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Showing 321 to 340 of 669 Records
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2008 (10) TMI 418
Issues: Classification of imported waveguides under Customs Tariff Heading (CTH) 852990 or CTH 854420.
Analysis:
1. The case involved the classification of imported waveguides by M/s. Srinivas Cellcom Ltd. (SCL) under CTH 852990 or CTH 854420. The original authority revised the classification to CTH 854420 and demanded the exemption allowed under Notification No. 20/99-Cus., dated 28-2-99. The Commissioner (Appeals) upheld this decision based on the precedent set by the Tribunal in the case of Scientific Instruments Co. Ltd. v. Commissioner, where waveguides were classified as cables of CTH 854420.
2. The appellants argued that the Commissioner (Appeals) relied on a Tribunal order with no precedential value and that the Tribunal had wrongly applied Rule 4 of the Interpretative Rules. SCL cited the Tribunal's decision in CC, Customs v. ITI Ltd., where waveguides were classified under CTH 852990 based on technical advice from the Department of Telecommunications. The Tribunal upheld this classification as waveguides being a part of the microwave system, similar to a passive micro-wave component.
3. In the Scientific Instruments case (97 decision), the Tribunal classified waveguides under CTH 854420 as they were not considered part of radiotelephony equipment but rather a component of the microwave system. The Tribunal rejected the classification under CTH 852990, considering waveguides as cables of CTH 854420, similar to coaxial cables.
4. The ld. SDR supported the impugned order based on the Tribunal's decision in the Scientific Instruments Ltd. case (97 decision) upheld by the Apex Court. The Tribunal upheld the classification of waveguides as cables of CTH 854420, and the ld. SDR defended the Commissioner (Appeals) order.
5. The Tribunal considered the arguments presented by SCL, highlighting the reliance on technical opinions from the Department of Telecommunications in previous cases. However, the Tribunal noted the absence of such opinions in the present case and questioned SCL's explanation on the classification under CTH 852990 without following the Interpretative Rules properly.
6. The Tribunal referred to the classification opinions of the World Customs Organization and previous decisions where waveguides were classified under CTH 854420. The issue at hand was whether waveguides should be considered part of radiotelephony equipment or cables conveying electromagnetic signals as part of the microwave system. The Tribunal found that the goods formed a sub-system of the radio microwave system, supporting the classification under CTH 854420.
7. In a previous decision, the Tribunal classified waveguides connecting distant towns for telephonic communication as cables of CTH 854420, not part of any radiotelephony apparatus. These cables were essential for establishing telecommunication routes between towns, conveying signals to antennae at both ends of the communication.
8. Ultimately, the Tribunal dismissed the appeal, stating that there was no justification to deviate from the classification held in previous decisions. The case was decided in favor of classifying the imported waveguides under CTH 854420 as cables, in line with the established precedents.
(Order pronounced in Open Court on 22-10-2008)
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2008 (10) TMI 417
Issues: Appeal against denial of benefit under Notification No. 21/2002-Cus. for import of wool with fibre diameter above 32 microns.
Analysis:
1. Facts of the Case: The appellant imported Scoured Wool and filed a bill of entry, claiming the benefit of Notification No. 21/2002-Cus. The goods were assessed to duty as per declaration, and the appellant later appealed against the assessment order after clearance of goods.
2. Appellant's Contention: The appellant argued that the wool imported had a fibre diameter exceeding 32 microns, citing a test report from the New Zealand Wool Testing Authority Ltd. dated 3-9-02, which indicated a diameter of 42.5 microns. Therefore, the appellant claimed entitlement to the notification's benefit.
3. Revenue's Argument: The revenue contended that the appellant did not claim the benefit of the notification at the time of clearance. Without retaining any sample during clearance, it became challenging to verify post-clearance claims regarding the fibre diameter. The revenue highlighted the importance of claiming benefits during clearance for proper verification.
4. Tribunal's Decision: The Tribunal noted that the appellant filed the bill of entry without initially claiming the notification's benefit. As per the notification, concessional duty rates apply to wool with an average fibre diameter exceeding 32 microns. Since the goods were cleared without requesting to retain samples for verification, the Tribunal found it impossible to verify the fibre diameter post-clearance. Consequently, the appeal was dismissed due to the lack of merit in the appellant's claim.
