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Showing 221 to 240 of 658 Records
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2008 (10) TMI 512 - CESTAT, NEW DELHI
Interest on delayed refund ... ... ... ... ..... d to be no longer good law. In the present case, the appellants deposited the duty amount while filing the appeal before the Hon rsquo ble Supreme Court and it has already been settled that the same amount would be treated as pre-deposit. So, in my view, the decision of the Hon rsquo ble Supreme Court in the case of I.T C. Ltd. (supra) is squarely applicable herein. Ld. Advocate relied upon the decision of the Hon rsquo ble Supreme Court in the case of Shreeji Colour Chem Industries (supra). In that case, refund was filed under Rule 173L of the erstwhile Central Excise Rules for return of the duty paid goods in the factory of the manufacturer. I find that the case of Shreeji Colour Chem. Industries (supra) is totally in different facts and the said case law is not applicable herein. So, I do not find any merit in this appeal of the appellants. The order of the Commissioner (Appeals) is upheld. The appeal is rejected. (Order dictated and pronounced in open court on 24-10-2008)
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2008 (10) TMI 511 - CESTAT, NEW DELHI
Interest - Cenvat/Modvat - Irregular availment of credit on capital goods - Held that: - the respondents availed 100% credit in the financial year 2000-01 instead of 50% of credit. The respondents were entitled to utilize the balance 50% in the next financial year. No proceedings were initiated for alleged irregular availment of credit during the financial year 2000-01. So, the demand of interest under Section 11AB of the Act cannot be sustained without determination of demand of duty - appeal dismissed - decided against Revenue.
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2008 (10) TMI 510 - CESTAT, NEW DELHI
Appeal to Appellate Tribunal ... ... ... ... ..... minor son of 3 years old. Smt. Divya Jain filed the present application for substitution her name as proprietor to the firm in the present appeal. 2. emsp Rule 22 of CESTAT Procedure 1982 provides where in any proceedings the Applicant/Appellant/Respondent dies, the appeal shall abate, unless an application is made for continuance of such proceedings by or against the Applicant, as the case may be. 3. emsp In the present application the Applicant contended that the Applicant is only adult member in the family of late Deepak Kumar Jain except a son of three years old. The applicant also filed copy of death certificate of Deepak Kumar Jain. In view of that the substitution application under Rule 22 of CESTAT Procedure Rules 1984 is allowed. Registry is directed to allow the applicant to substitute the Applicant rsquo s name in the place of the present Applicant in accordance with law. The application is disposed of in the above terms. (Dictated and pronounced in the open court)
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2008 (10) TMI 509 - CESTAT, MUMBAI
Interest on Sugar Cess - Export under bond ... ... ... ... ..... dia. Further, sub-section (4) provides that provisions of the Central Excise Act, 1944 and rules made thereunder, including relating to refunds and exemptions from shall apply in relation to the levy and collection of the duty of excise under that Act. 7. emsp Notification No. 42/2001-C.E. (N.T.) dated 26th June, 2001 at clause V(b) specifically mandates payment of excise duty and interest thereof on any goods cleared for export is diverted to local use. As Sugar Cess is collected as a duty of excise, interest at applicable rate and from the period as is mentioned in notification No. 42/2001-C.E. (N.T.) will be payable by the respondent for diversion of the sugar to home consumption. 8. emsp In view of the above reasoning, we are of the considered view that the impugned order to the extent it sets aside the interest payable on the amount of Sugar Cess is unsustainable and is liable to be set aside and we do so. Appeal is allowed as indicated hereinabove. (Pronounced in Court)
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2008 (10) TMI 508 - CESTAT, MUMBAI
Stay/Dispensation of pre-deposit ... ... ... ... ..... r does not require the cover of any duty exemption. The applicants have stated that the said goods have either been re-exported from the said bonded warehouse by them or have been transferred to the manufacturing unit, another bonded warehouse (100 EOU), where the goods have been used in the manufacture of the final product, which is in turn exported. This has not been disputed by the Department. Once this is the factual position, then the initial imports of the goods against an into bond Bill of Entry for warehousing made even by a 100 EOU trading unit cannot be objected to. It is as if the goods have not been imported into India as customs duty is payable on importation of the goods into India. 6. emsp Prima facie, the applicants have made out a strong case for the complete waiver of the pre-deposit of the duty demanded. Accordingly, we dispense with the pre-deposit of the duty of Rs. 5,38,267/- and stay recovery thereof pending disposal of the appeal. (Pronounced in Court)
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2008 (10) TMI 507 - CESTAT, NEW DELHI
