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Case Laws
Showing 221 to 240 of 645 Records
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2007 (5) TMI 471 - CESTAT, BANGALORE
Penalty on Customs officers - Connivance in DEPB fraud - section 155 of CA - protection of action - Held that: - in terms of Section 155(2), in order to initiate any proceedings, the time limit indicated therein should be adhered to - In the present case, it is on record that the proceedings have not been initiated within the time limit. Therefore, without going into the merits of the case and also the alleged connivance of the respondents, we hold that the Commissioner was legally correct in dropping the proceedings on the grounds of limitation prescribed in Section 155(2) of the Customs Act, 1962 - appeal dismissed - decided against Revenue.
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2007 (5) TMI 470 - CESTAT, BANGALORE
Interest on delayed refund of pre-deposit - Rate of Interest ... ... ... ... ..... le High Court of Kolkotta. rdquo 2. emsp The appellants have prayed for decision on merits. It is their contention that in the following rulings, the Bombay, Gujarat and Madras High Courts have ordered for rate of interest in the range of 12 to 18 . (i) Suvidhe Ltd. v. UOI - 1996 (82) E.L.T. 177 (Bom.) (ii) Atul Limited v. CCE, Surat-II - 2005 (188) E.L.T. 21 (Guj.) (iii) CCE, Chennai v. Calcutta Chemical Co. Ltd. - 2001 (133) E.L.T. 278 (Mad.) They contend that grant of interest of 10 is not justified in view of other High Courts granting interest at higher rate. 3. emsp I have heard the learned JDR. 4. As seen from the citations referred to by the party, the other High Courts have given interest at the range of 12 to 18 . As a practice, this Bench has been fixing up only 12 in the light of several other judgments. Therefore, the prayer for fixing the interest at 12 is accepted. Appeal is allowed on this term with consequential relief. (Pronounced and dictated in open Court)
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2007 (5) TMI 469 - CESTAT, BANGALORE
Rectification of mistake - Ex parte order - Recall of order ... ... ... ... ..... not been heard and the Bench has passed ex parte order by Final Order No. 2243/2005 which may be recalled. 2. emsp The learned DR submits that the submissions of the appellant and the grounds made by the learned Counsel in the Grounds of Appeals have been considered by the Bench and it cannot be said that it is an ex parte order. 3. The learned Counsel submits that several legal plea has not been answered in terms of the Final Order pertaining to this appellant. 4. emsp On a careful consideration of the matter, we find that the appellant was not represented. Although the points raised by the appellant has been dealt with while passing the order, the learned Counsel submits that several legal plea has not been answered in terms of the Final Order pertains to 2243/2005 which is recalled and the appeal No. C/13/2005 is restored in its original number. The ROM application is allowed. The matter to come up for final hearing on 25-6-2007. (Pronounced and dictated in the open Court)
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2007 (5) TMI 468 - CESTAT, NEW DELHI
Demand - Assessment of imported coal ... ... ... ... ..... ies in relation to another consignment and the Commissioner had held that there was no justification for revising the quantity or value of the consignment based on Customs laboratory report. 8. emsp Ld. SDR would point out that when the correct moisture level was ascertained in the Customs laboratory, the same should be applied to determine the actual quantity imported and duty demanded on that basis. 9. emsp We find merit in the appellant rsquo s contention. Duty was payable on ad valorem basis on the transaction value. In such a case, difference in quantity worked out by applying moisture level is altogether irrelevant, since duty is being paid on the full transaction value at the appropriate rate. This is the view taken by the Commissioner in other cases also. Accordingly, the revised quantity worked out and duty demands based on them are not sustainable. 10. emsp In the result, appeals are allowed after setting aside the impugned orders. (Order dictated in the open Court)
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2007 (5) TMI 467 - CESTAT, BANGALORE
Warehoused goods - Extension of warehousing period denied - Words and Phrases - Order ... ... ... ... ..... mind and taking into account all the factors. In any case, the power to grant extension is given to the Commissioner under Section 61 of the Customs Act, 1962. This is a statutory power. Such powers have to be exercised carefully with total application of mind. From the letter of the Superintendent, it is not clear whether the question of re-export of the goods was dealt with by the Commissioner. Even if he had dealt with that, it is not understood how he had failed to implement the Board rsquo s Circular cited supra. This Bench, in the case of Microland v. Commissioner of Customs, Bangalore - 2005 (185) E.L.T. 109 (Tri.-Bang.), has set aside the demand for non-consideration of the appellant rsquo s request for re-export. In these circumstances, the demands of duty and imposition of penalty upheld in the impugned order cannot be sustained. Therefore, we set aside the impugned order and allow the appeal with consequential relief, if any. (Pronounced in open Court on 10-5-2007)
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2007 (5) TMI 466 - CESTAT, NEW DELHI