This judgment underscores the significance of claiming benefits under relevant notifications at the time of clearance to facilitate proper verification and avoid challenges in post-clearance claims. The Tribunal's decision was based on the procedural aspect of not retaining samples for verification, leading to the dismissal of the appeal against the denial of the notification's benefit for wool import with fibre diameter above 32 microns.
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2008 (10) TMI 416
Issues: Misdeclaration of imported goods, assessment of goods value, imposition of fine and penalty
Misdeclaration of Imported Goods:
The appellant imported goods declared as "Electrolytic Tin Plate Prime Sheets" but were found to be secondary tin plate sheets upon examination. The secondary tin plate sheets had discrepancies such as non-uniform coating, mixed gauges, and sub-standard quality. The misdeclaration attracted a higher duty rate of 20% BCD compared to the lower duty rate of 5% for prime sheets. The appellant claimed to have negotiated a reduced price with the supplier after discrepancies were noticed, but the Commissioner held the original declared value of US $ 655 PMT. The misdeclaration was deemed a deliberate violation of Section 46(1) with the intention to evade customs duty.
Assessment of Goods Value:
The appellant argued that they ordered only prime quality goods based on documents received from the supplier and sought leniency due to the reduction in price to US $ 455 PMT. However, the Tribunal rejected the claim of reduced price acceptance as there were imports of prime sheets at a higher price of US $ 1030 PMT. The Tribunal found the misdeclaration to be a deliberate ploy to import high-rated items as low-rated items, justifying the confiscation of goods valued at Rs.29,68,861.50 and imposition of a penalty of Rs.1.50 lakhs.
Imposition of Fine and Penalty:
The appellant sought leniency in imposing fines and penalties, arguing that the misdeclaration was not deliberate and that the violation of the prescribed port of import should not be viewed seriously. However, the Tribunal upheld the confiscation, penalty, and redemption fine, considering the intention to evade customs duty and the violation of import restrictions. The Tribunal concluded that the redemption fine and penalty imposed were justified based on the value of the goods and the duty sought to be evaded.
In conclusion, the Tribunal upheld the Commissioner's order, rejecting the appeal and affirming the confiscation, penalty, and redemption fine. The misdeclaration of imported goods, assessment of goods value, and imposition of fines and penalties were thoroughly analyzed, leading to the decision in favor of the Respondent.
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2008 (10) TMI 415
Issues:
1. Discrepancy in declared goods and values in import consignments.
2. Assessment of assessable value and duty demands.
3. Reliability of transaction between Indian importer and Singapore supplier.
4. Application of natural justice principles in supplying evidence.
Analysis:
1. The appeals involved two separate cases related to import by the same party from the same supplier, dealing with discrepancies in the declared goods and values in the import consignments. The Tribunal noted that the matter was before them for the second time after being remanded to the original authority to finalize the provisional assessment before initiating any penal action.
2. In the first case (party's appeal), the importer declared acrylic sheet off cuts but the consignment also contained multi-wall panels. The original authority enhanced the assessable value, leading to a demand for differential duty. The Commissioner (Appeals) upheld this decision, resulting in the party appealing to the Tribunal. In the second case (department's appeal), the importer declared different values for acrylic sheet off cuts and multi-walled panels. The original authority also enhanced the value and demanded differential duty. However, the Commissioner (Appeals) allowed the party's appeal, prompting the Department to appeal.
3. The party argued that the transaction between the Indian importer and the Singapore supplier was based on an oral contract at a specific price, emphasizing that the price at which the Singapore supplier purchased from the Belgium party was irrelevant. The Department contended that the goods were directly shipped from Belgium, with documents showing a higher price, shifting the burden of proof to the importer. The Tribunal analyzed the transactions and found discrepancies, leading to the rejection of the declared prices and the enhancement of the assessable value.
4. Regarding the application of natural justice principles, the Tribunal concluded that all evidence relevant to the dispute was supplied to the importer, and there was no violation of natural justice principles. The Tribunal upheld the decision to enhance the value and demand differential duty in one case while setting aside the Commissioner (Appeals) order in the other case, restoring the original authority's decision.
In conclusion, the Tribunal rejected the party's appeal and allowed the Department's appeal, emphasizing the correctness of the assessment in law and the application of principles in determining the assessable value and duty demands in the import consignments.
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2008 (10) TMI 414
Issues involved: Determination of liability for duty on waste and scrap generated from replacement of machinery parts.
