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Showing 221 to 240 of 604 Records

• 2005 (5) TMI 473 - CESTAT, NEW DELHI
  

  Appeal - Limitation - Delay of more than 90 days in filing appeal - Condonation of

  
  
  ... ...
  ... ... ..... the sides we observe that as per the provisions of Section 35 of the Central Excise Act, an appeal before the Commissioner (Appeals) is to be filed within 60 days of the communication of the Order appealed against. The Commissioner (Appeals) have been given power to condone the delay on sufficient cause being shown for another 30 days. It has not been disputed by the Appellants that the Order-in-Original had been handed over to Shri Pawan Mangla on 16-5-2003 and Shri Pawan Mangla had been authorized by the Appellants to receive orders, etc. on their behalf. The mere fact that their representative had brought the order to the notice of the appellants after 4 months of the receipt of the same will not be taken as serving of the copy of the order on that date. As the appeal has been filed beyond 90 days the same is clearly time barred. Accordingly we do not find any infirmity in the impugned Order. The appeal is, therefore, rejected. (Dictated and pronounced in the Open Court.)

  ---

• 2005 (5) TMI 472 - CESTAT, NEW DELHI
  

  Smuggling - Confiscation and penalty

  
  
  ... ...
  ... ... ..... sions of Section 121 of the Customs Act are also not applicable for confiscating the car in question. In view of this, we set aside the confiscation of the Mercedes Car. emsp 8.The finding of the Adjudicating Authority that ldquo there is no objection on record for the liability to confiscation of the said Indian currency seized from the residence of Shri Mushtaq Choudhary rdquo has not been rebutted by the appellant No. 1. Once there was no objection raised by the appellant No. 1 before the Adjudicating Authority regarding confiscation of Indian currency, it is not now open to him to challenge the said confiscation. In view of this, we up-hold the confiscation of the Indian currency amounting to Rs. 3.5 lakh seized from the residence of appellant No. 1. The penalty imposed on appellants No. 1 is reasonable and as such is upheld by us. As we have set aside the confiscation of the car, no penalty is imposable on appellant No. 2. Both the appeals are disposed of in these terms.

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• 2005 (5) TMI 471 - CESTAT, CHENNAI
  

  Penalty - Interest - Cenvat/Modvat on inputs

  
  
  ... ...
  ... ... ..... situation is not obtaining in the instant case. Apart from the above, no other plea has teen made by the appellants in relation to Section 11AB interest. Hence the demand of interest on duty, raised under Section 11AB is sustained. 5As regards the Rule 25 penalty imposed by the lower appellate authority, the argument advanced by ld. Counsel has to be straightaway accepted. This penalty, though proposed in the relevant show-cause notice, was not imposed by the original authority. The Revenue was not aggrieved by this decision of the original authority. In the circumstances, it was not open to the appellate authority to take recourse to Rule 25 for imposing penalty on the party. The decision of the Tribunal in Gandhilon Texturisers (supra) is squarely supportive of the Counsel rsquo s argument. Therefore, the penalty imposed on the appellants by the lower appellate authority is set aside. 6In the result, the appeal stands partly allowed. (Dictated and pronounced in open Court)

  ---

• 2005 (5) TMI 470 - CESTAT, MUMBAI
  

  Natural justice - Hearing - Opportunity of being heard not given

  
  
  ... ...
  ... ... ..... d sought some time for filing additional submission also. After completion of the above hearing, the appellant was handed over a copy of already recorded order. The appellant rsquo s grievance is that the order was passed by the Deputy Commissioner in May, 2000, even before the personal hearing was granted to them as on 18-8-2000, when they appeared and made submissions. 2.We agree with the above contention of the ld. Advocate. Since the order was passed in May 2000, and the hearing was granted in August 2000, there is a gross violation of principles of natural justice. We are compelled to set aside the impugned order and remand the matter to the Deputy Commissioner for fresh adjudication. Needless to say that the appellants would be granted effective opportunity of putting their defence on record, and would also co-operate with the revenue and would not seek unnecessary adjournment. Appeal is allowed by way of remand. Stay petition also gets disposed off. (Dictated in Court)

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• 2005 (5) TMI 469 - COMMISSIONER OF CUSTOMS AND CENTRAL EXCISE (APPEAL
  

  Confiscation, fine and penalty - Assessment - Re-opening of assessment - Limitation

  
  
  ... ...
  ... ... ..... ard classified that in case of non-notified goods, burden is on the Deptt. to produce evidence that goods were illegally imported and not the person from whose possession such goods are seized and such instruction are binding on the deptt. Further this issue as discussed in details Order-in-Appeal No. 18/2004 which has already been accepted by the Deptt., hence discussion and the findings of the aforesaid order should be read in this case also. As regards, the validity of various sections and sub-sections of the Customs Act, I do not find it necessary to discuss, however, for this the Order-in-Appeal No. 30/05 TS, dated 26-4-2005 may be referred. emsp 7.In view of the above discussion, it is held that the motor cycle was legally imported on payment of appropriate duty, and the case was made and adjudicated without proper application of mind, and without placing any evidence to support their allegation, hence appeal is accepted and Order-in-Orignal is set aside to that extent.

