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Showing 201 to 220 of 665 Records
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2005 (8) TMI 546 - CESTAT, BANGALORE
Cenvat/Modvat - Capital goods ... ... ... ... ..... at the earlier phrase clearly indicates that the inputs or capital goods can be removed as such or after being partially processed to the job worker for further processing. The phrase further processing has to be understood only in the context of manufacture as appearing in Section 2(f) of the Act. Any process which is carried on for completing the process of manufacture also comes within the ambit of Rule 57AC(5)(a). The restrictive meaning given by the Commissioner on reading of the said Rule is not in terms with the Board rsquo s Circular No. 637/28/2002-CX dated 8-5-2002 which clearly spells out that the inputs or Capital Goods can be removed to the job workers premises for carrying on the process of manufacture. In the context of the Circular and the interpretation given by this Bench now, the order of the Commissioner (Appeals) is not legal and proper. The same is set aside by allowing the appeal with consequential relief, if any. (Pronounced and dictated in open Court)
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2005 (8) TMI 545 - CESTAT, NEW DELHI
Order - Commissioner (Appeals) order ... ... ... ... ..... or repair or reprocessing, therefore, the finding of Commissioner (Appeals) rejecting the claim are in order. But the Commissioner (Appeals) wrongly allowed the credit. 4. emsp I find that from the facts of the present case that the respondents asked for refund under Rule 173H of Central Excise Rules. The Commissioner (Appeals) in the impugned order held that under Rule 173H or under Rule 173L of Central Excise Rules the refund is not maintainable. In these circumstances, I find merit in the appeal of the Revenue that the Commissioner was duty bound to decide the application filed by the respondents under the relevant provision of law. As the application deserves to be rejected as no refund claim permissible under the rules claimed by the respondents. The issue for taking the credit is beyond the scope of application for refund under Rule 173H of Rules hence this finding is not sustainable hence set aside. Appeal is allowed. (Dictated and pronounced in open Court on 5-8-2005)
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2005 (8) TMI 544 - CESTAT, MUMBAI
Penalty - Delayed payment of duty along with interest ... ... ... ... ..... harged beyond a period of thirty days from the date on which the instalment was due in a financial year. 7. emsp The undisputed facts in the present case is that the Respondents were liable to pay duty on 5-1-2003, which they paid along with interest vide Demand Draft dated 4-2-2003, which was cleared on 7-2-2003. In other words, the due instalment was discharged by the Respondents within thirty days. It is settled legal position that if the assessee deposits the duty by cheque/DD, the date of presentation of the cheque in the bank shall be deemed to be the date on which the duty has been paid as held in - (a) emsp CCE v. Genus Overseas Electronics Ltd. - 2003 (155) E.L.T. 541 (LB). (b) emsp Bilt Industrial Packaging Co. Ltd v. CCE - 2004 (174) E.L.T. 177 (T) 8. emsp In the aforesaid circumstances, it can be said that the Commissioner (Appeals) was justified in reducing the penalty amount. Accordingly, appeal filed by the Department is hereby dismissed. (Pronounced in Court.)
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2005 (8) TMI 543 - CESTAT, NEW DELHI
Refund - Unjust enrichment - Held that: - the principles of unjust enrichment are not applicable against the same refund - refund allowed.
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2005 (8) TMI 542 - CESTAT, MUMBAI
Cenvat/Modvat - Shortage of inputs ... ... ... ... ..... t is always inclusive of the loss, which the inputs may undergo during the course of manufacture. As such, after issuance, loss of inputs cannot be accepted as a justifiable explanation for the shortages of inputs vis-a-vis recorded balance as reflected in RG 23A Part-I. It is also seen that the proprietor of the firm accepted such shortages in his statements recorded on 2-5-1997 and 19-1-1998 and had also agreed to pay the duty thereon. The Respondents having availed the Modvat credit on the inputs were duty bound to account for the same and their failure to offer any plausible explanation for the said shortage has correctly resulted in confirmation of demands of duty by the original adjudicating authority. Accordingly, I restore the order of Dy. Commissioner confirming the demand of duty against the respondents. However in the facts and circumstances of the case penalty imposed upon the respondent rsquo s is reduced to Rs. 50,000/-. The appeal is disposed of in above terms.
