|
Advanced Search Options
Case Laws
Showing 301 to 320 of 584 Records
-
2005 (4) TMI 350
Issues: Duty demand and penalty for failure to satisfy export obligation under DEEC licences.
In this case, the issue revolves around a duty demand of approximately Rs. 2.6 crores and a penalty of Rs. 25 lakhs imposed due to the appellant's alleged failure to meet the export obligation concerning steel imported under DEEC licences. The appellants imported 1377 MT of steel but only exported 764 MT, falling short of the required 1059 MT as per Input-Output Norms. The appellants argued that the shortfall was compensated by manufacturing and exporting from indigenously produced materials, and the higher wastage was permissible under DGFT authorities' discretion. On the other hand, the respondent contended that the demand was justified as the appellants did not meet the export norms and failed to obtain condonation from the DGFT authorities.
Upon reviewing the records, it was observed that there was no evidence of diversion of imported materials for purposes other than export production. The discretion to approve production outside norms rested with the DGFT authorities. Consequently, the appellant had a prima facie case in their favor. As a result, the prayer for waiver pre-deposit was granted, and the recovery of duty demand and penalty was stayed pending the appeal's disposal. The judgment was dictated and pronounced in open court by the concerned authorities.
-
2005 (4) TMI 349
The Appellate Tribunal CESTAT, Chennai granted stay on duty demand of Rs. 12 lakhs for 'Copra Handling System' and 'Oil Modification' contracted by the appellants. The duty demand was disputed as some parts were sent directly to the installation site in Kerala. Pre-deposit requirement was waived and recovery stayed pending appeal.
-
2005 (4) TMI 348
Issues:
1. Alleged collusion in diverting duty-free imported polyester textiles.
2. Imposition of penalty on the respondent.
3. Applicability of Section 112 and Section 111 of the Customs Act, 1962.
Issue 1: Alleged Collusion in Diverting Duty-Free Imported Polyester Textiles
The case involved the Revenue appealing against the order of the Collector of Customs (Appeals) that set aside a penalty imposed on the respondent for colluding with others in diverting polyester textiles imported duty-free under Advance Licence. The Department alleged that the respondent assisted in obtaining the license for import, colluding to defraud the revenue. However, during the hearing, it was revealed that the respondent's involvement was in assisting in obtaining the license, but there was no evidence to prove that he knew about the diversion of goods into the domestic market. The Tribunal concluded that the respondent's actions did not amount to trafficking in the license, as there was no proof of his knowledge regarding the diversion, leading to the dismissal of the Revenue's appeal.
Issue 2: Imposition of Penalty on the Respondent
The respondent was accused of colluding with M/s. Ritu Exports in obtaining an advance license for importing polyester fabrics. The Department imposed a penalty on the respondent under Section 112 of the Customs Act, 1962. However, the Tribunal found that there was no concrete evidence to establish that the respondent was aware of the diversion of goods contrary to the conditions of the duty-free import. As a result, the Tribunal upheld the decision of the lower Appellate Authority, ruling that the respondent was not involved in the activities that would attract penalty under Section 112, leading to the dismissal of the Revenue's appeal against the penalty imposed on the respondent.
Issue 3: Applicability of Section 112 and Section 111 of the Customs Act, 1962
The Tribunal analyzed the provisions of Section 112 and Section 111 of the Customs Act, 1962 in the context of the case. It was observed that the respondent's actions did not fall under the purview of Section 112, as there was no evidence to suggest his involvement in the diversion of goods. Additionally, it was noted that the respondent was not directly engaged in importing, transporting, or storing the goods that could be confiscated under Section 111 of the Customs Act, 1962. Consequently, the Tribunal upheld the decision of the lower Appellate Authority, concluding that the penalty imposed on the respondent was not justified under the provisions of the Customs Act, 1962, and therefore dismissed the Revenue's appeal.
