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Showing 241 to 260 of 655 Records

• 2005 (7) TMI 491 - CESTAT, MUMBAI
  

  Refund - Duty paid under protest

  
  
  ... ...
  ... ... ..... notes in favour of the buyer and then claims the refund of duty instead of advising the buyer to apply for a refund if he has not passed on the incidence of duty to his buyer. Section 11B has an elaborate machinery for the buyer to claim a refund. The fact is that an assessee who has passed on the incidence of duty becomes functus officio in so far as the claim for refund of that amount is concerned. Over the years several devices have been invented to claim refund of duty even in cases where duty has been already collected in an attempt to enrich oneself. 19The appellants reliance on Hindustan Metal Printings is also misplaced. In Sahakari Khand Udyog Mandal, the Supreme Court has distinguished the decision and held that the facts in that case are different. The facts in the appellants case are equally different from the one rsquo s in Hindustan Metal. Therefore, we see no force in the appellants rsquo reliance on the decision in that case. 5 emsp 19.The appeal is rejected.

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• 2005 (7) TMI 490 - CESTAT, NEW DELHI
  
  ... ...
  ... ... ..... t a case where there had been a clandestine removal of the goods without payment of duty, it is a case where duty has been discharged from a wrong account by the appellants at the time of clearance of the goods. The credit standing to their account is nothing but pre-paid duty by them. They are entitled to discharge the duty through this account at the time of clearance of the goods under the law. However, in this case they were required to pay duty only from PLA which they did not do so but for their fault, the revenue already stands compensated as the appellants had not only paid the duty from PLA, but also the interest thereon. Therefore, the penalty imposed on the appellants deserves to be reduced and the same is accordingly reduced to Rs. 50,000/-. Pre-deposit amount of the appellants shall be adjusted towards this penalty amount. The impugned order accordingly stands modified and appeal of the appellants accordingly stands disposed of. (Order dictated in the open Court)

  ---

• 2005 (7) TMI 489 - CESTAT, NEW DELHI
  

  Stay/Dispensation of pre-deposit

  
  
  ... ...
  ... ... ..... d product and is therefore, not excisable. Another contention is that the Show-cause Notice had proposed classification under Chapter heading 29 while the order has deviated from this proposal and demanded duty under 3824 which is not permissible. 3. emsp Prima facie, we are of the opinion that the appellant rsquo s submissions are required to be accepted. It is being noted that even caprolactam retrieved from wash water has been held by the Supreme Court in the case of Nirlon Synthetic Fibres and Chemicals Ltd. v. C.C.E. - 1996 (86) E.L.T. 457 as not a excisable product. In such a situation, the wash water, which contains merely traces of caprolactum cannot be treated as a product at all. Further, the adjudicating authority cannot go beyond the scope of Show-cause Notice. In these circumstances, the requirement for pre-deposit is waived and stay of recovery ordered till disposal of the appeal. Appeal to come up in its turn for hearing. (Dictated and pronounced in open Court)

  ---

• 2005 (7) TMI 488 - CESTAT, CHENNAI
  

  Cenvat/Modvat - Capital goods

  
  
  ... ...
  ... ... ..... equipments. Hence these items also became part of the plant. In terms of Explanation (1)(b), parts of plant, machinery, machines, equipments, etc., used for producing or processing of any goods or for bringing about any change in any substance for the manufacture of final products are also comprised in the meaning of capital goods for Modvat purpose. Hence capital goods credit was available to the structural items in question. Learned Commissioner (Appeals) appears to have been carried away by the provisions of Rule 57Q(1) as amended on 1-3-97. The said provisions were not applicable to any period prior to 1-3-97. The original authority held that the said structural items were not covered by Explanation to Rule 57Q(1). This finding is erroneous inasmuch as the goods were covered by Explanation (1)(b) to Rule 57Q(1) as the Rule stood on the relevant date. emsp 3.In the result, the impugned order gets set aside and this appeal is allowed. (Dictated and pronounced in open Court)

  ---

• 2005 (7) TMI 487 - CESTAT, CHENNAI
  

  Cenvat/Modvat - Capital goods

  
  
  ... ...
  ... ... ..... ardous nature of the chemicals handled in the factory for the manufacture of the final product. Without this infrastructural facility, it was not possible for the appellants to manufacture their final product viz. caustic soda, chlorine and chloromethane. Hence it has to be held that the above couplings were used for ldquo producing or bringing about any change in any substance for the manufacture of the final product rdquo , which was substantive requirement for capital goods credit in 1996 and the said goods fulfilled this requirement. Hence, the impugned order disallowing the above credit is set aside and this appeal is allowed. (Dictated and pronounced in open Court)

