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Case Laws
Showing 221 to 240 of 655 Records
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2005 (7) TMI 511 - CESTAT, MUMBAI
SSI Exemption for assessee availing Cenvat/Modvat credit ... ... ... ... ..... ification benefit would suffice a declaration of intent and following the case law of this Tribunal allowed the appeal after setting aside the demands. Revenue is in appeal. 2. emsp We found, no proforma of an option has been prescribed, which is required to be filed. The declaration under Rule 173B would be sufficient compliance of intent to opt for the benefit of the notification. We find no reasons to disturb the CCE (A)s order in the facts of this case, following a catena of decision on this notification itself. 3. emsp Consequently the appeal is rejected. (Pronounced in Court.)
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2005 (7) TMI 510 - CESTAT, BANGALORE
Clandestine removal - Proof ... ... ... ... ..... ue appeal and the same is rejected. The finding recorded by the Commissioner on this point should have been applied with regard to the confirmation of demand of Rs. 1,50,548/- which pertain to excess produced tread rubber and strips which were found in the premises. The appellants had clearly explained with evidence that this material had come for replacement and evidence had been produced. 4. emsp We have carefully gone through the records and accept the plea of the appellants that to confirm clandestine removal, there should be evidence of procurement of raw material, of raw rubber and carbon black. The same is not forthcoming. There is no evidence of excess consumption of electricity. Therefore, the ratio of the Devi Industries (supra) applies to the facts of the case. The confirmation of demand of Rs. 1,50,548/- is required to be set aside including penalty of Rs. 10,000/- under Rule 173Q of the Act with consequential relief if any. (Pronounced and dictated in open Court)
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2005 (7) TMI 509 - CESTAT, MUMBAI
Rectification of mistake - Review of order ... ... ... ... ..... y the Assistant Commissioner in the case of Essar Steel Ltd., was not accepted and the appeal there against was filed before the Commissioner (Appeals), who had set aside the Order-in-Original. As such, the invoice issued by M/s. Essar Steel Ltd., were held to be invalid invoice for the purpose of Modvat credit. The present order passed by the Tribunal laying down Modvat credit on the basis of such invoice should be set aside. 2. emsp However, I find that the above facts were not placed by the Ld. DR before the Court, at the time of passing of the order. It was in these circumstances that the appeal filed by the Revenue was rejected. Any reference to new fact or the judicial pronouncement would amount to arguing the appeal on new point and those seeking review of the order which is not permissible. It is well settled that the review of the order cannot be sought under the guise of rectification of any mistake, as such I reject the ROM filed by the revenue. (Dictated in Court)
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2005 (7) TMI 508 - CESTAT, MUMBAI
Valuation - Demand - Limitation - Order ... ... ... ... ..... ute is 1984-1987 whereas the show cause notice was issued in 1989. The appellants rsquo contention is that the issue relating to addition of sales promotion expenses has been a subject matter of several show cause notices during the period 1-5-1985 to 25-11-1987 answerable to the Assistant Commissioner. The present show cause notice covers the period 1-4-1984 to 29-11-1987 invoking larger period of limitation. This aspect has not even been addressed by the Commissioner in his order though he refers to some order on the same issue passed by him while he was Appellate Commissioner. The appellant before him appeared to be M/s. GSM only. We agree with the appellant that even the demand for Rs. 1,32,670.67 made on them in the show cause notice is time-barred. 14. emsp The impugned order cannot be sustained insofar as the duty demanded on M/s. GSM is concerned. 15. emsp The Commissioner rsquo s order imposing penalties on various firms and person also therefore has to be set aside.
