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Case Laws
Showing 321 to 340 of 1580 Records
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2013 (10) TMI 1260 - BOMBAY HIGH COURT
Waiver of pre deposit - Evasion of payment of custom duty - Undervaluation of imported electronic goods - Penalty u/s 112 - Held that:- prima facie view of CESTAT that show cause notice issued by the Adjudicating Authority and the order-in-original indicate that the appellant was the mastermind behind the import of various goods and that the entire , activity of M/s. Parth Marketing and M/s. Chinmay Corporation were controlled and managed by the appellant through his staff and that the proprietor of M/s. Parth Marketing and M/s. Chinmay Corporation were receiving only monthly compensation for renting/lending their names and the transactions were undertaken by the appellant cannot be faulted - proprietor of M/s. Parth Marketing and M/s. Chinmay Corporation were receiving only compensation for renting/lending their names and the transactions were undertaken by the appellant. It is observed by the Tribunal prima facie that the intention to evade duty by misdeclaration of goods is clearly discernible when one goes through the evidence on reord against the appellant - Prima facie case not in favour of assessee - Stay denied.
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2013 (10) TMI 1259 - CESTAT AHMEDABAD
Benefit of Notification No. 167/86 - Exemption from CVD - Import of ship for breaking - Rectification of mistake - Non consideration of one of the appeals - Appeal against the imposition of Additional Duty of Customs - Held that:- Final Order dated 6-8-2012, in the preamble, mentions that we have disposed off two appeals of the appellant. The mere perusal of our order dated 6-8-2012, clearly indicate that we had not considered the submissions made in respect of Appeal No. C/1/2008, which is against the imposition of Additional Duty of Customs (CVD) on the vessel M.V. Jagat Priya, imported for breaking - Since there is an error apparent on the face of record, our final order dated 6-8-2012, which is in respect of C/1/2008, needs rectification of mistake - Rectification granted.
Benefit of Notification No. 167/86 - Exemption from CVD - Import of ship for breaking - Whether the appellants are liable to pay additional duty in respect of a vessel brought in by them for breaking up in terms of the provisions of the Customs Tariff Act, 1975 - Held that:- The vessels imported by the appellant are not seaworthy and they are admittedly for the purpose of breaking. There is a separate entry for this purpose both under the Customs Tariff Act and Central Tariff Act. The product actually imported is the material that can be retrieved from the ship; the structure by itself is of no value and the appellant subjects the vessel to a process to retrieve the material from the structure without the use of power - Therefore, appellant is eligible for the benefit of Notification No. 167/86 - Following decision of ENGEE INDUSTRIAL SERVICES (P) LTD. Versus UNION OF INDIA [2003 (5) TMI 458 - KARNATAKA HIGH COURT] - Decided in favour of assessee.
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2013 (10) TMI 1258 - CESTAT MUMBAI
Benefit of the Notification 97/2004-Cus., dated 17-9-2004 - Import of catalysts - Ommission of consumable from benefit of Notification - Whether appellant are entitled to claim exemption for catalyst imported as spares or not - Held that:- as the FTP 2004-2009 and EPCG licence issued thereunder, clearly specifies that ‘catalysts’ are different from ‘consumables’ and are covered under para 5.1A of the policy as spares, catalysts, etc. Therefore, following the decision of Suttons & Sons (India) P. Ltd. (1994 (2) TMI 298 - HIGH COURT OF CALCUTTA) the Notification in question is to be read harmoniously with the provisions of FTP 2004-2009. The provisions of Foreign Trade Policy shall prevail over the Notification of the Customs authorities as the customs authorities do not have any power to curtail the import unless such curtailment is warranted by the import policy. Therefore, during the impugned period the appellant are entitled for the benefit of the Notification No. 97/2004 as amended - as per Notification 97/2004-Cus., dated 17-9-2004, the exemption for spare parts is given at Sr. No. 5 but the allegation against the appellant is that they have cleared the catalyst at Sr. No. 1 as capital goods. This allegation against the appellant is not sustainable as in the EDI system. Sr. Nos. 1 & 2 were generated but did not include Sr. No. 5.
