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Showing 381 to 400 of 851 Records
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2011 (6) TMI 663
Classification - wood partition with GRP Skin and are manufactured by laminating wood battens with veneer sheets and glass cloth with the help of resin at room temperature. According to the appellant these goods are “articles of wood not elsewhere specified” covered under sub-heading 4410.90, while according to the department, these goods are classifiable under 4408.90 “other plywood veneered panels and similar laminated wood” - Held that:- process of the manufacture of the goods involves fixing of veneered on the wooden doors, panels and partition, correctly classifiable under sub-heading 4408.90, appeal is dismissed
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2011 (6) TMI 662
Cenvat credit - assessee had a practice of identifying stores which were no more useful or which were unfit for consumption in its Taloja plant. According to the Revenue, Cenvat credit covered by the list of cancelled bins for the years 2003-2004, 2004-2005 and 2005-2006 which was reversed by the assessee had to be demanded and appropriated, spares and components which had been lost or destroyed in the floods of July 2005. The Revenue took the estimated loss, reduced therefrom the salvage value and computed the Cenvat credit availed of on the estimated value of the loss – in the case of Indian Petrochemicals Corporation Limited, (2007 - TMI - 48202 - HIGH COURT OF JUDICATURE AT BOMBAY - Central Excise) , Tribunal in a long line of judgments had taken the view that where the goods have been shown as written off goods, the benefit is available, case relates to a period prior to the amendment of Rule 3 by the insertion of sub-rules (5B) and (5C), Appeal dismissed
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2011 (6) TMI 661
Exemption under SSI notification No.8/99/CE - sales turnover for the year 1999-2000, the appellant explained that their actual sales during that financial year were only Rs.31,95,792/- well within the exemption limit of Rs.50 lakhs and that the rest of the goods valued at Rs.80,07,632/- had not been manufactured by them but had been purchased by them from M/s Jyoti Leather Works - Held that:- Order-In-Appeal also does not discuss the submissions made by the appellant in their reply to Show Cause Notice. In the proceedings before adjudicating authority as well as Commissioner(Appeals), the authorities have been guided by the appellant's past history and have concluded that during 2000-01 and 2001-02 period also, their actual turnover was in excess of the SSI exemption limit. Since there is violation of the principles of natural justice, the impugned order is not sustainable, order is set aside and the matter is remanded to the original adjudicating authority for de-novo adjudication
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2011 (6) TMI 660
Refund claim of deemed credit - refund claim has been rejected firstly on the ground that the appellant has failed to produce the evidences and secondly on the ground that they have not complied with the Notification No. 11/2002 – Held that:- appellant has complied with condition 5 of the Notification 11/2002 therefore the appellants are entitled for the refund claim filed by them subject to verification of the records which have not been examined by the lower authorities, appeal is allowed by way of remand
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2011 (6) TMI 659
Stay - Cash Discount/Prompt Payment Discount - Quantity Discount - allegation of the department that the Cash Discount/Prompt Cash Discount and Quantity Discount; which were claimed by the appellant, have not been passed on by them to their buyers – Held that:- appellant as per their Quantity Discount Policy, had fixed the rates of quantity discounts based on the quantity purchased by a customer during a month and accordingly, the quantum of Quantity Discount available to a customer was being determined at the end of the month and at that stage, the discount was being passed on by issuing a credit notes to the customers and to that extent, the amount was being deducted from the total assessable value. Just because the quantity discount was not being mentioned in the individual invoices during the month, the same could not be denied, requirement of pre-deposit of duty demand, interests and penalty is waived, stay applications are allowed
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2011 (6) TMI 658
Cenvat credit - AED (T&TA) and AED (T&TA) - department was of the view that since the inputs received by the appellant had suffered AED (T&TA) and AED (T&TA) was part of the price of the inputs and though the credit of AED (T&TA) had been availed by the appellant, the same could not be utilized for the reason that there was no AED (T&TA) on the final products and there was not even possibility of this credit being utilized, the quantum of AED (T&TA) should have been added to the cost of production – Held that:- just because during the period of dispute, they were not in position to utilize the AED Credit, the AED (T&TA) cannot be included in the cost of inputs. Moreover, the fact that the appellant have availed Cenvat credit of AED (T&TA) was known to the department and it was also known to the department that there is no AED (T&TA) on the final product, requirement of pre-deposit of duty demand, interest and penalty is, therefore, waived, stay application is allowed
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2011 (6) TMI 657
Whether Tribunal was justified in construing the Schedule Entry C-74 to mean footwear predominantly made of plastic and not as footwear exclusively/entirely made of plastic – MVAT Act, 2002 - Held that:- Counsel for the Appellant has also produced samples of footwear completely made up of plastic and also of plastic coated textile material. When Entry C-74 adverts to plastic footwear, it must mean what it states. To accept the contention that footwear made predominantly of plastic would fall for classification under Entry C-74, would be to re-write the entry. Tribunal was manifestly in error in accepting the contention of the Respondent and in holding that footwear which is predominantly made of plastic and made by a moulding process would get covered by the description of plastic moulded footwear. - Decided in favor of revenue.