This detailed analysis of the judgment provides a comprehensive understanding of the issues involved and the Tribunal's decision on each aspect of the case.
-
2005 (4) TMI 347
Issues:
1. Whether the relationship between the assessee and their contractor is that of principal to principal or hired laborer.
2. Whether the item in question is goods and subject to duty.
3. Imposition of penalty on a party not involved in the proceedings.
Issue 1: The Tribunal remanded the matter to the Original Authority to determine the relationship between the assessee and their contractor. The Commissioner did not provide detailed findings and rejected the plea of principal to principal relationship. The appellants argued that their contractor, an SSI unit, had the necessary setup and the relationship was at arm's length. They cited precedents and a Board Circular to support their claim. The Tribunal found that the contract terms did not establish a hired laborer relationship and ruled in favor of the appellants, setting aside the Commissioner's order.
Issue 2: The Commissioner confirmed that the item in question was goods excisable to duty and not immovable property. The appellants contested the relationship aspect, asserting that the item was not tradable and went into the construction of immovable property. The Tribunal found that the Commissioner did not address whether the item was goods or not, leading to a non-speaking order. Citing previous judgments and the lack of examination by the Commissioner, the Tribunal set aside the order and remanded the matter for reconsideration.
Issue 3: The Revenue appealed the imposition of a penalty on a party not involved in the proceedings. The Board reviewed the matter and found the penalty on the party to be legally incorrect as they were not issued a show cause notice nor were they part of the proceedings. The Tribunal agreed with the Revenue's appeal, allowing it and emphasizing that imposing a penalty on a non-party was not lawful.
In conclusion, the Tribunal ruled in favor of the appellants on the relationship issue, set aside the Commissioner's order on the classification of the item as goods, and agreed with the Revenue's appeal regarding the improper penalty imposition on a non-party. The judgments cited, along with the contract terms and precedents, played a crucial role in the Tribunal's decisions.
-
2005 (4) TMI 346
The Appellate Tribunal CESTAT, New Delhi heard an application for waiver of pre-deposit of duty demand of Rs. 11,40,037. Cenvat credit was denied initially, but as the demand for differential duty paid by the supplier of inputs was set aside, the applicants were granted the waiver as the duty had already been paid. Adjourned to 30th June, 2005 for arguments.
-
2005 (4) TMI 345
Issues:
1. Dispensing with the condition of pre-deposit of duty and penalty.
2. Undervaluation of goods sent to job worker.
3. Applicability of Rule 57F(4) and payment of duty.
4. Assailing demand on the point of limitation.
Analysis:
Issue 1: Dispensing with the condition of pre-deposit of duty and penalty
The appellant sought dispensation of pre-deposit of duty and penalty amounting to Rs. 61,474/- each. The dispute arose from undervaluation of coils sent to a job worker for conversion into sheets. The appellant argued that the differential duty was paid by the job worker upon clearance of the sheets to the appellant's customers. The Tribunal considered the appellant's contentions and the Supreme Court's ruling in a similar case, ultimately allowing the stay petition unconditionally.
Issue 2: Undervaluation of goods sent to job worker
The core issue revolved around the undervaluation of coils sent for conversion into sheets, which were allegedly sold to independent buyers at a higher price. The appellant contended that the duty differential was settled by the job worker upon clearance to the appellant's customers. This discrepancy led to the demand for pre-deposit of duty and penalty, which was contested by the appellant.
Issue 3: Applicability of Rule 57F(4) and payment of duty
The appellant argued that the provisions of Rule 57F(4) could have exempted them from paying duty at the time of sending coils to the job worker. The Tribunal's initial view that non-adoption of this rule precluded the appellant from seeking relief was challenged. The Supreme Court's judgment cited by the appellant supported their position, leading the Tribunal to acknowledge a strong prima facie case and grant the stay petition without conditions.
