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Showing 241 to 260 of 665 Records
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2005 (8) TMI 505 - CESTAT, MUMBAI
Confiscation and Penalty - SSI Exemption ... ... ... ... ..... application, the Hon rsquo ble High Court of Gujarat has set aside the earlier order passed by the Tribunal including the order on rectification application filed by the respondents. 3. emsp I have gone through the case records and the submissions made, I find that there is no duty demand on the respondents. The Commissioner (Appeals) has taken a lenient view noting that the small scale units are required to maintain only simple record and not statutory registers. He has set aside the order of confiscation and imposition of penalty on the respondents, warning the appellants to be more careful in future in following the Central Excise law and procedures. 4. emsp In the circumstances of this case, since the value of goods was within the limits of small scale exemption and there is no duty demand involved, I am of the view that the impugned order of the Commissioner (Appeals) does not require any interference. As such, the departmental appeals are rejected. (Dictated in Court)
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2005 (8) TMI 504 - CESTAT, MUMBAI
Rebate on export ... ... ... ... ..... in question or not, we observe that the Tribunal in the case of Everest Converters v. Commissioner of Central Excise, 1995 (80) E.L.T. 91 (Tri.) has held that it is the option of an assessee to avail or not to avail exemption notification. The above decision has been followed consistently by the Tribunal and is settled law on the issue. As such, if the appellant has chosen to clear their exports by not availing the benefit of exemption notification (if at all, the same was available to them), they cannot be compelled to do so. Rebate claim to the extent of duty paid by them is available to them under the law. Admittedly, they have paid duty 20 ad valorem and would be entitled to rebate accordingly. The same cannot be cut short on the ground that less duty should have been paid in terms of the notification. As such, we are of the view that the orders passed by the authorities below are unsustained. We set aside the same and allow the appeal. (Pronounced in Court on 5-10-2005)
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2005 (8) TMI 503 - CESTAT, NEW DELHI
Iron and steel products - Exemption ... ... ... ... ..... resentative points out that relying on this judgment this Tribunal had rejected exemption under Notification No. 202/88. 3. emsp We find that the dispute remains specifically covered by the decision of the Allahabad High Court in the case of Lakshmi Rolling Mills, and that judgment has been confirmed by the Apex Court also. The judgment in the case of Elphinstone Metal Rolling Mills is with regard to concession under another notification. That decision can not be pressed against the Appellant rsquo s claim. It is also to be seen that this Tribunals rsquo order in the case of Mohan Steels Ltd. 2001 (130) E.L.T. 99 was with regard to the MS scrap purchased from Kabaries. Here the purchase is directly from railways. Therefore, that decision is not applicable to the present case. 4. emsp In view of what is stated above, the present appeals are allowed after setting aside the impugned order. The Appellant shall be eligible to consequential relief, if any. (Pronounced in the Court)
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2005 (8) TMI 502 - CESTAT, BANGALORE
Appeal by Managing Director - Maintainability of ... ... ... ... ..... al. 2. emsp The learned SDR submits that the appeal is not maintainable as the appellant has no locus standi to file the appeal. In view of the High Court order directing for winding up the Company, M/s. Mode Creazone India Ltd. 3. emsp On a careful consideration of the matter, we find that the contention raised by the learned DR is correct. The Official Liquidator has to file the appeal. The appellant does not get any status or locus standi to file the appeal on behalf of a liquidated company. Therefore the appeal is dismissed as not maintainable. (Pronounced and dictated in the open Court)
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2005 (8) TMI 501 - CESTAT, MUMBAI
Remand order - Confiscation of goods ... ... ... ... ..... ts herein) had declared the brand name ldquo Novosol-55 rdquo , which is a brand name of lsquo Cyclohexanone rsquo manufactured by the foreign supplier and there is no finding that ldquo Novosol-55 rdquo is not the brand name for these goods. Further, the goods were provisionally released, samples have been drawn for testing and there is no change in the rate of duty, whether under Chapter 29, which is where the Revenue has classified the imported goods, or under Chapter 38, which is whether the importers sought classification. For all these reasons, we hold that the goods are not liable to confiscation under Section 111(m) of the Customs Act, 1962, and accordingly set aside the order of confiscation in both these cases. 6. emsp For the same reason, penalties imposed upon the importers are also set aside. 7. emsp In the result, we set aside the impugned orders and allow the appeals with consequential relief due to the appellants, in accordance with law. (Pronounced in Court.)