As per the FTP para 5.1A the appellant are allowed to import ‘catalyst’. Para 5.1A deals with only spare parts, catalyst and at the time of clearance of goods, the EPCG licence were produced by the appellant before the customs officers for endorsement in their licence. Therefore, after examining the licence, the goods were assessed and allowed to be cleared duty free. In that situation, the allegation of suppression against the appellant again does not survive. Admittedly, in this case goods were imported during the period 2007-2008 and show-cause notice have been issued on 31-3-2010 invoking the extended period of limitation on the ground of suppression with an intend to evade payment of duty. As the allegation of suppression is not sustainable against the appellant, therefore, the demand against the appellant is time-barred - Decided in favour of assessee.
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2013 (10) TMI 1257 - CESTAT CHENNAI
Classification of Goods – import of silver, and gold coins and medallions - appellant claim that these are classifiable under Chapter Heading 71.08 covered by Notification No.62/04 dt. 12.5.04 - Revenue was of the view that it has numismatic value and classifiable under Chapter 97.05 - Waiver of Pre-deposit - Held that:- The main contention of the applicant is that they imported large quantity specially ordered and freshly minted in Germany for commemorating events or distribution during celebration - the manufacturer and supplier confirmed that they have manufactured against order and such goods have no numismatic value - the evidences would be appreciated at the time of appeal hearing - ICICI Bank Ltd. imported silver, gold coins on behalf of applicant - It is seen that whatever the quantity imported through ICICI Bank Ltd., they have deposited the entire amount - Considering the amount paid by the applicant and prima facie case, we direct the applicant to deposit further amount - Upon such deposit, the predeposit of balance duty along with interest and penalty in respect of this applicant as also in respect of other applicants shall stand waived and recovery is stayed during pendency of appeals – Partial stay granted.
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2013 (10) TMI 1256 - CESTAT BANGALORE
MRP based valuation of imported goods - import of automobile parts, components and accessories - Valuation of Goods u/s 4A of CE Act – Waiver of Pre-deposit - The department took the view that the importer should have declared RSP at the time of import - The imported parts/accessories were meant for sale in retail by the importer - The assessable value thereof should have been determined in terms of Section 4A of the Central Excise Act – Held that:- Following ABB Ltd. vs. Commissioner of Customs, Bangalore [2010 (12) TMI 1027 - CESTAT, BANGALORE ] - there was no provision in the Customs Tariff Act enabling the proper officer of customs to determine RSP in a case where the importer did not declare RSP on the imported package and, on this basis, the demand of duty, interest and penalty were set aside – Stay granted.
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2013 (10) TMI 1255 - CESTAT NEW DELHI
Mis-declaration of Goods - Duty Drawback – personal penalty on directors - Waiver of Penalty – Held that:- The Adjudicating Authority has not imposed any penalty on the directors however the commissioner (appeal) Imposed penalty on all the three directors - He only reconsidered imposition penalty on all the three directors - Order refers to directors and not partners - There was wide difference of 47.5 kg out of total decleared quantity of 150 kg clearly indicating their was clear intent to avail higher drawback - Considering overall facts of the case and gravity of availing higher drawback claim, this is a fit case there is no leniency is required to be shown as prima-facie appellants are not able to make any case of waiver of penalty - all the three stay applications for waiver of penalty on directors are rejected - stay rejected.
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2013 (10) TMI 1254 - DELHI HIGH COURT
Sanction to the Scheme of Amalgamation - Held that:- In view of the approval accorded by the shareholders and creditors of the Petitioner Transferor company, representations/reports filed by the RD and the OL to the proposed Scheme, there appears to be no impediment to the grant of sanction to the proposed Scheme. Consequently, sanction is hereby granted to the proposed Scheme under Sections 391 and 394 of the Act. The Petitioner Transferor company will comply with the statutory requirements in accordance with law - A certified copy of the order be filed with the ROC within 30 days from receipt of the same. In terms of Sections 391 and 394 of the Act and in terms of the Scheme, the property, assets, rights and powers of the Petitioner Transferor company shall be transferred to and vest in the Transferee company without any further act or deed. Similarly, in terms of the Scheme, all the liabilities and duties of the Petitioner Transferor company shall be transferred to the Transferee company without any further act or deed. Upon the scheme coming into effect, the Transferor company shall stand dissolved without winding up - Petition allowed.