Issue 4: Assailing demand on the point of limitation
Apart from the substantive issues, the appellant also challenged the demand on the grounds of limitation. While this aspect was not discussed in detail in the summary provided, it is evident that the Tribunal's decision to grant the stay petition unconditionally encompassed a favorable view on the limitation aspect as well, indicating a comprehensive assessment of all grounds raised by the appellant.
This detailed analysis of the judgment highlights the key legal arguments, precedents cited, and the Tribunal's decision to grant relief to the appellant based on the issues presented before them.
-
2005 (4) TMI 344
Issues:
1. Determination of whether the respondents are providing services as Clearing and Forwarding Agent.
2. Interpretation of Section 65(25) of the Finance Act, 1994 regarding the definition of Clearing and Forwarding Agent and taxable services.
The judgment involves an appeal against an Order-in-Appeal where the Commissioner (Appeals) held that the respondents, M/s. Chopra Brothers, were not providing services as Clearing and Forwarding Agents. The Revenue contended that the respondents were indeed acting as Clearing and Forwarding Agents. The Assistant Commissioner had initially ruled in favor of the Revenue, stating that the respondents were appointed by the Tea Company and were engaged in activities covered under the definition of Clearing and Forwarding Agent. However, the Commissioner (Appeals) overturned this decision, stating that the respondents were merely acting on behalf of the Tea Company and receiving commissions, thus not qualifying as Clearing and Forwarding Agents.
Upon review, the tribunal analyzed Section 65(25) of the Finance Act, 1994, which defines a Clearing and Forwarding Agent as someone engaged in providing services connected with clearing and forwarding operations. The tribunal noted that the respondents received goods from Tea Companies, stored them, and subsequently sold the tea. This process aligned with the definition of Clearing and Forwarding Agent as per the Act. Consequently, the tribunal held that the respondents, M/s. Chopra Brothers, were liable to pay service tax for the services they provided as Clearing and Forwarding Agents. The tribunal set aside the Order-in-Appeal by the Commissioner (Appeals) and allowed the appeal filed by the Revenue.
In conclusion, the judgment clarifies the scope of services provided by the respondents, emphasizing that their activities fell within the definition of Clearing and Forwarding Agent as outlined in the Finance Act, 1994. The decision highlights the importance of correctly categorizing services to determine tax liabilities accurately in line with statutory provisions.
-
2005 (4) TMI 343
Issues:
1. Liability for payment of interest on Service tax during the period covered by a stay order.
Analysis:
The case involved a dispute regarding the liability for payment of interest on Service tax during a period when a stay order was in effect. The respondents, advertising agents, were members of the Advertising Club at Chennai, which had filed a writ petition challenging the levy of Service tax on advertising. The High Court initially granted an interim stay on the levy, which was later vacated. During the period of the stay order, the appellants paid the Service tax for the relevant period. However, the Superintendent of Service Tax assessed interest amounting to approximately Rs. 13,61,000 for the delay in payment. The Commissioner (Appeals) accepted the respondents' contention that the Service tax for the period in question was covered by the stay but became payable after the stay order was vacated. The Revenue, in appeal against the Commissioner's order, argued that interest was payable for the entire period, including the period covered by the stay order.
The Revenue contended that there was no specific waiver from payment of interest during the period of the stay order and that the respondents were not parties to the writ petitions before the High Court. The Revenue sought restoration of the Superintendent's order levying interest for the entire period of delay. The Counsel for the respondents opposed the Revenue's prayer, relying on the Commissioner (Appeals) order.
Upon careful consideration of the arguments, the Tribunal found merit in the Revenue's contention that interest was payable for the entire period of delay in the absence of a specific order from the High Court to exclude the period covered by the stay order for calculating the delay. Consequently, the Tribunal set aside the Commissioner's order and allowed the appeals of the Revenue. The judgment clarified the liability for payment of interest on Service tax during the period of a stay order, emphasizing the absence of a specific directive to exclude the stay period for calculating the delay in payment.
