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Showing 341 to 360 of 1817 Records
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2013 (11) TMI 1479
Refund claim u/s 27 - Import of Watchguard Security Products - Duty paid under Customs Tariff Heading 8473.30 - Exemption under Customs Notification No. 17/2001-Cus., dated 1-3-2001 - Classification under Customs Tariff Heading 8473.30 or under 8524 - Held that:- software was etched and was not portable to any other hardware and hence has no separate existence. The Counsel has made arguments showing product literature showing capability of the device to alert about software updates and to suggest recommended configuration. According to him this would imply that the software was separate commodity - value under dispute is the value of software etched on hardware when goods were imported - Website of the manufacturer indicates value as single unit price of hardware and value of the software were not available separately. It is also noted that the basic and the main function of the imported goods related to the hardware components and the embedded software used to operate the hardware, an integral part of the same. The goods imported by the appellant has no independent existence at the moment it is etched on the volatile memory of the hardware, it becomes part and parcel of the said system. Thus, the claim of the learned counsel in this case that the software and hardware were separate and distinct cannot be acceptable - Following decision in the case of ACER India Ltd. [2004 (9) TMI 106 - SUPREME COURT OF INDIA] - Decided against assessee.
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2013 (11) TMI 1478
Confiscation of the Echo Cardiography system imported - Penalty u/s 111 - Held that:- Adjudicating authority did not specify the amount of Customs duty payable by the respondent - Held that:- sub-section (2) of the said section obligated the owner/person referred to in sub-section (1) to pay any duty and charges payable in respect of the goods confiscated with option for payment of fine in lieu of confiscation. The statutory provision is clear enough and hence it was not necessary for the Commissioner to specify the duty liability of the party. As the appeal filed by the respondent against the confiscation of the goods was dismissed by this Tribunal and as there is no evidence of this Tribunals decision having been set aside by appellate court, the respondent is liable to pay the duty leviable on the goods in accordance with law - Decided in favour of Revenue.
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2013 (11) TMI 1477
Rectification of mistake - Bench has passed final order on the submission that there was no notification issued appointing Commissioner, Central Excise & Customs, Daman to adjudicate the show cause notices issued to the respondents - Appellant contends that there was indeed a Notification No. 120/2006-Cus. (N.T.), dated 27-11-2006, which appointed the Commissioner, Central Excise & Customs, Daman to exercise his powers to discharge the duties as an adjudicating authority - Held that:- Court was not shown any notification appointing the Commissioner, Central Excise & Customs, Daman as adjudicating authority to hear and dispose of the appeal arising out of the show cause notice dated 31-3-2005. Notification dated 27-11-2006 on which learned departmental representative is relying upon was not brought to our notice and hence that is not a mistake apparent on the face of record in our order. In the absence of such notification being produced before us it cannot be said that bench overlooked the same. Hence, there is no error apparent on the face of the order - Rectification denied.
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2013 (11) TMI 1476
Confiscation u/s 111(d) - Penalty u/s 112 - Contravention of the conditions specified in the Import Policy - Cars notimported from place of manufacture - Held that:- proving the path of the goods imported is not sufficient to meet the condition that the goods should have been imported from the country of manufacture. It is not for the Tribunal to guess the reason behind the condition and order what would be sufficient compliance with the policy. The Import Policy is formulated having regard to various trade considerations of the country and international obligations. It is not for Tribunal to look into the merits and demerits of the import policy because the Tribunal does not have before it all the facts and constraints that result in a policy. We are also not able to agree with the contention that since the policy has been amended in December 2008, the amended position should be applicable for imports made in 2007. This argument if accepted will also lead to considerable difficulties to the Government in the matter of implementation of import policies from time to time which changes depending on various factors - cars were imported in contravention of the condition that the car should have been imported from the country of manufacture and the cars were rightly confiscated under section 111 (d) of the Customs Act - However, there is no contravention of other conditions - Therefore, penalty is reduced - Decided partly in favour of assessee.
