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Case Laws
Showing 201 to 220 of 583 Records
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2006 (9) TMI 422 - CESTAT, BANGALORE
Cenvat/Modvat - Reversal of credit ... ... ... ... ..... n, the customer rejects the goods, they are returned to the factory for remaking, refining, reconditioning or any other process. In such circumstances, the duty originally paid on the removal of the finished products can be taken as Cenvat credit on their receipt. However, if the goods are subjected to some process, which does not amount to manufacture, the manufacturer shall pay an amount equal to the Cenvat credit taken on their receipts. In the present case, the entire goods received have become scrap. Therefore, the contention of the appellant that they subjected the returned goods to a process amounting to manufacture is not acceptable. Therefore, the impugned order of the Commissioner (A) is correct. However, having regard to the facts and circumstances of the case, the penalty is reduced to Rs. 1000/- (Rupees One Thousand only). The stay and appeal is disposed of on the above terms. (Operative portion of this Order was pronounced in open court on conclusion of hearing)
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2006 (9) TMI 421 - CESTAT, NEW DELHI
Demand - Removal of molasses ... ... ... ... ..... he Central Excise duty due on the molasses so lost. The demand is under Rule 49 and 9 of the Central Excise Rules. 3. emsp The contention of the learned Counsel for the appellant is that the revenue authorities should have allowed remission of the duty as molasses in question had been got lost due to natural causes, in terms of proviso to Rule 49. 4. emsp Aforesaid rules relate to time and manner of payment of duty. Rule 49 stipulates that payment of duty shall not be required until goods are about to be issued out of the place of manufacture/storage. Rule 9 stipulates that no excisable goods shall be removed from place of production/storage without payment of duty. In the present case, clearly, there was no removal as the goods in question were destroyed. Therefore, violation of Rule 49 or 9 is not involved. The demand is not sustainable. It is set aside and the appeal is allowed with consequential relief, if any, to the appellant. (Dictated and Pronounced in the open Court)
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2006 (9) TMI 420 - CESTAT, CHENNAI
Aluminium/Copper coils for transformers - Demand and penalty - Limitation ... ... ... ... ..... mpugned order, the Commissioner has also referred to the coils removed, as parts of transformer. M/s. Tamilnadu Transformers Ltd. had got the same classification approved in their various classification lists filed from 1987-88 for the subject goods. One of the points considered by the adjudicating authority to decide that the impugned goods were not parts of transformer was that the heart of the transformer i.e. magnetic steel core and yoke which formed nearly 40 of the transformer had not been replaced and that no connectors were attached to the coil. We do not think that these facts are adequate to hold that the impugned goods are not classifiable as winding coils forming transformer part. 17. emsp The demands are, without doubt, time barred. On a careful assessment of the facts of the case, we are convinced that the appeals should succeed on merits as well as on limitation. Accordingly, we allow both the appeals. (Operative portion pronounced in the open Court on 21-9-06)
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2006 (9) TMI 419 - CESTAT, KOLKATA
Interest on warehoused goods ... ... ... ... ..... 100 EOU is enlisted. In para 5 of the said instructions, it is noted that for cases at 4(iv), the waiver of interest shall be considered on completion of the export obligation period. 6. emsp After giving due consideration to the submissions made by both sides. I am of the view that the grounds raised in memorandum of appeal, is valid one which needs to be considered. I do not find any force in the submissions made by ld. counsel for the respondents. The boards Circular, on which he places reliance also lays down the condition of fulfilling the export obligation for waiver of interest. In the present case, the said condition has not been fulfilled. Hence waiver of interest does not arise. Therefore, I am of the view that the Commissioner (Appeals) erred in observing that refusal of grant of interest as ordered by the original authority is not sustainable. Therefore, the impugned order is set aside and the appeal filed by the Revenue is allowed. (Pronounced in the open Court.)