-
2005 (4) TMI 342
The Appellate Tribunal CESTAT, Mumbai set aside the impugned order passed by the Deputy Commissioner of Customs and remanded the matter to the Commissioner (Appeals) for decision on merits. The basis of the order was a communication by the Commissioner of Customs refusing to extend the period to re-export imported goods. The Commissioner (Appeals) wrongly held that he did not have jurisdiction to entertain the appeal. The appeal was rightly filed against the Deputy Commissioner's order.
-
2005 (4) TMI 341
Issues involved:
Interpretation of Notification No. 4/97-C.E. dated 1-3-97 regarding the availability of benefits for unwrought Copper imported, compliance with condition No. 22 of the Notification, scope of the show cause notice, and the applicability of nil rate of duty.
Analysis:
The appeals by M/s. Lohia Brass (P) Ltd. revolve around the question of whether the benefit of Notification No. 4/97-C.E. is applicable to the unwrought Copper they imported. The Appellants claimed exemption under the Notification for importing electrolytic copper cathodes unwrought, intending to use them in the manufacture of utensils or handicrafts. The dispute arose when a show cause notice was issued, alleging that the imported copper was refined, not unrefined as required by the Notification. The Assistant Commissioner confirmed the duty, emphasizing the need for both unrefined and unwrought copper. On appeal, the Commissioner (Appeals) agreed that the copper was refined but focused on the non-fulfillment of condition No. 22, which the Appellants were not specifically notified of in the show cause notice.
The Departmental Representative argued that once a show cause notice is issued, the conditions of the Notification apply, even if not explicitly mentioned in the notice. However, the Tribunal examined the charge in the show cause notice, which solely addressed the issue of refined versus unrefined copper. The Tribunal concurred with the Appellants that the impugned order exceeded the show cause notice's scope. The Commissioner (Appeals) clarified that both unrefined and unwrought copper are covered under the Notification, and the Adjudicating Authority's interpretation was incorrect. As the Revenue did not challenge this finding, the appeals were allowed in favor of the Appellants.
In conclusion, the Tribunal's decision hinged on the proper interpretation of the Notification, the scope of the show cause notice, and the specific conditions mentioned therein. The Appellants succeeded in demonstrating that the impugned order went beyond the issues raised in the show cause notice, leading to a favorable outcome in their appeals.
-
2005 (4) TMI 340
Consulting Engineer - Technical Collaboration Agreement - Whether the exchange between the parties, in terms of the Technical Collaboration Agreement, was providing consulting engineering service and payment for it or exchange of intangible property - HELD THAT:- A perusal of the Agreement brings out the character, content and consideration for the relationship. The recital reproduced above brings out that the Japanese company owns technical information, trade marks and other intellectual property rights such as design, patent and utility models relating to motorcycle and parts and that the Indian company is desirous of acquiring such knowledge, patent, design, trade mark owned by that Japanese company. Clauses 9, 10 and 11 also clearly show that the Agreement was for licensing the transfer of intellectual property rights. Article 2 relating to grant of license makes it clear that what is being done is the grant of an exclusive non-transferable and indivisible license. The teaching service part covered by Article 5 speaks of personnel instructions and training carried out by the personnel of the foreign collaborator “in order to make them understand or become familiar with the technical information”.
Thus, the teaching element also forms part of transfer of know-how. Article 7 relating to payment also mentions the consideration for the payment as “Technical Information and Intellectual Property Rights and Trade- marks to be used in connection with products and parts”. Thus, the consideration is not for any consultancy service rendered. It is for the transfer of intellectual property. The relationship between the parties is not one of consultant and client; but seller and buyer of assets.
In Bajaj Auto Limited v. CCE, Aurangabad [2004 (10) TMI 11 - CESTAT (MUMBAI)] this Tribunal held that royalty for right to use trade mark is a transaction in property and no consultancy or advice is involved, and same is not liable to Service tax. To the same effect is the decision of this Tribunal in the case of Aviat Chemicals Pvt. Ltd. v. CCE (Service Tax), Mumbai [2004 (6) TMI 2 - CESTAT, NEW DELHI].
