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Case Laws
Showing 261 to 280 of 732 Records
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2009 (11) TMI 771 - CESTAT BANGALORE
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... ... ..... y imposed on the respondent is not justified. Assessee had paid duty on the differential amount as soon as the same was realized. It cannot be held that the respondent had committed any breach of provisions deliberately. Moreover the appeal has not raised any ground justifying the penalty. Penalty cannot be imposed in the absence of deliberate defiance of law even if the statute provides for penalty. As regards the extent of interest payable on amount realized, subsequent to clearance of goods, under supplementary invoices, the issue was finally settled only recently when the Apex Court decided the dispute in the case of CCE, Pune v. M/s. SKF India Ltd., reported vide 2009-TIOL-82-S.C.-CX 2009 (239) E.L.T. 385 (S.C.). In the circumstances, we partially allow the appeal filed by the Revenue and restore the order of the original authority to the extent it confirmed demand of interest. (Operative portion of the order already pronounced in open court on conclusion of the hearing)
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2009 (11) TMI 770 - CESTAT CHENNAI
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... ... ..... (4) and (5) read as under - 3(4) - lsquo When the inputs or capital goods on which cenvat credit has been taken, are removed as such from the factory, the manufacturer of the final products shall pay amount equal to the credit availed in respect of such inputs or capital goods and such removal shall be made under cover of an invoice referred to in Rule 7 ... rsquo 3(5) - lsquo The amount paid under sub-rule (4) shall be eligible as Cenvat credit as if it was a duty paid by the person who removed such goods under sub-rule (4).... rsquo Since capital goods can be cleared either under Rule 3(4) or Rule 4(5), there can be no objection to taking credit of duty paid by HMIL, in terms of Rule 3(5) of the Cenvat Credit Rules. In this view of the matter, there cannot be any objection to SPIPL taking credit on supplementary invoices issued by HMIL. We, therefore, set aside the impugned order and allow the appeals. (Operative part of the order was pronounced in open court on 17-11-2009)
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2009 (11) TMI 769 - CESTAT CHENNAI
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... ... ..... ees do not establish that molasses had actually been consumed in the manufacture of cattle feed. 3. In the light of the above, we hold that the Department has made out a case that no cattle feed was manufactured by the assessees during the period in dispute and that, therefore, they are required to discharge duty liability on the molasses procured by them but not utilized for the manufacture of cattle feed. Since the demand is raised under Rule 196 of the Central Excise Rules the question of time limit does not arise and the assessees have also not challenged the demand on the ground of limitation. 4. We, therefore, uphold the impugned order insofar as it relates to Sri Ganesh Industries, However, since it is a proprietary concern of which Shri G. Jeganathan is the proprietor, separate penalty upon the proprietor is not sustainable and is set aside. 5. In the result Appeal No. E/652/2003 is rejected and Appeal No. E/653/2003 is allowed. (Dictated and pronounced in open court)
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2009 (11) TMI 768 - CESTAT CHENNAI
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... ... ..... bove invoices. However, I agree with the assessees that they have been able to establish a link between the goods sent by M/s. KTV Oil Mills and M/s. Adani Exports Ltd. and then to M/s. Fortune Traders, who is an unregistered dealer and to the assessees, as the vehicle number shown in M/s. KTV Oil Mill rsquo s invoice i.e., TN 04 J 7645 is the same number as shown in the invoice under which the goods were supplied by M/s. Fortune Traders to the assessees and the quantity and description of goods also tallies. In the light of the Tribunal rsquo s order in Punjab Paint, Colour and Varnish Works (P) Ltd. v. Commissioner of Central Excise, Kanpur 2007 (219) E.L.T. 451 (Tri.-Del.) the assessees have been rightly held to be eligible to credit of Rs. 58,303/-. 3. In this view of the matter, I uphold the impugned order insofar as it relates to extending credit of the above mentioned amounts to the assessees and reject the appeal of the Revenue. (Dictated and pronounced in open court)
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2009 (11) TMI 767 - CESTAT CHENNAI
Diversion of free sale sugar to levy sugar quota - demand - It is the case of the appellants that they have paid the appropriate duty as applicable to levy sugar and free sale sugar in respect of the diverted quantities - Held that: - No material has been produced on behalf of the Department to prove the contrary that appellants have either short paid the duty or they have been any way compensated by the Govt. of India and thereby they have enriched themselves at the cost of the Govt. revenue. Hence, we are of the view that the impugned order passed by the lower appellate authority reversing the order of the original authority is not sustainable - appeal allowed - decided in favor of appellant.