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2005 (8) TMI 500 - CESTAT, MUMBAI
Valuation - Technical know-how fee ... ... ... ... ..... ondents have imported any machinery from the collaborators or that they have paid the technical know-how fee for such machines. On the other hand, it is stated that the respondents have imported polypropylene sheets/ components cut to shape and size for making office stationery products like file folders, ring binders etc. It cannot be concluded from the details furnished that the technical know-how fee is in any way related to import of such materials or that payment of such fees is a condition of sale. On the other hand, the fee appears to be related to assistance in procuring machines and for starting the commercial production of office stationery etc. out of imported raw materials. As such, the contention of the Department that the technical know-how fee should be proportionately added to the declared value of polypropylene sheets/components is without any basis. 4. emsp In view of our findings as above, we reject Revenue rsquo s appeal. (Pronounced in Court on 31-8-2005)
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2005 (8) TMI 499 - CESTAT, MUMBAI
Diamond cutting and polishing machinery/equipments - Parts of ... ... ... ... ..... pots to be a generic term encompassing all kinds of pots of various varieties, as we find that the lower authorities also accept the said position, when we see the following sentences of the Commissioner (Appeals) order impugned before us ldquo From the aforesaid catalogues of leading manufacturers of diamond tools, it gives the impression that there is nothing as steel pots as stand alone pots being manufactured. The appellants contention that it is a generic name given to all kinds of pots manufactured out of steel appears to be correct. rdquo And following the law settled on the subject, of the general understanding of the goods, as per decision in the case of Standard Pencils Pvt. Ltd. v. CCE - 2002 (145) E.L.T. 278 (S.C.), the imports to be allowed to all kinds of lsquo pots rsquo so long as they are of steel and used in diamond cutting and polishing. 6. emsp In this view of the matter, the orders impugned are set aside and the appeals are allowed. (Pronounced in Court)
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2005 (8) TMI 498 - CESTAT, BANGALORE
Production capacity based duty - Annual capacity of production ... ... ... ... ..... d the Divisional office are situated in the same premises is not denied. The intimation of the closure of the factory and re-starting has been sent to the Assistant Commissioner as well as the Superintendent of Central Excise. The intimation letter contains the electricity meter reading and also the closing balance of stock of ingots and billets. The Adjudicating authority has denied the abatement on the ground that the intimation of closure as well as re-starting has been received quite late in certain cases in the office of the Assistant Commissioner. But having regard to that fact that these intimations have been received in time in the office of the Superintendent of Central Excise, we hold that the Rule 96ZO(2) conditions have been fulfilled. The denial of abatement on account of closure is not justified in the present case. Hence we allow the appeal with consequential relief. (Operative portion of the order has been pronounced in the open Court on completion of hearing)
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2005 (8) TMI 497 - CESTAT, BANGALORE
Stay order - Modification of ... ... ... ... ..... ady given undertaking in the required format to the DGFT and in view of the present position the stay order requires to be modified. As the impugned order has become unsustainable on the ground of the DGFT granting extension of the licence to fulfil the export obligation, the impugned order is required to be set aside and the matter is required to be remanded to the original authority for de novo consideration. The original authority is required to initiate proceedings only on the appellants not fulfilling the term of the EPCG Licence the terms of their undertaking given by them. The department is entitled to initiate proceedings only if the present extension of time for export obligation is not fulfilled by the appellants. The impugned order is set aside and the matter is remanded to the original authority for de novo consideration on the basis of the above terms. Miscellaneous application, stay and appeal are allowed by way of remand. (Pronounced and dictated in open Court)
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2005 (8) TMI 496 - CESTAT, BANGALORE