The decision of this Tribunal in the case of Trans Weigh (India) Ltd. [2004 (5) TMI 4 - CESTAT, MUMBAI], which has been relied upon by the Revenue, is also not of any assistance to the Revenue inasmuch as, in that case, the appellant who was a manufacturer of machinery was also rendering technical services towards installation, erection etc. of the machine and amounts were being charged for that service.
It is in that factual situation that the Tribunal held that the consultancy service rendered attracted Service tax. This judgment only supports the proposition that, if a manufacturer undertakes consultancy in addition to manufacture, it will be liable to tax in regard to the service rendered. It has no application to where the agreement is, as in the present case, for transfer of intellectual property and no consultancy service is rendered. Further, the value of incidental advice, if any, cannot be cut out and subjected to service tax.
Thus, the impugned order is set aside and the appeal is allowed.
-
2005 (4) TMI 339
Issues:
1. Enlargement of statement of facts in respect of Rajesh Kumar Jaiswal & Haider Ali.
2. Contestation of reference made before the Hon'ble High Court.
3. Submission of statement of facts to the Hon'ble High Court as per directions.
Analysis:
1. The issue before the Appellate Tribunal was the request for the enlargement of the statement of facts concerning Rajesh Kumar Jaiswal and Haider Ali. The representative for the Appellant argued that Rajesh Kumar Jaiswal was the owner of the seized metal scraps, not the applicant Raj Kumar Jaiswal. However, the Tribunal had already sent the statement in respect of Raj Kumar Jaiswal to the High Court as directed. The Tribunal clarified that the statement can only be submitted based on the High Court's directions, and there was no provision to enlarge it for other individuals as requested.
2. The Judicial Member for the Respondent submitted that the statement regarding Raj Kumar Jaiswal had been sent to the High Court as per the High Court's directive. It was highlighted that only Raj Kumar Jaiswal had contested the reference made before the High Court, and neither Rajesh Kumar Jaiswal nor Haider Ali had filed any Miscellaneous Application before the Tribunal. Therefore, there was no basis to enlarge the statement for these individuals, and the Miscellaneous Application for enlargement was recommended for rejection.
3. The Tribunal referred to Section 130A(4) which mandates that if the High Court directs the Appellate Tribunal to refer a question of law, the Tribunal must draw up a statement of the case and submit it to the High Court within the specified timeline. In this case, the High Court had directed the submission of the statement of facts concerning Raj Kumar Jaiswal, which had already been done by the Tribunal. The Tribunal emphasized that it lacked the authority to expand the statement of facts for other individuals not directed by the High Court. Consequently, the Tribunal deemed the application for enlargement as not maintainable and dismissed the Miscellaneous Application filed by Raj Kumar Jaiswal on 19th November, 2004.
-
2005 (4) TMI 338
Issues:
1. Refusal of refund application based on surrender of registration.
2. Appellant's claim for refund of duty paid through Cenvat credit.
3. Appellant's shift of unit within the same Commissionerate.
4. Revenue's argument against cash refund due to surrendered registration.
Analysis:
The appellant filed an appeal against the rejection of their refund application, contending that they paid duty through Cenvat credit and later realized the mistake. They shifted their unit within the same Commissionerate and paid the duty through PLA, seeking a reversal of the wrongly paid amount. The Revenue argued that the refund was denied based on the surrender of registration and the closure of the unit. However, it was clarified that the appellant was not seeking a cash refund but only a credit reversal for the duty paid in October 2000. The Tribunal found that since the appellant continued operations in the same range under the same ownership, the denial of refund based on surrendered registration was not valid. The impugned order was set aside, and the matter was remanded for fresh adjudication, allowing the appellant an opportunity to be heard.
