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Case Laws
Showing 221 to 240 of 576 Records
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2005 (10) TMI 392 - CESTAT, BANGALORE
Demand - Warehoused goods - Clearance by forgery ... ... ... ... ..... 7. emsp In the present case, it is very clear that the non-payment of duty has arisen on account of the guilty act of the CHA and therefore, he alone would be liable to pay duty under Section 147(3) of the Customs Act, 1962. The Adjudicating authority has not gone into these aspects and has dealt with the issue in a very superficial manner, very eager to confirm the duty and penalty willy-nilly. Summing up, we hold that there is nothing on record to doubt the bona fides of the appellants, as there is clear evidence that the CHA had exceeded his authority. In terms of the Hetero Drugs (supra) decision in the interpretation of Section 147 of the Customs Act, 1962, the CHA gets the status of an importer and he alone is liable for the non-payment of duty to the Government, in these circumstances, the de novo order-in-original is devoid of any merits. The same is liable to be set aside. Hence, we allow the appeal with consequential relief. (Pronounced in open Court on 18-10-2005)
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2005 (10) TMI 391 - CESTAT, NEW DELHI
Valuation - Captive consumption - Intermediate product ... ... ... ... ..... r to the adjudicating authority ascertain the cost of production of their intermediate product after taking into consideration the audited data and after taking into consideration the Rule 6(b)(ii) of the Central Excise (Valuation) Rules, 1975 and after affording an opportunity of hearing to the appellant. As we are remanding the matter to the adjudicating authority, the penalties are also set aside and the adjudicating authority will also decide the case afresh in respect of the penalties also. The issue in respect of the demand for the period April, May and June, 2000 is also to be re-considered by the adjudicating authority, in view of the finalization of the assessment of this period by order dated 30-8-2001, if the assessment for this period is already finalized and duty is paid as per the assessment, then the demand for this period is to be excluded from the present proceedings. The appeal is disposed of by way of remand as indicated above after setting aside the order.
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2005 (10) TMI 390 - CESTAT, MUMBAI
Redemption fine - Quantum of ... ... ... ... ..... t view and has imposed a redemption fine of Rs. 10,37,170.20 on the ground that the impugned goods have been imported by the actual user. 2. emsp In view of the reasoning given, we do not find any reason to interfere with the impugned order. Hence, the Department rsquo s appeal is rejected. The cross-objection filed by the respondents is also rejected as not pressed. (Pronounced in Court)
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2005 (10) TMI 389 - CESTAT, MUMBAI
Exemption - Charitable trust ... ... ... ... ..... cation No. 148/94-Cus., dated 13-7-1994. As such, the orders passed by the lower authorities are set aside and the matter is remanded to the Original Authority to allow the exemption after verifying the utilization certificates submitted by the appellants. We are of the view that this is a fit case for condoning the delay beyond the time limit of 6 months within which the appellants are required to produce a certificate. The appeal is allowed by way of remand. (Pronounced in Court)
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2005 (10) TMI 388 - CESTAT, MUMBAI
Classification ... ... ... ... ..... ther ...... rdquo . The adjudicating authority has nowhere recorded that the item in question comprises a motor driven fan while the Commissioner (Appeals) has said that it consists of compressor, condensers and evaporator, and it is not the case of the Revenue in the appeal filed before the Tribunal that the item comprises a motor driven fan. The HSN Explanatory Notes to Heading 84.15 clearly stipulate that Heading 84.15 applies only to machines equipped with a motor driven fan or blower and designed to change both temperature and humidity and for which elements mentioned in 1 and 2 are presented together. Although the item in dispute is designed to change the temperature and humidity, it is not equipped with the motor driven fan or blower and therefore cannot fall for classification under Heading 84.15. Therefore, the classification arrived at by the Commissioner (Appeals) under Heading 84.18 cannot be faulted. We accordingly uphold the impugned order and reject the appeal.
