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Showing 281 to 300 of 732 Records
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2009 (11) TMI 751 - CESTAT NEW DELHI
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... ... ..... e, we are of the considered opinion that at this stage, it cannot be said that appellants have not made out a case for stay of the impugned order to the extent an amount of Rs. 1,96,82,823/- and also in relation to the amount of interest and the penalty. However, we do not find any case having been made out for stay of the balance amount of duty demanded under the impugned order. It cannot be disputed that the excess clearance in the matter based on misdeclaration is nothing short of clandestine removal of the goods. Being so, the appellants are required to deposit sum of Rs. 1,08,65,865/- after giving due credit of an amount of Rs. 74,00,000/-, which has already been deposited by the appellants. As regards the balance amount of the duty as well as interest and penalty the same shall stand waived till the disposal of the appeal. The appellants shall deposit the balance amount of duty, as above, within a period of twelve weeks and file the compliance report on 8th March, 2010.
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2009 (11) TMI 750 - CESTAT AHMEDABAD
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... ... ..... relating to the period from October, 1999 to June, 2000 were also set aside by Commissioner (Appeals) and on an appeal filed by the Department, the appeal was rejected vide Order No. A/2309/WZB/AHD/2008 2009 (238) E.L.T. 133 (Tribunal) . Thus, the duty demand pertaining to the period from April, 1994 to February, 1996 and October, 1999 to June, 2000 have been set aside and it has been held that the cost of secondary packing is not includible. For the period in which duty was paid under protest, the refund claim has been filed by the appellant and in view of the fact as discussed above, the matter has attained finality for the two periods prior to and subsequent to period for which the refund has been claimed. The Department cannot open up the issue of includability of cost of secondary packing for this period, while considering the refund claim. 6. In view of the above, we find no merit in the appeal filed by the Revenue and accordingly reject the same. (Pronounced in Court)
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2009 (11) TMI 749 - CESTAT NEW DELHI
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... ... ..... , it has been a clear case of the appellants that no such recovery has been made and there have been no such allegation even to the extent in the show cause notice. Perusal of the impugned order, prima facie, discloses no discussion on this aspect and merely because the amount has been incurred as freight paid to railways, the authority has proceeded to confirm the demand and imposed penalty. 2. The learned DR has drawn to the decision of the Apex Court in the matter of Escorts JCB Ltd. v. CCE, Delhi - III reported in 2002 (146) E.L.T. 31 (S.C.). Undisputedly, the decision has no relation to the aspect on the scope of expression of transaction value as amended w.e.f. 1st July, 2000. Being so, the same has not been attracted in the matter in hand. Prima facie, therefore, the case has been made out for grant of stay of the impugned order. The application is therefore allowed. The impugned order is stayed. The requirement of pre-deposit is waived. Application stand disposed off.
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2009 (11) TMI 748 - CESTAT NEW DELHI
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... ... ..... arned Departmental Representative is on the issue as to whether the cess on jute levied under Industries (Development and Regulation) Act, 1951, by the Ministry of Industry, is a duty of excise and not on the issue as to whether Education Cess under Section 93 of the Finance Act, 2004 is to be charged on the cess, though collected by the Ministry of Finance as duty of excise, but levied by the Ministry of Industry and hence the same is not applicable to the facts of this case. 5. All the above findings are prima facie findings, for the purpose of decision on the adjudication for stay. 6. In view of the above discussion, there is a prima facie case in favour of the appellant. The requirement of pre-deposit of duty demand, and interest confirmed against the appellant and penalty imposed on them is, therefore, waived for hearing of this appeal and recovery thereof is stayed till the disposal of the appeal. The stay application is allowed. (Pronounced in open court on 13-11-2009)
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2009 (11) TMI 747 - CESTAT MUMBAI
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... ... ..... assessing the goods to duty of excise. They had been paying duty on assessable value determined by the cost construction method in terms of the Board rsquo s circulars then in force. They had been filing the requisite declarations under Rule 173C of the Central Excise Rules, 1944. Nothing was suppressed by them. As soon as it was pointed out to them that there was short-payment of duty for a short period, they paid up the duty. This payment was made within the normal period of limitation. In this scenario, it is argued, any penalty under Section 11AC could not have been imposed on them. We have heard the learned SDR also on this issue. After considering the submissions, we have found a valid point in the submissions made by the counsel. Accordingly, we hold that no penalty under Section 11AC is sustainable on the assessee. 3. In the result, while sustaining the demand of duty with interest thereon, we set aside the penalty. The appeal is partly allowed. (Pronounced in Court)
