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Showing 221 to 240 of 665 Records

• 2005 (8) TMI 525 - CESTAT, MUMBAI
  

  Medicaments - P or P medicaments

  
  
  ... ...
  ... ... ..... appeal papers and find that in one of the products the patented name ldquo Obroquin rdquo is conspicuously mentioned on the label. In so far as the other product in question is concerned, it does not carry any house name. The Commissioner rsquo s contention that the generic name is also conspicuously mentioned in the label and therefore the medicines are generic medicines and not P or P cannot be supported in view of the fact that the house name is conspicuously mentioned on the labels that accompany one of the products. We, therefore, hold that the product Obroquin is classifiable under Heading 3003.10 whereas Chloroquine Phosphate is classifiable under Heading 3003.20 as a generic medicine. Thus we allow the appeal partly in respect of the products on which the house name is prominently mentioned and reject the appeal in respect of the product where only generic name is mentioned on the label, classifying them under 3003.10 and 3003.20 of the Schedule to CETA respectively.

  ---

• 2005 (8) TMI 524 - CESTAT, MUMBAI
  

  Chemical product - Sodium Petroleum Sulphonate

  
  
  ... ...
  ... ... ..... test the sample. As such, authorities below have confirmed the orders previously passed in the de novo proceeding. 3. emsp The learned counsel for the appellants brings to our notice that as per the H.S. Explanatory Notes under Heading 34.02, water insoluble petroleum sylphonates are excluded from the said heading. He also states that surface active agents have to be soluble in water whereas the appellants product is not soluble in water. He states that this aspect has not been taken into account by the lower authorities while classifying the product as surface active agent under heading 34.02. 4. emsp After hearing both sides and considering that, retest of the sample is not possible at this stag ve, we are of the view that since the impugned product is insoluble in water, the classification of the product under heading 34.02 cannot be upheld. Accordingly, we set aside the impugned order and allow the appeal with consequential benefit to the appellants. (Pronounced in Court)

  ---

• 2005 (8) TMI 523 - CESTAT, NEW DELHI
  

  Demand - Wastage/process loss - Confiscation/redemption fine - Imposition of - Penalty - Quantum of - Remand - Quantification of demand

  ---

• 2005 (8) TMI 522 - CESTAT, MUMBAI
  

  Penalty - Quantum of - Strictures - Penalty, mandatory penalty

  
  
  ... ...
  ... ... ..... e equal duty provision only places a maximum limit on the penalty imposable. 4. emsp Despite such decisions by the Tribunal, the Board directing/expecting the officials to impose a lsquo mandatory penalty rsquo equal to duty in every case, is giving rise to numerous, frivolous and avoidable litigation. Even where an assessee is willing to pay the duty amount and a reasonable amount of penalty, he is being forced to file appeal to the Tribunal and such appeals are takings a lot of our time everyday when the same could be spent in deciding more substantive appeals. In any case, direction to impose penalty equal to duty amount in every case, irrespective of the gravity of a case, sounds draconian and we do not approve of it. 5. emsp We, therefore, uphold the penalty of Rs. 50,000/- imposed by the adjudicating Commissioner and reject the appeal of the department seeking an enhancement of the same to Rs. 30,62,219/-. The department rsquo s appeal is rejected. (Pronounced in Court)

  ---

• 2005 (8) TMI 521 - CESTAT, MUMBAI
  

  Refund - Unjust enrichment - Precedent - Rule of law

  
  
  ... ...
  ... ... ..... This contention of the appellants is appears to have misconstrued twist by the authorities concerned in setting that incidence of duty has been automatically passed on to the customers. In fact, the contention of the appellants otherwise what is stated is that he has fixed the price of the final product properly while taking the credit on the inputs. This aspect has not been verified by inspecting the records of the appellants rsquo unit. Therefore, the matter needs further probe not only on this aspect but reconsideration of both the Notification and the Delhi Tribunals rsquo order in the three matters. 17. emsp Therefore, in the aforesaid circumstances, it is felt expedient to remand the matter back to the Deputy Commissioner, Central Excise, Dharwad, for fresh disposal of the matter after hearing both sides and keeping all issues open and further basing on the records as stated supra. In the result, the appeal is allowed in remand in the above terms. (Pronounced in Court)