Summary:
The appeal was filed by the Revenue challenging an order-in-appeal regarding the liability of waste and scrap for duty. The main issue was whether waste and scrap resulting from the replacement of worn-out machinery parts are subject to duty. The Revenue argued that such waste and scrap, generated by mechanical working in the factory premises, should be liable for duty. On the other hand, the respondents contended that the waste and scrap were a result of wear and tear of machinery, not mechanical working.
Upon review, it was observed that the waste and scrap, including Brass Tubes scrap, Nickel Scrap, Mill Roller scrap, and Ball bearing scrap, were old and worn out parts of machinery, not generated during the manufacturing process. The Commissioner (Appeals) concluded that no new excisable product emerged from the process, and duty could not be charged on the sale of such waste and scrap. Additionally, it was noted that the appellants had not availed Modvat credit on the capital goods, and therefore, duty was not required to be paid on the waste and scrap resulting from the use of such capital goods.
The Tribunal found the Commissioner (Appeals) order to be well-reasoned and declined to interfere, ultimately rejecting the appeal. The Revenue failed to provide evidence contradicting the findings, and it was acknowledged that the waste and scrap in question were not generated due to mechanical working in the factory premises of the respondent.
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2008 (10) TMI 413
Issues Involved:
1. Revision of assessable value of imported scrap.
2. Denial of duty-free import benefits under Notifications No. 53/97-Cus. and 52/03-Cus.
3. Liability for confiscation of imported scrap.
4. Imposition of penalties on NI and its partners.
5. Confirmation of Central Excise Duty demand.
6. Allegations of misdeclaration and clandestine clearance.
Detailed Analysis:
1. Revision of Assessable Value of Imported Scrap:
The Commissioner revised the assessable value of the imported scrap from Rs. 16,91,53,105/- to Rs. 57,99,49,944/-. This was based on the allegation that NI misdeclared the grade and value of the scrap, making them ineligible for duty-free import benefits.
2. Denial of Duty-Free Import Benefits:
The benefits under Notifications No. 53/97-Cus. and 52/03-Cus. were denied. The customs duty demand of Rs. 27,10,90,863/- was confirmed against NI under Section 28(1) of the Customs Act, along with applicable interest. The denial was due to allegations that NI failed to export the entire production and misdeclared the copper recovery rate, thus violating the EXIM policy provisions.
3. Liability for Confiscation of Imported Scrap:
8458.462 MT of 'Mixed Copper Cable Scrap (Druid)' and 4256.29 MT of 'mixed copper lead cable scrap' (Relays) were held liable for confiscation under Section 111(d), (m) & (o) of the Customs Act. Since the goods were not available for confiscation, a fine of Rs. 30 crores was imposed under Section 125 of the Customs Act.
4. Imposition of Penalties on NI and Its Partners:
Penalties were imposed as follows:
- Rs. 27,10,90,863/- on NI under Section 114A of the Customs Act.
- Rs. 25,95,08,555/- on NI under Section 11AC of the Central Excise Act read with Rule 25(1) of the Central Excise Rules, 2002.
- Rs. 15 crore each on Vinay Jain and Satish Bhalla, and Rs. 5 crore on Sangeeta Bhalla under Rule 26 of the Central Excise Rules, 2002.
- Rs. 27,10,90,863/- each on Vinay Jain, Satish Bhalla, and Sangeeta Bhalla under Section 112 read with Section 114A of the Customs Act, 1962.
5. Confirmation of Central Excise Duty Demand:
The Central Excise Duty demand of Rs. 25,95,08,555/- was confirmed on 5005-452 MTs of copper allegedly manufactured and clandestinely cleared into DTA under Section 11A(1) of the Central Excise Act, along with applicable interest under Section 11AB of the Central Excise Act.
6. Allegations of Misdeclaration and Clandestine Clearance:
The main allegations were that NI misdeclared the grade and value of the imported scrap, underreported copper recovery, and clandestinely cleared the balance quantity of copper scrap without payment of duty. The evidence included printouts of emails, overseas inquiries, statements from involved parties, and test reports showing higher copper content than declared.
Judgment Summary:
The Tribunal found that the Revenue had a strong prima facie case against NI for under-invoicing in the import of copper cable scrap and underreporting copper recovery. The Tribunal directed NI to deposit Rs. 15 crores within eight weeks, in addition to Rs. 1.5 crores already deposited, for the waiver of the balance amount of duties and penalties. Compliance was to be reported on 19-12-08.