In conclusion, the Tribunal ruled in favor of the appellant, emphasizing that the denial of refund based on surrendered registration was not sustainable. The appellant's request for a credit reversal of the duty paid through Cenvat credit, which was later paid through PLA, was deemed admissible due to the unit's continued operation within the same Commissionerate. The case was disposed of by remand for further adjudication, ensuring a fair opportunity for the appellant to present their case.
-
2005 (4) TMI 337
The appeal was filed by the applicant, but dismissed for non-prosecution due to a mistake in the cause list. The applicant filed for restoration of the appeal, stating the correct name of the company as 'M/s. Growell Agri Products'. The appeal was restored to its original number for further arguments on 27-7-2005.
-
2005 (4) TMI 336
Issues: Classification of terry towelling cloth under different headings; Interpretation of Section Note 5(b) of Section XI of CETA 1985; Liability to pay duty on further processed goods.
Classification of Terry Towelling Cloth:
The case involved the classification of terry towelling cloth by the Revenue under Heading 58.02, based on the process of bleaching, dyeing, cutting, and stitching. The Revenue argued that the fabric should not be classified under Heading 63.02 before these processes. However, the Commissioner (Appeals) held that the classification under Heading 63.02 remains even after such processes, and no further duty can be charged. The Tribunal examined the issue and found that terry towelling cloth with dividing threads falls under Heading 63.02 as per Section Note 5(b) of Chapter XI of CETA 1985. The samples showed clear dividing lines for separating each towel, supporting the classification under Heading 63.02.
Interpretation of Section Note 5(b) of Section XI of CETA 1985:
The Tribunal considered the interpretation of Section Note 5(b) of Chapter XI of CETA 1985 in classifying terry towelling cloth. It was observed that the fabric in running length with dividing threads is appropriately classified under Heading 63.02 as per the said provision. The Tribunal emphasized that once the classification is decided and duty is paid accordingly, any further process to enhance the product quality without changing the classification does not attract additional duty. The decision was supported by the CEGAT ruling in a similar case involving Binny Mills, reinforcing the correctness of the Commissioner (Appeals) order.
Liability to Pay Duty on Further Processed Goods:
The issue of liability to pay duty on goods subjected to further processes after initial classification and duty payment was deliberated. The Respondents contended that any subsequent processes do not alter the classification under Heading 63.02 and do not warrant additional duty. Citing a Tribunal decision in a related case, it was argued that even hemming the fabric does not change its classification as a made-up article. The Tribunal concurred with the Respondents' position, emphasizing that once the product is classified and duty is paid, subsequent processes for quality enhancement do not attract further duty. Consequently, the appeals of the Revenue were dismissed based on the correctness of the Commissioner (Appeals) order.
In conclusion, the judgment by the Appellate Tribunal CESTAT, CHENNAI addressed the classification of terry towelling cloth, the interpretation of relevant provisions of CETA 1985, and the liability to pay duty on goods undergoing further processing. The decision established that terry towelling cloth with dividing threads is appropriately classified under Heading 63.02, and subsequent processes do not alter the classification or necessitate additional duty payment, in line with the principles outlined in Section Note 5(b) of Chapter XI of CETA 1985 and supported by legal precedents.
-
2005 (4) TMI 335
Issues:
- Appeal against Order-in-Original regarding deductions claimed by the appellants for arriving at assessable value.
- Dispute over deductions for rent of duty-paid godown, depreciation for bottles, and quantity discount.
- Contestation of findings by the Commissioner on the above issues.
- Failure to provide evidence supporting deductions claimed by the appellants.
- Rejection of deductions by the Commissioner leading to the appeal.
Analysis:
The appellants, engaged in manufacturing aerated waters, transferred goods to an adjacent duty-paid godown for distribution without sales at the factory gate. Deductions claimed under Rule 173C of Central Excise Rules were disputed by the Department, leading to a series of orders and appeals. The Commissioner disallowed deductions for rent of duty-paid godown, depreciation for bottles, and quantity discount, prompting the present appeal.
