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Case Laws
Showing 241 to 260 of 658 Records
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2008 (10) TMI 491 - CESTAT, NEW DELHI
Stay/Dispensation of pre-deposit - Cenvat/Modvat ... ... ... ... ..... 08 in Excise Appeal No. 1393 of 2008) 2009 (236) E.L.T. 623 (Tribunal) wherein the Bench took a view that malt roots come into existence as waste during the manufacture of barley malt, and as per the supplementary instructions of the Board, credit is available in respect of inputs contained in waste or by-product. The said order prima facie, in my opinion, does not lend any support to the appellants rsquo contention. However, I find substance in the other submission that the input services, namely, transport, insurance and the chartered accountant rsquo s fee cannot be dissected for the purpose of determining the value of barley malt and rootlets. That being so, I find a prima facie case in favour of the appellant for waiver of pre-deposit. 4. emsp Pre-deposit of the amount of duty with interest and penalty is accordingly waived and recovery stayed till disposal of the appeal. 5. emsp Stay application stands disposed of accordingly. (Dictated and pronounced in the open Court)
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2008 (10) TMI 490 - CESTAT, NEW DELHI
Penalty - Reversal of ineligible Cenvat/Modvat credit before SCN ... ... ... ... ..... eversing the Cenvat credit accumulated as on 31-3-2003. It is not in dispute that the respondents were entitled to take cenvat credit upto 31-3-2003 as the notification came into effect from 1-4-2003. The respondent in the ordinary course as per the terms of the notification should have reversed the credit as it opted to take the benefit of exemption. However, they did so only on 15-4-2003 after the audit pointed out the irregularity in course of the visit of the premises on 8-4-2003. The case of the respondent is that they could not do the needful as the records was not available. In the facts of the case, I am of the opinion that the credit taken by the respondent having been reversed much before issuance of show-cause notice, it is not a fit case in which the Tribunal should interfere with the discretion exercised by the appellate authority in debiting of the penalty on the respondent. 3. emsp The appeal is accordingly dismissed. (Dictated and pronounced in the open Court)
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2008 (10) TMI 488 - CESTAT, NEW DELHI
Order of Commissioner (Appeals) - Remand order ... ... ... ... ..... The Tribunal relied on the decision of Hon rsquo ble Supreme Court in Union of India v. Umesh Dhaimode -1998 (98) E.L.T. 584 (S.C.) wherein considering an identical issue the Supreme Court held that the power of remand is implicit in the power of annulling the order of the lower authority. It was submitted that there is difference of opinion among different High Courts on the point. This submission is totally misconceived. The law declared by the Supreme Court is binding on all courts and authorities in terms of Article 141 of the Constitution of India, in the circumstances, I have no difficulty in rejecting the contention that the remand order is without jurisdiction. 3. emsp Submissions were also made on merit of the case. However, as the appeal arise from a remand order with a direction for fresh adjudication on merit by the original authority, and therefore I do not wish to go into merit of the case. 4. emsp Appeal is dismissed. (Dictated and pronounced in the open Court)
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2008 (10) TMI 487 - CESTAT, CHENNAI
Cenvat/Modvat - Inputs - Line rejection - Held that: - the respondents had reversed credit availed in respect of inputs which were issued for manufacture and rejected at the assembly stage. The settled position on this aspect is that inputs issued and rejected at assembly stage are inputs issued for manufacture and no credit is liable to be reversed as such inputs are found not suitable and not consumed in further manufacture. In the circumstances, the impugned credit was not liable to be reversed - appeal dismissed - decided against Revenue.