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2006 (9) TMI 418 - CESTAT, MUMBAI
Rectification of mistake ... ... ... ... ..... o state that the order was dictated and pronounced in the open court. Therefore, if the Counsel had any objection, he could have raised it at that point of time. According to us whatever was agreed, we have recorded. It is not possible for us to recollect after the gap of more than 9 months that the applicant has not consented. After going through the application we do not find any ground as to how the applicant is prejudiced by the said order. On specific query by the Bench from ld. Counsel as to how the applicant is prejudiced by the order, he could not adduce any reason. The application shows that no mistake of the kind of clerical or arithmetical has been mentioned in ROM application. Deletion of the word lsquo consent rsquo from the order amounts its reversal so far as the applicant is concerned. The ROM application is not meant for this purpose. We, therefore, do not find any merits in the application and dismiss the same being devoid of merits. (Dictated in open Court)
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2006 (9) TMI 417 - CESTAT, CHENNAI
Appeal - Hearing - Adjournments ... ... ... ... ..... only reason stated in the delay condonation application is that the appellants were ldquo not well versed in the law and procedure relating to filing of appeal in Central Excise matters. rdquo Had they perused the preamble to the impugned order, they would have been well versed in the requisite provisions of law. No other reason has been cited for the above delay of the appeal. In the circumstances, the delay condonation application gets dismissed for want of reasonable explanation. Consequently, the appeal also is dismissed along with the remaining application. (Dictated and pronounced in open Court)
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2006 (9) TMI 416 - CESTAT, MUMBAI
Stay/Dispensation of pre-deposit - Recovery when pre-deposit waived ... ... ... ... ..... ayment immediately. Ld. SDR appearing on behalf of the Revenue fairly agrees that once the pre-deposit has already been dispensed with, then the status quo has to be maintained. He undertakes to convey the Superintendent not to take coercive steps for recovery. 2. emsp In view of the above, we dismiss the Modification Application filed by the Appellant. (Dictated in open Court)
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2006 (9) TMI 415 - CESTAT, NEW DELHI
Penalty - Cenvat/Modvat ... ... ... ... ..... Rule 13. Confiscation and penalty. - (1) If any person, takes CENVAT credit in respect of inputs or capital goods, wrongly or without taking reasonable steps to ensure that appropriate duty on the said inputs or capital goods has been paid as indicated in the document accompanying the inputs or capital goods specified in Rule 7, or contravenes any of the provisions of these rules in respect of any inputs or capital goods, then, all such goods shall be liable to confiscation and such person, shall be liable to a penalty not exceeding the duty on the excisable goods in respect of which any contravention has been committed, or ten thousand rupees, whichever is greater rdquo . The above rule clearly has no application to the facts in the present case. The credit was not wrongly taken inasmuch as, the inputs were required for the proposed future manufacture. 3. emsp In the result, the appeals are rejected as having no legal or factual basis. (Dictated and pronounced in open Court)
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2006 (9) TMI 414 - CESTAT, NEW DELHI
Cenvat/Modvat - Inputs ... ... ... ... ..... ral excise duty, rules permitted taking of credit and its utilisation. Thus, taking and utilisation of credit was in terms of the law and there was no error. The Hon rsquo ble Supreme Court has held in the case of Dai Ichi Karkaria that Modvat credit is indefeasible and there is no one-to-one correlation between the input credit and final product (duty paid). The order of the Larger Bench in the case of C.C.E., Rajkot v. Ashok Iron and Steel Fabricators and the decision in the case of C.C.E., Chandigarh v. CNC Commercial Ltd. were passed following the judgment of the Hon rsquo ble Supreme Court. 8. emsp Rule 12 has no application in the present case since, as already noted, taking of the credit and its utilization were legally correct. Subsequent developments like exemption to the final product is no ground for reopening the credit account. 9. emsp In the result, the appeal is allowed with consequential relief, if any, to the appellant. (Dictated and pronounced in open Court)
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2006 (9) TMI 413 - CESTAT, CHENNAI
Cenvat/Modvat - Capital goods ... ... ... ... ..... from computation of taxable income. A certified copy of the assessment order dated 6-9-2006 has also been produced by counsel, which indicates that Cenvat credit of Rs. 2,80,275/- has been deducted by the income-tax assessing authority. Consequently, there is no simultaneous availment of Cenvat credit on the capital goods and depreciation of its value for income-tax purpose. However, it is up to the original-authority to consider the income-tax assessment order and pass fresh order on the Cenvat credit issue. Therefore, the orders of the lower authorities are set aside and the case is remanded to the original authority for fresh decision in accordance with law. It goes without saying that the authority shall take into account the assessment order dated 6-9-06 of the Asst. Commissioner of Income -tax Circle-I, Virudhunagar and give the appellants a reasonable opportunity of being heard. 3. emsp The appeal stands allowed by way of remand. (Dictated and pronounced in open Court)