Remission of duty - Goods destroyed due to fire accident ... ... ... ... ..... of sugar damaged due to fire. Therefore, I agree with the ld. DR that the remission of duty on the quantity of 619 bags is not sustainable. The Tribunal in the case of U.P. State Sugar Corporation Ltd. (supra) held that no accident can be attributed to anybody rsquo s carelessness. So, the finding of the Commissioner on this issue, is not justified. Regarding the furnishing of the information about the accident to the Range Superintendent beyond the 24 hours, I find that the central excise officers verified the appellant rsquo s factory upon information by the appellant and ascertained the damage of 126 bags of sugar. So, the appellant is entitled to remission of duty to the extent of 126 bags of sugar. Accordingly, the impugned order is modified in so far as the appellant is entitled to claim the remission of duty involving 126 bags of sugar damaged during the fire accident. The appeal is allowed in the above terms. (Order dictated and pronounced in open court on 20-10-2008)
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2008 (10) TMI 506 - CESTAT, NEW DELHI
Penalty - Clandestine removal ... ... ... ... ..... ebited the duty amount of Rs. 12,000/- vide PLA Entry No. 31 and 32, both dated 24-10-2001. The Adjudicating Authority confirmed the demand of duty and appropriated the amount as deposited by them and also imposed penalty of equal amount under Section 11AC of the Central Excise Act, 1944 along with interest. The Commissioner (Appeals) set aside the penalty. Hence, the Revenue filed this appeal. 2. emsp After hearing both the sides and on perusal of the records, it is seen that there is no material available for clandestine removal of the goods. There was confusion on payment of duty on the clearance of old and used capital goods. The goods were cleared under the cover of commercial bills. In view of that, I find that penalty under Section 11AC of the Act is not warranted. Therefore, I do not find any reason to interfere the order of the Commissioner (Appeals). Accordingly, the appeal filed by the Revenue is rejected. (Order dictated and pronounced in open Court on 20-10-2008)
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2008 (10) TMI 505 - CESTAT, KOLKATA
Notification No. 29/02-C.E. as amended by Notification No. 34/02-C.E. ... ... ... ... ..... house and initially produced in Bangaigaon Refineries and Petrochemicals Ltd. It seems that the Department has demanded the duty, denying exemption, on the ground that the impugned goods have not come directly to the Budge-Budge Warehouse from the Refineries, but have been received from BPCL Bonded Warehouse from where it has come by pipelines to the Budge-Budge Terminal. 3. emsp After considering the submissions of both sides, we find that there is no warrant in the Notification to deny the exemption in such a case where the impugned goods have come via another warehouse. The law permits movement of the non-duty-paid petroleum products from the refineries to one warehouse and from one warehouse to another warehouse. As such, there is no violation of the legal provisions and the conditions of the Notification have been satisfied. Hence, we set aside the impugned Order and allow the Appeal. The Stay Petition also stands disposed off. (Pronounced and dictated in the open court)
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2008 (10) TMI 504 - CESTAT, NEW DELHI
Cenvat/Modvat - Deemed credit - Notification No. 58/97-C.E. ... ... ... ... ..... e that in order to avail the deemed credit, as per Notification, inputs should have been received directly from the manufacturer and the payment of duty on inputs was required to be made by cheque drawn on his bank account or by bank draft or by banker rsquo s cheque. It is seen that in the present case, the Respondent themselves manufactured the goods and used captively in the manufacture of final product. It is revealed from the order of the Commissioner (Appeals) that the Respondent paid duty on strips in terms of the determination made by the Commissioner of Central Excise, Raipur. So, the payment of duty is not in dispute. Hence, it is proved that the Respondent complied with the conditions of the Notification. The Commissioner (Appeals) rightly set aside the adjudication order. Accordingly, I do not find any reason to interfere with the order of the Commissioner (Appeals). The appeal filed by the Revenue is rejected. (Dictated and pronounced in open court on 16-10-2008)
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2008 (10) TMI 503 - CESTAT, KOLKATA
Demand - Inputs received duty free exports products - Penalty ... ... ... ... ..... of proper advice. We are of the view that their case is at par with the case of Vandevi Texturisers Pvt. Ltd. (cited supra) decided by the Ahmedabad Bench. Hence, following the decision in the case of Vandevi Texturisers Pvt. Ltd., we hold that the duty demand in respect of the Hot Rolled Coils is not sustainable since the full duty on the Cold Rolled Coils has already been paid. As regards the contravention of the proper procedure in not first paying duty on the Hot Rolled Coils and taking the credit of the same, we are of the view that some penalty is required to be imposed on the appellants. Considering the entire facts and circumstances of the case, we reduce the penalty to Rs. 5.00 lakhs (Rupees five lakhs) in respect of both the cases and order that pre-deposit of Rs. 5.00 lakhs (Rupees five lakhs) made by the appellants shall stand adjusted against the penalty determined by us. Both the appeals are allowed in the above terms. (Dictated and pronounced in the open Court)
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2008 (10) TMI 502 - CESTAT, BANGALORE