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2013 (10) TMI 1253 - DELHI HIGH COURT
Winding up - Mistake in inventory - Held that:- agreement itself stipulated that an inventory would be prepared of the articles lying at the factory site in the presence of the representative of the Respondent No.1. Admittedly, such exercise was never performed and the Appellant cannot be allowed to take advantage of this breach committed by the Appellant itself - list of missing items, which was prepared on 19th September, 2003, was made after comparing with the inventory prepared in the year 1994 when the O.L. had taken possession of the factory premises on his appointment as the provisional liquidator. It is further noted that admittedly, from 1994 to 1996 some other security agency was deployed at the factory premises and the applicant came on the scene in the year 1996 and before giving the security arrangement to the applicant, no inventory was prepared. The learned Single Judge has also noted that a Local Commissioner was also appointed at the request of the applicant to visit the factory premises and his report indicated that the theft, if any, which took place in the meantime cannot be attributed to the applicant inasmuch as the premises were sealed by the O.L. at the time of deploying the applicant as security agency, which seals were intact even at the time when the Local Commissioner visited the premises - Appeal dismissed.
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2013 (10) TMI 1252 - DELHI HIGH COURT
Activity Manufacture OR Not – purchase of duty paid film - process of lamination or metallization - Passing of Cenvat Credit on Inputs - Revenue was of the view that the respondents were not engaged in manufacture and therefore could not have passed Cenvat credit on inputs to the purchasers of the printed laminated/metalized material – Held that:- The Tribunal has referred to the process of production adopted by the respondent - The respondent first print bare or metalized polyester film purchased from the market i.e. the inputs - Printed films were laminated either in two layers or three layers with the help of adhesive or another chemical - After referring to the process adopted by the respondent, the Tribunal has held that this would be covered by the definition of manufacture under Section 2(f) of the Central Excise Act, 1944 - The process actually undertaken, as recorded by the Tribunal, is not disputed - facts found relating to the process undertaken - There was no substantial question of law arises for consideration - Perhaps the appellant should be satisfied with the reasoning – Decided against Revenue.
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2013 (10) TMI 1251 - GUJARAT HIGH COURT
Maintainability of Appeal to High Court u/s 35L of CE Act 1944 – SSI Exemption – Held that:- Following Commissioner of Central Excise, Panchkula Vs. Special Machine [2009 (8) TMI 143 - PUNJAB AND HARYANA HIGH COURT] - the dispute as to whether the assessee was covered by the exemption notification, was related directly and proximately to rate of duty applicable – thus the appeal on question of law before the High Court would not be maintainable and an appeal u/s 35L of the Central Excise Act, 1944 would be maintainable before the Supreme Court – the only remedy available to the revenue is to file appeal before the Supreme Court u/s 35L of the Central Excise Act, 1944 - Registry is directed to return all the Tax Appeals to the appellant to present it before the competent Court having jurisdiction – Decided against the revenue.
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2013 (10) TMI 1250 - MADHYA PRADESH HIGH COURT
Recovery of duty drawback for non realization of Foreign Exchange - Opportunity of being heard – Production of Realization certificate against export of goods - Held that:- The 3rd proviso to Regulation 9 of Foreign Exchange Management (Export of Goods & Services) Regulations, 2000, specifically provides that the Reserve Bank or subject to the directions issued by that Bank in this behalf, the authorized dealer, may, for the sufficient and reasonable cause shown, extend the period of 6 months or 15 months as the case may be - the petitioner is entitled to at least one opportunity to produce the realization certificate as well as the order of extension, if any, passed in favour of the petitioner in terms of proviso to Regulation 9 before the original authority – order set aside – matter remanded back to the original authority – Decided in favour of Appellant
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2013 (10) TMI 1249 - HIMACHAL PRADESH HIGH COURT
Recovery proceedings - circular dated 1-1-2013 – Held that:- Following Bharat Hotels Ltd. vs. Union of India [2013 (5) TMI 654 - DELHI HIGH COURT] - till the decision is taken by the appellate authority, no coercive measure to recover the amount pursuant to the demand notice be taken – Decided in favour of Petitioner.
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2013 (10) TMI 1248 - JHARKHAND HIGH COURT
Restoration of Appeal - Opportunity of Being Heard - Whether in the light of the decision of Electronics Corporation of India Limited v. Union of India & Ors. [2011 (2) TMI 3 - Supreme Court] the appeals, which have been dismissed by the appellate authority for want of clearance from the Committee on Disputes constituted in the light of the orders passed in ONGC-II Versus COLLECTOR OF CENTRAL EXCISE [1991 (10) TMI 58 - SUPREME COURT OF INDIA] are required to be restored – Held that:- Permission to prefer appeal has been granted to the Revenue by the Committee of Disputes and same has been denied to the writ petitioner and therefore, the matter was pending before the Tribunal relating to the same issue arising out of the original order but as has been raised by the Revenue only.