  ---

• 2005 (8) TMI 520 - CESTAT, MUMBAI
  

  Export - DEEC Scheme - Misdeclaration

  
  
  ... ...
  ... ... ..... lsquo dyed fabrics rsquo in international trade of import/export even if they are understood by Textile Technologists as White Dyes. In view of the international understanding of dyes and dyed fabrics, technical understanding as per literature produced by the appellants cannot prevail. The appellants plea that fluorescent brightening applied to fabrics are known or understood as dyed fabrics cannot be upheld. Therefore, the finding of the Commissioner that the appellants are not entitled to coverage under DEEC Scheme is required to be upheld and we order accordingly. However, as regards the confiscation of the goods under Section 113(d), we set aside the same in the light of the Supreme Court decision in Shilpi Exports - 2000 (115) E.L.T. A219 upholding Tribunal rsquo s decision reported in 1996 (83) E.L.T. 302 (T). 3. emsp While upholding the denial of benefit of DEEC Scheme we set aside the confiscation of the goods. The appeal is thus partly allowed. (Pronounced in Court)

  ---

• 2005 (8) TMI 519 - CESTAT, MUMBAI
  

  Confiscation and penalty - Import without licence

  
  
  ... ...
  ... ... ..... ce of the goods and thereafter, the tyres would be sent for re-trading and then sold in Indian market. We find that the Adjudicating authority has not assigned any particular role or attributed specific knowledge to the appellants that the old tyres imported in the name of Plastic Home were not permissible for clearance without a licence. Moreover, the reading of the statements as reproduced in the impugned order do not lead to the conclusion that either of them had any knowledge that the clearance of the imported goods required specific licence. We also find that the Commissioner has in general held that the omissions of the persons involved in the case rendered them liable to penalty which is not sufficient in the absence of any knowledge on the part of the appellants that the goods required to be cleared only under a licence. Therefore, penalties imposed upon them cannot be sustained. Accordingly, we set them aside by setting aside the impugned order and allow the appeals.

  ---

• 2005 (8) TMI 518 - CESTAT, MUMBAI
  

  Appeal to Commissioner (Appeals) - Power of Commissioner (Appeals)

  
  
  ... ...
  ... ... ..... ty, which he considers irrelevant or illegal in the circumstances of the case facts. Furthermore, the expunction herein i.e. the assessee was successful before this Tribunal vide another Appeal No. E/3673/03, wherein the Tribunal has considered awarding interest on the payment due to the assessee. Therefore, in view of the Tribunal rsquo s decision, the present appeal filed by the Department is not sustainable. 4. emsp The other Appeal No. E/327/03-Mum. is filed by the assessee assailing the Order of the Commissioner (Appeals) in rejecting the interest claim. As stated supra as this Tribunal considered the plea of the appellant (assessee) in respect of interest in some other appeal, this appeal became infructuous. Thus, the first appeal is disposed of as not sustainable one and the second appeal as infructuous. Consequently, the Departmental appeal is rejected and the appeal filed by the assessee is infructuous. Both appeals are disposed off accordingly. (Pronounced in Court)

  ---

• 2005 (8) TMI 517 - CESTAT, MUMBAI
  

  Cenvat/Modvat - Inputs used in export goods

  
  
  ... ...
  ... ... ..... manufacturer is not entitled to Modvat credit. The Tribunal has also held that a reading of various Central Excise Rules that shows that facility of Modvat credit is available in respect of duty paid on inputs used in or in relation to the manufacture of the specified dutiable final products. When no duty is paid on the final product Modvat credit cannot be allowed. 2. emsp None appeared for the respondents. Heard ld. DR and perused the records. The Department rsquo s contention is that the export goods are exempted from payment of duty and so under Rule 57C of the Central Excise Rules, 1944, credit cannot be availed is unsustainable. Modvat Scheme itself allows refund of Modvat credit accumulated on the inputs where final product is exported. Rule 57C comes in to play when final products which are cleared for domestic consumption, Rule 57C is not applicable when dutiable goods are exported. We see no merit in the Revenue rsquo s appeal and accordingly the appeal is rejected.