Cenvat/Modvat - Duty paying documents ... ... ... ... ..... . CCE - 2001 (127) E.L.T. 295 (Tri. - Del.) wherein the Capital Goods were shifted to sister unit of the company without raising any modvatable invoice. Hence, the removal has been held to be improper and penalty imposed had been merely reduced. The facts of this case are totally different and not applicable to the present facts. In the present facts of the case, the date of payment of duty on the Capital Goods is to be reckoned with. The said duty has been paid on 24-12-1997. The goods have been returned on 12-1-1998 and credit taken within four months from the date of payment of duty, which satisfies the ingredients of the provisions of law and hence, in the light of the judgment cited by the appellant, the availment of Modvat credit on Capital Goods has to be upheld. The impugned order is not sustainable and hence it is 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)
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2005 (8) TMI 495 - CESTAT, MUMBAI
Cenvat/Modvat - Inputs ... ... ... ... ..... to generic medicaments by merely removing the label. ldquo Thus it is clear that they are not using the intermediate products for two different products but using for only one product (the very same goods). Since Rule 57CC is not applicable in such situation the order of Commissioner (A) allowing the credit does not appear legal and proper. rdquo 2.1 emsp After considering the submission, we cannot accept the proposition that the Intermediate Strepto Penicillin is not being used for two different products viz. Branded fortified Penicillin and Benzyl Penicillin which are classified as Patent and Proprietary medicaments and non-branded Generic fortified Penicillin and Benzyl Penicillin exported classified differently. Therefore, the grounds taken on an assumption of removal of labels/or denial of 8 route adopted of Rule 57CC cannot be upheld as pleaded by Revenue. We find no merits in this appeal. 3.1 emsp Consequently the appeal is dismissed. (Pronounced in Court on 25-8-2005)
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2005 (8) TMI 494 - CESTAT, MUMBAI
Imposition of Penalty - Demand - extended period of limitation under the proviso to Section 11A(1) - Valuation of grey fabric - HELD THAT:- The facility to go behind the declaration and start an inquiry into the declarations made under notification 27/92 was required to be done by the proper officers, at the relevant time of attending to the RT12 assessments as filed. The present show cause notice, has been issued only on 5-12-2000, after a full fledged enquiry that started somewhere on 25-11-1998. Search of Nangalia Groups and others were caused. If the Departmental Officers, with all the resources of man power and backing of law to conduct an enquiry, took almost 2 years to come to a prima facie conclusion of under declared values by the traders, it is unfair to visit the assessee, to have knowledge, and having to being knowingly to have declared lower prices as declared to have vide notification 27/92 by the Trader when in the milieu of the law, MMF processing trades as understood then and commercial practice at that time was otherwise i.e. during the relevant period 1997-98 to 15-12-1998. We would therefore find no reasons or find ingredients exist to uphold the invocation of the larger period of demand in the facts herein. Duty demands and liabilities to confiscation therefore cannot be upheld.
The plea on behalf of Nangellia group, made by ld. Advocate Sh. Bulachandani, that they are manufacturer and weavers of fabrics and the prime quality of Gray fabrics were sold and the declarations made for the fabrics sent for processing by them was more than the costing thereof and being defective not of saleable standard the valuation of such of Gray cannot be of comparable fabrics being sold in the market as of prime quality has force. In any case, the valuation is being composed with market sale price of Gray fabrics, without any evidence of similar quality being on record. The traders were required to and gave the cost plus declaration. Mixing of lots and other commercial consideration went in the declaration made. The evidence similar grey quality receipts of M/s. Rupa was not on record. The proposed valuations cannot upheld. Different qualities of Gray are a commercial reality. That cannot be ignored by Revenue. We find force in the arguments and the grounds taken by the appellants in this appeal. No demands on merits can be arrived at. We find no mens rea or knowing concert with any alleged evasion and dealing with excisable goods knowingly that such goods excluded to confiscate is on record. We find no reason to visit them with Rule 209A penalties as arrived.