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2005 (10) TMI 387 - CESTAT, CHENNAI
Stay/Dispensation of pre-deposit - Interim stay of recovery ... ... ... ... ..... covery till final disposal of the stay application. As the stay application does not arise for consideration today, ld. SDR is not in a position to argue the stay matter. 2. emsp After hearing ld. Counsel for the appellants and considering his submissions, we are of the view that interim relief should be granted in this case for the ends of justice. Accordingly, in exercise of our powers under Rule 41 of the CESTAT (Procedure) Rules, 1982, we grant interim stay of recovery till final disposal of the stay application filed by the appellants. Order by dasti. (Order dictated and pronounced in open Court)
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2005 (10) TMI 386 - CESTAT, BANGALORE
Vegetable oil and by-products in a composite mill ... ... ... ... ..... ferent. The Respondents actual undertook crushing of oil seeds through solvent extraction methods. (iv) The Revenue has not disputed the grant of refund on either time bar or unjust enrichment. 5. emsp We have gone through the records of the case carefully. The Respondents have cited the decisions of this Bench and also the decisions of other Benches of the Tribunal. In our view, the matter is entirely covered by these decisions. Apart from that, the fact that the Directorate of Vanaspati Vegetable Oils and Fats has issued category lsquo AB rsquo Licence strengthens the claim of the Respondents that they are covered by Oil Mill and Solvent Extraction Industries. Once, there is no dispute on this point, then there are no grounds for denial of exemption under Notification No. 115/75. The Order of the Commissioner (Appeals) is legal and proper and we do not have any ground to interfere the same and hence we reject the Revenue s appeal. (Pronounced in the open Court on 7-10-2005)
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2005 (10) TMI 385 - CESTAT, KOLKATA
Confiscation of goods - Attempt to export ... ... ... ... ..... an act beyond the stage of preparation towards commission of offence e.g. moving of contraband goods to the place of embarkation - Seizure of heroin from a house from the airport or the Customs Area, packing of heroin and purchase of air tickets amounting to preparation but no lsquo attempt rsquo at illegal export. The other case laws cited by the Advocate also defines attempt to export. 13. emsp In this case when the goods have been lifted from shop it is not made clear in the adjudication order how attempt to export has been made by the Appellants. Nowhere it has been mentioned that what preparations have been made by the appellant and how they have attempted to export the goods. The impugned order is silent over this vital aspect. 14. emsp In view of above discussions, we set aside the impugned order of the confiscation of goods of Indian origin and imposition of penalty upon the appellants as a result all the appeals are allowed with consequential relief to the appellant.
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2005 (10) TMI 384 - CESTAT, NEW DELHI
Penalty - Misdeclaration of export goods ... ... ... ... ..... statement recorded under Section 108 of Customs Act, 1962,then the statement of the appellants and the supplier of the lsquo agarbatti powder rsquo has also to be relied upon. It is also to be noted that imposition of the penalty on the appellants only relying upon the statement of the co-accused is not desirable. It is also further to be noticed that the co-accused has himself accepted to the facts that he had forged the documents, and vainly tried to implicate the appellants. Reliance on such an un-corroborative testimony to impose penalty will be mis-carriage of justice and will deal a deadly blow to the judicial system. In the present case there is no corroboration of evidence and the imposition of penalty on the basis of statement of co-accused is not correct and the appeals deserve to be allowed. In view of the above, I set aside the impugned order to the extent it is applicable to the current appellants and allow the appeal with consequential relief to the appellants.
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2005 (10) TMI 383 - CESTAT, MUMBAI
Medicine - Patent or proprietary medicament - Ayurvedic medicine ... ... ... ... ..... ame in ayurvedic texts has not been rebutted. Further, there is no ground raised in the appeal before us that the name of the medicine found on the label is one which is not mentioned in any authoritative ayurvedic text. In this context, the decision of the Tribunal in their own case, as seen from order No. A/737-739/WZB/2004/C-II, dated 11-8-2004 2004 (172) E.L.T. 457 (T.) , wherein it has been held that as long as ayurvedic medicines are sold under the name specified in the authoritative text books, it does not matter whether any mark, logo, monograph, symbols of the manufacturer is also put on the labels, is directly applicable. The Tribunal has relied upon the Board rsquo s circular dated 29-3-1994 in coming to this conclusion. 4. emsp The ratio of the above decision is applicable on all fours to the facts of the present case. Hence following the same, we decline to interfere with the impugned order of the Commissioner (Appeals), and uphold the same and reject the appeal.
