come into existence and this process of folding is only for the purpose of packing. Therefore their activity of folding of fabrics cannot be considered as some thing essential for marketing purposes. But it is only done for the sake of packing and selling. They are not liable for 5 excise duty on the sale of cotton handloom fabrics in terms of Notification No. 35/2003-C.E., dated 30-4-2003 which exempts fabrics which has not undergone any process of manufacture. As the item has not undergone the process of manufacture by some activity of folding, hence they continue to get the benefit of exemption. Therefore, the impugned order holding the activity of folding as that of calendering is not correct. Hence the stay and appeal are allowed with consequential relief if any. (Pronounced and dictated in open Court)
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2005 (7) TMI 513 - CESTAT, BANGALORE
Interest for a period subsequent to the payment of duty not demandable ... ... ... ... ..... riod. In other words, no interest can be demanded after 31-5-2003. But the Commissioner had demanded interest up to the date of re-warehousing. 5. emsp The learned SDR fairly conceded that the interest cannot be demanded after payment of duty. 6. emsp We have gone through the records of the case carefully. The Original authority has not spelt out the rational behind the demand of interest for a period subsequent to the payment of duty. In our view such a demand has no legal basis and is repugnant to the common sense. It is also not clear as to the ground on which penalty under Section 117 of the Customs Act has been demanded. We hold that the interest at appropriate rate is payable only till the date of payment of duty, i.e. up to 31-5-2003. Demand of interest beyond that period is set aside. The penalty is also set aside. The amount already paid has to be adjusted. In view of the above, we allow the appeal with consequential relief. (Pronounced in the Court on 27 July, 2005)
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2005 (7) TMI 512 - CESTAT, MUMBAI
Valuation - Warranty charges ... ... ... ... ..... to upset the sale price from being a normal sale price under section 41(a) up to 30-6-2000 and Transaction Price after 1-7-2000. (b) The Additional Commissioner finding, that no Chartered Accountant Certificate produced, without seeking one, to dismiss the plea can be only set aside. (c) There can be no misallocation as alleged of warranty service charges. Hence the Company conducts its business and distributes receipts and costs cannot be material to consider when normal sale price/Transaction Price under Section 41(a) are available. (d) We find no reason to invoke the valuation under any of the valuation rules in the facts of this case. 4. emsp We find no reason to depart from the sale price as approved by tenders and on which no deduction have been claimed to be the values on which duty is to be paid. 5. emsp No case made out on merits. We therefore do not propose to go into other issues raised. 6. emsp Appeal is allowed after setting aside the order. (Pronounced in Court)
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