Denial of opportunity to pursue the appeal to the writ petitioner cannot be justified in the light of the reasons given by the Hon’ble Supreme Court, for which even Hon’ble Supreme Court had to recall its own earlier orders of even constitution of Committee of Disputes - the petitioner’s contention is that in one of the appellate orders, the same issue has been decided in favour of the petitioner and against the Revenue - thus the issue certainly requires consideration by the Tribunal - the Tribunal committed error of law by dismissing petitioner’s application for restoration of appeal, which was dismissed on 10-9-2008 – Decided in favour of Petitioner.
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2013 (10) TMI 1247 - CESTAT BANGALORE
Reversal of Cenvat credit – Waiver of Pre-deposit - Whether Goods Manufactured are inputs or capital goods OR not - plates, angles, channels etc. falling under Chapter 72 of Central Excise Tariff were sued in the supportive structures - Held that:- The appellant was entitled to entertain a bonafide belief about their eligibility for CENVAT credit since during a portion of the relevant period there were contrary views taken by different Benches of the Tribunal which came to be finally decided against the assessee in the case of Vandana Global Ltd. Vs. Commissioner of Central Excise, Raipur [2010 (4) TMI 133 - CESTAT, NEW DELHI (LB) ] - the appellant had reversed the CENVAT credit and paid the interest on an assurance given by the audit party that if the CENVAT credit and interest are paid, no further proceedings will be initiated - assessee has made out a prima facie case for stay against the recovery during the pendency of the appeal – Stay granted.
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2013 (10) TMI 1246 - CESTAT AHMEDABAD
Show Cause Notice issued to whom – Held that:- The show-cause-notice dated 29.07.1999 issued to M/s. Western Electrical company also indicates that the Western Transformers and two other persons as co notices, there is no doubt as the fact that extended period was invokable in this case as there was suppression of the facts.
Penalty under Rule 173Q of Central Excise Rule 1994 - Held that:- Penalty under Rule 173 Q (i) of the Central Excise Rules 1944, can be invoked if and when the ingredients are present which are so in the case - Penalty of Rs. One Lakh is disproportionate, and ends of justice will be met if such penalty is reduced to Rs. 10,000 as there is no doubt that appellant has not maintained statutory records properly – Penalty imposed under Rule 173 Q (i) of the Central Excise Rules, 1944 is reduced to Rs. 10,000/- from Rs. 1 lakh.
Penalty u/s 11AC of Central Excise Act 1944 – Held that:- The period from April-1994 to 27.09.1996 will not be covered under the provisions of section 11AC of the Central Excise Act, 1944 for imposition of penalties - the provisions was brought into statute only on 28.09.1996, to that extent, the claim of for not imposition of equivalent penalty for the demand of the duty from April-1994 to 28.09.1996 is valid - Penalty equivalent to the amount of duty payable from April-1994 to 28.09.1996 set aside.
Penalty u/s 11AC of Central Excise Act 1944 For the period from 28.09.1996 to March-1998 – Held that:- The appellant had admitted removal of goods by availing ineligible benefit, and not contested the duty liability - Penalty imposed u/s 11AC for the demand of duty on 28.09.1996 to March March-1998 upheld - The amount of duty liability has already been discharged and hence the appellant are eligible to get the benefit of the reduced amount of penalty of 25% of the amount of duty liability - The penalty imposed u/s 11AC of the Central Excise Act, 1944 for the period 28.09.1996 to March-1998 the benefit of section 11AC extended – the appellant directed to pay the penalty @ of 25% of the amount of duty for this period
Interest Liability u/s 11AB of the Central Excise Act, 1994 – Held that:- The interest liability need to be worked out for the period post 28.09.1996 till March-1998 - The provision of section 11AB was brought into statute w.e.f. 28.09.1996 - The lower authorities will calculate the interest to be paid by the appellant on an amount of duty liability for the period 28.09.1996 to March 1999 - the appellant is not required to discharge any interest on the amount of duty for the period April-1994 to 28.09.1996 – Decided partly in favour of Assessee.