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2008 (10) TMI 412
Show cause notice - Jurisdiction - Territorial jurisdiction - Held that: - In Notification No. 30/97-Cus. (N.T.), the Central Government, under Section 4(1) of the Customs Act, appointed certain officers as “Commissioners”, “Deputy Commissioners” and “Assistant Commissioners” of Customs to exercise powers and discharge duties “within their respective jurisdictions”. In respect of those officers who were appointed as “Commissioners of Customs”, it was further specified that their jurisdiction would extend to “the whole of India”. In Notification No. 83/2004-Cus. (N.T.) also, the Government specified territorial jurisdiction for the officers appointed as “Chief Commissioners”, “Commissioners”, “Additional Commissioners” and “Deputy/Asst. Commissioners” of Customs. All these Notifications were issued under Section 4(1) of the Act. Notification No. 31/2000-Cus. (N.T.) as amended by Notification No. 69/2000-Cus. (N.T.), which is central to the present dispute, was also issued by the Central Government under the same provision of law, but this Notification did not specify area of jurisdiction for the “officers of Customs” appointed thereunder. The Board did not invoke Section 5(1) of the Act to specify such jurisdiction either.
The SCN and the corrigendum thereto were issued without jurisdiction and the same are quashed - appeal allowed - decided in favor of appellant.
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2008 (10) TMI 411
Issues involved: Common issue involved in the appeals regarding the import of goods under Public Notice dated 16-7-2007 and subsequent clarification by DGFT and CBEC circular dated 7-9-2007.
Summary:
The appellants imported Lead Scrap through ICD, Tughlakabad under a Public Notice but the goods were allowed to be imported at ICD, Loni, Ghazibad. The Adjudicating Authority confiscated the goods and imposed penalties. The DGFT issued a clarification allowing clearance up to 31-8-2007 through ICD, Tughlakabad, which was not considered by the adjudicating authority initially. The Commissioner (Appeals) had considered the Board Circular, stating that the goods were cleared before its issuance, justifying the confiscation. However, the Tribunal found that the goods were imported before 31-8-2007, making the appellants eligible for the benefit of the DGFT clarification and Board Circular. Citing similar cases, the Tribunal set aside the impugned orders and remanded the matters back to the original authority for fresh consideration, emphasizing proper hearing for the appellants.
In conclusion, the Tribunal allowed both appeals by way of remand, directing the original authority to reconsider the case in light of the DGFT letter and Board Circular, ensuring a fair opportunity for the appellants in the process.
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2008 (10) TMI 410
Issues:
1. Refund of duty paid by a 100% EOU on goods cleared to the Domestic Tariff Area (DTA).
2. Application of Section 11B of the Central Excise Act to refund claims.
3. Interpretation of rules regarding refund of duty for 100% EOUs.
Issue 1: Refund of duty paid by a 100% EOU on goods cleared to the Domestic Tariff Area (DTA)
The Appellate Tribunal, after hearing both sides, noted that a 100% EOU had cleared goods to the DTA on payment of duty, which were later returned by the buyer after reversing the credit of duty. The EOU then cleared the returned goods on payment of duty. The Tribunal acknowledged that the EOU had indeed paid duty twice on the same goods, leading to a claim for refund. The lower appellate authority allowed the refund, emphasizing that during the relevant period, EOUs did not have access to MODVAT credit, leaving refund as the only recourse for double duty payment. The Tribunal upheld this decision, stating that Section 11B of the Central Excise Act, applicable to all units, did not bar the refund claim.
Issue 2: Application of Section 11B of the Central Excise Act to refund claims
The Tribunal clarified that the Revenue did not contest the applicability of Section 11B of the Central Excise Act to the refund claim in question. Despite Rule 16 not being directly applicable to a 100% EOU at the time, the lower appellate authority correctly granted the refund based on the double payment of duty. The Tribunal emphasized that Section 11B did not differentiate between EOUs and normal DTA units, supporting the decision to refund one of the duty payments on the same goods.