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2005 (7) TMI 507 - CESTAT, BANGALORE
Manufacturer - SSI Exemption ... ... ... ... ..... s to 201 customers spread all over the country. The appellants contention that these items are parts of ice-cream and ice candy machines and are classifiable under heading 84.19 of CET and eligible for the benefit of the notification. They have cited the Tribunal ruling rendered in the case of CCE v. Gasko Refrigeration Engineers. On our perusal of the citation, we find that the Commissioner rsquo s classification of this item under 8418.00 of CET is not correct. They have to be classified under chapter 8419.00 in terms of the Tribunal rsquo s ruling rendered in the case of CCE v. Gasko Refrigeration Engineers. The clearances to the appellants were all within exemption limit in terms of the impugned order, therefore they are eligible for the benefit of the SSI exemption. The appeals are allowed on this ground with consequential relief by setting aside the demands penalties and fine. (Operative portion of the order already pronounced in open Court on conclusion of the hearing)
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2005 (7) TMI 506 - CESTAT, BANGALORE
Cenvat/Modvat ... ... ... ... ..... ield by the AC before the Commissioner (Appeals) the same was reversed. The Commissioner (Appeals) in the impugned order has confused the provisions of Rule 8 of the Cenvat credit rules. He has noted that they have not closed their unit at Amirpet and it is not a case of shifting of one unit to another unit. Apparently he has not gone through the records and not examined the AC rsquo s speaking order which is based on the evidence produced by the Assessee showing the closure of unit at Amirpet due to Pollution Control Board rsquo s order and shifting the same unit to Dundigal. Rule 8 of Cenvat Credit Rules correctly applies to the facts of the case and they are eligible for transfer of the Cenvat credit. The order passed by the Commissioner (Appeals) is not correct. The Assistant Commissioner has examined the issue in detail and has given a speaking order. The speaking order is upheld by allowing the appeal. Stay and appeal are allowed. (Pronounced and dictated in open Court)
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2005 (7) TMI 505 - CESTAT, NEW DELHI
Confiscation and penalty - Brand name - Registration of brand name ... ... ... ... ..... contention of the learned Counsel. We find from the record that the brand name lsquo Turnado rsquo is owned by M/s. Sung Porn Co. Ltd., Taiwan who had appointed M/s. Kobian India Pvt. Ltd. as their sole distributor for sale of their branded goods in India, while the brand name lsquo Yamaha rsquo stands registered in the name of M/s. Electro Equipment Enterprises, Hari Nagar, New Delhi. The appellants have no doubt applied for registration for these two brand names, in their name but so far the same had not been accorded to them. Having used the brand names of other persons without getting the licence/registration from the Central Excise, the appellants have rendered themselves liable for penal action. Their branded goods have been rightly confiscated and redemption fine and penalty imposed on them are quite reasonable. We do not find any illegality in the impugned order and the same is upheld. The appeal of the appellants is dismissed. (Dictated and pronounced in open Court)
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2005 (7) TMI 504 - CESTAT, BANGALORE
... ...
... ... ..... one through the impugned order. The Commissioner has examined the issue and passed the order on this point also holding that this amount was to be paid towards various dues to be payable for various other parties and purposes. After detailed examination he has found that the amount of Rs. 50.50 lakhs paid was towards business expenditure and cannot be considered as value of the ship purchased through tender by the importer. Hence he has not found any nexus between this amount and sale price. The Commissioner after following several judgments has held that this amount cannot be added in the assessable value. We are of the agreement with the detailed findings given by the Commissioner in the light of several judgments and Valuation Rules that this amount cannot be treated as part of the assessable value. Thus the order passed by the Commissioner is upheld. Hence this appeal is dismissed. (Operative portion of the order has been pronounced in open Court on completion of hearing)
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2005 (7) TMI 503 - CESTAT, BANGALORE
... ...
... ... ..... Excise and Salt Act. He also invited our attention to the orders of the Commissioners of Visakhapatnam and Chennai wherein they have dropped the proceedings by holding that the subsidy on account of difference in freight cannot be included in the assessable value. 4. emsp The learned SDR fairly conceded that the issue is covered by the Board Circular dated 18-9-2000. 5. emsp We have gone through the records of the case carefully. The issue of includability of the difference between actual freight and notional freight is covered by the Board rsquo s Circular dated 18-9-2000, In the said Circular, the CBEC on the basis of the opinion of Department of Legal Affairs has clarified that in the case of Administered Price, the contribution from the Oil Pool Account cannot be added in the dutiable value. In view of the clear position in the matter, we allow the appeal with consequential relief. (Operative portion of the order has been pronounced in the Court on completion of hearing)
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2005 (7) TMI 502 - CESTAT, NEW DELHI
Jurisdiction - Territorial jurisdiction - Demand - Clandestine removal ... ... ... ... ..... m the demand against M/s. MIE. There should be evidence regarding the procurement of the raw material and manufacture of the excisable goods which were cleared without payment of duty. The appellant relied upon following decisions - 1. Nutech Polymers v. CCE - 2004 (173) E.L.T. 385 2. M.H. Textiles v. CC - 2004 (173) E.L.T. 80 3. Essvee Polymers v. CCE - 2004 (165) E.L.T. 291 4. Sangamitra Cotton Mills Pvt. Ltd. v. CC - 2004 (163) E.L.T. 472 In these cases the Tribunal held that charge of clandestine clearance of goods has to be proved by the department by producing cogent, convincing and tangible evidence and not on the basis of assumption and presumption. As the adjudicating authority in the impugned order in Para 62 held that it is not possible to arrive at the value of clearances separately manufactured by the appellant, therefore, the demand of duty on the ground that appellant cleared goods without payment of duty is not sustainable hence set aside. Appeals are allowed.