The imposition of penalty under Rule 173Q and Section 11AC as arrived cannot be upheld on facts herein and also the position in law not upholding of such ‘joint read with’ penalties, following the decision in case of Jay Yuhshin Ltd. [2001 (8) TMI 234 - CEGAT, NEW DELHI];
Since no duty demand and or penalties or confiscation are being arrived at, the penalties under Rule 209A are not upheld in all cases as arrived in the impugned order. Thus, we find no merits to uphold the order in these appeals.
The order is set aside and the appeals allowed.
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2005 (8) TMI 493 - CESTAT, CHENNAI
Cenvat/Modvat - Capital goods ... ... ... ... ..... notice proposed to deny the credit to the assessee on the ground that the lsquo structurals rsquo were not eligible capital goods. After examining the records and hearing both sides, I find that ld. Commissioner (Appeals) denied Modvat credit on lsquo structural rsquo to the assessee on a different ground. He held that as the goods were received in the factory prior to April, 2000, the assessee was not eligible to take credit on them. The question whether the lsquo structurals rsquo were eligible capital goods under Rule 57Q was not examined by the lower appellate authority. Hence this issue is remanded to the Commissioner (Appeals) for a fresh decision in accordance with law and the principles of natural justice. 8. Appeal No. 1123 stands allowed by remand in respect of structurals. It is dismissed in respect of other items (capital goods used in mines) for the reasons stated in respect of other appeals. (Operative part of the order was pronounced in open Court on 25-8-2005)
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2005 (8) TMI 492 - CESTAT, MUMBAI
Demand - Limitation ... ... ... ... ..... e above contention of the ld. Advocate. The perusal of the entire correspondence exchanged by the appellants with the Revenue reveals that the permission it to send the inputs to the job worker and receive back the processed goods from them was granted by the Revenue with full knowledge that the appellants final product attracted nil tariff rate. If that be so, Revenue cannot be permitted to say that such permission was granted by mistake and invoke the longer period of limitation against the appellant. While dealing with this aspect, Commissioner has observed that the appellant obtained the permission with the knowledge that the same was not available. However, in that case the Revenue is equally to be blamed for having granted the permission. As such, we are of the view that the demand in question is barred by limitation and cannot be sustained. Accordingly, we set aside the impugned order and allow the appeal with consequential relief to the appellants. (Dictated in Court)
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2005 (8) TMI 491 - CESTAT, MUMBAI
Ice-cream - Notification - Exemption Criteria ... ... ... ... ..... eria definition for considering the product as Ice-Cream. The first condition is that the preparation must be commonly known as Ice-cream. It is recorded in the impugned order that apart from Ice-Cream manufactured by the respondents, they are also manufacturing other products like, Orange Fruity, Mango Kupple, and Raspberry etc, which are being cleared by them as ldquo other than Ice-Cream rdquo (emphasis provided). As such it becomes clear that the products are not known as Ice-Cream. The Revenue has not produced any evidence before us to show that the above products in question are known as Ice-cream in the common parlour. As we are of the view that first criteria laid down in the explanation to the Notification is not satisfied, leading us to conclude that the goods in question are other than Ice-cream, in which case, Serial No. 5 of the Notification would be applicable. In view of the foregoing, we do not find any merit in the Revenue rsquo s appeals and reject the same.