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2008 (10) TMI 486 - CESTAT, NEW DELHI
Appeal to Appellate Tribunal ... ... ... ... ..... lamed for that. He also submits that the Applicant had not explained the delay in filing application as it was filed on 4-8-2008. 3. emsp After hearing both the sides and on perusal of the records, I find that Rule 20 of CESTAT (Procedure) Rules provides for restoration of appeals dismissed for non-prosecution. It is seen that on the identical situation, the Division Bench of the Tribunal after considering the facts and circumstances of the case, condoned the delay in filing appeal. It appears that the applicant is a State Government undertaking Co-operative society and appeal was dismissed for negligence of the ld. Counsel. In view of that, I find that it is a fit case for recalling the Order dated 12-7-2006. Accordingly, the order dated 12-7-2006 is recalled and the appeal is restored to its original number. Since the appeal relates to the year 2004, the hearing is fixed to 15-12-2008. The applications are allowed. (Order dictated and pronounced in open court on 24-10-2008)
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2008 (10) TMI 485 - CESTAT, NEW DELHI
Appeal - Restoration of appeal ... ... ... ... ..... al is dismissed for want of prosecution. rdquo 2. emsp Ld. Advocate on behalf of the Applicant submits that the Applicant had not received the hearing notice because their factory was closed down. He further submits that it came to their knowledge for rejection of the appeal by the Tribunal when the Central Excise Department started recovery of proceedings. 3. emsp After hearing both the sides and on perusal of the records, I do not find any force in the submission of the ld. Advocate. It is seen from the order of the Tribunal that the case was adjourned to 25-2-2000 in the presence of their counsel. It appears that the Applicant had not taken any step in the matter. It is also noted that the Tribunal passed the order in year 2001 and application was filed in July, 2008. There is no sufficient explanation for delay. In view of that, I do not find any merit in the application. Accordingly, the application is rejected. (Order dictated and pronounced in open court on 24-10-2008)
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2008 (10) TMI 484 - CESTAT, CHENNAI
Appeal by Department - Maintainability ... ... ... ... ..... he Tribunal given by the Commissioner. The Tribunal had found that the Commissioner had invoked the powers under Section 35B(2) but while signing the authorization he had not taken care to see the amended provisions of Section 35 B(2) on 18-5-05 when he signed the authorization. With effect from 13-5-2005, only the Committee of Commissioners could direct any Central Excise officer to file an appeal against an order passed by the Commissioner (A) if it felt that the said order was not legal and proper. 4. emsp The ld. Counsel submits that in the instant case, the authorization was signed by the Commissioner on 24-8-2006. As per the provisions of Section 35B(2) as it existed at the material time, any authorization issued under the said section has to be issued by the Committee of Commissioners. Therefore, in the instant case, the authorization filed was not valid. The appeal filed by the Revenue is dismissed as not maintainable. (Order dictated and pronounced in the open Court)
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2008 (10) TMI 483 - CESTAT, MUMBAI
Appeal by Department - Authorization ... ... ... ... ..... appeal rightly dismissed. In view of this it was submitted that the Commissioner (Appeals) order should be upheld and the revenue rsquo s appeal should be rejected. 4. emsp We have considered the submissions. We find that there are conflicting views on this issue, even among the High Courts. However, as against the Karnataka High Court views in favour of the revenue, we find that the decision of the Delhi High Court and the Bombay High Court supports the view taken by the Commissioner (Appeals) that once an order has been passed by an Additional Commissioner, directions given to Dy. Commissioner for filing an appeal are not correct and appeal filed by Dy. Commissioner against the order of the Additional Commissioner is not maintainable. Since the Bombay High Court is the jurisdictional High Court for this Bench, we respectfully follow the same and accordingly dismiss the appeal filed by the revenue and uphold the order of the Commissioner (Appeals). (Pronounced in the court)
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2008 (10) TMI 482 - CESTAT, MUMBAI
Cenvat/Modvat ... ... ... ... ..... under Rule 57E has been rightly denied and cannot be issued in the circumstances. 4. emsp We have considered the submissions. We find that the appeal filed by the Revenue makes a positive statement that neither the three show cause notices nor Order-in-Original allege any suppression of facts or mis-declaration, as they came to know of suppression only when the Cost-Audit report was received. While the Order-in-Original was issued in 1998, the allegations of suppression were made in the show cause notice issued in the year 2000. It is not understandable as to how a certificate under Rule 57E can be denied in 1998, when the show cause notice against which duty payment was made never alleged suppression of facts and such allegations have been made for the first time in the show cause notice issued in the year 2000. Clearly such order is not maintainable. We, accordingly, find no merit in Revenue rsquo s appeal and accordingly reject the same. (Dictated and pronounced in Court)
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2008 (10) TMI 481 - CESTAT, MUMBAI