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2009 (11) TMI 766 - CESTAT AHMEDABAD
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... ... ..... dered the submissions made by the learned Advocate. Since duty and interest have already been deposited and the issue is basically one that relates to a dispute of valuation, we consider the amounts deposited by the appellants sufficient for the purpose of Section 35F of Central Excise Act, 1944 and therefore we allow the stay petition unconditionally during the pendency of appeal. We also quash the order of detention issued by the Assistant Commissioner under Section 11 of Central Excise Act, 1944 in view of the fact that we have allowed the stay petition unconditionally. At this stage learned Advocate requests that the order may be issued by dasti the clearances have been held up because of the detention order. The request is accepted and registry is directed to issue the order by dasti immediately. The appellant shall serve the copy of this order to the concerned Assistant Commissioner so that detention order can be withdrawn immediately. (Dictated and Pronounced in Court)
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2009 (11) TMI 765 - CESTAT MUMBAI
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... ... ..... s, it was open to the adjudicating authority to impose a fine under Section 125 in lieu of confiscation of the goods. The fine imposed in this case is Rs. 1,81,406/- against the value of the goods, of Rs. 7,25,624/-. The fine amounts to 25 of the value, which in my view is harsh in the facts and circumstances of this case. I reduce it to Rs. 72,500/-. The penalty imposed by the adjudicating authority appears to be equal to the fine determined by the said authority. I have found no nexus between the quanta of fine and penalty anywhere in the text of Section 112 of the Act. Apart from this, I do not think that this is a fit case for such penalty as imposed by the authority. I am of the view that, in the facts and circumstances of this case, a penalty of Rs. 5,000/- would serve the ends of justice. It is ordered accordingly. The impugned order shall stand modified to this extent with regard to quanta of fine and penalty. The appeal is disposed of accordingly. (Dictated in Court)
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2009 (11) TMI 764 - CESTAT MUMBAI
Valuation of bullet proof vehicles supplied to Jammu & Kashmir Police by the respondent - job-work - transaction value - Held that: - goods have to be assessed at the place of removal and if the value cannot be determined under main provisions of Section 4(1)(a) of the Act, rules for valuation have to be resorted - the goods should be assessed in the condition in which the same are cleared from the factory and the value addition on account of the processing carried out by the job worker subsequent to the clearance of the goods should not be taken into account - appeal dismissed - decided against appellant.
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2009 (11) TMI 763 - CESTAT NEW DELHI
Interest on delayed refund - Held that: - there is no authorization by the Commission (sic) of Commissioner for filing appeal to Tribunal against the Commissioner (Appeals)’s order and there is no explanation in this regard from the learned DR. Therefore, on this very ground this appeal is liable to be dismissed.
Just because while payment of refund, in addition to confirmed duty demands, some penalty and interest were also adjusted which were subsequently set aside, the amount adjusted towards penalty and interest would not become penalty and interest and on setting aside of the order of penalty and interest, the interest on the refund, which was payable to the respondent cannot be denied.
Appeal dismissed - decided against Revenue.
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2009 (11) TMI 762 - CESTAT NEW DELHI
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... ... ..... ) of Central Excise Rules, 1944, no mens-rea is required to be proved. However, looking to the circumstances, I am of the view that penalty of Rs. 20,000/- would meet the ends of justice. 4.2 As regards the Cenvat credit in respect of the duty paid on the rough forgings received from M/s. PTL, the same would be available since the finished products - tractor parts are not exempt. However, Cenvat credit would be restricted only to the actual quantity received from M/s. PTL and also only if PTL had not taken Cenvat credit. For this purpose, this matter has to be remanded to the Assistant Commissioner for ascertaining as to whether M/s. PTL had taken any Cenvat credit or not in respect of rough forgings sent to the job worker and also how much quantity had been sent. The matter is remanded to the Assistant Commissioner for quantification of Cenvat credit available to the respondent. The Revenue rsquo s appeal stands disposed off, as above. (Dictated and pronounced in open court)
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2009 (11) TMI 761 - CESTAT AHMEDABAD
Refund claim - rejection on the ground that the appellants obtained approval as SEZ unit only on 27-10-2006 and they were eligible for procuring duty free goods thereafter - Held that: - even if the refund is not strictly admissible on the ground that procedure was not followed, it is required to examine whether appellants were eligible in the normal course for the refund if the goods have been exported, The refund claim has been blindly rejected only after examining with respect to SEZ Act and procedure prescribed by the Government - appeal allowed - decided in favor of appellant.