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2005 (7) TMI 501 - CESTAT, BANGALORE
EXIM Policy - Export in anticipation of licence ... ... ... ... ..... erseas (P) Ltd. v. UOI - 2003 (161) E.L.T. 47 (Bom.) Sanjay Sanwarmal Agarwal v. UOI - 2004 (169) E.L.T. 261 (Bom.) M/s. T.T.K. Prestige Ltd. v. CC, Bangalore - Final Order No. 519/2005 dated 4-4-2005 2005 (188) E.L.T. 385 (T) Lucas TVS, Madras v. ACC, Madras and Others - 1987 (28) E.L.T. 266 (Mad). 4. emsp On a careful consideration of the submissions, we notice that the Commissioner has examined all the aspects of the matter in the light of Paras 66 and 67 of the EXIM Policy and has held that the export can be done in anticipation of licence issued. There is no dispute that the licence was issued in the matter and the same had been clearly endorsed in the DEEC book. The rulings cited before us clearly shows that the ratio of these judgments also applies to the facts of the case. There is no infirmity in the impugned order. Hence, there is no merit in the appeal and the same is dismissed. (Operative portion of this order was pronounced in open Court on conclusion of hearing)
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2005 (7) TMI 500 - CESTAT, BANGALORE
Rectification of mistake - Error apparent on face of record ... ... ... ... ..... ot correct, as the eligibility of credit should be decided with reference to Rule 57G as it stood during the material time i.e. from May 1996 (before 23-7-1996) and as interpreted by the Hon rsquo ble Tribunal and SC in the case of Jawahar Mills Ltd. 2001 (132) E.L.T. 3 . In the Jawahar Mills case, cables, capacitors control panels, cable distributors boards etc., are qualified as capital goods under Rule 57G. The ratio of the Apex Court applies to Cores system with monitor. Moreover, in the following decisions it has been held that control panels and monitors are eligible for credit under Rule 57G during the relevant time. (1) Final Order Nos. 1146 to 1173/2001, dated 18-7-2001 (2) Triveni Engg. and Indus Ltd. v. CCE 2000 (117) E.L.T. 344 (T) (3) CCE v. Jindal Strips Ltd. 2000 (126) E.L.T. 631 (T) In view of the above, we allow the Modvat credit on Cores system with monitors. rdquo (Operative portion of the order already pronounced in open Court on conclusion of the hearing)
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2005 (7) TMI 499 - CESTAT, NEW DELHI
Demand - Show cause notice ... ... ... ... ..... stion had not been re-warehoused and duty liability had not shifted to recipient while in the present case duty liability remains shifted. 4. emsp Having perused record and hearing both sides, we are of the opinion that since the show cause notices had been issued to two parties in relation to the same duty demand, it is necessary that the proceedings be consolidated and adjudicated together. It is stated by both the sides that show cause notice issued to M/s. Bhola Ram Girdhari Lal is yet to be adjudicated. In these circumstances, we set aside the impugned Order and remand the matter back to the Commissioner for afresh adjudication along with show cause notice dated 24-6-96. The appeal is ordered accordingly. 5. emsp Since the duty demand relates to a decade old import we direct the Commissioner to take up this matter on high priority for adjudication and pass an Order within 3 months from the date of receipt of copy of this Order. (Dictated and pronounced in the open Court)
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2005 (7) TMI 498 - CESTAT, NEW DELHI
Penalty - Cotton yarn in plain reel hank as well as on tubes ... ... ... ... ..... Udyog (supra) has already been dismissed by the Supreme Court. Therefore, in view of the above decision of the Supreme Court the appellants are entitled for the cum duty benefit. 7. emsp In respect of penalty we find that the Hon rsquo ble Supreme Court in the case of State of M.P. v. B.H.E.L. - 1998 (99) E.L.T. 33 held that Adjudicating Authority has to impose the lesser amount of penalty where mandatory penalty is provided under the Act. Keeping in view the facts and circumstances of the case we find a consolidated penalty of Rs. 7 lakhs will meet the ends of justice. 8. emsp The appellants also filed appeals against order whereby personal penalty is imposed on the directors. There is no finding in the impugned Order regarding the commission or omission with intend to evade payment of duty on the part of the directors. Therefore, personal penalties imposed on the directors are set aside. The appeals are disposed of in above terms. (Dictated and pronounced in the open Court)
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2005 (7) TMI 497 - CESTAT, NEW DELHI
Exemption - Benefit of Notification No. 12/2001-C.E. - Demand and penalty - Limitation - Penalty
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2005 (7) TMI 496 - CESTAT, NEW DELHI