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2013 (11) TMI 1475
Refund of SAD in terms of Notification No. 102/2007 - Availment of CENVAT Credit - Import of cars - Held that:- non-endorsement of non-availability of CENVAT credit of the SAD paid on the sales invoice, in the invoice issued by the appellant, there is no mention of SAD separately and therefore, the question of buyers taking any credit would not arise at all. In a similar case, where endorsement relating to SAD was not made on the sales invoices, in respect of sales through non-registered dealers - substantive benefit of exemption Notification should not be denied on the ground of procedural or technical infraction - since the goods are cars, on which CENVAT is not available and the dealers through whom the goods are sold are also not dealers registered for CENVAT credit purposes, the question of the buyers availing any CENVAT credit would not arise at all. Therefore, non-endorsement of non-availability of SAD does not materially affect the refund claims - Following decision of Commissioner of Customs, Bangalore v. Kohler India Corporation Pvt. Ltd. [2011 (8) TMI 1098 - CESTAT BANGALORE] - appellant is directed to produce before the original adjudicating authority all the documents specified in the deficiency memo and, thereafter, the original adjudicating authority shall consider the refund application afresh and decide the eligibility of the appellant to the refund - Decided in favour of assessee.
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2013 (11) TMI 1474
Violation of Notification No. 102/2007, dated 14-9-2007 - Refund of SAD - Whether no declaration of the requirement of para 2(b) of Notification No. 102/2007-Cus., dated 14-9-2007 in the invoices disentitles the appellant-trader to the refund of additional customs duty paid - Conditions mandatory or directory - Held that:- A Notification benefit being given at the cost of people of India the condition cannot be said to be directory without being mandatory. Every benefit through notification is granted with conditions, stipulations and limitations to safeguard interest of Public Revenue. When the appellant failed to make a declaration it cannot be said to be a technical lapse where as breach of compliance to the Notification No. 102/2007 debarrs to the benefit granted by that. The spirit of the declaration can be appreciated from the object it is expected to achieve. The declaration envisaged that expression thereof on the invoice shall make the buyer beware that no credit of additional duty of customs shall be admissible and that shall invite attention of all user of the said document. Therefore, such a precaution cannot be interpreted to be a technicality of the notification. It is a mandatory requirement and breach thereof shall disentitle the appellant to the benefit of refund of additional duty of customs. Irrespective of the status of the appellant whether as a trader or a manufacturer that does not bring the appellant to a different footing when compliance to the requirement of Notification stated above is mandatory and not discretionary or discriminatory.
Whether subsequent Notification No. 29/2010-Cus., dated 27-2-2010 should be read as clarificatory and retrospective - This is inconceivable for the reason that benefit granted by a Notification operates from the date that is notified and that does not intend the benefit to flow at public cost retrospectively. Therefore grant of the Notification in question cannot be construed to be retrospective in nature - Decided against assessee.
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2013 (11) TMI 1473
Maintainability of Petition u/s 138 of Negotiable Instruments Act at Mumbai - Power of Magistrate to recall process of summons u/s 201 of Criminal Procedure Code Summons issued under Section 204 by the Magistrate Jurisdiction of Magistrate to issue summons - Held that:- The Magistrate is required to issue summons for attendance of the accused only on examination of the complaint and on satisfaction that there is sufficient ground for taking cognizance of the offence and that it is competent to take such cognizance of offence - Once the decision is taken and summon is issued, remedy lies before the High Court under Section 482 Cr. P.C or under Article 227 of the Constitution of India and not before the Magistrate - Relying upon Adalat Prasad vs. Rooplal Jindal and others [2004 (8) TMI 647 - SUPREME COURT] - Section 201 can be applied immediately on receipt of a complaint, if the Magistrate is not competent to take cognizance of the offence - Once the Magistrate taking cognizance of an offence forms his opinion that there is sufficient ground for proceeding and issues summons under Section 204 - there is no question of going back following the procedure under Section 201 - In absence of any power of review or recall the order of issuance of summons, the Magistrate cannot recall the summon in exercise of power under Section 201.