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2013 (10) TMI 1245 - CESTAT MUMBAI
Supply of transformers for setting up a mega power project at Tamnar (Raigarh). - Entitlement for Duty free Exemption under Notification No. 6/2006 - Revenue was of the view that the Project Authority Certificate has been issued under clause 8.2 (g) of Chapter 8 of the Foreign Trade Policy and not under clause 8.2 (f) of the Chapter/Policy – Held that:- Whatever has been stated at serial No.1 of the certificate is not relevant for granting the benefit of Exemption Notification and is relevant only for the purpose of Foreign Trade Policy - Chapter 8 of the Foreign Trade Policy deals with deemed export - Clause 8.2 lists out the categories of supply which will be considered as deemed export for the purpose of Foreign Trade Policy.
A bare reading of the clause (f) would indicate that supply of goods to any project or purpose in respect of which the Ministry of Finance, by a notification, permits import of such goods at zero percent duty, is given the benefit of deemed export - clause (g) states that the supply of goods to power projects and refineries even if not covered by clause (f) above will get the deemed export benefit - clause (e) or clause (g) is relevant for granting the deemed export benefit and has no relevance whatsoever for granting exemption under Notification 6/2006-CE - the benefit of the Exemption Notification has been correctly availed - demand of duty set aside - Since the demand of duty had set aside, the interest and penalties on all the notices do not survive – Decided in favour of Assessee.
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2013 (10) TMI 1244 - CESTAT AHMEDABAD
Payment of Duty – Compounded Levy Scheme – Waiver of Pre-deposit - Whether or not a manufacturer under the Rules has the option to pay duty under compounded levy only for the days he intend to run the machines for which intimation as prescribed are given to the department – Chewing Tobacco and Unmanufactured Tobacco Packing Machines - Held that:- Relying upon M/s. Pm Products vs. CCE, Ahmedabad [2013 (10) TMI 1199 - CESTAT AHMEDABAD] - It is not necessary to pay the entire monthly duty first in a month before availing abatement – assessee had made a prima facie case in their favour - complete waiver from confirmed dues and penalties are allowed in these appeals till their final disposal – Stay granted.
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2013 (10) TMI 1243 - CESTAT BANGALORE
Demand u/s 11D - Allegation of recovery of duty while availing SSI Exemption - The price charged by the appellant for the medicines remains the same throughout the year even though the appellant is entitled to exemption as an SSI unit and upto the first clearance of Rs.1.5 crores, the appellant does not pay any excise duty – Held that:- The appellant never collected excise duty during the period when he was availing SSI exemption - even though the price was fixed during throughout the year, both the buyer and the supplier had a clear understanding that no excise duty was payable during the period when the appellant was enjoying SSI exemption.
The agreement is very clear - Both the buyer and the supplier had understood that during the period when the SSI exemption was available, excise duty is not payable even though the Column 10 of the Schedule showed the excise duty separately – Following Mayfair Polymers Pvt. Ltd. Vs. CCE, Ahmedabad [2007 (9) TMI 519 - CESTAT, AHMEDABAD] - charging of such a fixed price cannot be considered as having included the excise duty during the period when SSI exemption was availed - The appellant is on a better footing in the case – the appellant has made out a prima facie case for waiver - the requirement of pre-deposit waived during the pendency of appeal – Stay granted.
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2013 (10) TMI 1242 - CESTAT NEW DELHI
Application for Review – Held that:- Revenue’s appeal was dismissed by Hon’ble Supreme Court - it is difficult to entertain prayer of Revenue at this stage - Tribunal has no power to review its own order for which Misc. application is dismissed – Decided against Revenue.
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2013 (10) TMI 1241 - CESTAT AHMEDABAD
Time-Barred Refund Claim as per Section 11B(1) - whether duty paid should be treated as paid under protest – Held that:- The period of duty payment is June 2000 to October 2005, which is clearly made after a period of one year from the payment of duty - Argument of the appellant that a favourable decision taken by the Commissioner with reference to their Gandhar unit should be taken as a deemed protest for the appellants unit is not acceptable as each registered unit is a separate legal entity so as payment of duty is concerned - it cannot be held that duties were paid under protest by the appellant - Commissioner (Appeals) has correctly rejected the appeal filed by the appellant - refund claim has been correctly held as time barred – Decided against Assessee.
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