  ---

• 2005 (5) TMI 468 - COMMISSIONER OF CUSTOMS AND CENTRAL EXCISE (APPEAL
  

  Seizure - Non-notified goods - Confiscation - Strictures against Department

  
  
  ... ...
  ... ... ..... hat there was some mistake in the bill of entry or deliberately some wrong information was given by the importer, the Mumbai Customs (Prev.) has no jurisdiction to re-open and re-adjudicate the case. The proper course of action in such cases is to transfer the case to the Cochin Customs with their observation and findings. I Therefore, hold that the case was re-opened and re-adjudicated without any jurisdiction. As regards the appellant rsquo s other contention such as non-applicability of various provisions of Customs Act, as alleged in the show cause notice. I find that it is not necessary to discuss as the motor cycle is otherwise held to be legally imported, however, for this, order-in-appeal No. S/30/05TS, dated 26-4-2005 may also be referred. Since the motor cycle is held to be legally imported, so the penalty imposed on other persons are also liable to be set aside 7.In view of the above discussion, all the three appeals are accepted and order-in-original is set aside.

  ---

• 2005 (5) TMI 467 - COMMISSIONER OF CUSTOMS (APPEALS) AIRPORT, MUMBAI
  

  Penalty - Sale vis-a-vis attempt of sell - Smuggling - Non-notified goods

  
  
  ... ...
  ... ... ..... l No. 18/2004, dated 18th July, 2004 which was decided by this authority and accepted by the Deptt. I find that in the instant case Deptt. has not produced even a single piece of evidence for which burden is on the Deptt. and the motor cycle was confiscated merely on presumption that it was illegally imported, just because it was found with foreign mark. Since the aforesaid motor cycle is held to be imported legally, as discussed above, so this issue does not require to be discussed in details however the findings and ratio of the aforesaid order-in-appeal is squarely applicable in this case, further the Deptt. is duty bound to follow the instruction issued by Board vide letter No. 394/185/92/Cus./AS, dated 23-2-93 in respect of non-notified goods. As regards the non-applicability of the section of the Custom Act invoked in this case Order-in-Appeal No. 30/2005, dated 26-4-2005 may be referred. emsp 8.Hence order-in-original is set aside and all the four appeals are accepted.

  ---

• 2005 (5) TMI 466 - CESTAT, CHENNAI
  

  Cenvat/Modvat - Limitation - Computation of

  
  
  ... ...
  ... ... ..... nt. After examining the proviso to Rule 57G(2) of the Central Excise Rules, 1944, their Lordships held that a manufacturer of the final product could not take credit of the duty paid on his input after six months from the date of issue of any of the documents specified in the first proviso to sub-rule (1) of the Central Excise Rules, 1944. This ruling of the Hon rsquo ble Apex Court is clear enough to cover the instant case. The date on which the inputs might have been entered in Part I of the RG 23A account is irrelevant. What is relevant is the date on which the credit entry was made in Part II of the said account. This date, in the instant case, is undisputedly beyond six months from the date on which the relevant invoice was issued. That is the end of the matter. The Hon rsquo ble Supreme Court rsquo s ruling works against the appellants rsquo case. 5.In the result, the impugned order stands affirmed and the appeal stands dismissed. (Dictated and pronounced in open Court)

  ---

• 2005 (5) TMI 465 - CESTAT, NEW DELHI
  

  Stay/Dispensation of pre-deposit - Demand and penalty

  
  
  ... ...
  ... ... ..... , they are not entitled for the benefit at Sr. No. 221 (i) of Notification No. 5/01. We find that in this case the Revenue is not disputing that the applicants are clearing only parts and by applying Rule 2(a) of Interpretative Rules of the Tariff, the Revenue is treating as complete coloured TV. As the case of the Revenue is that the applicants are clearing complete coloured TVs and to the original equipment manufacturer and the MRP affixed there by the original equipment manufacturer. In these circumstances, in view of the decision of Hon rsquo ble Supreme Court in the case of Sony India Ltd. (supra) and the stay order passed by the Tribunal in the case of Bigesto Foods P. Ltd., prima facie the applicant had a strong case in their favour. Therefore, the pre-deposit of whole of the duty and penalty is waived for hearing of the appeal. The Registry is directed to list these appeals along with Appeal No. E/825, 849-50/05/NBA. (Dictated and pronounced in open Court on 4-5-2005)