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2009 (11) TMI 746 - CESTAT MUMBAI
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... ... ..... ofar as the normal period of limitation is concerned, the assessee by short-paying duty on their products invited the penal provisions of Rule 173Q. Under these provisions, a penalty can be imposed in appropriate case up to the amount of duty. However, the amount of duty for the normal period remains to be quantified and, therefore, the amount of penalty to be imposed on the assessee under Rule 173Q is also determinable at that stage. Accordingly, after holding the assessee liable to pay duty (with interest in accordance with law) for the normal period of limitation, we direct the original authority to quantify the duty as also to determine the amount of penalty, which could be imposed on them, in the facts and circumstances of this case. The adjudicating authority shall pass a speaking order on the penalty-related issue in a just and fair manner, after giving the assessee a reasonable opportunity of being heard. The appeals are disposed of in above terms. (Dictated in Court)
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2009 (11) TMI 745 - CESTAT BANGALORE
Violation of import conditions - The case of the Revenue is that during the material period the appellants received non-duty paid bunkers for fishing trawlers which were deployed as chase boats/guard vessels in connection with mineral oil extraction or production. These vessels were on coastal run using the duty free bunkers and plied in the EEZ where the provisions of Customs Act operated in terms of the N/N. 21/2002. Such use of imported HSD was exempt from payment of customs duty only if the DGHC had issued Essentiality Certificate in respect of such fuel. The appellants had not obtained such Essentiality Certificate - Held that: - The fuel supply for vessels in connection with offshore oil exploration is exempt by N/N. 21/2002-Cus. dated 1-3-02. Vide Sl. No. 214, 216 and 217 of this notification, goods supplied in connection with petroleum operations undertaken under various contracts are exempt from customs duty.
The Commissioner found that the fishing, trawlers had received bunkers and failed to follow the procedure prescribed in Public Notice No. 172/2002 by their not reporting to the authorities at Visakhapatnam and renewing the fishing passes. The offending transactions took place at Visakhapatnam Port. These vessels had not reported the balance quantity of duty free bunkers that remained onboard the vessels when they called at the Visakhapatnam Port. Therefore, Commissioner, Visakhatpanm had jurisdiction to decide the dispute.
The offence found against the appellants is that it imported HSD and consumed on coastal run without following any statutory formalities. The appellants did not subject itself to the jurisdiction of the customs as regards the impugned bunkers as prescribed in the Public Notice issued by the Commissioner of Customs. HSD imported was consumed in plying chase boats without fulfilling the conditions for any exemption.
Matter remanded to the adjudicating authority to readjudicate the issue - appeal allowed by way of remand.
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2009 (11) TMI 744 - COMMISSIONER OF CENTRAL EXCISE (APPEALS), AHMEDABAD-III
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... ... ..... nt. Even otherwise, the condition prescribed in Board rsquo s Circular referred to above, which necessitated the appellant to obtain a disclaimer certificate not only from SEZ unit but from Specified officer in SEZ also, had delayed the appellant in presenting the required documents before the jurisdictional Central Excise officer in support of their claim which was beyond their control. 16. Since the drawback claim was rejected on the basis of limitation under Section 27 of Customs Act, 1962 which is now found not sustainable, I hold that the appellant is eligible for drawback and hence the appeal is allowed. However I find that as per Rule 30(8) of SEZ Rules, 2006 drawback is admissible provided payments for the supply are made from the foreign currency account of the unit. Therefore drawback shall be admissible subject to fulfilment of the said condition. ORDER 17. In view of the above findings, I set aside the impugned order and allow the appeal with consequential relief.
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2009 (11) TMI 743 - CESTAT NEW DELHI
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... ... ..... ehicle. In such a situation, it cannot be treated as a case of transportation without the knowledge of the owner of the vehicle. The confiscation of the vehicle therefore, deserves to be upheld. However, considering the value of goods involved, and considering the facts and circumstances of the case, some leniency may be justified in matters relating to redemption fine on the truck and penalties imposed on Shri Major Singh and Shri Inderpreet Singh. 7. In the light of the above, the appeals are disposed of as follows - (a) The appeal of Smt. Simran Kaur is partly allowed by setting aside the penalty of Rs. 90,000/- imposed on her. The redemption fine imposed on the truck is reduced to Rs. 75,000/- (Rupees Seventy five thousands only) (b) The penalty imposed on Shri Major Singh is reduced from Rs. One lakh to Rs. 25,000/- (Rupees Twenty five thousands only) (c) The penalty imposed on Shri Inderpreet Singh is reduced from Rs. 1,50,000/- to Rs. 1,00,000/- (Rupees One lakh only).