Issue 3: Interpretation of rules regarding refund of duty for 100% EOUs
In a separate appeal, the Tribunal found no evidence of a second payment of duty on the same goods by the EOU. The goods were initially cleared with duty payment, returned by the buyer with credit reversal, and then recleared by the EOU with duty payment. Since MODVAT credit was unavailable to EOUs at that time, the Tribunal noted that no provision allowed duty refunds in such cases. Unlike the first scenario, where double duty payment occurred, the Tribunal allowed this appeal, highlighting the absence of a second duty payment on the same goods as the basis for the decision.
In conclusion, the Appellate Tribunal upheld the refund granted in the first appeal due to double duty payment by the 100% EOU. However, in the second appeal, where no second duty payment was evidenced, the Tribunal allowed the appeal, emphasizing the lack of legal provision for duty refunds in the absence of double payment.
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2008 (10) TMI 409
Issues:
1. Validity of demand raised against the appellant invoking a larger period.
2. Eligibility of the impugned clearances for the Small Scale Industry (SSI) benefit.
3. Substantiation of the claim that the appellant applied for SSI registration in 1990.
4. Imposition of penalties under Rule 173Q of the Central Excise Rules, 1944 (CER).
Analysis:
1. The appeal was remanded to the adjudicating authority in the first round for deciding the case afresh after providing the appellant with copies of correspondence relied on in the proceedings. The Joint Commissioner demanded an amount of Rs. 4,16,875/- as duty not paid by the appellants on clearances of goods manufactured by them. A fine of Rs. 10,000/- was imposed in lieu of confiscation, and a penalty of Rs. 30,000/- was imposed on the appellant under Rule 173Q of the CER. The penalties were deemed reasonable and in accordance with the law.
2. The appellant claimed that the impugned clearances were eligible for the SSI benefit as they had applied for SSI registration in 1990. However, the evidence provided, including a sworn affidavit and a recommendation letter, did not substantiate this claim. The provisional SSI certificate was issued on 22-6-93, and without concrete evidence of the earlier application, the demand against the appellant was considered valid. As the appellant did not possess an SSI certificate during the material period, they were not entitled to the benefits under relevant notifications.
3. The appellant failed to provide substantial evidence supporting their claim that they had applied for SSI registration in 1990. The only evidence presented was a sworn affidavit of the Managing Director, who was deceased, and a recommendation letter without a clear indication of when the application was made. The absence of verifiable evidence led to the dismissal of the appellant's appeal.
4. The penalties imposed on the appellant under Rule 173Q of the CER were upheld as the appellant had contravened various provisions of the Central Excise Rules by clearing goods without possessing the required SSI certificate. The penalties were considered reasonable and justified based on the findings of the case.
In conclusion, the appeal filed by the appellant was dismissed for lack of merit, as the impugned demand was deemed valid, the clearances were found ineligible for SSI benefits, and the penalties imposed were upheld as per the law.
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2008 (10) TMI 408
Issues involved: Classification of goods under Central Excise Tariff Act - Interpretation of Rule 2(a) of Interpretative Rules and Note No. 5 to Section XVI of the Schedule.
Summary:
1. The appeal by the Revenue challenged the classification of goods as paper making machine parts under SH 8439.10, contrary to SH 8439.90 claimed by the Revenue. The appellant argued that Rule 2(a) and Note No. 5 were not applicable as parts were cleared in phases, not as a complete machine. The lower authorities upheld the classification under SH 8439.10. The appeal also pointed out an error in the memo, seeking to set aside the Order-in-Appeal.
2. The Tribunal found no grounds to interfere with the lower authorities' findings. The goods were cleared against a single purchase order for paper making machinery, and it was impractical for the respondents to have the complete machinery ready for clearance. Manufacturing and clearing large machines in parts under a single duty-paying document is a common trade practice. The absence of relevant circulars was noted, and the relief sought by the Assistant Commissioner could be partially granted by restoring the Order-in-Original.
3. The Commissioner (Appeals) issued a comprehensive order on the matter, which was deemed satisfactory. Consequently, the appeal was dismissed, affirming the classification of the goods as paper making machine parts under SH 8439.10.
*(Dictated and pronounced in open court)*
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2008 (10) TMI 407
Issues:
1. Demand of excess duty credit availed by the appellants on inputs received from an EOU.
2. Interpretation of sub-rule (7) of Rule 3 of CENVAT Credit Rules, 2004 regarding entitlement to credit for inputs received from a 100% EOU.