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2005 (10) TMI 382 - CESTAT, CHENNAI
Demand - Export - Re-export of re-imported goods - Appellate Tribunal - Plea - New plea ... ... ... ... ..... In the instant case the lower authorities have found that what is re-imported is cotton fabrics and what is re-exported is Nylon fabrics. Ld. Counsel pointed out that while repairing the jackets some Nylon pieces were stitched and the identity of the goods is not at all lost. This point has not all been raised in the lower fora by the appellants. Hence, at this stage we cannot consider this plea of the appellants. The lower authorities have confirmed the demand mainly on the following two points (i) The re-export has not been done within the period of six months or such extended period. In fact they have not even sought for extension of time. (ii) The identity of the goods re-imported with those re-exported has not been established. 6. emsp Hence, in terms of Notification No. 158/95 the appellants are liable to pay duty demanded. We do not find any infirmity in the impugned order. The appeal has no merit and the same is rejected. (Order pronounced and dictated in open Court)
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2005 (10) TMI 381 - CESTAT, NEW DELHI
Demand - Export ... ... ... ... ..... 84) E.L.T. 401. The contention is that the period provided under the statue cannot be extended even under article 226 of the Constitution by the Hon rsquo ble High Court. 5. emsp In the present case undisputed facts are that the appellant re-exported goods after one year and four months. As per provisions of the notification No. 158/95-Cus., the goods are to be re-exported within six months or such extended period not exceeding a further period of six months by the Commissioner of Customs. The goods were not re-exported within the period as prescribed under the notification. Therefore, in view of the decision of the Hon rsquo ble Supreme Court in the case of UOI v. Kirloskar Pneumatics Co. (supra) where the Supreme Court held that even under the article 226 of the Constitution, Hon rsquo ble High Court cannot extend the period of limitation as provided under the notification. I find no infirmity in the impugned order, the appeal is dismissed. Order dictated in the open Court.
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2005 (10) TMI 380 - CESTAT, MUMBAI
Dutiability - Intermediate product - Marketability ... ... ... ... ..... ted , F.G.P. Limited v. Union of India - 2004 (168) E.L.T. 289 (S.C.) in which the Apex Court held that in the absence of any proof brought on record by the Revenue that glass lamps are marketable, it was not possible to hold the test of marketability had been satisfied and other decisions of the Supreme Court in the cases of Cadila Laboratories Pvt. Ltd. v. Commissioner of Central Excise, Vadodara - 2003 (152) E.L.T. 262 (S.C.), Indian Cable Co. Ltd v. CCE, Calcutta - 1994 (74) E.L.T. 22 (S.C.), we held that the duty demand and penalty imposed upon the assessee is not sustainable and accordingly, we set aside the same and allow their appeal. 5. emsp Since we have held the parts of connectors have not been established to be marketable, we uphold the findings of the Commissioner (Appeals). Appeal No. E/2750/01 filed by the Revenue is rejected. 6. emsp In the result, Appeal No. E/2047/00 filed by the assessee is allowed and Appeal No. E/2750/01 filed by the Revenue is rejected.
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2005 (10) TMI 379 - CESTAT, MUMBAI
Reference to High Court - Question of fact ... ... ... ... ..... he opinion that there is nothing in the conclusion of the Tribunal in the impugned order which qualifies itself to be so perverse that it could not have been arrived at on the facts of the case. The Tribunal did not base its judgment on any single piece of evidence. It took the totality of the picture presented before it and arrived at a certain conclusion. The Tribunal rsquo s order based on facts and their appreciation of such facts cannot be termed to be perverse so as to convert a question of fact into a question of law. Since we hold that no question of law is involved a reference to the High Court does not lie in this case. The Tribunal rsquo s order is based on the appreciation of evidence. One may find fault with such appreciation or misappreciation as the Hon rsquo ble Supreme Court puts it but one cannot say that the order is based on completely or partially irrelevant matter which has no nexus with the case before it. 15. emsp The Reference Application is rejected.
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2005 (10) TMI 378 - CESTAT, NEW DELHI
Demand - Cenvat/Modvat - Job work ... ... ... ... ..... at, whenever the demand of duty is set aside, consequently the imposition of the penalty has also to be set aside. The Hon rsquo ble High Court of Judicature at Allahabad in its judgment in the case of Coolade Beverages Ltd. v. CCE, Meerut, reported at 2004 (172) E.L.T. 451 (All.), while answering a reference of question law under Section 35G(3) of the Central Excise Act, 1944, their lordships have held that once it is found that no duty is imposable then the question of imposing penalty does not arise vide CIT v. Bahri Brothers (1987) 167 ITR 880, CIT v. Bhagwan Ltd., (1987) 168 ITR 846, H. Guru Instrument v. CEGAT, 1998 (104) E.L.T. 8 (All.), Collector of Central Excise v. H.M.M. Ltd., 1995 (76) E.L.T. 497 (SC), in favour of the assessee. Following the said judgment, the order of the Commissioner (Appeals), dealing with the reduction of the penalty on the appellants, deserves to be set aside. The impugned order is set aside to the extent as stated above and appeals allowed.