  ---

• 2005 (7) TMI 486 - CESTAT, MUMBAI
  
  ... ...
  ... ... ..... dered the appellant rsquo s profit and loss accounts which showed gross profits of 19 to 22 and has inferred that such high profit percentage, which relates job work activities, was not comparable with profits accruable on sale of fabrics at the appellants factory gate and that entire trade in the region has accepted and are including manufacturing profit 4 . I find that in absence of availability of actual selling price at factory gate the Asstt. Commissioner was justified in concluding that manufacturing profits 4 was includible in values to arrive at nearest equivalent of the deemed price at which fabrics would leave factory gate. rdquo 3.There is no merits, in the contention of the appellants that such inclusion for arriving at the assessable value is contrary to law and on the other hand, we find that the authorities below have correctly determined the assessable value and raised the demand on that basis. We, therefore, uphold the impugned order and reject these appeals.

  ---

• 2005 (7) TMI 485 - CESTAT, MUMBAI
  

  Valuation - Demand - Limitation - Suppression of facts

  
  
  ... ...
  ... ... ..... l and despatch under stock transfer to godown of Motul and interest-free loan were received from Motul will not cause for departing from the valuation on such job work goods as held by the Constitution Bench of the Hon. Supreme Court Ujagar Prints and later confirmed once again by the Hon. S.C. in case of Pawan Biscuits 2000 (120) E.L.T. 24 (S.C.) . On merits we find no reason to uphold the demand. We also find that the reasons for the Commissioner (c) in invoking the proviso to Section 11A(1) go beyond the show cause notice and when there was no provision to prescribe the alleged relationship details, as found, the demand to be held as barred by limitation as far as 1998 show cause notice is concerned. When we are not upholding the demands on merits and (d) on time bar there is no cause to uphold the penalty and interest etc. as arrived by the adjudicator. 4.The appeals are to be allowed after setting aside the demands. Ordered accordingly. (Pronounced in Court on 15-7-2005)

  ---

• 2005 (7) TMI 484 - CESTAT, MUMBAI
  

  Factory - Two plots separated by a public road - Valuation - Demand - Captive consumption

  
  
  ... ...
  ... ... ..... the subject of one licence under Central Excise Law when two or more such units of same owner are in same town/village (ref. CBE and C F.No. 10/2/69-CX. 6, dated 12-5-1971). Here, they are in same MIDC estate. It is also not on record whether the end product in which the goods are being captively used, is being cleared on payment of duty. If that be so, then duty demands on intermediate goods moving between the units, so separated by Public Roads, is not called for and Revenue Neutrality plea has to be reconsidered. 2.4Since the plea of quantity discount determination and the plea of Revenue Neutrality is required to be reconsidered the plea of suppression, if duties are required to be determined in the remand proceedings, can be taken up for reconsideration. 2.5 The question of penalty would arise only after the duty demand, if any determined. They issue on penalty also to be re-determined in Remand. 3.1Appeals therefore allowed as Remand. (Pronounced in Court on 15-7-2005)

  ---

• 2005 (7) TMI 483 - CESTAT, NEW DELHI
  

  SSI Exemption - Confiscation and penalty

  
  
  ... ...
  ... ... ..... and the case was covered by Rule 226 of the Rules as there was only non-maintenance of the proper record by the respondents, cannot be accepted being erroneous in law. The non-accountal of these seized goods had not been disputed by the respondents, therefore, the confiscation of the goods was rightly ordered by the adjudicating authority under Rule 173Q. It is not a case of mere non-maintenance of proper record by the respondents, but is a case where they failed to account for the goods in their record. Moreover even under Rule 226, confiscation of the non-accountal goods is provided and ld. Commissioner (Appeals) could not set aside the confiscation of the goods and imposition of redemption fine on the respondents. Therefore, the impugned order in this regard cannot be sustained. In the light of the above discussions, the impugned order is set aside and the order-in-original is restored. Appeal of the Revenue accordingly stands accepted. (Order dictated in the open Court.)

  ---

• 2005 (7) TMI 482 - CESTAT, NEW DELHI
  

  Stay/Dispensation of pre-deposit - Suppression of facts to claim exemption

  
  
  ... ...
  ... ... ..... n by filing the writ petition. A detailed reply was filed by the Revenue in the Hon rsquo ble High Court. In the reply, it was specifically mentioned that the goods in question are articles of stationery. In these circumstances, prima facie, we find that no suppression can be alleged against the applicant and further we find that articles of stationery were exempted from payment of duty and as the Revenue submitted before the Hon rsquo ble High Court that the goods in question are articles of stationery. The applicants were also filing the necessary declarations showing their manufacturing process and also claiming the benefit of notification. In these circumstances, prima facie, applicants 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. Stay petition is allowed. At the request of the Revenue as the larger amount of Revenue is involved the Registry is directed to list the appeal after 4 weeks.