Stay/Dispensation of pre-deposit - Served from India Scheme - Notification No. 92/2004-Cus. ... ... ... ... ..... 1975, he claimed exemption under Notification 6/2006. Further, he stated that when the Basic Customs Duty and CVD under Section 3(1) are exempted, Notification No. 20/2006-Cus. dated 1-3-2006 would come to the appellants rsquo rescue. We cannot readily subscribe to such view. When the importer is availing the benefit of Notification 92/2004, he cannot split up the exemption available for Basic Customs Duty and additional customs duty to say that he would choose this notification only for availing exemption from basic customs duty and for additional customs duty, he would rely on two other notifications. Prima facie, we do not find a strong case in favour of the appellants. Hence, we order pre-deposit of the entire amount of duty demanded namely Rs. 33,43,605/- within a period of three months. On such pre-deposit, the pre-deposit of interest stands waived till the appeal is decided. Appeal to come up for report compliance on 28-1-2009. (Pronounced in open Court on 15 Oct 2008)
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2008 (10) TMI 501 - CESTAT, NEW DELHI
Clandestine removal - Evidence ... ... ... ... ..... led to supply the production figures during those months and, therefore, the Revenue calculated the demand of duty on the basis of Daily Plant Log Sheets and clearance of figures as recorded in the daily stock account. Thus, I do not agree with the findings of the Commissioner (Appeals). I agree with the finding of the Adjudicating Authority that such huge quantity of loss is beyond imagination. The respondent had given reasons for such losses. In my view, it is required to be verified by the Adjudicating Authority regarding the percentage of losses occurred in Daily Plant Log Sheets and the production record for central excise purposes. Accordingly, I set aside the impugned orders and the matter is remanded back to the adjudicating authority to examine the submissions in respect of the losses as contended by the respondents. The appeal filed by the Revenue is allowed by way of remand. Cross objection is disposed of. (Order dictated and pronounced in open court on 13-10-2008)
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2008 (10) TMI 500 - CESTAT, BANGALORE
Cenvat/Modvat - Input credit ... ... ... ... ..... Hence the goods were cleared without payment of duty. However, the appellants had taken care to reverse the credit attributable to the inputs in the products cleared by them. It was argued that once the Cenvat credit is reversed in terms of the Apex Court judgment rendered in Chandrapur Magnet Wires case, 1996 (81) E.L.T. 3 (S.C.) it is not correct to deny the credit. In view of this position, there is no justification for demanding 8 of the sale value of the exempted goods as Rule 57CC would not at all be applicable in a situation when the appellants manufacturing only one product. In my view, there is strong force in the contention of the learned Advocate. As the appellants had already reversed the Cenvat credit attributable to the inputs used in the product, the demand of 8 of the sale value of the goods is not justified. Hence the impugned order has no merit and the same is set aside. The appeal is allowed with consequential relief. (Pronounced and dictated in the court)
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2008 (10) TMI 499 - CESTAT, BANGALORE
Penalty - Cenvat/Modvat - Passing of excess credit ... ... ... ... ..... acture to either pay duty or reverse the Cenvat credit on clearance of used capital goods. This has been clearly brought out in the decisions cited supra. The legal position is that there is absolutely no justification for taking any penal action and even demanding the so called excess duty from the Respondents. The case law relied on by the learned DR is the decision of the Single Member Bench. The rules were only amended later to provide for reversal of credit in respect of the used goods on the depreciated value. Such rule also cannot have retrospective effect. Even the excess payment of duty has been explained by the Respondents on the grounds of differential rate of duty at the time of clearance of the goods and receipt. The Respondents paid duty at 16 . In any case, there is no justification for invocation of longer period. In these circumstances, I do not find any merit in the Revenue rsquo s appeal. Hence the appeal is dismissed. (Pronounced and dictated in the court)
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2008 (10) TMI 498 - CESTAT, BANGALORE
Stay order - Modification/Correction of ... ... ... ... ..... ed. 2. emsp We find that the Order Sheet had clearly mentioned that the appellant shall pre-deposit Rs. 25,00,000/- (Rupees Twenty Five Lakh Only) both in words as well as in figures, however due to typographical error this amount has been shown as Rs. 25,000/- (Rupees Twenty Five Thousand only). The amount should be read as Rs. 25,00,000/- (Rupees Twenty Five Lakh only) in the Stay Order and the same shall be deposited before 28th November, 2008 and report compliance on that date, Appeal to come up for hearing on 29th December, 2008. The memo filed for correction of the amount in the Stay Order is allowed. (Pronounced and dictated in open Court)
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2008 (10) TMI 497 - CESTAT, KOLKATA