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2009 (11) TMI 760 - CESTAT NEW DELHI
Valuation - includibility - inclusion of cost of advertisement to the extent of 50% paid by the dealer to the respondent - Circular No. 643/34/2002-C.X. dated 1-7-2002 - Held that:- In the case of Philips India Ltd. v. CCE [1997 (2) TMI 120 - SUPREME COURT OF INDIA], learned Appellate Authority came to the conclusion that 50% cost of the advertisement received by the Respondent was not includible in the assessable value - appeal dismissed - decided against Revenue.
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2009 (11) TMI 759 - CESTAT MUMBAI
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... ... ..... t, the duty could be recovered without limitation. The appellant has submitted that there was no provisional assessment in this case. The Department also has not brought on record any evidence of provisional assessment in this case. Apparently, the adjudicating authority proceeded on an erroneous basis. Further, we find that, while the show-cause notice clearly alleged suppression of facts and contravention of law by the assessee with intent to evade payment of duty, the ld. Commissioner proceeded on a different basis to hold that the demand of duty for the aforesaid period was not hit by limitation. Again, in this case also, the assessment for the aforesaid period would be governed by CAS-4 formula. For all these reasons, we set aside the Commissioner rsquo s order and allow the assessee rsquo s appeal by way of remand. Ld. Commissioner is requested to take fresh decision on all the issues after giving the assessee a reasonable opportunity of being heard. (Dictated in Court)
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2009 (11) TMI 758 - CESTAT NEW DELHI
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... ... ..... er and the denomination as per the claim of the appellant which was in his possession. Thus the evidence relied upon by the appellant before the authorities were found to be unreliable, inconsistent and not creditworthy. It was claimed that the foreign nationals wanted the sale proceeds of land in foreign currency. However, no evidence of the alleged land deal has been submitted. It is basically an attempt to mitigate the offence of attempted illegal export by Robert Olivier. Therefore, there is abetment on the part of the appellant in the offence of attempted illegal export of foreign currency by Robert Olivier. We also do not find any reason to interfere with the findings of the Commissioner (Appeals) in rejecting the claim of ownership of the currency under confiscation. However, taking into consideration all the facts and circumstances, the penalty imposed is reduced from Rs. 3 lakh to Rs. 1,00,000/- (Rupees one lakh only). 7. The appeal is disposed of in the above terms.
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2009 (11) TMI 757 - CESTAT NEW DELHI
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... ... ..... r a registered dealer, as the case may be, shall be liable to a penalty not exceeding the duty on the excisable goods in respect of which any contravention of the nature referred to in clause (a) or clause (b) or clause (c) or clause (d) has been committed, or rupees two thousand , whichever is greater. rdquo Perusal of the impugned order reveals that the adjudicating authority nowhere discloses any reason which would reveal ingredient of any of the clauses of Rule 25(1) so as to justify the imposition of penalty in the matter in hand. The facts on record also do not disclose any intention to evade the payment of duty nor any of the ingredients of Section 11AC. Being so the penalty is liable to be set aside. 8. For the reasons stated above, the appeal partly succeeds. The appeal, so far as it relates to merits of the case, the same is dismissed for the reasons mentioned above. The appeal, so far as it relates to penalty, it succeeds. Appeal stands disposed off in above terms.