  ---

• 2005 (8) TMI 516 - CESTAT, NEW DELHI
  

  Confiscation and redemption fine - Penalty

  
  
  ... ...
  ... ... ..... ra). The Hon rsquo ble Supreme Court held that if the offending goods are not available, redemption fine can be imposed. 6. emsp In respect of penalty as the appellant cleared the goods which were seized by the Revenue outside the factory without paying any duty, therefore, there was a clear intention on the part of the respondent to evade payment of duty. The facts of the case in the case of Rashtriya Ispat Nigam Ltd. v. CCE reported in 2003 (161) E.L.T. 285 are not parallel to the facts of the present case. In that case there was no clandestine removal of the goods manufactured by the assessee. In these circumstances, setting aside the penalty is not sustainable. In view of the above discussion, the impugned order whereby the confiscation, redemption fine and penalty were set aside is not sustainable and the Order-in-Original is restored. The appeal is allowed. The cross-objections are also disposed of as indicated above. (Dictated and pronounced in open Court on 24-8-2005)

  ---

• 2005 (8) TMI 515 - CESTAT, MUMBAI
  

  Copper rods manufactured out of copper bars

  
  
  ... ...
  ... ... ..... pellate authority before the issuance of the said Section 11C notification in question. We do not find any justifiable reason to appreciate the above findings of the authorities below. Mere confirmation of demand prior to issuance of Section 11C notification by itself would not be justifiable ground for denying the benefit of the notification to the appellant, who should be placed upon the same platform vis-a-vis other assessee similarly situate. We also note that the Tribunal in the case of Devidayal Rolling Mills v. Collector of Central Excise, Bombay 1997 (96) E.L.T. 147 (Tri.) has examined the applicability of Notification No. 3/91-C.E. (N.T.) issued under Section 11C and has held that copper wire rods being manufactured out of duty paid copper wire rods during the period 13-5-1969 to 1st August, 1984 would not attract duty of excise. In view of the above, we set aside the impugned order and allow the appeal with consequential relief to the appellants. (Dictated in Court)

  ---

• 2005 (8) TMI 514 - CESTAT, KOLKATA
  

  Confiscation and penalty - Seizure of silver bars - No foreign markings

  
  
  ... ...
  ... ... ..... ., Vadodara v. Dhiren Chemical Industries reported in 2002 (139) E.L.T. 3 (S.C.), CCE, Hyderabad v. ITC Ltd. reported in 2005 (179) E.L.T. 15 (S.C.) 2005 (119) ECR 13 (S.C.). In present case the seizure of the silver was effected by the Inspector. The total quantity of the silver was less than 100 kgs. and the pieces weighing were less than 30 kgs. The Department has not adduced any independent evidence as regards the foreign origin of the goods except the statement of appellant himself which was subsequently retracted. The statement of Shri Mahesh Prasad who was the employee is not based on his personal knowledge but based on hearsay evidence. On the contrary the appellant has claimed silver in question bearing their symbol. Under these circumstances the confiscation of silver and imposition of personal penalty upon the appellant was not justified. The impugned order is thus set aside and the appeals are allowed with consequential relief to appellant. Pronounced on 12-8-2005

  ---

• 2005 (8) TMI 513 - CESTAT, NEW DELHI
  

  Demand - Clandestine removal

  
  