Export - Place of export - Procedural irregularity ... ... ... ... ..... consideration in this appeal is whether without presence of any contrary material, the procedural irregularity shall be a bottleneck to rendering substantial justice. There is nothing in record to show that the export was questionable. No doubt, Revenue argued that procedural irregularity has prevented the Administrative Authorities to exercise control, but nothing revenue-implication could be patent from the impugned order except exercise of control. In view of the procedural irregularity, the Appellant should not be deprived of appropriate benefit admissible under law except a stroke of penalty as that was imposed by the Authorities below and that needs confirmation. 5. emsp In view of the aforesaid observations and findings, the Appellant succeeds in appeal except confirmation of penalty. 6. emsp In the result, the impugned order is set aside to the extent indicated above. (Operative part of the order with reasons of decision was pronounced in the open court on 1-10-2008)
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2008 (10) TMI 496 - CESTAT, NEW DELHI
Stay/Dispensation of pre-deposit - Milk shake mixture - Classification of ... ... ... ... ..... tion of flavoured syrup, other than fruit found under Chapter 21. We find that Chapter 20 of the Tariff covers preparations of fruits, nuts or other parts of plants including fruit juices, whether or not containing added sugar or other sweetening matter. 7. emsp Ld. DR pointed out that the Applicants themselves declared the product as fruit syrup and not fruit juice. 8. emsp Prima facie, we find that ldquo Fruit Syrup rdquo is a preparation of fruit and it covers under Chapter 20. The submission of the ld. DR in respect of the classification of the fruit syrup would be looked into at the time of appeal hearing. We notice that the Applicant already deposited a sum of Rs. 26,00,000/-, which is sufficient for wavier of pre-deposit of balance amount of duty and penalties. Accordingly, the pre-deposit of balance amount of duty and penalties are waived till the disposal of the appeal. Both the stay applications are allowed. (Order dictated and pronounced in open court on 1-10-2008)
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2008 (10) TMI 495 - CESTAT, NEW DELHI
Order - Appellate order - Correctness of - Cenvat/Modvat - Inputs ... ... ... ... ..... ave been sent for de novo adjudication. The onus to prove that the goods in question were actually received is clearly on the person who claims to have purchased and received the goods. If the person claims some benefit he has to prove the foundational facts. The Commissioner (Appeals) was not correct in fastening the onus on the Department and on the ground that the Department has failed to establish the non-receipt of the goods by the respondent, set aside the order without consequential order of remand. Clearly the Department can not prove the non-receipt, the assessee has to prove by positive evidence the receipt of goods so as to enable him to take cenvat credit. 3. emsp I accordingly without going into merit of the case, set aside the appellate order and direct that the matter be adjudicated de novo by the Assistant Commissioner in accordance with law. The appeal stands disposed of accordingly. (Dictated and pronounced in the open Court on the 31st day of October, 2008)
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2008 (10) TMI 493 - CESTAT, CHENNAI
Cenvat/Modvat - Transfer of inputs - Quantum of credit ... ... ... ... ..... final product receiving input on which duty of excise had been paid in terms of Section 3 of the Central Excises and Salt Act, was not warranted at the end of another manufacturer of final product who received the same input (credit-availed) from the former under Rule 57F(2) and (3). 4. emsp In the result, we hold that, where the input on which Modvat credit to the extent of 95 of the duty was availed by a manufacturer of final product on or after 2-6-1998, was removed as such under Rule 57F(2) and (3) of the erstwhile Central Excise Rules, 1944, the recipient of the input (being another manufacturer of final product) was entitled to full credit i.e., equivalent to the credit reversed by the supplier. The clarification contained in the Trade Notice cited by the learned SDR does not appear to be in keeping with the Modvat Credit Scheme. Therefore we set aside the impugned order and allow these appeals. (Operative portion of the order was pronounced in open court on 29-10-2008)
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2008 (10) TMI 492 - CESTAT, CHENNAI
Refund - Unjust enrichment ... ... ... ... ..... rice. As the appellants had sold the goods imported on 28-3-1998. It is reasonable to expect the importer to have passed on the import duty incurred by it including the impugned CVD in the sale price of the goods. It is only in September 1998 that the appellants claimed refund of the excess duty paid erroneously. The certificate of the Chartered Accountant furnished by the appellant cannot be accepted in the absence of documents relied upon for the figures furnished therein. Moreover, the assessee-company had not accounted the impugned amount claimed as refund in its balance sheets for the years 98-99 and 99-2000 as lsquo receivable rsquo or deposit with customs. In the circumstances, we hold that the importer has not discharged his liability to establish that the amount claimed had not been passed on to its buyer. In the circumstances, the impugned order is sustained and the appeal filed by Erbis dismissed. (Operative part of the order pronounced in open Court on 30-10-2008)
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