Confiscation and penalty - Non-notified goods ... ... ... ... ..... te confiscation, as ordered by the Commissioner (Appeals) of the silk, could not be ordered being not notified goods under Sec. 123 of the Customs Act. Therefore, the option was required to be given to the appellants for getting the seized fabric redeemed on payment of redemption fine. The impugned order, directing absolute confiscation of the goods, requires modification and the same is accordingly modified. The appellant, Shri Amit Barman is allowed to redeem the goods on payment of redemption fine of rupees 10,000/- while the other two on payment of redemption of rupees 50,000/- each. 4. emsp The personal penalties of 10,000/- imposed on each appellant by the Commissioner (Appeals), do not require any interference and modification, as the same are not on higher side. 5. emsp In the light of discussion made above, the impugned order accordingly stands modified. The appeals of the appellants are allowed with consequential relief as per law. (Dictated and pronounced in Court)
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2005 (7) TMI 495 - CESTAT, NEW DELHI
Cenvat/Modvat - Duty paying documents ... ... ... ... ..... or/partner of M/s. Jain Tar Udyog from whom Shri R.K. Gupta received the goods, was recorded to the effect that the goods were never supplied by that firm, to Shri R.K. Gupta. Under these circumstances, general statement of R.K. Gupta referred above, could not be used against the appellants for denying the Modvat credit on the goods received by them under the cover of duty paid invoices. There is also no evidence on the record to suggest that the goods were not actually received by the appellants or that the goods were not utilised by them in the manufacture of final product. Therefore, appellants could not denied Modvat credit of the amount in dispute. 3. emsp In the light of the discussions made above, the impugned order denying Modvat credit and imposing penalty as detailed therein, cannot be sustained against the appellants and the same is set aside in toto. The appeals of the appellants are allowed with consequential relief as per law. (Order dictated in the open Court.)
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2005 (7) TMI 494 - CESTAT, BANGALORE
Rectification of mistake - Cenvat/Modvat ... ... ... ... ..... n the present case, the additional duty of customs leviable on Mica paper is Nil. Since the Notification restricts the Modvat credit to the additional duty of customs leviable, the Modvat credit available is also Nil. Vikram Ispat decision has not ignored the provisions of Notification No. 177/86 at all. On the contrary, the decision makes it clear that the Modvat credit is restricted to additional duty of customs leviable on like goods. The additional duty of customs leviable on Mica paper under section 3 of the Customs Tariff Act was Nil under Notification No. 36/94-CE, dated 1-3-94 and 8/96, dated 23-7-96. In none of the decision stated by the appellants, it has been stated that the entire duty paid on goods cleared from 100 E.O.U. is available for taking Modvat credit and the Notification No. 177/86 should be ignored. Hence, the final Order, in our view does not suffer from any infirmity. Consequently the ROM application is rejected. (Pronounced in the Court on 28-7-2005)
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2005 (7) TMI 493 - CESTAT, NEW DELHI
Stay/Dispensation of pre-deposit ... ... ... ... ..... ation. It is also being pointed out that when the neighbouring unit rsquo s price was Rs. 44/- the assessee would be not able to sell in the market at a higher price than that. 9 emsp 2.Learned SDR has pointed out that the Commissioner has gone in detail into the method of billing and collection made by the appellant, and the findings are well supported. 3. emsp Prima facie, there is merit in the appellant rsquo s contention. When the value of neighbour rsquo s unit was also at the same price of the appellant, there is no justification for holding that the appellant rsquo s product had a much higher assessable value. It is also well-settled that recoveries towards freight, being a different realisation, than the price of the goods, the same should have no place in determining the assessable value o the goods. 4.In view of what is stated above, the requirement for pre-deposit is waived and recovery stayed till the disposal of the appeal. (Dictated and pronounced in open Court)
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2005 (7) TMI 492 - CESTAT, CHENNAI
... ...
... ... ..... R, relying on the Supreme Court rsquo s judgment in Priya Blue Industries v. CCE, 2004 (172) E.L.T. 145 (S.C.), it is not open to an assessee to claim refund of customs duty without challenging the assessment. In the present case, it is pertinent to note that the assessee had paid duty under protest, from which fact it is apparent that they had an inclination to challenge the classification of the goods determined by the assessing authority. But they never challenged the assessment in accordance with law. In the circumstances, it is discernible that the assessee waived their right to challenge the assessment and acquiesced in favour of the Revenue. They, however, chose to file refund claims later on, raking up classification dispute. The Supreme Court rsquo s judgment relied on by ld. SDR has placed an embargo of this kind of challenge. emsp 3.In the result, the impugned orders get set aside and these appeals of the Revenue are allowed. (Dictated and pronounced in open Court)
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