  ---

• 2005 (7) TMI 481 - CESTAT, NEW DELHI
  
  ... ...
  ... ... ..... since the issue has already been settled, therefore, the appeal may be allowed. 3.Heard ShriS.M. Tata, learned SDR. He reiterates the findings of the Collector. 4.We have considered the submissions made by both sides. We find that under explanation 1 to Tariff Item 27(f), ldquo containers rdquo means containers originally intended for packaging goods for sale, including collapsible tubes, casks, drums, cans, boxes, gas cylinders and pressure containers whether in assembled or unassembled condition, and containers known commercially as flattened or folded containers. We find that collapsible tubes without caps remain container and it is not necessary that for payment of duty it should be cleared with cap and the value of the cap should be added in the assessable value. We, therefore, following the ratio of the decision of the Tribunal in A.Z. Metal Industries Ltd. v. CCE (Supra) set aside the order of the Collector and allow the appeal. (Dictated and pronounced in open court)

  ---

• 2005 (7) TMI 480 - CESTAT, MUMBAI
  

  SSI Exemption - Brand Name

  
  
  ... ...
  ... ... ..... their appeal. Apart from the various judicial pronouncement there are various Boards rsquo own circulars laying down that even if the appeal is filed before the higher authorities against the order favourable to the assessee, refund should not be withheld on this ground only, unless the stay has been obtained. Reference in this context is made to Circular No. 572/9/01-CX., dated 22-2-2001. View taken by the Commissioner (Appeals) cannot be faulted upon and there are no merits in the revenue contention. In any case, we find that revenue has challenged the Commissioner rsquo s order only on the ground that earlier order on the main issue of small scale exemption was not accepted by them and an appeal was filed before the Tribunal. Now that the issue, having been settled in favour of assessee, they become entitled to refund of duty deposited by them during the adjudication proceedings. All the appeals filed by revenue are accordingly rejected. (Pronounced in Court on 12-7-2005)

  ---

• 2005 (7) TMI 479 - CESTAT, MUMBAI
  

  Classifiaction - Valuation

  
  
  ... ...
  ... ... ..... cision in Sprint R.P.G. India Ltd. v. Commissioner of Customs-I, Delhi 2000 (116) E.L.T. 6 (S.C.) , in which it has been held that Computer Software loaded on a hard disk drive is assessable as of computer software at the rate of 10 as per Heading 85.24 of Customs Tariff Act, 1975 read with Notification No. 59/95-Cus. and not under Heading 84.71. In the light of the above decision, the Computer software loaded on hard disk drive imported by the appellants herein would fall for classification under Tariff Heading 85.24 and eligible to the benefit of exemption from duty in terms of Serial No. 206 to Notification No. 23/98. Since the computer software loaded hard disk drive is held to be classifiable under Heading 85.24 it is to be assessed separately and the value of the computer software cannot be added to the value of hardware for the purpose of assessment under Heading 84.71. We therefore set aside the impugned order and allow the appeal. (Operative part pronounced in Court)

  ---

• 2005 (7) TMI 478 - CESTAT, NEW DELHI
  

  Confiscation and penalty

  
  
  ... ...
  ... ... ..... t to erase the foreign origin markings on it. But there is no corroboration to his statement, on the record. Shri Vijay Dalal had not been traced for interrogation from whom he had bought the seized goods. The seized gold pieces did not bear any foreign mark. No test of these pieces from any laboratory had been got conducted to ascertain foreign origin of the same. While preparing the Panchnama it appears that report was taken from one goldsmith who also attested the panchnama but that was based on his visual examination. In the absence of foreign marking on the seized goods, no reliance could be placed on such a report and no presumption that these were smuggled and of foreign origin, could be drawn so as to invoke the provisions of Section 112 of the Customs Act for confiscation and imposition of penalty on the appellant. Therefore, the impugned order is set aside and appeal of the appellant is allowed with consequential relief as per law. (Order dictated in the open Court)

  ---

• 2005 (7) TMI 477 - CESTAT, MUMBAI
  

  Demand and penalty - Valuation - Transaction value - Packing material

  
  
  ... ...
  ... ... ..... inding that the goods are liable to duty. However, we see force in the appellants rsquo submission that there is no basis for adoption of value of Rs. 300/- per drum by the Commissioner while the appellants have shown that they cleared drums at the rate of R. 110/- per drum (in the case of clearance of drums suitable for repeated use). We, therefore, agree with the appellants that the correct value is. Rs. 110/- per drum and direct re-computing of the duty demand on this basis. Penalty on the appellants is warranted in the sight of the finding of clandestine clearance upheld by us however, in the facts and circumstances of the case, we reduce the penalty to Rs. 5,000/- (Rupees Five thousand only). Liability to pay the interest is set aside as the period of clearance ends with 13-9-96 while Sec. 28AB under which interest has been directed to be paid, was introduced in the Statute Book only subsequent to that date i.e. on 28-9-1996. 3.The appeal is thus partly allowed as above.