Confiscation, fine and penalty - Misdeclaration ... ... ... ... ..... ce documents. Although the importers have drawn our attention to the fact that they had been seeking issue of EPCG licence for a used Liebherr Tower Crane, the licence does not mention whether it is for clearance of a new crane or a used crane. The importers appeared to have accepted that the licence covers only new crane as they have not contested the finding that the goods are to be assessed at the normal rate and not at the concessional rate available to EPCG clearance and have only challenged the fine and penalty. 4. emsp Since the charge of misdeclaration is clearly established confiscation is to be sustained. However, noting that the goods are meant for the Sardar Sarovar Narmada, Gujarat project and that the importers would not earn any substantial profit from the sale of the crane we reduce the fine to Rs. 10,00,000/- (Rupees Ten Lakhs only) and the penalty to Rs. 5,00,000/- (Rupees Five Lakhs only). 5. emsp The appeal is partly allowed as above. (Pronounced in Court)
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2008 (10) TMI 480 - CESTAT, MUMBAI
Valuation - Transaction value ... ... ... ... ..... rial on record to establish that transaction value was arrived at on the basis of negotiation with the foreign supplier so as to apply the apex Court judgment in Basant Industries v. Addl. Commissioner - 1996 (81) E.L.T. 195 (S.C.). Therefore, the Revenue is correct in its submission that the importers were offered a special discount which is not admissible under the law for arriving at the assessable value under Section 14(1) of the Customs Act, 1962 as held by the Tribunal in Coimbatore Pioneer Mills Ltd. v. Commissioner of Customs - 1991 (56) E.L.T. 858 (Tribunal) 1991 (37) ECR 680. We also note that the importers confirmed having been offered the goods from various suppliers at higher price ranging from US 1950 PMT CIF to US 2260 PMT CIF from Korea and Japan. We, therefore, uphold the enhancement of the unit price of the imported material to US 2200/- PMT CIF as ordered by the Adjudicating Authority, set aside the impugned order and allow the appeal. (Pronounced in Court)
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2008 (10) TMI 479 - CESTAT, NEW DELHI
Valuation - Transaction value ... ... ... ... ..... espondent. 4. emsp We find that the Commissioner (Appeals) in the impugned order held that the value was enhanced on the basis of evidence available in the NIDB data. But no specific evidence of contemporaneous imports of parallel parameters such as time of import, country of origin, description of goods and place of import has been produced, based on which transaction value has been rejected and the value of the impugned goods enhanced by 20 . Before us, also Revenue produced communication from Indian Customs, EDI System which shows that the value of item in question is not available. However, the value of black pepper is around Rs. 73,000/- PMT, in view of this, value should have more than US 1000 MT. Further, we find that the respondent produced evidence before the lower authority showing that the same goods are being imported at lower price. In these circumstances, we find no infirmity in the impugned order. The appeal is dismissed. (Dictated and pronounced in open Court)
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2008 (10) TMI 478 - CESTAT, AHMEDABAD
Stay/Dispensation of per-deposit ... ... ... ... ..... of Commerce only towards the end of January, 2008. It is admitted by the ld. Counsel that the ld. Commissioner of Customs should not have taken up the case for de novo adjudication before the outcome of the appellant rsquo s request to the Development Commissioner becomes available. We have heard the ld. SDR also. 2. emsp The ld. Counsel has also cited a line of decisions in his bid to establish that the impugned proceedings are premature. We feel that, at this stage, we need not examine this aspect. 3. emsp However, after noting that even the first order of the Commissioner took a long time since issue of the show cause notice and that his second order was passed in about period of 1 frac12 years since the date of remand order and further that the Development Commissioner took action only after the said second order was passed, we are inclined to grant waiver of pre-deposit and stay recovery of the adjudged dues. It is ordered accordingly. (Dictated and pronounced in Court)
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2008 (10) TMI 477 - CESTAT, NEW DELHI
Appeal by Department - Limitation ... ... ... ... ..... des powers of the Committee of Chief Commissioner or Commissioners of Central Excise to pass certain orders. I find that Section 35E is dealing with the filing of the appeal by Revenue whereby Committee of Chief Commissioners of Central Excise or the Commissioner of Central Excise may review the order. It has no concern with the Committee of Commissioners as prescribed under Section 35B(2) of the Act. So, the submission made by the ld. Advocate on this issue has no merit. 5. emsp Regarding the delay in filing appeal as explained by the ld. DR and on perusal of the records, I find that there is no negligence on the part of the Revenue. Ld. DR fairly submits that the time was taken by the Committee of Commissioners sitting at different places. Thus, there was sufficient cause for not presenting the appeal within the stipulated period. Accordingly the delay in filing appeal is condoned. The Misc. Application is allowed. (Order dictated and pronounced in open court on 15-10-2008)
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2008 (10) TMI 476 - CESTAT, MUMBAI
Order - Non-speaking order ... ... ... ... ..... ifiable. In the premises, I do not wish to interfere with the order of the Joint Commissioner. Accordingly the appeal is hereby rejected rdquo . It can be seen from the above reproduced portion of the impugned order that Ld. Commissioner (Appeals) has not dealt with the submissions made by the appellant before him. 5. emsp We are of the considered view that in respect of the excisability and dutiability of the product, the entire submissions made by the assessee before the authority has to be considered to come to a conclusion. We find that the impugned order to that extent is a non-speaking order. 6. emsp Accordingly, without expressing in opinion on the merits of the case and keeping all issues open, we remand the matter back to the Ld. Commissioner (Appeals) who should consider issue afresh after granting an opportunity of personal hearing to the appellant, before coming to any conclusion. Appeal allowed by way of remand and impugned order is set aside. (Dictated in Court)