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2009 (11) TMI 742 - CESTAT AHMEDABAD
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... ... ..... rted and indigenous raw material. We find that the lower adjudicating authority also has simply relied upon the show cause notice and the finding was not based on any evidence. While it has to be accepted that there cannot be any evidence with regard to the sales of grey fabrics in small quantities in the open market without any issue of invoice and without payment of duty, 100 EOU cannot have imported the goods without proper documents. Further, for demand of customs duty on the raw material, it is necessary to prove that the same were imported. In absence of any proof that the same were imported, the customs duty could not have been demanded. We also agree with the learned advocate that the decisions cited by him in support of his contention that what was leviable was Central Excise duty in respect of the goods obtained from 100 EOU and other local sources and not Customs duty. 5. In view of the above, the appeals are allowed with consequential relief. (Pronounced in Court)
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2009 (11) TMI 741 - CESTAT NEW DELHI
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... ... ..... eclared description was LWC paper less than 70 GSM, there is mis-declaration of description in the bill of entry and in view of this, the provisions of Section 111(m) regarding of confiscation of goods and of Section 112(a) for imposition of penalty on the importer and indenter would be attracted. However, looking to the fact that the importers are not a trader but are actual user, who had imported this paper for magazine for students preparing for competitive examination and also the fact that this Department has not produced any calculation regarding margin of profit in respect of imported goods, I am of the view that the redemption fine and penalty are on higher side. Accordingly, the redemption fine in lieu of confiscation is reduced to Rs. 50,000/- and the penalties on M/s. Kalp Times and M/s. K. Shyam International are reduced to Rs. 15,000/- each. The impugned order stands modified as above. The appeals are partially allowed. (Dictated and Pronounced in the open Court)
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2009 (11) TMI 740 - CESTAT NEW DELHI
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... ... ..... same has allowed credit on paints and primer. 6. emsp After carefully considering the submissions from both sides I hold that the decision of Commissioner (Appeals) in the appeal by the party related to eligibility of credit on white lead and red lead. The issue in the Department rsquo s appeal before Commissioner (Appeals) was the eligibility of Cenvat credit on paints and primer which is a different issue. Therefore, the doctrine of merger will not apply. Therefore, the order of the Commissioner (Appeals) dated 27-8-2007 cannot be sustained. However, the submission of the learned Advocate that the Commissioner (Appeals) has not gone into the merits of the case needs to be taken into account. Accordingly, I set aside the order of the Commissioner (Appeals) and remand the matter to Commissioner (Appeals) to consider the issue afresh in the appeal filed by the Department after granting reasonable opportunity of hearing to both sides. 7. emsp Appeal is allowed by way of remand.
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2009 (11) TMI 739 - CESTAT CHENNAI
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... ... ..... d even after amendment to Section 35A(3) of the Central Excise Rules, 1944 has been decided by the judgment of the Hon rsquo ble Gujarat High Court in the case of Commissioner of Central Excise, Ahmedabad v. Medico Labs 2004 (173) E.L.T. 117 (Guj.) holding that Commissioner (Appeals) continues to have power of remand even after the amendment to the above mentioned provision in the statute. Following the ratio of the above judgment, we uphold the impugned orders of remand and dismiss the appeals. (Dictated and pronounced in open court)
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2009 (11) TMI 738 - CESTAT NEW DELHI
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... ... ..... g scrap stands confiscated under Section 111(d) of the Customs Act. The Commissioner (Appeals) has upheld the confiscation of heavy melting scrap and also held that the importer was liable to penalty. He has also held that there was no mens rea on the part of the importer in relation to the import of the consignment. He has reduced the redemption fine taking into consideration that the war materials found the consignment of HMS scrap were damaged, used and rusted bomb shells and accordingly not usable as such. The redemption fine relates to HMS which is not prohibited. In view of the clear finding of the Commissioner (Appeals) that there was no evidence to suggest mens rea, the leniency shown by the Commissioner by reducing the redemption fine and penalty cannot be treated as unreasonable. 6. There are no valid reasons adduced to interfere with the order of the Commissioner (Appeals). 7. Appeal by the Department is, therefore, rejected. (Dictated and pronounced in open Court)
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2009 (11) TMI 737 - CESTAT NEW DELHI
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... ... ..... any manufacturer (which may run to 100, 1000 and sometimes in lakhs) will be entitled to protest the assessment by challenging the rate of duty or valuation adopted by manufacturer from whom they are buying the goods. They are entitled to claim the refund within the time limit prescribed under Section 11B provided the manufacturer is entitled to the refund. In respect of claim of refund by a buyer of any excisable goods, the time limit prescribed is six months from the date of purchase of goods. It is not the case of the appellants that they have filed the refund claim within six months. It is not even the case of the appellants that they have filed the refund claim within six months from the order of the Tribunal which was dated 22-1-1999. 9. In view of the above, we do not find any reason to interfere with the order of the Commissioner (Appeals) holding the refund claim as time-barred. 10. The appeal is therefore, rejected. (Order dictated and pronounced in the open Court)