  ---

• 2005 (5) TMI 464 - CESTAT, NEW DELHI
  

  Stay/Dispensation of pre-deposit - Demand - Cenvat/Modvat

  
  
  ... ...
  ... ... ..... lso supplied outside the factory to the independent manufacturer. The applicants relied upon the earlier stay order passed by the Tribunal in the case of M/s. SRF Ltd. In that case the manufacturer of electricity was supplied electricity to their own units through common grid. We find that the facts of the present case are different. In this case the applicants are not pleading that they were supplying the electricity to their own units but in fact they were supplying the electricity manufactured out of the naphtha on which credit has been taken to the independent manufacturer. In these circumstances, prima facie it is not a fit case for total waiver of duty. The applicants are directed to deposit an amount of Rs. 15 lakhs within a period of eight weeks. On deposit of the above-mentioned amount, the pre-deposit of remaining amount of duty and penalty is waived for hearing of the appeal. Adjourned to 11-7-2005 for compliance. (Dictated and pronounced in open Court on 4-5-2005)

  ---

• 2005 (5) TMI 463 - CESTAT, NEW DELHI
  

  Stay/Dispensation of pre-deposit - Cenvat/Modvat

  
  
  ... ...
  ... ... ..... arrange the money for payment of excise duty. By pleading financial hardship, they cannot be absolved of their liability to pay the Govt. dues. 2.Ld. Counsel has lastly contented that the SCN had been issued under Section 11A of the Act which is not attracted to the case of the appellants, and as such is invalid. This contention of the Counsel in my view is also misconceived. From the perusal of the SCN, it is evident that the contravention of the Rules 57A, 57G had been also alleged. Merely quoting of a wrong provision of law did not prima facie vitiate the validity of the notice. I do not find any substantial ground for allowing the waiver of pre-deposit of duty amount. The stay application is, therefore, dismissed. The appellants are directed to make pre-deposit of the entire duty amount within eight weeks from today failing which the appeal shall be dismissed under Section 35F of the Act. To come up for reporting compliance on 8-7-2005. (Order dictated in the open Court)

  ---

• 2005 (5) TMI 462 - COMMISSIONER OF CUSTOMS AND CENTRAL EXCISE (APPEAL
  

  Confiscation - Misdeclaration in Bill of Entry - Assessment - Re-opening of assessment - Confiscation - Vehicle imported - Penalty

  ---

• 2005 (5) TMI 461 - CESTAT, NEW DELHI
  

  Compounded Levy Scheme - Duty payment

  
  
  ... ...
  ... ... ..... emsp 2.The only ground in the Appeal is that respondents are not entitled to pay duty and arrears pertaining to Compounded Levy Scheme from Cenvat account. The duty as determined by the Commissioner of Central Excise under the Compounded Levy Scheme is to be paid from the PLA account. In view of the provisions of Compounded Levy Scheme, we find that the Appellants were not entitled to make the payment from Cenvat credit, hence the said duty payment is not valid. Respondents are to pay the duty from their PLA account. On payment of duty from PLA, the respondents should take the credit of Cenvat the amount of credit in respect of duty payment. The Appeal is allowed as indicated above. (Pronounced in the Court)

  ---

• 2005 (5) TMI 460 - CESTAT, NEW DELHI
  

  Stay/Dispensation of pre-deposit - Penalty on partner - Cenvat/Modvat

  
  
  ... ...
  ... ... ..... negligence of the staff, to the department and the assessee readily agreed to reverse the credit due thereon as noted in paragraph 6 of the appellate order. Since the loss of inputs was attributed to the negligence of the staff or mis-handling, it was not open for the assessee to state that the inputs were used in or in relation to the manufacture of the final products. 6.It, therefore, appears that the appellant has failed to make out any prima facie case against the impugned order. In fact, this appeal is against only the penalty of Rs. 10,000/- imposed on the appellant who was a partner of the assessee and, therefore, even apart from the fact that there is no merit in the appeal, the proviso to Section 35B which enables the Tribunal to refuse to admit an appeal, inter alia, when the amount of fine or penalty determined by the order does not exceed Rs. 50,000/- would be squarely attracted. The present application is, therefore, rejected. (Dictated in open court on 2-5-2005)

  ---

• 2005 (5) TMI 459 - COMMISSIONER OF CUSTOMS AND CENTRAL EXCISE (APPEAL
  

  Seizure - Non-notified goods

  
  
  ... ...
  ... ... ..... . Further, as per letters No. 394/184/92-Cus./as dated 23-2-93 Board clarified that in case of non-notified goods, burden is on the deptt. to produce evidence that goods were illegally imported and not the person from whose possession such goods are seized and such instruction are binding on the deptt. Further this issue as discussed in details in order-in-appeal No. 18/2004 which has already been accepted by the deptt., hence discussion and the findings of the aforesaid order may also be read in this case. As regards, the validity of various section and sub-sections of the Customs Act, I do not find it necessary to discuss, however, for this the order-in-appeal 30/05 TS may be referred. Hence, it is held that motor cycle parts i.e. engine and chassis were legally imported on payment of appropriate duty, so the motor cycle assembled out of such parts cannot be confiscated. 7.In view of the above discussion, appeal is accepted and order-in-original is set aside to this extent.