Issue 1:
The original authority had demanded 50% of the duty credit availed by the appellants on inputs supplied by an EOU, as the EOU had paid duty at a lower rate. The Commissioner (Appeals) upheld this demand, leading to an appeal by the appellants. The appellant contended that they were entitled to the entire credit of duty paid on the inputs as per the accompanying invoices, and the jurisdictional authorities could not revise this entitlement. The appellant relied on a Supreme Court judgment emphasizing that the recipient manufacturer can avail the benefit of duty paid by the supplier-manufacturer without contestation. However, the lower authorities found that the entitlement to credit for inputs received from an EOU is regulated by sub-rule (7) of Rule 3 of CCR 2004, which prescribes a specific formula to determine the admissible credit. The excess credit availed by the appellants compared to the admissible credit as per the formula was demanded by the original authority, and this determination was upheld in the impugned order.
Issue 2:
The appeal also involved the interpretation of sub-rule (7) of Rule 3 of CCR 2004, which governs the entitlement to CENVAT credit for inputs received from a 100% EOU. The rule specifies a formula to calculate the admissible credit as 50% of the basic customs duty and CVD payable on the inputs if they were imported. The Lower authorities correctly applied this sub-rule to determine the entitlement of the appellants to credit for the inputs received during the material period. The judgment emphasized that the entitlement to input credit when a manufacturer receives inputs from an EOU is governed by the statutory provisions, and the determination of availability of input credit was upheld as correct. Consequently, the appeal was dismissed as lacking in merits.
In conclusion, the judgment addressed the issues of demand for excess duty credit availed by the appellants on inputs received from an EOU and the interpretation of sub-rule (7) of Rule 3 of CCR 2004 regarding entitlement to credit for such inputs. The decision upheld the original authority's demand based on the specific formula provided in the rule and dismissed the appeal for lacking merit in challenging the determination of input credit availability.
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2008 (10) TMI 405
Issues involved: Appeal filed by Revenue challenging clearance of used capital goods as 'scrap' without payment of entire credit availed initially.
Summary:
1. The appeal was filed by the Revenue challenging the clearance of used capital goods as 'scrap' without paying the entire credit initially availed by the company. The authorities demanded the difference between the credit availed and the duty paid on clearance of the goods. The Commissioner (Appeals) allowed the appeal filed by the company, leading to the Revenue's appeal seeking to restore the original authority's order.
2. The main argument presented was that the capital goods had been removed 'as such' and, according to Rule 3(5) of Cenvat Credit Rules, 2004, the assessee was required to pay the credit originally availed in such cases. The Revenue contended that the impugned order was not consistent with statutory provisions and needed to be set aside.
3. Upon considering the case records and submissions, it was found that the Commissioner (Appeals) relied on a decision of the Bangalore Bench of the Tribunal, which clarified that Rule 3(5) applied only to capital goods removed 'as such' and not to used cenvated capital goods. As the impugned goods were cleared after being used for about 8 years, they were not considered capital goods 'as such'. Since the Tribunal's decision had not been unsettled by a superior court, the appeal filed by the Revenue was dismissed for lacking merit.
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2008 (10) TMI 404
Issues involved:
The dispute revolves around the retrospective or prospective effect of an Explanation added to a customs notification regarding the inclusion of BOPP film under a specific entry.
Summary:
1. The appeal was filed by M/s. IEE Engg. Enterprisers Private Limited challenging the denial of exemption under Notification No. 25/99-Cus. for two consignments of plastic film imported by them. The goods were declared as BOPP film but were assessed at a concessional rate applicable to plain plastic films under Sl. No. 44 of the notification.
2. An audit objection led to a Show Cause Notice demanding recovery of the exemption availed. The Commissioner (Appeals) found that BOPP film was included under Sl. No. 44 only with the introduction of an Explanation via Notification No. 20/01. The key issue was whether this Explanation had only prospective effect.
3. The appellant argued that the Explanation was meant to clarify the scope of the entry and should apply from the date of the original notification. Citing relevant case law, the appellant contended that the Explanation did not alter the Notification's scope but provided clarity to its language.
4. The legal representative for the respondent defended the impugned order.
5. After considering both sides' submissions, it was determined that the Explanation was introduced to clarify the position applicable to the original notification from its date of issue. The clarification did not operate solely from the date of the subsequent Notification No. 20/01.
6. Referring to precedent, it was noted that clarificatory notifications have retrospective effect, as they clarify what was implicit. The Explanation in this case was intended to remove doubts and was deemed to have retrospective effect. The appeal was allowed based on this interpretation.