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2006 (9) TMI 412 - CESTAT, NEW DELHI
Rectification of mistake - Penalty - Cenvat/Modvat ... ... ... ... ..... ot due. The submission is that this is factually incorrect. Revenue has filed a summery of credit balance in the appellant rsquo s account as on 31-5-03, 31-10-03 and 31-11-03 to show that the balance on those dates were much less that the disputed amount. 4. emsp Revenue is right in its contention that the setting aside of the penalty was on a wrong factual representation. The application is, therefore, accepted and our Final Order No. A/1503/04/NB (S/M) dated 11-10-2004 is modified by confirming the penalty to the extent of Rs. 50,000/- (Rupees fifty thousand). 5. emsp The ROM application is ordered in the above terms. (Dictated and pronounced in open Court)
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2006 (9) TMI 411 - CESTAT, CHENNAI
Interest on delayed payment of duty ... ... ... ... ..... counsel rsquo s argument that Section 11AA was not invocable for levying interest on duty demanded for any period prior to the date of enactment of provision of law is negatived by the proviso to sub-section (1) of of Section 11AA. The Tribunal rsquo s decision in Prabhat Zarda Factory case, affirmed by the Supreme Court, is also against the above argument. In the case of Mukand Ltd. (supra) cited by learned counsel, there was no determination of duty under Section 11A(2), unlike in the present case. As rightly pointed out by learned SDR, the Tribunal, in the case of Komal Straw Board and Mill Board Industries (supra), apparently did not take into account the proviso to Section 11AA (1) while holding that no interest on duty was leviable for any period prior to 26-5-95. Neither of the cases cited by learned counsel is of any aid to the appellants rsquo claim. 7. emsp In the result, the appeal is dismissed. (Operative part of the order was pronounced in open court on 14-9-06)
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2006 (9) TMI 410 - CESTAT, NEW DELHI
Confiscation of goods used for concealing contraband goods ... ... ... ... ..... side. Appeal is allowed. rdquo The ratio of the tribunal rsquo s decision in the case of Mazda Chemicals (supra) squarely covers the issue in this case. In view of the facts and circumstances I hold that the confiscation of the tea bags of Indian Origin as incorrect and unwarranted. The impugned order confiscating the Indian origin tea bags is set aside. 5. emsp As regards the confiscation of the truck I find that the provisions of the Section 115(2) gets attracted and the confiscation is correct as the driver of the truck is a agent of the owner of the truck. Hence the confiscation of the truck is upheld, as it has been proved that the said conveyance was used for transporting the contraband goods. 6. emsp In view of the facts and circumstances, I hold that the confiscation of the Indian origin goods is not correct and the confiscation is set aside and hold that the confiscation of the truck is correct. The appeal is disposed off in the above terms. (Pronounced on 6-10-2006)
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2006 (9) TMI 409 - CESTAT, MUMBAI
Penalty - Quantum of ... ... ... ... ..... allegation in the show cause notice as referred to by the Commissioner (Appeals) shows that there is no question of demand of duty in this matter except the question of imposition of penalty. Even otherwise, if it is to be treated the demand is for duty, which has been already reversed by the assessee much prior to the issue of show cause notice. Therefore, in that case one can safely apply the ratio as held in the case of CCE v. Machino Montell (I) Ltd.-2004 (168) E.L.T. 466 (Tri.-LB), and other connected decisions on the said ratio. Further, I am to observe that the adjudicating authority have discretion in imposing penalty as held in the case of Hindustan Metals Works v. CCE - 2003 (153) E.L.T. A307. 5. emsp In the light of the aforesaid discussions, I find no valid ground in the appeal filed by the Revenue to interfere with the finding of the Commissioner (Appeals), Nashik and confirm the same. In the result, the Revenue rsquo s appeal is dismissed. (Pronounced in Court)
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2006 (9) TMI 408 - CESTAT, NEW DELHI
Demand of Cenvat/Modvat - Re-opening of assessments ... ... ... ... ..... the excess amount. Reliance is also placed on the decision of the Tribunal in the case of Shree Krishna Industries v. Commissioner of Central Excise, Jaipur reported in 2005 (192) E.L.T. 226 (Tri.-Del.). 4. emsp Learned SDR has contended that the order of Commissioner is entirely legal and no interference is called for. It is his contention that if, as a matter of fact, the appellant had discharged more duty than the credit taken, it is for it to prove the same and claim refund. 5. emsp We are not able to approve the view taken in the impugned order. This is a case of re-opening of assessments made. In such a case, a half way re-opening is not permissible. Authorities should have determined whether any amount was short paid or excess paid. Prima facie, the re-opening of the case is wholy unnecessary as it is a Revenue neutral situation and the manner in which it has been done is clearly unjust. 6. emsp In the result, the impugned order is set aside and the appeal is allowed.