The appellants contested the Commissioner's findings on rent for the duty-paid godown, arguing it was part of the factory. However, they failed to provide evidence supporting this claim. The Commissioner's determination that the rent was separate and not included in the factory rent was upheld. Similarly, the Commissioner's decision on depreciation for bottles was supported as the appellants did not provide figures for the relevant year. The lack of evidence for the quantity discount claimed by the appellants led to its disallowance.
The Tribunal found no merit in the appeal, upholding the Commissioner's order. Extraneous issues raised during arguments were deemed irrelevant as the case was limited to the specified issues for re-examination. Consequently, the appeal was rejected, affirming the Commissioner's decision on the disputed deductions.
In conclusion, the Tribunal upheld the Commissioner's findings on rent, depreciation, and quantity discount deductions, emphasizing the appellants' failure to substantiate their claims with evidence. The appeal was dismissed, with the Tribunal refusing to address issues beyond the scope of the remand order, thereby affirming the Commissioner's decision.
-
2005 (4) TMI 333
The applicants filed for rectification of mistake in Final Order No. 1249 to 1253/2004-NB(A) dated 1-11-2004. The issue involved in Appeal No. E/270/2004-NB(A) is different from other appeals related to job work. Final Order No. 1249 to 1253/2004-NB(A) dated 1-11-2004 shall be read in respect of some appeals and deleted from others. Appeal No. E/270/2004-NB(A) is scheduled for re-hearing on 21st June 2005.
-
2005 (4) TMI 332
Demand of duty - Clandestine removal - Shortages of raw material - manufacture and removal of the final product - Penalty - Burden of proof - HELD THAT:- We find that shortages of rolls found was 989.745 kgs. This shortage, the appellants had not been able to explain by offering any cogent and convincing explanation. Therefore, in our view, it has been rightly inferred that the Pan Masala was clandestinely removed without payment of duty by the appellants after packing the same in these rolls. Therefore, the impugned order in this regard is affirmed. However, the quantum of duty will be worked out in respect of these rolls, by the Department which will be payable by the appellant-company.
The documents showing payment by them as job work charges to that firm had been also produced by them. They had even produced the statement of the bank account of that firm to prove that the payment made by them was credited to their account. In the face of these documentary evidence, it is difficult to accept the plea of the Revenue that the firm, M/s. Gopal Grinding Industry did not exist. From mere non-cooperation of that firm, no inference could be drawn against the appellants that they had, in fact, manufactured the final product, Pan Masala, out of that Supari and removed it in a clandestine manner without payment of duty.
Shortage of Katha, Cardamom, Tobacco, as detailed in the impugned order, has been duly explained by the appellants. This shortage, according to them, was due to the natural waste during the manufacture of the Pan Masala. The wastage claimed by them of Cardamom is 30%, Supari 10% and Katha 1%.
The duty demand has been calculated on the basis of shortage of each of the above referred raw material separately, whereas even after mixing these raw materials, the final product, Pan Masala, could hot be manufactured as other raw material was also required regarding which neither any shortage nor any excess was found in the factory. There is also no evidence on the record to prove the excess receipt of raw material by the appellants, excess consumption of energy, excess employment of labour by them for manufacture of the excess Pan Masala.
There is also no evidence on the record to prove the excess receipt of raw material by the appellants, excess consumption of energy, excess employment of labour by them for manufacture of the excess Pan Masala. No evidence, whatsoever has been collected to prove the clandestine sale/clearance of the goods of Pan Masala by the appellants in the market to various buyers. No statement of any buyer to whom the Pan Masala was sold during the period in dispute nor of the transporter who transported the goods from the factory premises of the appellants to the place of the buyers had been brought on record.