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2009 (11) TMI 756 - CESTAT AHMEDABAD
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... ... ..... . UOI and Ors - 1987 (32) E.L.T. 666 (All.) in support of his contention that liability in respect of Central Excise duty for the legal heir is limited to the movable and immovable assets inherited by the appellant and not from the personal assets of the appellant. We need not go into the correctness of the view taken, in view of the fact that issue of liability to pay duty was not before us. The only issue before us was correctness of confirmation of duty demand and penalty imposed etc. After considering the submissions, we find that observation in this sentence has gone beyond the issue before us. Therefore, we find that this sentence requires to be modified. Accordingly, in place of this sentence in Para 18 of the order, the following shall be substituted, -- ldquo In view of the observation above, duty demanded from Shri K.K. Agarwal (KKA) in the impugned order is upheld rdquo . But for the above modification, ROM application is otherwise rejected. (Dictated in the Court)
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2009 (11) TMI 755 - CESTAT MUMBAI
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... ... ..... uto-rickshaw, motorcycle, etc. which were found to be unfit for transportation of scrap. In this connection, learned counsel has pointed out that the credit taken on the strength of such invoice was paid by the appellant, amounting to Rs. 2, 27, 591/- a fact noted in the Commissioner rsquo s order. Learned Commissioner also found that the appellant took inadmissible credit on parallel invoices during the period of dispute. These invoices were bearing the same serial numbers as those of the statutory invoices mentioned in RG 23D but the duty debit particulars were different. Counsel points out that the credit attributable to such invoices was also paid albeit under protest. By and large, learned counsel has been able to make out prima facie case against the Commissioner rsquo s finding on merits. 5. Accordingly, there will be waiver of pre-deposit and stay of recovery in respect of the duty and penalties including the penalty on the director of the company. (Dictated in Court)
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2009 (11) TMI 754 - CESTAT CHENNAI
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... ... ..... been passed on to the customers as a part of the price of the finished goods. He also cites the decision of the Hon rsquo ble Supreme Court in the case of Union of India v. Solar Pesticides Pvt. Ltd 2000 (116) E.L.T. 401 (S.C.) . 4. After hearing both sides, I find that the burden of proof that the disputed duty amount has not been passed on to the customers as a part of the price of the finished goods has not been discharged by the appellants. The certificate produced from Chartered Accountant, apart from the fact that it was not before the lower authorities, does not categorically state that the duty amount shown as expenditure under the administrative over heads was not included in the costing of the finished goods. As such, I am of the view that the appellants have not made out a case in their favour. Therefore, there is no ground for interference with the orders passed by the authorities below. Both the appeals are dismissed. (Order dictated and pronounced in open Court)
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2009 (11) TMI 753 - CESTAT NEW DELHI
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... ... ..... vidence before learned adjudicating authority to satisfy him on pleadings made by the appellant in its reply to show cause notice dated 26-8-2004. Since we are remanding the matter for thorough examination of the materials to satisfy on aforesaid aspects and admissibility of notificational benefit, it is left to the ld. Adjudicating Authority to consider applicability of the judgements cited by the ld. SDR as above in the course of fresh hearing of the matter. 6. With aforesaid observations, we remand the matter to the ld. Adjudicating Authority to decide the matter afresh after granting proper opportunity of hearing to both sides. While remanding the matter, since we have not expressed any opinion on merits of the case, the matter is to be decided in accordance with law. 7. In the light of our observations as above, both the matters are remanded to the learned Adjudicating Authority to the extent as indicated above. (Order dictated and pronounced in open court on 25-11-2009)
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2009 (11) TMI 752 - CESTAT MUMBAI
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... ... ..... ial authority to impose a penalty on a person who is found to have committed or omitted something which commission or omission renders the goods liable to confiscation under Section 111 of the Act. In the present case, the ld. Commissioner found that Shri Kamal Agarwal presented himself as the face of the assessee-company and was managing its affairs and therefore liable to be penalised under Section 112. We are afraid, such findings are not at all relevant to Section 112. Though the show-cause notice alleged to the effect that Shri Kamal Agarwal had, by his actions/inactions, rendered the goods liable to confiscation, the adjudicating authority did not record any finding to this effect. Therefore, the penalty imposed on Shri Kamal Agarwal under Section 112 has to be set aside for want of supporting finding. It is ordered accordingly. 9. In the result, Appeal No. C/224/02 is rejected Appeal No. C/426/06 is partly allowed and Appeal No. C/427/06 is allowed. (Dictated in Court)
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