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2011 (6) TMI 656
Anti-dumping duty - Anti-dumping duty on the imports of Saccharin – sub-section-1 read with sub-section-5 of section-9A(5) of the Customs Tariff Act, 1975 - Held that:- DA has categorically recorded that “Vishnu Chemicals provided information and the same has been taken into account after verification”. These categorical findings were not challenged by the importers in any forum. importers were not aggrieved by the imposition of Anti-dumping duty vide notification 19-3-2007, as on specific query, it was informed that the notification arising out of the final findings dated 3-1-2007 was never challenged before the Tribunal. original/initial applicants for the imposition of Anti-dumping duty on Saccharin did not participate in this mid term review also seems to be incorrect as the DA has clearly recorded that the Initial applicant had supported this mid term review by the letters. final findings dated 6-12-2009 and consequent notification dated 19-3-2007 enhancement in Anti-dumping duty originating or exported from China PR is correct and does not require any interference. appeals filed by the appellants are dismissed
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2011 (6) TMI 655
Applications waiver of pre-deposit - appellant is carrying on the business of duty-free shop - theft/burglary took place at the above duty-free shop - appellant estimated loss of Rs.60 lakhs due to the theft and furnished a list of stolen goods - show-cause notice also proposed to revoke the bond executed under Section 59(2) of the Act – Held that:- Commissioner (Appeals) did not find it 'feasible to go into the merits of the case'. Secondly, where the appellant has pleaded financial hardships. Commissioner (Appeals) did not give the appellant an opportunity to amplify this plea. Thus, both ways, the stay order dated 16.6.2010 passed by the Commissioner (Appeals) is bad in law on account of non-consideration of case on merits and of the plea of hardships apart from negation of natural justice. orders of the Commissioner (Appeals) are liable to be set aside. appeals are allowed by way of remand
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2011 (6) TMI 654
Misconduct - Respondent undertook the audit of M/s. Sunbeam Trading Company (P.) Ltd. for the period ended 31-3-1989 with the full knowledge that his partner Shri K.C. Lunawat is a director in the said Company and as per section 226(3)(c) of the Companies Act, 1956 he being a partner/of an officer [which includes a Director under section 2(30) of said Act] was not qualified for appointment as auditor of the said Company - prima facie of the opinion that the respondent was guilty of professional and other misconduct and thus, decided to refer the matter to the Disciplinary Committee for enquiry. matter remanded back to the Council for considering the case of punishment after giving the member an opportunity of being heard in the light of the misconduct committed by him
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2011 (6) TMI 653
Pre-deposit - towards the redemption fine - when the goods are under confiscation and not redeemed – Held that:- Tribunal has not had due regard to the fact that the Appellant is a charitable organisation which would face financial hardship by the order of deposit, goods were seized, the provisions of Section 129-E would mandate that the requirement of pre-deposit is not attracted. The Appellant has already deposited the amount of penalty imposed, Appeal allowed by dispensing with the requirement of pre-deposit under Section 129-E of the Customs Act, 1962
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2011 (6) TMI 652
Stay application - 100% EOU - yarn was sold by the appellants in Domestic Tariff Area (DTA) against foreign exchange subject to the permission given by the competent authority under para 9.10 (b) of Export Import Policy 1997-2002 - Held that:- prior to 16/09/99 the appellant was liable to pay excise duty equal to 50% of the duties leviable under Section 12 of the Customs Act, i.e. 50% of the basic customs duty. Only with effect from 16/09/99, the appellant is liable to pay excise duty equal to 50% of the aggregate of each of the duties of customs leviable under the Customs Act, 1962 or under any other law for time being in force, i.e. 50% of each of the aggregate of duties of customs leviable, namely, basic customs duty (BCD) leviable under section 12 of the Customs Act, countervailing duty (CVD) leviable under section 3 of the Customs Tariff Act, 1975 and special additional duty of customs (SAD) leviable under section 3A of the said Customs Tariff Act and cess under the Textile Committee Act, order set aside and remit the case back to the adjudicating authority, appeal is allowed
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2011 (6) TMI 651
Cenvat credit - wrong availment of Cenvat credit - appellants submitted that the appellant was operating under the provisions of Rule 12B of Central Excise Rules, 2002, which was admittedly omitted by Notification No.11/04-CE (NT) dated 09/07/2004 and the appellants are filing their returns regularly by availing the Cenvat credit and clearing their goods on payment of duty or under bond thereafter they have filed rebate claims, which have been sanctioned by the department – Held that:- appellate authority have not considered their submissions while passing the stay order, the same is not a speaking order, lower appellate authority have not considered the merits of the case, order is not passed on merits, pre-deposit waived, stay applications as well as the appeals are disposed of by way of remand
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2011 (6) TMI 649
SSI exemption - Notification No. 8/1998-C.E. - user of brand name of other persons – Held that:- the department is justified in contending that the respondents were not entitled to avail the benefit of the said notification. - The finding of the Commissioner (Appeals) that use of logo of marketing firm does not amount to use of brand name of another person is directly in contravention of the provisions of law under the said notification - decided against the assessee.