Customs House Agent’s licence - Cancellation of ... ... ... ... ..... e customs authorities. Since Shri Nair was aware that the purchase order was required to be produced and was not being produced, as per the provisions under Regulation 14(d), he was required to bring this to the notice of Assistant Commissioner or Deputy Commissioner of Customs, which he has failed to do. Though this lapse does not warrant cancellation of the licence as ordered by the Commissioner, having regard to the facts and circumstances, we would have gone for a lesser punishment than this. However, taking note of the fact that the appellant has, in the past, been paralyzed from conducting their business for over eight months, and had remained suspended by the order dated 14-12-98, which came to be restored only on 31-12-99, i.e. nearly after one year we take a lenient view and do not consider any further reduced punishment. As a result, we set aside the order of cancellation issued by the Commissioner. The appeal is accordingly disposed of. (Dictated in the open Court)
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2007 (5) TMI 465 - CESTAT, KOLKATA
Refund - Notification No. 32/1999-C.E. - Procedure ... ... ... ... ..... ification, should first exhaust credit amount lying with him and then pay the balance amount by cash, refund of which is allowed. In this particular case because of the direction from the Departmental authorities, the respondents were not allowed to utilize part of the credit, which in any case they subsequently utilized and to that extent they have paid less amount by cash in the subsequent month and got proportionately less amount of refund for the subsequent month. Hence the amount of Rs. 95,664/-.whichthe respondents have paid towards duty liability for April, 2003 is refundable to them and hence the order passed by the lower appellate authority allowing such refund does not require any interference. However, the remark made by the lower appellate authority stating that the adjudicating authority certainly needs to be reprimended is unwarranted and the same is expunged. 4. emsp The Department rsquo s appeal is otherwise rejected. Dictated and pronounced in the open Court.
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2007 (5) TMI 464 - CESTAT, BANGALORE
National Calamity Contingent Duty (NCCD) - whether appellant are entitled for the benefit of exemption from NCCD under GOI Notification No. 108/95 Central Excise dated 28-8-1995 as amended? - Held that: - From the Section 129 of the Finance Act, 2001 and also from the Circular 60/01/06-CX dated 13-1-2006 issued by the CBEC, it is very clear that Exemption Notification 108/1995 is applicable also to NCCD - appeal allowed - decided in favor of appellant.
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2007 (5) TMI 463 - CESTAT, BANGALORE
Refund claim - Unjust enrichment - Bar of - Interest on sundry debtors - Valuation ... ... ... ... ..... y an assessee (a) CCE v. Novapan Industries Ltd. - 2007 (209) E.L.T. 161 (S.C.) 2007 (79) RLT. 237 (b) ICI India Ltd. v. CCE - 2000 (91) ECR 152 (c) A. Infrastructure Ltd. v. CCE - 2004 (167) E.L.T. 369 (S.C.) (d) Gabriel India Limited v. CCE - 2000 (120) E.L.T. 770 (e) CCE v. Zahi Tyres (I) Pvt. Ltd. - Final Order dated 1322-1323/2004 dated 30-7-2004 (f) CCE, Mangalore v. Excel Rubber Ltd. - Final Order Nos.969-970/2006 dated 24-5-2006. Therefore, we do not find that the Asstt. Commissioner was justified in disallowing the interest on receivables prior to 1996. Further, since the period involved in this appeal is prior to 25-6-1999, the provisions of unjust enrichment would not be applicable. The Original Authority can re-compute the refund amount due to the party by taking into account, the interest on receivable even prior to 1996. Hence, we allow the Appeal No. E/387/2005. (Operative portion of this order was pronounced in open Court on conclusion of hearing on 24-4-2007)
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2007 (5) TMI 462 - CESTAT, CHENNAI
Confiscation - Non-production of WPC Licence - Demand - Import - Notification No. 55/2003-Cus. - EXIM - Export obligation
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2007 (5) TMI 461 - CESTAT, AHMEDABAD
Appeal to Appellate Tribunal - Limitation ... ... ... ... ..... r of sales tax authority. 4. emsp I have carefully considered the submissions. After rendering of the order of the Commissioner (Appeals) dated 9-2-05, the applicant chose not to file an appeal. The claim that they paid under protest has no meaning, when they have not filed appeal against the order dated 9-2-05. Further, even after the Hon rsquo ble Supreme Court rendered their decision in Jan. rsquo 06 and which was published in Feb. rsquo 06, and they started availing the benefit from Feb. rsquo 06, they have not chosen to file the appeal within a reasonable period. Further, the issue in this appeal relates to short period and does not involve large amount, (considering the status of the assessee). 5. emsp I hold that no sufficient cause has been shown for granting condonation of such a long period of delay. 6. emsp Therefore, the condonation application is dismissed stay petition is dismissed and consequently the appeal is also dismissed. (Dictated and pronounced in Court)
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2007 (5) TMI 460 - CESTAT, CHENNAI
Stay/Dispensation of pre-deposit - Penalty ... ... ... ... ..... erature on the point has also been shown to us and the same corroborates the point made by learned counsel. Obviously, learned Commissioner (Appeals) has recorded a finding which is factually wrong. 3. emsp In the result, there will be waiver of predeposit and stay of recovery in respect of the penalty amounts. While taking this view, we have also taken into account the fact that 20 of the consignment valued at over Rs.3.6 lakhs is in the departmental custody. 4. emsp At this stage, learned counsel press for early disposal of the appeal in view of the fact that a part of the consignment has been withheld on a ground which is untenable on the facts and circumstances of the case. The bill of entry is claimed to be live and this claim is not contested. In the circumstances, and having regard to the peculiar nature of this case, we are inclined to grant out-of-turn disposal of the appeal. Accordingly, the appeal will be heard on 22-06-2007. (Dictated and pronounced in open Court)
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2007 (5) TMI 459 - CESTAT, NEW DELHI
... ...