  ... ...
  ... ... ..... totally overlooked this important aspect and has upheld the order. It is also further seen that the department has not adduced any evidence in respect of clandestine removal of the inputs. Mere assertion by the authorities that shortage of inputs tantamounts to clandestine removal is not enough. A clandestine removal has to be proved and should be proved beyond doubt. I rely upon the decision of this Tribunal in the case of Icycold Commercial Enterprises (supra) in which it is held that ldquo clandestine removal is a positive act and burden of proving is on the department - Note provable merely on conjectures and presumptions rdquo . The fact of clandestine removal in this case is not proved by the department and hence the ratio as laid down by this Tribunal is applicable in this case. 5. emsp In view of the above I allow the appeal and set aside the impugned Order with consequential relief, if any, to the appellants. (Operative part of the Order pronounced in the Open Court)

  ---

• 2005 (8) TMI 512 - CESTAT, NEW DELHI
  

  Refund - Protest - Duty paid under protest - Vacation of protest

  
  
  ... ...
  ... ... ..... case, refund application was filed within a month of the communication. Therefore, the issue of claim being delayed does not arise. 7. emsp Coming to the merits of the case, the appellant rsquo s claim was sustainable both under Rule 9 and Rule 56A. That some other product came into existence at intermediate stage is of no relevance for the grant of 56A benefit. This position remains settled by the judgment of the Apex Court in the case of Swadeshi Polytex Ltd. - 1989 (44) E.L.T. 794. That the benefit of credit can be granted subsequently also remains settled by the judgment in the case of Formica India Division v. C.C.E. - 1995 (77) E.L.T. 511 (S.C.). Therefore, both the grounds taken by the lower authorities are not sustainable. 8. emsp In the light of what is stated above, the appeal is allowed. The appellant is entitled to take credit equivalent to the duty paid by them on the acetic anhydride as mentioned in the refund application. (Dictated and pronounced in open Court)

  ---

• 2005 (8) TMI 511 - CESTAT, BANGALORE
  

  Demand and penalty

  
  
  ... ...
  ... ... ..... in law. The Joint Commissioner, in OIO, has clearly admitted the fact that the invoices had been raised in the name of M/s. HCPL and further holds that it does not entitle them the ownership of goods. How he has come to this conclusion without evidence is not understandable. When the goods have been manufactured by M/s. HCPL on their own account by setting up their unit with a separate registration and cleared it with their own invoices, then it is difficult to hold that the goods cleared by them does not belong to them. In the absence of any evidence on record and also without M/s. HCPL being put to Notice, the impugned order is unsustainable in law. On our careful consideration of the submissions made by both sides, we agree with the learned Counsel that the demands are not sustainable for the reasons given. The same are set aside by allowing the appeal with consequential relief, if any. (Operative portion of this Order was pronounced in open court on conclusion of hearing)

  ---

• 2005 (8) TMI 510 - CESTAT, KOLKATA
  

  Return of duty paid goods

  
  
  ... ...
  ... ... ..... could not be transported to consignee due to the circumstances beyond their control i.e. due to theft of the goods while in transit and the goods received back after release by the Magistrate. In present case the goods could not be transported due to circumstances beyond control of Respondent. They were brought back to the factory under the intimation to the Deptt. concerned and no permission was required under Rule 173H(2)(D). The circumstances mentioned under Rule 173H(2)(D) are illustration and the list is not exhaustive. The contention of ld. D.R. is not acceptable. Rule 173H(3) relates to other duty paid goods or part thereof not specified under sub-rule II to enter or to retain in a factory or in a warehouse. Therefore, the Rule 173H(3) has no application in present set of circumstances. I do not find any infirmity in the order passed by the Commr. of Central Excise (Appeals). Appeal deserves to be dismissed. Consequently, I dismiss the appeal. (Pronounced on 29-8-2005)

  ---

• 2005 (8) TMI 509 - CESTAT, MUMBAI
  

  C4 Raffinate - Returned stream of C4 Raffinate (LPGs)

  
  