  ---

• 2005 (7) TMI 476 - CESTAT, MUMBAI
  
  ... ...
  ... ... ..... oducts to be manufactured by the respondents. emsp 2.We have heard both sides. emsp 3.We find that no link between the transaction value and royalty has been brought out. Under the law, royalty cannot be included on goods which are manufactured in India and in the present case, it is clear that the goods in question are manufactured in India and, therefore, the question of addition to the assessable value of the royalty is not permissible. We, therefore, see no reason to interfere with the impugned order and accordingly reject the appeal. Cross objection is disposed of accordingly.

  ---

• 2005 (7) TMI 475 - CESTAT, NEW DELHI
  

  Appeal - Limitation - Condonation of delay

  
  
  ... ...
  ... ... ..... appeal was wrongly addressed to the Commissioner (Appeals). emsp 4On merits, it is being pointed out that the dispute is regarding the correct classification and the goods in question remain confiscated with the Customs authorities. emsp 5We are of the view that grave injustice would be caused if the appeal is rejected on the ground of limitation. The authorities brought before us also support the restoration of the appeal, in view of the peculiar circumstances leading to the finding that the appeal was delayed. emsp 6In view of what is stated above, the stay application is allowed. Further, the appeal also is allowed by way of remand since the Commissioner (Appeals) has not gone into the merits of the case at all. Commissioner (Appeals) is directed to take the appeal on record and pass an order on merit at the earliest in view of the fact that imported goods are under detention. The stay application and appeal are ordered accordingly. (Dictated and pronounced in open Court)

  ---

• 2005 (7) TMI 474 - CESTAT, NEW DELHI
  

  Stay/Dispensation of pre-deposit - Demand - Rubber - Classification of

  
  
  ... ...
  ... ... ..... ibunal in the case of Popular Rubber Industries v. C.C.E., New Delhi - 2000 (117) E.L.T. 65 where the Tribunal remanded the matter to the Adjudicating authority as the chemical test was conducted without taking into consideration of the provisions of Chapter Note 4 of Chapter 40 of CET. 3.The contention of the revenue is that the sample of the final product was taken and sent for testing and the test report shows that the product is not rubber, therefore, the goods are not classifiable under Chapter 40 of the CET. The contention of the revenue is also that the applicants are not entitled for the benefit of the Notification. 4.We find that test reports relied upon by the revenue are not in accordance with the procedure/protocol laid down under Chapter Note 4 of Chapter 40 of the CET, therefore, the applicants have a strong prima facie case in their favour. The pre-deposit of the duty and penalty is waived. The stay petitions are allowed. (Dictated and pronounced in open Court)

  ---

• 2005 (7) TMI 473 - CESTAT, NEW DELHI
  

  Valuation - Transaction value

  
  
  ... ...
  ... ... ..... vant for assessment is the price of the consignment under assessment and the same can be rejected only for reasons specified in the Valuation Rules themselves. In the present case, the order does not reveal any specific reason for the rejection of the assessable value. Except the vague statement that the value is ldquo very low rdquo , there is no basis for discarding the transaction between the importer and his supplier. In fact the circumstances only indicate that the transaction is fully commercial. Appellant is a regular importer of the material for the purpose of domestic manufacture. There is also a difference between the quantities under import. The difference in price is also not vast, so as to lead to the presumption that the transaction is externally influenced. In these facts and circumstances, the impugned Order is not sustainable. It is set aside and appeal is allowed with consequential relief, if any, to the appellant. (Dictated and pronounced in the Open Court)

  ---

• 2005 (7) TMI 472 - CESTAT, BANGALORE
  

  Stay/Dispensation of pre-deposit - Valuation

  
  
  ... ...
  ... ... ..... mada rsquo charges is not includible in the assessable value. This judgment is superseded by two judges rsquo Bench order of the Apex Court rendered in the case of Collector of Central Excise v. Panchmukhi Engg. Works 2003 (158) E.L.T. 550 (S.C.) . emsp 2.The learned SDR submits that these charges are required to be added in the assessable value. emsp 3.On a careful consideration of the submissions made by both the sides, we notice that three judges rsquo Bench of the Apex Court upheld the non-includability of Dharmada charges while two judges rsquo Bench of the Apex Court judgment has held that the Dharmada charge is includible in the assessable value. The appellants have made out a strong prime facie case in their favour. The stay application is allowed by granting waiver of pre-deposit of duty and penalty amounts and staying its recovery till the disposal of the appeal. The matter to come up for final hearing on 19th August 2005. (Pronounced and dictated in the open court)

  ---

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