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2005 (8) TMI 541 - CESTAT, NEW DELHI
Refund - Limitation ... ... ... ... ..... ls). As the appellant filed appeal against the assessment order whereby the value declared by them was enhanced, therefore, by filing appeal the appellant lodged a protest against the assessment order. The refund claims were filed within six months from the date of order-in-appeal, therefore, the finding of the Commissioner that refund claims are time-barred are not sustainable and set aside. The Commissioner (Appeals) have not gone into the issue of unjust enrichment as raised by the Revenue in their appeal before Commissioner (Appeals), therefore, the matter requires for re-consideration by Commissioner (Appeals). The impugned order is set aside and the matter is remanded to the Commissioner (Appeals) to decide the appeals filed by the Revenue on merits after taking into consideration the issue of unjust enrichment and other issues raised by the appellant in the present appeal. The appeals are disposed of by way of remand. (Dictated and pronounced in open Court on 3-8-2005)
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2005 (8) TMI 540 - CESTAT, CHENNAI
Demand - Clandestine production and removal ... ... ... ... ..... not come about in this case. 6. emsp We have no reason to be happy with the following remarks made by Ld. Commissioner in Para 7.1.4 of his order ldquo Moreover, from the questions that were put to the persons concerned during the cross-examination and the stock and uniform replies given by the persons concerned, it is clear that the persons concerned were tutored to parrot their replies only to support/buttress the afterthought defence of AR rdquo If the Commissioner was not satisfied with what was deposed by any witness in cross-examination, it was up to him to put appropriate queries to the witness. Instead of doing this, Ld. Commissioner chose to make the above remark which should have been gracefully avoided. 7. emsp For the reasons, which we have already recorded, we set aside the impugned order and remand the case to the Commissioner for de novo adjudication in accordance with law and the principles of natural justice. All the appeals are accordingly allowed by remand.
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2005 (8) TMI 538 - CESTAT, BANGALORE
Additional excise duty ... ... ... ... ..... 004 (170) E.L.T. 518 (S.C.) wherein it has been clearly held that Amendment to Notification No. 8/97-C.E. vide Notification No. 11/2000-C.E., was brought under by inserting the following words ldquo or under any other law for the time being in force rdquo . In view of this amending Notification additional excise duty is not leviable by an EOU clearing a part of the goods in the domestic market. 2. emsp We have heard both sides. We find that the Commissioner (Appeals) has overlooked the apex Court judgement, which clearly held that in view of the amending notification, additional excise duty is not leviable and not to be paid as also because the excise duty was also exempted by Notification No. 55/91-C.E. In view of this apex Court rsquo s judgment the order passed by the Commissioner (Appeals) is not legal and proper. Hence respectfully following the apex Court rsquo s judgement the impugned order is set aside and the appeal is allowed. (Pronounced and dictated in open Court)
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2005 (8) TMI 537 - CESTAT, BANGALORE
Import - Re-import of goods exported ... ... ... ... ..... He submits that in view of this position of law, the demand for duty raised against them is required to be confirmed and the refund claimed is required to be rejected. However, he submits that the assessee is entitled to agitate their claim for drawback. 3. emsp The learned Counsel fairly conceded the legal position and submitted that they should be given the liberty to pursue their claim for drawback. 4. emsp On a careful consideration and on perusal of the cited judgment, we are of the considered opinion that the issue is no longer res integra and the Apex Court has clearly held that the assessee is required to pay the duty on re-import of the goods. Therefore, their claim for refund is required to be rejected. In sum, the impugned order is required to be set aside and the appeal is required to be allowed. The assessee is at liberty to pursue their claim of duty Drawback, which is pending before the authorities. The appeal is allowed. (Pronounced and dictated in open Court)
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2005 (8) TMI 536 - ITAT DELHI
Collection and recovery of tax ... ... ... ... ..... he Assessing Officer, no interest under section 220(2) of the Act could be charged. Whereas, in the instant cases of the assessee, before us, the assessee had not complied with the notice of demand issued under section 156 of the Act till the disposal of the appeal by ITAT, hence the assessee is not entitled to receive any advantage from the decision of the Apex Court in the case of Vikrant Tyres Ltd. (supra). We are of the opinion that in view of the decision in the case of Vikrant Tyres Ltd. (supra) the above mentioned contention of the assessee is liable to be rejected and, accordingly, the same is rejected. 9. For the reasons stated hereinabove in this order, the issue under consideration before us, is decided against the assessee and, hence, the impugned orders of the CIT (Appeals) are upheld and the grounds of appeal taken by the assessee in the respective instant appeals are rejected. 10. In the result, all the instant four appeals filed by the assessee, are dismissed.
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2005 (8) TMI 535 - ITAT AHMEDABAD
Deductions - Exporters ... ... ... ... ..... n 80HHC(3) and the decision of Hon rsquo ble Supreme Court in the case of IPCA Laboratories Ltd. (supra), the assessee is entitled to deduction under section 80HHC on the basis of export profit so arrived at which, in this case, is Rs. 17,68,39,739 is concerned, we are of the opinion that this plea has to be upheld and we do so. 17. Further, since the assessee, for the assessment year 1996-97 was entitled to deduction under section 80HHC equal to whole of export profit, as computed under the provisions of law, which in this case is to Rs. 17,68,39,739, the assessee is entitled to deduction of whole of this amount. Consequently, we, direct the Assessing Officer to allow the assessee rsquo s deduction under section 80HHC of the Act, amounting to Rs. 17,68,39,739. 18. So far as ground relating to levy of interest under section 234B is concerned, we direct the Assessing Officer to allow consequential relief, if any. 19. In the result, the appeal of the assessee is partly allowed.