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2008 (10) TMI 403
Condonation of delay - Appeal to Appellate Tribunal - Time Limitation - service of order - Held that: - The condonation of delay is a matter of discretion but the discretion has to be exercised judiciously. There must be some explanation for the delay. On the premise that the order was duly served on the appellant in around March, 2006, we are of the view that the appellant was required to give explanation of delay in the application. No explanation at all has been furnished by the appellant - COD not allowed - appeal dismissed as time barred - decided against appellant.
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2008 (10) TMI 402
Issues involved: Stay applications against the order of the Commissioner demanding customs duty, central excise duty, and penalty from M/s. Dinesh Agro Products Limited.
Summary:
1. The appellant, a 100% EOU, imported goods without duty payment under specific notifications. They failed to fulfill export obligations and stopped manufacturing activities, leading to demand for duty and penalties.
2. The appellant argued that non-fulfillment of export obligation is not a violation of legislative provisions but only of a notification, for which demand cannot be made until the export period is over. They cited relevant Tribunal decisions and Supreme Court rulings.
3. The appellant contended that non-extension of bond and bank guarantees are curable defects and do not violate substantive conditions unless guarantees are not extended at all.
4. The Department highlighted that the appellant's unit was closed down, machinery rusted, and export obligations unmet. The appellant did not seek debonding permission and showed no intention of manufacturing or exporting.
5. The Tribunal found the appellant's non-fulfillment of export obligation evident, with no efforts to extend guarantees or fulfill obligations. A pre-deposit of Rs. 1,25,00,000 was directed towards duty, with waiver of the balance amount pending appeal disposal. Compliance was to be reported by a specified date.
*(Pronounced on 14-10-2008)*
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2008 (10) TMI 401
Issues involved: Recovery of Cenvat credit, imposition of penalty, non-maintenance of prescribed register, procedural violations, appeal by Revenue.
The Appellate Tribunal CESTAT, AHMEDABAD dealt with a case where the respondents, engaged in the manufacture of Kraft paper and paperboard, availed Cenvat credit during June 2001 to February 2005 based on their own invoices and invoices from customers for rejected finished goods. The original adjudicating authority ordered recovery of Rs. 9,22,378/- Cenvat credit along with penalties due to non-maintenance of prescribed register, failure to follow Rule 16, and non-compliance with trade notice 29/2005. The Commissioner (Appeals) set aside the original order, leading to the Revenue's appeal.
The Revenue contended that the appellants failed to inform the department about received goods, did not maintain necessary records, and did not follow the correct procedure. Despite the appellants incorporating details in their monthly returns, they could not provide specific records for the process related to returned goods. The Revenue justified the penalties and recovery, urging the setting aside of the Commissioner (Appeals) order.
Upon review, the Tribunal found that the trade notice issued on 12-12-2005 applied to assessees receiving duty paid goods without proper documents, and the respondents had provided details of rejected goods and their removal in monthly returns. The Tribunal agreed with the Commissioner (Appeals) that there was no procedural violation and that rectifiable procedural errors should not lead to denial of substantive benefits. It was also noted that the details in the RT-12/ER-1 were sufficient, indicating no suppression and precluding the application of the extended period. Consequently, the Tribunal rejected the Revenue's appeal, finding no merit or limitation issues in their case.
This judgment highlights the importance of maintaining proper records, following prescribed procedures, and ensuring compliance with trade notices to avoid penalties and recovery of credits in excise matters.
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2008 (10) TMI 400
Issues:
Exemption claim under Notification No. 6/2002 for weighing machines and conveyors.
Analysis:
The appellant manufactured weighing machines and conveyors for a Bio Gas Combustion Co-generation Power Project and claimed exemption under Notification No. 6/2002. The original authority disallowed the exemption, resulting in a demand of duty of Rs. 2,72,544. The Commissioner (Appeals) upheld the demand but set aside the penalty imposed by the original authority.
The appellant argued that the weighing machines and conveyors qualified for the concession as an "energy device" under the notification. They relied on a Tribunal decision in a similar case involving batteries, emphasizing that serial numbers 16 and 21 of the list should be considered together. The appellant did not claim financial hardship.