Thus, the impugned order accordingly stands modified. The duty in respect of 989.745 kgs. of rolls which will be worked out as per law by the Department is confirmed against the company, appellant No. 1, with penalty of Rs. 50,000/-, while the impugned order confirming the rest of the duty with penalty is set aside against the appellant no. 1. Similarly, the penalties on other appellants no. 2 & 3 are set aside. The appeals stand disposed of in the above terms.
-
2005 (4) TMI 331
Issues: Classification of imported goods under different headings - Heading 99.04, Heading 3006.10, and Heading 1212.99.
Analysis:
1. The appellants imported items known as 'C Tanble Tents (Laminaria Tents)' and disputed their classification. The appellant claimed classification under Heading 99.04 as a contraceptive, while the Revenue issued a Show Cause Notice proposing to classify it under Heading 3006.10. Later, a corrigendum was issued proposing to reclassify the goods under Heading 1212.99, not 3006.10, after the importer contested that the goods were not sterilized and thus not in the nature of medicaments excluded from Chapter 30.
2. The items in question were found to be hygroscopic cervical dilators used for cervical dilation or softening in various medical procedures, such as cervical stenosis related to dysmenorrhea, placement and removal of intrauterine devices, radium placement, and drainage of the uterine cavity. None of these uses indicated that the goods were contraceptives, contradicting the importer's claim for classification under Heading 99.04.
3. Considering the Chapter Notes of the Harmonized System Nomenclature (HSN), it was determined that the Laminaria Sea-Tangle goods would fall under Heading 3006.10 if sterile. However, as the imported goods were non-sterile, they were deemed appropriately classifiable under Heading 1212.99 of the Customs Tariff. The demands made in the Show Cause Notice dated 29-12-1998 were to be upheld within the normal period of six months from that date under Heading 1212.90, requiring a remittance to calculate the demands accordingly.
4. The appeal was partially allowed, with the decision to remand the case to the Deputy Commissioner to recalculate the duty under Heading 1212.90. This judgment clarified the classification of the imported goods and the applicable tariff headings based on their nature and use, ensuring proper assessment and collection of duties in accordance with the Customs Tariff.
-
2005 (4) TMI 330
Issues: Application for rectification of mistake in Tribunal's Final Order regarding abatement of duty under Section 22 of the Customs Act and unjust enrichment under Section 27 of the Customs Act.
The judgment pertains to an application for rectification of mistake in the Tribunal's Final Order by M/s. Wavin India Ltd. concerning the abatement of duty under Section 22 of the Customs Act and unjust enrichment under Section 27 of the Customs Act. The appellant argued that the matter primarily related to abatement of duty for damaged and deteriorated goods under Section 22, making unjust enrichment provisions inapplicable. They contended that the Department had already allowed abatement of duty by reducing the value of imported goods by 30%, indicating an acceptance of the abatement issue. On the contrary, the respondent, represented by Sh. B.L. Goyal, asserted that the Final Order focused on refunding the duty paid in excess before the abatement, thus justifying the application of Section 27 concerning unjust enrichment.
The Tribunal, comprising S/Shri S.S. Kang and V.K. Agrawal, analyzed the arguments presented by both parties. It was highlighted that the scope of rectification of mistake under Section 129B of the Customs Act is limited, as established in the case law of Dinkar Khindria Dinesh Khindria v. CC, New Delhi. The Tribunal emphasized that rectification is only permissible for mistakes apparent from the record necessitating amendment of the order. Referring to the Supreme Court's decision in S. Balram, Income-tax Officer Company v. Volkart Brothers, the Tribunal clarified that rectification is not a means to challenge the Tribunal's order but is reserved for correcting obvious and patent errors. Therefore, the applicants were advised to pursue an appeal in the Appellate Forum if they disagreed with the Tribunal's decision, as rectification is not a disguised form of appeal where the order is re-heard and re-decided. Consequently, the Tribunal found no merit in the application for rectification of mistake and rejected it.
............
|
9911796707