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2005 (8) TMI 534 - ITAT DELHI
Block assessment in search cases, ... ... ... ... ..... avinder Jain was not put to question about the document containing the details of cash and cheques payments and other notings stated to have been taken by D.N. Taneja from his drawer, the document on which case of the Revenue is heavily stands. These are all things to be seen and the assessee has to be given proper opportunity to explain the material used against him before taking a final decision. We accordingly set aside his order and also that of the Assessing Officer and remit the matter back to his file for consideration of the issue afresh after affording a reasonable opportunity to the assessee to explain the matter and the material being used against him. 54. In the result, the appeal of the assessee is allowed for statistical purposes. ------------------------- 1. 133 Taxman 44 . 2. 118 Taxman 112. 3. 101 Taxman (Mag.) 67. 4 111 Taxman 175. 5. 50 Taxman 213. 1. 80 Taxman 89. 1. 2002 120 Taxman 67. 2. 2002 120 Taxman 696. 1. 2002 125 Taxman 963. 1. 2002 120 Taxman 57.
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2005 (8) TMI 533 - ITAT MUMBAI
Advance tax - Interest payable by assessee when no estimate made, Rectification of mistakes, Return of income, Collection and recovery of tax, Appeal-able orders
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2005 (8) TMI 532 - CESTAT, BANGALORE
Import of Aromatic Chemicals - benefit of Customs Notification No. 56/98-Cus - Goods ‘sold as such’ - Meaning of Words and Phrases - Demand - Grants exemption from payment of SAD - HELD THAT:- On a careful consideration, we notice that this legal fiction on ‘manufacture’ incorporated in the Chapter Note of the Excise Tariff cannot be invoked to interpret a Notification under the Customs Tariff Act. The goods have not undergone any change by any process and they remained the same even on repacking. The term ‘as such’ referred to in the Notification is to mean that the goods should not undergo any process of change. This change has not taken place admittedly on being repacking. Therefore, invocation of Chapter Note of Chapter 29 to hold that the goods have not been sold ‘as such’ is not correct in the light of the interpretation placed by us. The goods have remained the same and they have sold ‘as such’ and paid the sales tax.
Therefore, the view taken by the department that the goods are not sold ‘as such’ on being repacked is not a correct one as there is no such definition given to the term ‘as such’ in the Notification. So long as the same goods are sold as such either in the same condition or in the repacked condition, the benefit cannot be denied to them. Moreover, the purpose of levy of SAD is to make it par with the local sales on payment of sales tax. As the sales tax has been levied in the present case, the question of again levying SAD does not arise.
Furthermore, we notice that the High Court of Karnataka, in the case of Lipton India Ltd. v. State of Karnataka [1994 (6) TMI 202 - KARNATAKA HIGH COURT] was considering the question as to whether the process of blending, mixing and repacking the tea would convert the tea into a distinct commercial commodity. The assessee contended that they were paying Central Excise Duty on the repacked tea and, therefore, the repacked commodity was commercially different from the unpacked tea. The High Court rejected the above contention and held that tea continues to retain its identity even after the process of blending and repacking and that the definition in Central Excise Law cannot be used to interpret the Sales Tax Law. In the light of this ratio, we hold that the invocation of Chapter Note of Chapter 29 to hold that the goods are different on repacking is not a correct view taken by the Commissioner. The goods remained “as such” even on repacking as they had not undergone any change.
Further, we agree with the contention of the appellant that the demands are time barred. As they had already filed all the details and there is no suppression of facts in the matter, was for the department to call for further details if they had any doubt. In the result, the impugned order is set aside and the appeal is allowed.