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2009 (11) TMI 736 - CESTAT NEW DELHI
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... ... ..... wing realization of proceeds of clandestine clearances but this apparently important evidence is casually mentioned without giving any details. 6. emsp Charge of clandestine clearance is a serious offence. It is settled law that the finding of clandestine clearance has to be supported by positive evidence such as consumption of raw materials, electricity, evidence of sales and realization of proceeds etc. There is no such evidence whatsoever figuring in the impugned order. Disputed statements of witnesses cannot be relied on in adjudication unless they were allowed to be tested in cross examination sought by the assessee, or otherwise corroborated. The impugned order does not even give sufficient details of such statements relied upon. In the circumstances, we are constrained to remand the matter for a decision afresh by the Commissioner after complying with the principles of natural justice. The appeal is thus allowed by way of remand. (Pronounced in open court on 6-11-2009)
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2009 (11) TMI 735 - CESTAT NEW DELHI
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... ... ..... uch an approach is not appropriate. The Commissioner (Appeals) also has adopted similar approach while allowing the appeals of the parties. 5. emsp However, the learned SDR seeks for opportunity to consider the issues afresh. Considering the nature of issues involved, and the wider implications we deem it appropriate to accede to the request. 6. emsp To enable the same, we set aside the orders of the Commissioner (Appeals) as well as the orders of the original authority and remand the matter for fresh consideration by original authority in the light of the observations made above and after granting reasonable opportunity of hearing to both sides in accordance with law. Respondents are permitted to file the detailed submissions within 45 days from the date of receipt of this order in support of their claim. 7. emsp We clarify that we have not expressed any opinions on merits of the case. All issues are kept open. 8. emsp Appeals are allowed by way of remand on the above terms.
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2009 (11) TMI 734 - CESTAT AHMEDABAD
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... ... ..... n. Even though there was an allegation in the show cause notice that the price charged to S.K. Pharmaceuticals in respect of a few products was much less when compared to the price charged to other distributors, this issue has not been discussed or considered by both the lower authorities. Since the demand has been confirmed only on the ground that S.K. Pharmaceuticals is a related person and Rule 9 in this case is not attracted, we find that the appellants have made a very strong case in their favour. In fact the case made by the appellant is so strong that we consider that it would be appropriate to waive the requirement of pre-deposit, allow the stay petitions and allow the appeals themselves straightway in view of the clear finding that the conclusions reached by the lower authorities are not correct. In view of the above discussion, impugned order is set aside and both the appeals are allowed with consequential relief to the appellants. (Dictated and Pronounced in Court)
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2009 (11) TMI 733 - CESTAT AHMEDABAD
Whether the respondent is required to pay 10% of the transaction value in terms of Rule 6 of the CCR, 2004 on the by-product Spent Acid cleared by them without payment of duty by availing benefit of exemption N/N. 6/02-C.E., dated 1-3-2002?
Held that: - There is no dispute that the Spent Acid is a by-product arising in course of manufacture of detergent products. Further, this issue was considered by the Hon’ble High Court of Bombay in the case of Rallis India Ltd. v. Union of India [2008 (12) TMI 46 - HIGH COURT BOMBAY], where it was held that in case of common inputs used in dutiable and exempted goods, liability to pay 8/10% not arise for waste - appeal dismissed - decided against Revenue.
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2009 (11) TMI 732 - CESTAT BANGALORE
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... ... ..... dings. In these circumstances, we do not find any merit in the impugned Order-in-Appeal. We allow the appeal with consequential relief, if any. rdquo It is undisputed in this case before us that the appellant had permission from DGFT under a license, to import all these disputed items. 6. emsp It can be seen that in an identical issue, where identical goods were- imported, has already been settled in favour of the assessee in the cases as cited. Respectfully following the same, we hold that the impugned order which confirms the demand of duty of the customs forgone by the Revenue (as challenged by the assessee in the cross-objection) is liable to be set aside and we do so and also hold that the goods are not liable for confiscation. Since there is no demand of duty, the question of penalty does not arise. 7. emsp In sum, assessee rsquo s cross-objection is allowed and Revenue rsquo s appeal is rejected. (Operative portion of this order pronounced on conclusion of the hearing)
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