Relying upon M/s. Escorts Limited vs. Rama Mukherjee [2013 (11) TMI 95 - SUPREME COURT ] - offence under Section 138 of the Act can be completed only with the concatenation of all the components and for that it is not necessary that all the above five acts should have perpetrated at the same locality; it is possible that each of those five acts were done at five different localities, but a concatenation of all the above five is a sine qua non for the completion of the offence under Section 138 of the Act.
Maintainability of Petition u/s 138 of Negotiable Instruments Act at Mumbai - Goods supplied from Mumbai to Delhi Held that:- The High Court erred in concluding that the courts at Delhi, did not have the jurisdiction to try the petition filed by the appellant under Section 138 of the Negotiable Instruments Act - The business dealing was held at Mumbai; the products were supplied from Mumbai to New Delhi, cheques were handed over at Mumbai and the cheques were dishounoured by the bankers of respondents at New Delhi, and legal notice was issued from Mumbai - Thus, at least one act out of the five ingredients of Section 138 of the Act having committed at Mumbai, the complaint preferred by the complainant before the Magistrate at Mumbai was maintainable Decided in favour of Appellant.
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2013 (11) TMI 1472
Rebate claim of Cenvat credit availed on issue of bogus invoices Burden to prove Waiver of Pre-deposit - Held that:- When the inquiry at the supplier's end shows that there was no supply and only cenvatable invoices had been issued, the burden would be on who had taken cenvat credit on the basis of such invoices, to prove that the goods covered under those invoices had actually been received - No evidence to discharge this burden of proof has been produced by M/s CIPL - Similarly when M/s CIPL have taken cenvat credit in respect of certain goods imported by them and claim to have sent those goods to job workers for processing or manufacture of finished products and inquiry with job workers reveals them either to be bogus entities or having indulged in fictitious transaction of job work, the burden would be on M/s CIPL to prove that the cenvat credit availed material had actually been used by them in manufacture of finished products - No evidence has been produced by M/s CIPL for discharging this burden of proof.
There is evidence on record showing that in order to encash the cenvat credit, M/S. CIPL had purchased the cheap goods from the market and exported the same under rebate claim or under draw back claim - they had over declared the value of their export consignment to the tune of 50 to 40 times - M/S. CIPL have committed a huge fraud by availing cenvat credit on the basis of bogus invoices without actually receiving any materials or have availed cenvat credit in respect of certain goods imported by them which were illicitly diverted and were never used for manufacture of the goods for export - substantial amount of fraudulently taken cenvat credit has been encashed in form of rebate claims in respect of the exports made under the rebate claims - A countrywide web of dummy companies has been woven for defrauding the Revenue and this case is only a tip of the iceberg of a much bigger cenvat credit fraud - The main Appellants and their Directors are not eligible for waiver from the requirement of pre-deposit Pre-deposits were ordered to be submitted - Thus, goods are liable for confiscation and the Penalty also needs to be imposed - Partial stay granted.
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2013 (11) TMI 1471
Denial of Cenvat credit - Details in the dealer's invoice not matching with the manufacturer's invoice Held that:- The dealer's invoice containing both the commercial invoice number and excise invoice number - the appellant should be given an opportunity to correlate dealer's invoice with the manufacturer's invoice - the orders set aside and the matter is remanded back to the original authority to examine the documents and decide the matter afresh after considering the documents placed by the appellant Decided in favour of Assessee.
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2013 (11) TMI 1470
Inclusion of cost of advertisement in assessable value Held that:- It is not clear as to whether the notional advertisement expenses during finalization of provisional assessment presently under dispute was ascertained for the assessees own advertisement or the dealer's advertisement - There is no clear quantification of expenses incurred by the various dealers and no material is available in that regard - the demand of duty is not maintainable Decided against Revenue.