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2005 (8) TMI 531 - CESTAT, MUMBAI
Valuation - Contemporaneous imports ... ... ... ... ..... e, the enhancement should be upheld. 2. emsp After hearing both sides and considering the material on record, we find that the price and the value of comparable goods closest to the time of the import would be more contemporaneously comparable price which could be adopted as per Rule 5 of the Valuation Rules. We have not been shown any provision of law as to how the contemporaneous value/price noted in the customs house subsequent to the import cannot be applied for a prior import when the assessment of such prior imports is done. In this view of the matter, we would find no infirmity in the order of the Commissioner (Appeals) rejecting the comparable price proposed by the Revenue, of an import about two months prior to import in question and accepting contemporaneous value of import seven days subsequent to the import in this case. 3. emsp Consequent to our findings we find no merits in the appeal. The appeal filed by the Revenue is, therefore, dismissed. (Dictated in Court)
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2005 (8) TMI 530 - CESTAT, MUMBAI
Adjudication - Show cause notice - Scope of - Confiscation and penalty - Valuation ... ... ... ... ..... no part thereof related to the value or cost of the imported equipments. (f) Following the decision in the case of Mangalore Refinery and Petrochemicals Ltd. v. CC, Mangalore - 2002 (145) E.L.T. 689 (Tri.-Bang.) it is to be held that in this case also no penalty can be imposed under Section 112 of the Act without finalising to original assessment. 3. emsp In view of the findings, hereinabove, duty demands as arrived at liability to confiscation and penalties cannot be sustained. The order is set aside. Since provisional assessment and the Project Import Regulations Finalisation under which the imports were effected has to be arrived at, the order is set aside with permission to the proper officer to finalize. The realization of the Project Import Regulations should be arrived at after hearing the appellants. 4. emsp Appeal of M/s. Tata Iron and Steel Co. Ltd. allowed as remand in above terms. The order is set aside and other appeals are allowed in full. (Pronounced in Court)
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2005 (8) TMI 529 - CESTAT, CHENNAI
Confiscation and penalty - Redemption fine - Potability of mineral water ... ... ... ... ..... emsp For the reasons noted above, I set aside the orders of the lower authorities and remand the case to the original authority for the limited purpose of deciding whether the water is fit for human consumption as per BIS specifications, for which purpose samples of the consignment should be got re-tested in terms of this order. It will be open to the PHO and CFTRI to consider any test report of any other Government agency, which might be produced by the party. Needless to say that the adjudicating authority shall give the party a reasonable opportunity of being heard. In case it is found that the water is fit for human consumption, an option shall be given to the party for redeeming it on payment of fine to be determined by the said authority. Otherwise, no such option shall be given. In any case, the penalty of Rs. 15,000/- which is reasonable shall remain. 7. emsp The appeal stands partly rejected and partly allowed by way of remand. (Dictated and pronounced in open Court)
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2005 (8) TMI 528 - CESTAT, NEW DELHI
Cenvat/Modvat ... ... ... ... ..... hat the appellants had cleared the goods without payment of duty on which credit was taken. 7A. emsp We further find that the appellants had already reversed the credit taken on the inputs, which were used in the manufacture of the goods which were cleared after job-work under notification, therefore, no further demand can be raised by 8 as provided under Rule. In the case of Jalpack India Ltd.(supra), the Tribunal set aside the demand raised on the similar ground where the credit taken by the appellants on the inputs used in the manufacture of exempted job work goods were reversed at the time of clearance. In view of the decision of the Tribunal, the Revenue is not disputing the fact that the intermediate products manufactured by the appellants are further used in the manufacture of pouches, which were cleared without payment of duty. Therefore, the demand is not sustainable and is set aside. The appeal is allowed.. (Order dictated and pronounced in open Court on 17-8-2005.)
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2005 (8) TMI 527 - CESTAT, MUMBAI
Binding cloth - Dyed D/C book binding cloth - Classification of ... ... ... ... ..... issioner on a perusal reveals that the samples are not impervious to water and loose the stiffness in contact with it leaves no doubt that test at Sr.No 2 of para 10 of the Apex Court decision in Sushma Textiles Pvt. Ltd. 2004 (167) E.L.T. 487 (S.C.) is not satisfied for the department to call for classification under Heading 59 of CETA, 1985. (b) the book binding cloth mentioned under heading 5901 will mean only such book binding cloth which will pass the tests and not to any material understood/or named as laid down by the Apex Court as book binding cloth. The tests laid down by the Apex Court have to be read to apply strictly, in placing on entity under a heading. Common understanding tests will stand ruled out. 3. emsp In view of the findings herein, we find no reason to upset the concurrent findings of the two lower authorities on facts and in law to disturb the classification as arrived under heading 52.06. Appeals of Revenue rejected. (Pronounced in Court on 12-8-2005)
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2005 (8) TMI 526 - CESTAT, MUMBAI
Confiscation - Vehicle - Tempo carrying smuggled goods ... ... ... ... ..... business area in the morning hours the loading of the tempos was done, in the normal course of the business of loading of such vehicles/transporting the goods to Nagdevi Street, Mumbai, where Tempos are allowed to come in early morning or late evening hours only. The knowledge about contents and the smuggled nature of the goods is not on record. Nor is there any evidence of any extra remuneration being offered/received. There is no material therefore to come to a conclusion that the owner of the tempo knew that the goods were of foreign origin and were smuggled. Therefore in the facts of this case and following the settled law on the subject, I find no reason to arrive at a liability to confiscation of the Tempos used in this case for transporting goods within Mumbai and or consequent penalty on the owner under section 112 under the Customs Act, 1962. The penalty and the orders on confiscation and are set aside. 3.2 emsp This appeal is therefore allowed. (Pronounced in Court)
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