  ---

• 2005 (5) TMI 458 - CESTAT, MUMBAI
  

  Appeal before Commissioner (Appeals) - Appealable Order

  
  
  ... ...
  ... ... ..... the letter of quantification of interest as the impugned order. The fact is that the order of the Deputy Commissioner confirming interest against the appellants was the order impugned before the Commissioner (Appeals). We find that the said order is in appealable form. Even the preamble to the order advised the appellant to file an appeal before the Commissioner (Appeals), in case they are aggrieved with the same. The appellate authority is clearly in error by treating the letter of quantification as order appealed against instead of the order of the Deputy Commissioner demanding interest. As such, we are of the view that the said impugned order of the Commissioner (Appeals) is unsustainable. We, accordingly, set aside the same and remand the matter to him for passing appropriate orders on the disputed issue of interest as held by the Deputy Commissioner in his impugned order. The appeal is thus allowed by way of remand. Stay petition is also disposed off. (Dictated in Court)

  ---

• 2005 (5) TMI 457 - CESTAT, MUMBAI
  

  Stay/Dispensation of pre-deposit - Penalty

  
  
  ... ...
  ... ... ..... r having paid in cash for fabrics processed but removed clandestinely by one Ashok Fabrics, a processor man-made fabrics. 2. emsp Prima facie a penalty under Rule 173Q(a) and (d) on supplier of raw materials cannot be upheld. Full waiver of pre-deposit and stay of recovery is therefore granted. 3.Matter fixed for regular hearing on 11-7-2005 (Pronounced in Court.)

  ---

• 2005 (5) TMI 456 - CESTAT, CHENNAI
  

  Stay/Dispensation of pre-deposit

  
  
  ... ...
  ... ... ..... y rsquo s representative are not clear. I do not find any prima facie case for them. However, the authorised representative of the company has attempted interpretation of the above notification as part of his endeavour to show that the calculation of interest by the lower authorities is wrong. A correct understanding of the relevant provisions of the notification should wait for the final hearing stage of the appeal. In the circumstances, after hearing the DR who has reiterated the findings of the lower appellate authority, I find that no prima facie case has been made out against the impugned order. Nevertheless, having regard to the arguable nature of the case, I am inclined to grant stay of recovery of the above amount of interest subject to condition that a bank guarantee for like amount is furnished by the appellants within 15 days and the same is kept alive till final hearing of the appeal. For reporting compliance 17th June 2005. (Dictated and pronounced in open Court)

  ---

• 2005 (5) TMI 455 - CESTAT, MUMBAI
  

  Stay/Dispensation of pre-deposit - Penalty

  
  
  ... ...
  ... ... ..... e liable to confiscation. He purchased the car worth Rs. 30.00 lakhs at a low price of Rs. 16.25 lacs. He was aware of the fact that the landed cost of the car was Rs. 19.5 lakhs as is evident from the Bill of Entry to which he had access. Prima facie it appears that the appellant knows that all was not were with the car he was dealing in. emsp 3. We observe, the fact that the car was purchased at a very low price, does indicate prima facie that the applicant had some knowledge that he was concerned in purchasing goods, which are liable to confiscation. It therefore appears that he rendered himself liable to a penalty under Section 112(b) of the Customs Act. 4.At this prima facie stage, it appears that the applicant has not made out a strong prima facie case so as to dispense with the pre-deposit of penalty. We, therefore, direct pre-deposit of Rs. 10,000/- towards penalty within four weeks from the date of this order and report compliance on 4-7-2005. (Dictated in the Court)

  ---

• 2005 (5) TMI 454 - CESTAT, MUMBAI
  

  Valuation - Contemporaneous imports

  
  
  ... ...
  ... ... ..... d using reasonable means consistent with the principles and general provisions of these Rules. Therefore, the value which is two years old, cannot be made basis for determining the assessable value of the present consignment as it is not consistent with the other rules where contemporaneous imports are taken into consideration. However, we also find that when the freight charges are more than the declared value, such value cannot be accepted as the correct assessable value. Therefore, the order of the Commissioner (Appeals) accepting Rs. 1425/- per MT as the assessable value, is not correct. We, therefore, set aside the order of the Commissioner (Appeals) relating to determination of assessable value of the disputed tyres and remand back the case to the original authority for re-determining the assessable value under Rule 8 of Customs Valuation Rules, 1988 which should be consistent with the principles and provisions of those Rules. (Dictated and pronounced in the open Court)

  ---

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