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2006 (9) TMI 407 - CESTAT, KOLKATA
Natural justice - Cross-examination, absence of ... ... ... ... ..... ns to doubt the reliability of the statements, even on grounds of lsquo no-corroboration rsquo . We would leave all those grounds open for the importers and other appellants herein to urge before the adjudicator and seek a decision on those points, since we are satisfied that the order is required to be remitted back to the Commissioner for de novo adjudication after directing the Ld. Commissioner with directions to permit cross-examination of the persons concerned and asked for by the appellants and only thereafter arrive at findings on all the issues raised. In this view of the matter, we do not arrive at any findings on other issues raised before us by these appellants. 7. emsp In view of the findings hereinabove, the orders impugned are set aside and the appeals allowed as remand, with directions to the appellants to cooperate with the adjudicator and get matters adjudicated as expeditiously as possible. 8. emsp Appeals allowed by remand. (Pronounced in Court on 8-9-2006)
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2006 (9) TMI 406 - CESTAT, NEW DELHI
Confiscation of goods - Semi-finished photocopier ... ... ... ... ..... tation of these photocopiers were in CKD condition and their components already bearing the trade mark/brand name of the original manufacturers abroad. Such photocopier imported in CKD condition as well as their parts and components suffered customs duty and those were duly repaired at the respondent rsquo s premises. In the present appeal this finding of fact is not controverted by the Revenue. The Revenue is only going by the statement of the partner to submit that the appellant had already the complete machines were the brand name of others but Revenue is not demanding duty in respect of the machines already cleared in the present proceedings. As the foods have been in the premises are only in form of some semi-finished machines and finding of the Commissioner is that the photocopiers were imported in CKD condition on payment of appropriate duty. In these circumstances, I find no merit in the appeal, the same is dismissed. (Dictated and pronounced in open Court on 6-9-06).
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2006 (9) TMI 405 - CESTAT, MUMBAI
... ...
... ... ..... ich in turn takes into Section 4(1)(a). emsp Further, without prejudice to other contentions raised in the cross objections, it is submitted that in terms of Second proviso to Section 35B(1), the duty amount involved in this appeal is much less than Rs. 50,000/-, the appeal is not maintainable. 5. emsp I have gone through the impugned order passed by the Commissioner (Appeals), the grounds of appeal filed by the Revenue and the cross objections filed by the assessee. At the admission stage of the appeal, I am of the view that the impugned order passed by the Commissioner (Appeals) do not suffer from any irregularity. He has correctly determined the value of the goods under the relevant provisions. Therefore, there is no scope to interpret the relevant Cenvat Credit Rules as the amount of duty involved in this appeal is less than Rs. 50,000/-. The appeal filed by the Revenue is rejected on both grounds. The Cross objections are allowed in the above terms. (Pronounced in Court)
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2006 (9) TMI 404 - CESTAT, BANGALORE
Confiscation of goods ... ... ... ... ..... the departmental authorities. (ii) In the course of investigations, the appellants were summoned for providing necessary details to ascertain the correct value of the export goods. However, the appellants misled the department and the test results of Textiles Committee, Kannur revealed that the export goods were of inferior quality because the count of yarn used was less than 20s. 6.4 emsp In view of the above, Supreme Court rsquo s decision in Om Prakash Bhatia rsquo s case is squarely applicable and the decision of the Commissioner to hold the impugned goods liable for confiscation is correct. It is not necessary that the goods should be available to hold them liable for confiscation. The value of Rs. 40/- per piece fixed by the Commissioner based on CIU, Coimbatore appears to be reasonable. As the impugned goods are held liable to be confiscable, penalty under Section 114 is justified and upheld. In the result, we dismiss the appeal. (Pronounced in open Court on 4-9-2006)
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2006 (9) TMI 403 - CESTAT, BANGALORE
Demand and penalty - Clandestine manufacture and removal ... ... ... ... ..... by the assessee. There is no reason to describe the findings of the Commissioner (Appeals) on merits as well as on the larger period. The Revenue has not recorded the Mahazar to show that there was shortage. If the Revenue had recorded a Mahazar and taken the statements of the parties, then it would have clinched the issue in their favour. In the absence of evidence, the dropping of the demands by the Commissioner (Appeals) is justified. There is no reason to differ from this finding. The grounds taken that it is not necessary for the Revenue to establish clandestine removal is not a correct ground as it has been well laid down that the Revenue has to establish with evidence the allegation of suppression of facts as well as the suppression of production and clearance of goods clandestinely without payment of duty. In the absence of evidence, the dropping of demands is justified. There is no merit in this appeal and the same is rejected. (Pronounced and dictated in open Court)
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