  ... ...
  ... ... ..... y rsquo s order rejecting the refund claim for duty paid on the return stream of C4R. 2. emsp Heard both sides. 3. emsp The Commissioner says that what is returned to the appellants rsquo unit is different without specifically classifying the lsquo Return Stream rsquo under any specific heading C4R was classified under Chapter Heading 2711.19 before it was sent to M/s. GPL. As per the decision of the Tribunal in IPCL and Anr. v. CCE, Vadodara 2005 (185) E.L.T. 44 (Tribunal) 2005 (122) ECR 71 (Tri. - Mumbai) the returned stream of C4R is also classifiable under the same heading (2711.19). The Commissioner rsquo s contention that what is returned is different from what was sent out has to be rejected. The appellants are entitled to refund of duty paid on returned C4R under Notification No. 157/92 read with Notification 28/89 C.E. dated 1-3-89 subject to the provisions of unjust enrichment in terms of Section 11B. 4. emsp The appeal is allowed in above terms. (Dictated in Court)

  ---

• 2005 (8) TMI 508 - SETTLEMENT COMMISSION, CUSTOMS AND CENTRAL EXCISE,
  

  Settlement Commission’s Order - Judicial Review

  
  
  ... ...
  ... ... ..... he basis of a wrong evidence which they have now sought to revise after making further investigations. This act of issuing a Show Cause Notice on the basis of wrong evidence is indeed grave and needs to be inquired into to fix responsibility against the errant officers for taking appropriate disciplinary action. 13. emsp The Bench feels that the indifferent and callous attitude displayed by the concerned Revenue authorities towards an order of settlement passed by the Commission, runs totally contrary to the concept with which the Government of India had set up the Settlement Commission i.e. to reduce litigation. The matter, therefore, needs to be brought to the notice of the Ministry and the senior officers of the Department. Accordingly, the Bench directs the Secretariat to endorse a copy of the Order to the Secretary (Revenue) to the Government of India and Chairman, Central Board of Excise and Customs for their information. 14. emsp All concerned are informed accordingly.

  ---

• 2005 (8) TMI 507 - CESTAT, MUMBAI
  

  Medicament - Cenvat/Modvat - Word and Phrases

  
  
  ... ...
  ... ... ..... proprietary medicines. Inasmuch as the mark on the container was only house mark and as such, the assessee was not entitled to the benefit of the Modvat credit. 11. emsp As we have discussed earlier, the expression Core IV, Core Tabs and Corflam is only in nature of a house mark and the medicines are being marketed under the names specified in Pharmacopoeia. The respondents have also not rebutted the Revenue rsquo s contention that the orders for export have also been placed under generic name and not under the trade name. It has also not been contested before us that the medicines are being traded in the market in their trade name. As such, we are of the view that the Commissioner (Appeals) rsquo s order holding the goods to be P and P medicines and thus entitled to the benefit of the Modvat credit is not sustainable. Accordingly, we set aside the same and allow the appeal of the Revenue by restoring the order of the Assistant Commissioner. (Pronounced in Court on 22-9-2005)

  ---

• 2005 (8) TMI 506 - CESTAT, MUMBAI
  

  Magnical tablets having therapeutic qualities - Classification of

  
  
  ... ...
  ... ... ..... e preparations not elsewhere specified. Moreover, it is evident that the tablets have therapeutic qualities as evidenced from the certificates of practising doctors. While we agree that such certificates by themselves may not conclusively decide the classification of a product (it is the Section Notes, Chapter Notes and Heading Notes, if any, that should be taken as a guide as held by the Supreme Court in Alpine Industries 2003 (152) E.L.T. 16 (S.C.) ), we observe that in the present case the tablets are prescribed by medical practitioners for a particular type of women patients and that they prevent amongst other things, high blood pressure. Simply because the word lsquo supplement rsquo is written in the literature accompanying the tablets it does not become a food supplement. The contention of the Department that magnical tablets are lsquo other rsquo edible preparation has to be rejected. 5. emsp The appeal is allowed. The order of the Commissioner (Appeals) is set aside.

  ---

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