The Jt. CDR for the Revenue contended that the current case differed from the precedent cited by the appellant, as that case involved captive consumption of batteries, unlike the situation with weighing machines and conveyors. It was argued that these machines cannot be classified as energy devices.
The Tribunal analyzed the submissions and opined that weighing machines and conveyors did not fall under serial no. 16 of list no. 9 of the notification. The Tribunal found the precedent cited by the appellant inapplicable to the present case. Consequently, the Tribunal directed the appellant to deposit Rs. 1,50,000 within eight weeks and report compliance by a specified date. Pending the deposit, the Tribunal waived the pre-deposit of the remaining duty amount and stayed the recovery until the appeal's disposal. The judgment was pronounced on 7-10-2008.
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2008 (10) TMI 398
Marble - Classification of Rough marble slab - assessee claimed classification under 2515.11 whereas Government held that same are classifiable under 2515.20 - Held that: - To come under 2515.20 as claimed by the Department it should be established that the imported material first of all falls under the category of “Ecaussine and other calcareous monumental or building stone, alabaster”.
None of the reports specifically indicate that the imported goods can come under any of the categories mentioned under 2515.20. The reports have used the terms ‘marble and limestone’ to describe the imported goods. The report also confirms that the imported goods can take polish. In other words, the report does not preclude classification of the imported items as marble. It is not disputed that the goods imported are rough and not polished though capable of being polished and therefore, the decision of the Commissioner (Appeals) in accepting the claim of the respondent and upholding the classification under 2515.11 cannot be faulted with.
Appeal dismissed - decided against Revenue.
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2008 (10) TMI 397
Issues Involved:
1. Jurisdiction and limitation period for filing an appeal under Section 35-E of the Central Excise Act, 1944.
2. Validity of the review order passed by the Committee of Chief Commissioners.
3. Tribunal's authority to condone delay in review decisions.
4. Requirement of personal appearance of a Central Board of Excise & Customs member for deposition.
Detailed Analysis:
1. Jurisdiction and Limitation Period for Filing an Appeal:
The appeal arises from the order-in-original of the Commissioner of Central Excise & Customs, Bhubaneswar. According to Section 35-E of the Central Excise Act, 1944, a departmental appeal against the order of the Commissioner can be filed on the direction of the Committee of Chief Commissioners. The dispute centers on whether the appeal was filed within the prescribed period of one year from the date of the order. The Commissioner signed the order on 18-5-2006, and the appeal was filed on 9-7-2007. The respondent contended that the decision of the Committee was beyond the one-year limit, making the appeal non-maintainable. The Tribunal clarified that the appeal was filed within the prescribed period of three months from the receipt of the authorization under Section 35-E(4).
2. Validity of the Review Order Passed by the Committee of Chief Commissioners:
The Committee of Chief Commissioners, comprising members from Bhubaneswar and Lucknow, reviewed the order. The Chief Commissioner of Central Excise, Bhubaneswar, decided on 18-5-2007 that an appeal should be filed. However, the Chief Commissioner of Central Excise, Lucknow, gave his consent only on 28-5-2007, after the one-year period had expired. The Tribunal held that the decision-making process by a multi-member body is not complete until all members have signed. Therefore, the review order was not passed within the prescribed period, rendering it invalid.
3. Tribunal's Authority to Condon Delay in Review Decisions:
The Department argued that the Tribunal has inherent powers to condone the delay in taking the decision by the Committee of Chief Commissioners. However, the Tribunal clarified that it can only condone the delay in filing the appeal before it, not in the decision-making process of the Committee. The Tribunal cited the decision of the Larger Bench in Commissioner of Central Excise, Mumbai v. AZO Dye Chem, which supports the view that there is no power of condonation for delays in the review decision under Section 35-E.
4. Requirement of Personal Appearance of a Central Board of Excise & Customs Member for Deposition:
The Tribunal addressed Misc. Appl. No. E/290/08, which sought to recall the order directing the personal appearance of a Member of the Central Board of Excise & Customs for deposition. The Tribunal found no occasion to direct such personal appearance and recalled the order dated 14-7-2008.
Conclusion:
The Tribunal concluded that the appeal was maintainable as it was filed within the prescribed period of three months from the receipt of the authorization, despite the review order being passed beyond the one-year limit. The Tribunal emphasized that it does not have the jurisdiction to adjudicate the validity of the review order and authorization. The miscellaneous applications were disposed of accordingly, with the order for personal appearance being recalled.
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