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2005 (10) TMI 377 - CESTAT, CHENNAI
Waste - Exemption ... ... ... ... ..... sen during the course of manufacture of unprocessed man-made fabrics which were exempt from duty. Even if waste had arisen before the manufacture of the yarn in an integrated process, where first the yarn is manufactured and then followed by fabrics, one can always hold that the waste had arisen in the course of manufacture of the final product. There is no need to make a fine distinction regarding the exact stage at which waste had arisen. In this view of the matter, we cannot find fault with the finding of the Commissioner (Appeals) that waste had arisen in the course of manufacture of unprocessed man-made fabrics which were exempt from payment of duty. He has rightly allowed the benefit of the exemption Notification. Since there was no mala fide and the entire issue related to interpretation of the notification, imposition of penalty is not justified. In the circumstances, we uphold the impugned order and reject the Revenue s appeal. (Dictated and pronounced in open Court)
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2005 (10) TMI 376 - CESTAT, MUMBAI
Penalty - Quantum of ... ... ... ... ..... e concession by reducing the penalty amount having regard to the factum of the duty involved. In the light of the aforesaid discussion, there remains nothing to be heard in the present appeals filed by the Department as there is no other issue involved except the quantum of penalty. Therefore, the principle held in the Larger Bench rsquo s case in Standard Tarpulin 2002 (143) E.L.T. 430 (Tri. - LB) cannot be made applicable to the present case. The decision made in the appeals filed by the assessee is reasoned, just and legal. 6. emsp Since a decision by the ld. Member (T) vide Order No. A-333-34/WZB/2004/C-IV, dated 25-5-2004 fixing the penalty in this very case has been arrived, there is no reason for me to differ with him and allow this appeal in any other manner than dismissing it. In view of the aforesaid decision, the present appeals of the Department for the same issue become infructuous and also redundant. Accordingly, both appeals are dismissed. (Pronounced in Court)
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2005 (10) TMI 375 - CESTAT, NEW DELHI
Demand - Petroleum products stocked at depots ... ... ... ... ..... llant is also that the duty can be only demanded in respect of actual stock which is lying on relevant days. The appellant produced evidence in support of this claim by way of gauge register and also submitted that part of stock was imported on payment of custom duty. The appellant also contended that on revision of rate of duty, they were clearing the petroleum products from their depot by charging the duty at the rate on which it has already been cleared from the refineries and they had not collected the over and above any amount. In these circumstances, we find it is fit case for reconsideration by the adjudicating authority as the evidence now produced was not before the adjudicating authority. The impugned order is set aside whereby demand was confirmed at Hanumangarh and Jaipur depot. The matter is remanded to the adjudicating authority after affording an opportunity for hearing to the appellant. The appeal is allowed by way of remand. (Order dictated in the open Court)
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2005 (10) TMI 374 - CESTAT, CHENNAI
Export - Confiscation - Redemption fine and penalty ... ... ... ... ..... ion 125. Once the goods are found liable to confiscation under Section 113 of the Customs Act, the person who rendered the goods so liable would attract Section 114 of the Act. Whether he had any mala fide intention or not is immaterial. Hence the reasons stated by ld. counsel does not seem to be relevant. No other reason has been stated before me. I have also had a look at the quanta of fine and penalty imposed by the original authority. The fine imposed is Rs. 83,000/- in lieu of confiscation of goods valued at about Rs. 8.3 lakhs. The fine imposed by the original authority is, easily, reasonable. The authority has imposed a penalty of Rs. 50,000/- on the party under Section 114. I am unable to interfere with this quantum of penalty either, there being no cross-objection to this appeal. 5. emsp In the result, the impugned order gets set aside and the order of the original authority gets restored. The Revenue rsquo s appeal is allowed. (Dictated and pronounced in open Court)
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2005 (10) TMI 373 - COMMISSIONER OF CUSTOMS (APPEALS), MUMBAI-I
Refund - Unjust enrichment - Applicability of ... ... ... ... ..... found that the lower authority in his order has mentioned that C.A, have certified that the amount mentioned under the heading lsquo LOANS AND ADVANCES rsquo in the Schedule forming part of balance sheet as on 31-12-1997, includes the Customs receivable amount of Rs. 11,95,219/-. However the copy of C.A. certificate which was submitted before the lower authority, and presented during hearing does not say so. Hence, the said observation of the lower authority appears to be contrary to documents on record. The respondents have submitted copy of C.A. certificate dated 16-9-2005 and details of Balance sheet, schedules for the relevant year showing that the refund claimed from the Deptt. was not passed on to any other person and further the same finds corroboration from the observation of the lower authority that unit price remains the same. Hence, I do not find anything to interfere with the order of the lower authority, and accordingly, the appeal filed by the Deptt. is rejected
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