... ... ..... not admittedly followed the prescribed Chapter X procedure, we hold that the lower authorities have rightly denied them the exemption which is conditional to following such procedure. Consequently, the appeal is dismissed. rdquo 11. emsp In the present case, the Commissioner may grant permission for transfer of goods from the place of supplier to the job workers directly subject to safeguard of revenue. It is revealed from the record that the Commissioner rejected the permission for movement of the goods from the place of supplier to the job workers directly. Therefore, I agree with the submission of the learned D.R. that the appellant did not receive duty free material at their factory and there is violation of Rules 2001. Respectfully, following the decision of the Tribunal in the case of Indofil Chemical Co. (supra), I do not find any reason to interfere with the orders of the lower authorities. Accordingly, the appeal is dismissed. (Pronounced in open court on 30-5-2007)
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2007 (5) TMI 458 - CESTAT, MUMBAI
Refund - Protest, duty paid under protest - Exemption ... ... ... ... ..... venue, it is that the Revenue is not at all challenging the order of the Commissioner (A) on the fact that the amount was paid ldquo under protest rdquo . 3. emsp The impugned order of the Commissioner (A) relies upon the Sr. No. 244 of Notification No. 06/2002-CE dated 1-3-2002 as amended by Notification No. 37/2003-CE dated 30-4-2003 and holds that it is applicable to the manufacturing process of the respondent. Further the Commissioner (A) has noted that the respondent was carrying out the manufacturing process such as treatment with alkali or acid and neutralization and bleaching. No contrary evidence is brought on record, to indicate that the findings of Commissioner (A) are factually incorrect. 4. emsp Accordingly, I find that the impugned order of the Commissioner (A) is correct and does not require any interference. The appeal filed by the revenue is dismissed and the cross-objection of the respondent disposed off as it supports the impugned order. (Dictated in Court)
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2007 (5) TMI 457 - CESTAT, MUMBAI
Refund - Cenvat/Modvat ... ... ... ... ..... Cenvat Account is eligible to avail the Cenvat amount on their own. On the other hand the Tribunal in the case of CCE, Belgaum v. Comfit Sanitary Napkin (I) Pvt. Ltd. as reported in 2004 (174) E.L.T. 220 (Tri. - Bang.) has come to the conclusion that the assessee can not avail suo motu credit without applying for refund when excess duty is paid. Since both these decisions reflect contrasting views for availment of suo motu credit, to my mind the matter has to be settled by a full Bench of Tribunal. In view of the conflicting decisions, the following issue is referred to Larger Bench ldquo If an assessee avails suo motu credit, of the amount of duty paid in excess by him, whether the view taken by the Tribunal in the case of Comfit Sanitary Napkins (I) Pvt. Ltd. will apply or the view taken by the Tribunal in the case of Tide Water Oil Company will apply rdquo . The Registry is directed to forward this reference for consideration of Hon rsquo ble President. (Dictated in Court)
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2007 (5) TMI 456 - CESTAT, AHMEDABAD
Confiscation, fine and penalty - Clandestine removal ... ... ... ... ..... goods found unaccounted do not lay credence to the submission that merely because they could not be weighed, it has not been accounted. 6.2 emsp Further a 100 EOU, though may be exempted from maintaining records in a statutory form, they have not been absolved of all responsibilities to maintain even private records on a day-to-day basis indicating production and clearances. 6.3 emsp The findings of the Commissioner (Appeals) regarding non-accountal of the goods and holding that the goods are liable for confiscation cannot be faulted. 6.4 emsp However, no question of clandestine removal has been alleged or found by the authorities. Therefore, some leniency can be shown in the matters relating to redemption find and penalty. 7. emsp While upholding the order of confiscation, I reduce the redemption fine from Rs. 4,91,000/- to Rs. 1 lakh. The penalty is reduced from Rs. 10,000/- to Rs. 2000/-. 8. emsp Appeal is disposed off on the above terms. (Dictated and Pronounced in Court)
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2007 (5) TMI 455 - CESTAT, KOLKATA