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2013 (11) TMI 1469
Rebate claim on motorcycle exported Motorcycle liable to pay NCCD Duty along with interest and penalty demanded - Whether imposition of penalty of Rs.2.02 crores required to be upheld or not Held that:- The NCCD paid by the assessee is to be refunded to them in cash as their final product was cleared for export and the other duties paid by them already stand refunded to them - there was sufficient credit almost to the extent around Rs.36 crores accumulated with the appellant and same could have been utilized for payment of NCCD and such payment out of cenvat credit account could have been converted into refund in cash - by not paying NCCD, the appellant cannot be held to have been benefited in any manner - On the contrary, the same has resulted in financial loss to the appellant it would not be justifiable to invoke the penal provisions against the appellant.
Relying upon Larsen & Toubro Ltd. Vs. CCE, Pondicherry [2008 (1) TMI 234 - CESTAT, CHENNAI] - Non-payment of differential duty, which would have been refunded to the assessee on account of export of the goods under rebate, results in revenue neutrality and thus, penalty cannot be imposed - the order insofar as it relates to the penalty set aside and the duty is not being contested by the Advocate decided in favour of Assessee.
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2013 (11) TMI 1468
Cenvat Credit - Nil rated Goods cleared along with the dutiable final product Exemption under Notification No. 6/2002 Held that:- Following Rallis India Ltd. vs. Union of India reported as [2008 (12) TMI 46 - HIGH COURT BOMBAY ] - there is no liability to pay 8% amount on removal of the by-product/ waste arisen during the course of manufacture of the main product also in CCE, Ahmedabad vs. Nirma Ltd. [2012 (10) TMI 138 - GUJARAT HIGH COURT] in case of exempted by-product emerging during the process of manufacture, the provisions of Rule 6 of Cenvat credit Rules are not attracted Decided against Revenue.
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2013 (11) TMI 1467
Denial of CENVAT credit on inputs Exported Revenue was of the view that no evidences has been received in the factory for the export Show cause Notice issued even verification reports were being awaited Held that:- More than two years have elapsed since the order was passed but still there is no indication of any verification reports having been received by the department from the Commercial Tax Authorities or the Regional Transport Authorities - This is a peculiar scenario which does not appear to augur well for the department - Some amount of evidence was gathered by the investigating officers and some crucial results are being awaited by them - The show-cause notice itself highlighted the crucial character of the evidence being awaited by the department.
The department should be given an opportunity to pursue the matter so that the investigations could be completed within a reasonable period of time and appropriate amendment to the show-cause notice by way of addendum or corrigendum could be made and the parties could be given a reasonable opportunity of contesting the show-cause notice so amended and of being personally heard also order set aside and the case is remanded so as to enable the department to endeavour to obtain relevant verification reports from the authorities concerned - amend the show-cause notice (if need be) on that basis and undertake de novo adjudication of the case after following the principles of natural justice.
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2013 (11) TMI 1466
Determination of the assessable value - TMT bars manufactured and cleared from factory to the premises of consignment agent Waiver of Pre-deposit - Revenue was of the view that the price at which the goods were sold by the consignment agent has to be adopted for the determination of value Held that:- The Commissioner though acknowledged the principle of adopting the selling price from the premises of consignment Agent nearest to the time of clearances of goods from the factory of Applicant, as the basis for determination of assessable value of goods transferred from the factory to the premises of consignment Agent, but wrongly adopted a single uniform price for the whole month in determining the value of said stock transferred goods - Prima facie, there was no merit in the reasoning advanced by the Commissioner in adopting the selling price of the buyer of the consignment agent - The applicant have offered to make pre-deposit of Rs.10,00,000 Thus, assessee is directed to deposit Rupees Ten Lakhs as pre-deposit upon such submission rest of the duty to be stayed till the disposal Partial stay granted.
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2013 (11) TMI 1465
Valuation of Goods under Rule 7 Or Rule 5 - sale price of depot or inclusion of freight - No evidence educed by the assessee - Waiver of Pre-deposit Held that:- There was no reference to the evidence for the assessee to have correctly valued the goods under Rule 7 - The stay application merely claims that the appellant has made out a very strong prima facie case - It also states that, if any pre-deposit is directed, the appellant will be put to undue hardships - Neither of the pleas has been substantiated - the appellant is directed to pre-deposit amount as stated within the time stipulated Stay not granted.