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2008 (10) TMI 475 - CESTAT, BANGALORE
Interest and penalty - Delay in payment ... ... ... ... ..... uo before the Hon rsquo ble High Court of Karnataka. The lsquo Grounds of Appeal rsquo clearly show that the Commissioner has raised the ground pertaining to the levy of interest for the delayed period before the Hon rsquo ble High Court. In view of this position, we hold that the appellants are liable to pay interest for the delayed payment in this case. In view of the ratio of the Hon rsquo ble High Court of Allahabad judgment rendered in the case of M/s. Pee Aar Steels (P) Ltd. v. Commissioner of Central Excise, Meerut 2004 (170) E.L.T. 406 (All.) and the Tribunal rsquo s judgment rendered in the case of CCE and C, Aurangabad v. Padmashri V.V. Patil S.S.K. Ltd. 2007 (215) E.L.T. 23 (Bom.) we hold that the penalty is not leviable as already decided in this case by this Bench earlier Final Order No. 1332/2005 dated 9-8-2005, but the appellants are liable for interest for the delayed payment. The appeal is disposed of in the above terms. (Pronounced and dictated in the court)
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2008 (10) TMI 474 - CESTAT, AHMEDABAD
Notification No. 3/2001-C.E. ... ... ... ... ..... which have sugar electrolyte or fluid replenishment and used Exclusively or Alone for such purpose and do not have anything extra as is being pleaded by the Revenue before us. That would be reading the words ldquo Exclusive or Alone rdquo in the notification, which is not called for and cannot be done rdquo 5.4 emsp The fact that that the appellant could get a licence by submitting application in form 28D without any change in the product or manufacturing process also shows that one of the grounds relied upon by the Revenue to deny exemption has failed. 6. emsp In view of above discussion, we hold that the products Calcium Borogluconate Injection and Calcium Magnesium Borogluconate Injection are eligible for exemption as claimed by the appellants and therefore, we allow the appeals of the appellants with consequential relief and benefits to the appellant and reject the appeals filed by Revenue. Stay petition also gets disposed of. (Pronounced in the open Court on 10-10-2008)
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2008 (10) TMI 473 - CESTAT, BANGALORE
Rectification of mistake - Ex parte order ... ... ... ... ..... e hearing was fixed by the registry at the Circuit Bench in Cochin for 14-9-2007, it appears that no cognizance was taken of these letters from the parties. In the letter written by Chartered Creations it has been stated that the hearing fixed on 14-9-2007 has to be postponed. That shows they had received the date of hearing. However, in the Olympia overseas there is no reference to the date of hearing fixed by the registry. But in any case, there is a request for postponement hearing for a period of three months from 28-8-2007. As no action has been taken on this letter in the interest of justice and in view of the decision in the J.K. Synthetics Ltd. v. CCE - 1996 (86) E.L.T. 472 (S.C.) where even the order passed by the Tribunal on merit was recalled in the interest of justice, we are inclined to recall the final order and allow the ROM. The ROMs are allowed by recalling the impugned orders and the cases will be reheard on 4-11-2008. (Pronounced in open Court on 3-10-2008)
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2008 (10) TMI 471 - CESTAT, NEW DELHI
Stay/Dispensation of pre-deposit ... ... ... ... ..... therefore the goods are not wholly exempted from duty. On perusal of the records and the submissions of the parties, we find that prima facie, the goods in question are not wholly exempted from duty and it is covered under serial No. 3 of the said notification. We have also noted that prima facie part of the demand of duty about Rupees Twenty two lakhs is barred by limitation. In view of that, we hold that the appellant have made out the prima facie case for waiver of pre-deposit of duty and penalty. The Commissioner (Appeals) rejected the appeal without going into the merits. Therefore, we set aside the impugned order and the matter is remanded back to the Commissioner (Appeals) to decide afresh on merits, without any pre-deposit. We make it clear that the observations made by us in this order would not influence to the parties while deciding the matter on merit. Stay application is disposed off. The appeal is allowed by way of remand. (Dictated and pronounced in open court)
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2008 (10) TMI 470 - CESTAT, CHENNAI
Interest on restoration of Modvat credit ... ... ... ... ..... us that both sides are harping on the principle of compensation. 4. emsp Compensation arises either where there is a breach of contract by one of the parties to the contract or where there is a violation of statutory provision in appropriate case. The offending party has to compensate the injured party. In the present case, the appellants have not claimed that they were compelled to reverse Modvat credit on account of departmental coercive action. They appear to have reversed Modvat credit out of their own volition. Later on, when the appellate authority ordered restoration of the credit, they lost no time to restore it. In this scenario, we do not think that the government should compensate the assessee by way of payment of interest. Moreover, the appellants have not been able to substantiate their claim under Section 11AA of the Act. No other provision of law has been cited before us. 5. emsp In the result, the appeal gets dismissed. (Dictated and pronounced in open court)
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