Stay/Dispensation of pre-deposit - Valuation ... ... ... ... ..... facts of the case indicate buy-back arrangement and not a job work situation. Secondly, the cited decision of the Hon rsquo ble Supreme Court does not address a case where job work is done in two different units of the same manufacturer. As such, the said decision, prima facie does not appear to be applicable to the facts of this case. Accordingly, we are of the view that the appellants do not have prima facie a case on merit for full waiver of the pre-deposit. The appellants also have not pleaded any financial difficulty in meeting the small amount of duty involved in this case. Accordingly, the stay petitions are rejected and the appellants are directed to pre-deposit the entire amount of duty minus the amount already pre deposited during the pendency of appeal before the Lower Appellate Authority within four weeks from today and report compliance on 10th of July, 2007. Both the stay petitions are disposed off in the above terms. (Dictated and pronounced in the open Court)
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2007 (5) TMI 454 - CESTAT, KOLKATA
Diesel - High Speed Diesel - Export under bond ... ... ... ... ..... ts rsquo case that in respect of the impugned goods exported under bond, the additional duty levied under Section 133 of the Finance Act, 1999 is not payable - (a) Circular No. 278/112/96-CX., dated 11-12-1996 (b) Circular No. 641/32/2002-CX., dated 26-6-2002 (c) Section 37B Order No. 60/1/2006-CX., dated 13-1-2006 (d) Corrigendum to instructions dated 13-1-2006 - Letter F.No. 232/ 16/2004-CX.7, dated 30-1-2006. 5. emsp We find that the impugned Order has been passed on 31-12-2003 without taking into account the clarifications contained in the aforesaid Circulars and Section 37B Order. In terms of these Circulars and the Order, the appellants are not required to pay the impugned duty under Section 133 of the Finance Act, 1999 in respect of the exported goods. Hence the impugned Order is set aside and the appeal is allowed with consequential benefits to the appellants. Cross- Objection filed by the Department also stands disposed off. Pronounced and dictated in the open court.
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2007 (5) TMI 453 - CESTAT, MUMBAI
Confiscation and penalty - Import of copper scrap - Pre-shipment certificate ... ... ... ... ..... was not produced, with an option to redeem the same on payment of redemption fine and also imposed penalty of Rs. 10,000/- and Rs. 5,000/- under Section 112(a) of the Customs Act, 1962. To my mind this seems to be incorrect, as the Circular of the DGFT directing for the Pre-Shipment Inspection Certificate was issued on 15-10-2004 and the consignments were loaded on to the ship at Singapore port on 27-9-2004 and 18-10-2004. It is beyond my imagination how the exporter loading the goods on the ship on 18-10-2004 in far away country would be aware of the Public Notice issued by the DGFT on 15-10-2004. Be that as it may, it is very clear on record that nothing incriminating was found in the whole consignment, even after 100 examination, is in itself ample evidence that there is no reason for confiscation and imposition of the penalty on the appellants. 3. emsp Accordingly, the impugned orders are set aside and appeals allowed with consequential relief, if any. (Dictated in court)
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2007 (5) TMI 452 - CESTAT, MUMBAI
Crushing plant, cone type - Exemption under Notification No. 20/99-Cus. ... ... ... ... ..... repare the feed size suitable for the secondary crushing, that is, in this case, the cone crusher. The product of the cone crusher is separated into various sizes by the use of vibrating screens. The oversize is recirculated to the cone crusher. The desired product is produced by the cone crusher alone and the jaw crusher is only a unit to provide the proper feed size to the cone crusher. The entire assembly consisting of the feeder, the crushers, vibrating screens, conveying systems etc. is to be considered a Stone Crusher (Cone Type) Plant. I certify this. An attested copy of the pamphlet describing the Scorpion 2000 Mobile Crushing Plant is also attached. (Prof. S. Venkatachalam) Encl. Attested copy of the pamphlet. According to the professor, the entire assembly is to be considered as stone crushing cone type plant. In these circumstances, we do not find any merit in the revenue rsquo s appeal. Hence we dismiss the same and upheld the impugned order. (Pronounced in Court)
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