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2005 (8) TMI 490 - CESTAT, NEW DELHI
Export - Proof of export ... ... ... ... ..... ill of lading and airway bills. What is required to be produced to establish the export, is attested copies of bill of lading/shipping bills along with relevant copies of airway bills. Since the documents produced are not acceptable for the purpose of establishing the export of the goods, there was no option with the authorities below but to hold that sufficient proof had not been produced and confirmed the duty and imposed penalty on these basis. Accordingly, I find no reason to interfere with the impugned order, uphold the same and reject the appeal. (Dictated and pronounced in open Court)
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2005 (8) TMI 489 - CESTAT, MUMBAI
... ... ... ... ..... f cloth less than 15 Cms. in length cut from fine/standard quality cloth are not be equated with fents and rags or cloth of standard length. The Tribunal held that the value has to be fixed somewhere between the value of standard length fabrics and fents and rags. Holding so, the Tribunal remanded the matter. The Tribunal in another decision of Morarjee Goculdas Spg. and Wvg. Co. Ltd. v. Commissioner reported in 2004 (172) E.L.T. 50 (Tribunal) 2004 (64) RLT 421 held that trade samples of textile fabrics up to 50 Cms. length is akin to fents/rags and therefore pro rata value of the good quality fabrics under Rule 4 cannot be adopted for the trade samples for assessment. 5. emsp In view of conflicting decisions on the issue, we find that the matter has to be referred to a Larger Bench to resolve the conflict. Accordingly, the Hon rsquo ble President of CESTAT is requested to constitute a Larger Bench to decide the issue of valuation of textile trade samples. (Dictated in Court)
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2005 (8) TMI 488 - CESTAT, BANGALORE
Refund - Return of duty paid defective goods for reprocessing ... ... ... ... ..... e carefully and find that the Commissioner (Appeals) has gone through the records of the case and came to the conclusion that the procedure under Rule 173L has been complied with. The grounds of appeal of the Revenue lack clarity. The fact that duty has been paid twice on the reprocessed goods is not in doubt. Food products cannot be stored for long. If some item had not been cleared for some time, the manufacturers reprocess the food item to make it fit for human consumption. We do not find any mandatory provision in Central Excise Rules to intimate the central excise department the exact nature of the defect of the goods which are sent for preprocessing. Moreover, the factual details of dispatch and receipt of goods and the demands of duty are not in dispute. In these circumstances, the OIA is legal and proper. There is no merit in Revenue rsquo s appeal and the same is dismissed. (Operative Portion of the Order already pronounced in open Court on conclusion of the hearing)
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2005 (8) TMI 487 - CESTAT, CHENNAI
Refund - Compounded Levy Scheme - Unjust enrichment - Applicability of ... ... ... ... ..... 12B as held by the Apex Court in the case of Mafatlal Industries (supra). Apart from all these, it appears from the records that whatever amount was paid by the party in excess of what was due to the Revenue Rs. 300 PMT during the period of dispute was an amount paid by mistake and the same would not constitute duty of excise. In the case of a manufacturer of re-rolled products working under the Compounded Levy Scheme during the material period, Central Excise duty was that amount which was paid at the rate of Rs. 300 PMT. Anything paid over and above this was not a duty of excise. Section 11B is a provision for refund of duty only. In this view of the matter, it has to be held that the claim made by the appellants for refund of Rs. 1,58,417/- was not to be entertained under Section 11B of the Central Excise Act. If the party wants to get back this amount, the remedy in law lies elsewhere. 4. emsp In the result the appeal is dismissed. (Dictated and pronounced in open Court)
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2005 (8) TMI 486 - CESTAT, NEW DELHI
... ... ... ... ..... e price. It may also be a price which turns in losses. That is immaterial for the purposes of excise valuation of the goods, because the law contemplates assessment at the wholesale price/transaction value irrespective of whether that is a profitable or loss making price. In the present case, the adjudicating authority has accepted the sale price of the appellant as full consideration for the sale of the goods. There was no evidence before the Commissioner (Appeals) also to reach the conclusion that the assessee was separately collecting any amounts towards its additional costs, or had reduced for the purposes of excise valuation, any of these costs from the sale price. In the given factual position, the impugned order is clearly contrary to the valuation provisions in the Central Excise Act. The findings and demands made thereunder cannot be sustained. They are set aside and the appeal is allowed, with consequential relief, if any. (Dictated and pronounced in the open Court)
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