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2013 (11) TMI 1464
Denial of Cenvat credit - Revenue was of the view that instead of aluminium wire and rods, they had received ingots, without payment of duty Held that:- Wherever complete description was given by the dealer as aluminium wire and rods, the Revenue has extended the benefit of the Modvat credit even if the entries in respect of the same were also made in RG-23A Pt. I register meant for aluminium ingots - the appellant was following the practice of entering aluminium wire and rods in the register meant for aluminium ingots, irrespective of the fact where complete description stand given by the dealer or not - all the invoices raised by the dealer gave the correct tariff heading relatable to aluminium wire and rods and gave correct cross reference to the invoices.
Merely because the assessee has entered receipt of wire and rods in the register of ingots, as per the practice being followed by them, denial of Cenvat credit on this technical and procedural lapse is not called for - rate of duty in respect of wire and rods as also in respect of the aluminium ingots was the same and as such there could be no ulterior motive for the appellant to replace wires and rods with ingots Decided in favour of Assessee.
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2013 (11) TMI 1463
Inclusion of Transportation charges to the assessable value Held that:- Following CCE, Madurai vs. TCP Ltd. [2010 (9) TMI 488 - CESTAT, CHENNAI] - During the period October, November 2000, depot was not included in the place of removal definition and as such there is no question of inclusion of freight charges up to the depot, in the assessable value of their final product.
Extended period of limitation Held that:- The declaration filed by the assessee discloses that the transportation charges are not being included in the assessable value - the entire information stands given by the appellant to their jurisdictional Range office, at the time of filing the declaration in terms of Rule 173C there was no malafide, with intent to evade payment of duty - Thus, the extended period was not available to the Revenue Decided in favour of Assessee.
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2013 (11) TMI 1462
Maintenance of software - Held that:- explanation appearing under the meaning of the term management, maintenance or repair defined by Section 65(105)(zzg) of Finance Act, 1994 specifies that goods includes computer software. The explanation operates like a charging provision from 1-6-2007 incorporated into law by Finance Act, 2007. This explanation cannot be read as retrospective in nature following the ratio laid down in Martin Lottery case [2009 (5) TMI 1 - SUPREME COURT OF INDIA] and the appellants shall not be brought to the ambit of tax for the period 9-7-2004 to 30-9-2005 when the explanation was inserted to the above section w.e.f. 1-6-2008 by Finance Act of 2007 - Decided in favor of assessee.
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2013 (11) TMI 1461
Waiver of pre-deposit of Service Tax - Imposition of equal amount of penalty - Club or Association Services - Collection of service charge - Collection of daily charges for spa and entry fees for Tantra - Held that:- major portion of the demand relates to Service Tax on the value of services collected on daily basis claimed to be entry fees for entry as well as enjoying all the facilities provided by the Applicant at Tantra - Prima facie, facilities extended to the annual members, who pays the fees on lump sum basis annually enjoy the same facilities as are allowed on daily basis to other persons by collecting the fees on daily basis. At this stage, prima facie, it would be difficult to ascertain whether the persons who enter the said Tantra on daily basis do not enjoy the same status as that of members in absence of cogent evidences adduced by the Applicant - Applicant could not able to make out a prima facie case for total waiver of pre-deposit of dues - Aseessee directed to make pre deposit - Partial stay granted.
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2013 (11) TMI 1460
Penalty u/s 77 and 78 - Enhancement of penalty - Held that:- Appellant was engaged in the activity of transportation of written answer sheets collected from various District Collection centres and deliver the same to the Nagpur University and the payment is on the Kilometre basis as per the work order. There is no evidence on record to show that the cab was hired on monthly, weekly or daily basis. In view of the terms and conditions of the work order, we find merit in the contention of the appellant, that the appellant has not provided taxable service of Rent-a-Cab Operator" services. In view of this, the demand and consequential penalty is set aside. As the demand is set aside, therefore, there is no question of imposition of any penalty - Decided against Revenue.
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