Period of limitation - held that:- The relevant facts being suppressed that the department was entitled to invoke extended period of limitation, the notice issued of 20th June, 2003 did not relate to the period more than five years. Being so, there is no substance in the point sought to be raised relating to bar of limitation.
Cum duty price - held that:- on this issue matter remanded back.
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2011 (6) TMI 648
Classification - Sugar Cone placed in Aluminium foil cone - appellants are manufacturing sugar cones for filling the ice-cream and are classifying the same under Heading 1905.3290 - Revenue’s contention is that the same are classifiable under Heading 7612.9090 – Held that:- packing of paper wrappers would admittedly go along with the product wrapped in the same. By applying the above principle to the product in question, it can be safely concluded that aluminium foil cone, which is nothing but a wrapper of sugar cone, is required to be classified along with sugar cone. Admittedly, the said packing material is not suitable for repetitive use and is meant for one time use, sugar cone placed in the aluminium cone is properly classifiable under Chapter 19, as claimed by the appellant, decision in favour of the assessee
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2011 (6) TMI 647
Stay – demand of Customs duty - in respect of raw material (zinc dross) imported by them under 8 advance licences and used in the manufacture of the resultant product (zinc oxide), which was diverted to the domestic market – Held that:- conditions of Notifications No. 93/2004 and 94/2004 would require the licensee under the DEEC Scheme to export the resultant product manufactured out of his imports even after discharge of export obligation. respondent admitted their liability under Section 108 of the Customs Act. They also paid an amount of Rs 1.12 crores towards duty liability arising out of breach of conditions of the aforesaid Notifications. advance licences were valid at the time of importation. original authority under the FTDR Act had cancelled the advance licences ab initio and the Additional DGFT (appellate authority) had upheld that decision. The appellate authority’s order was set aside by the Hon’ble High Court for the purpose of remand. Consequently, the original authority under the FTDR Act is required to reconsider the question whether the advance licences were liable to be cancelled. Commissioner could not have taken the final view that the advance licences were valid at the time of importation. For these reasons, the learned Commissioner’s order is prima facie unsustainable and its operation is liable to be stayed. Stay application allowed
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2011 (6) TMI 646
Waiver of pre-deposit and stay of recovery - stay applications filed by the three Directors of the company were allowed as per the said order dated 3-12-10, subject to compliance by the company with the above direction for pre-deposit - company did not make any pre-deposit – Held that:- Managing Director was admittedly looking after the day-to-day affairs of the company. He executed the bond on behalf of the company and was aware of the obligations of the company. None of the Directors filed any reply to the show-cause notice, and therefore the allegations raised against them in the show-cause notice for imposing penalties under Sec. 112 of the Customs Act remained undenied, appellants are liable to be penalized under Sec. 112(a) of the Customs Act, they have not produced any evidence of the latest financial status. Hence the plea of financial hardships is unsustainable, appellants directed to pre-deposit
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2011 (6) TMI 645
Suspension of CHA licence - licence stands suspended for almost 21 months – Held that:- no indication regarding any time frame within which a final SCN will be issued. In such circumstances the balance of convenience shifts in favour of the Appellant, since he has been deprived of earning his livelihood due to interim orders, suspension order revoked, order is without prejudice to the department’s right to issue notice for final suspension or revocation and pass appropriate orders after considering the submission of the Appellant, Appeal is thus allowed
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2011 (6) TMI 644
Clandestine removal of goods - Demand of duty along with interest and equal amount of penalty - there is only a slight variation between the vehicle number – Held that:- no confessional statement of any of the employee or the office bearer of the respondent. There is no statement of transporter/transporters either, barring in case of the Vehicle No. MH-04-AL-4044. Even if there was slight variation in the vehicle numbers nothing prevented department to cause investigation in those cases and record the statement of the owners of the vehicle, clandestine activity at best can be established only by circumstantial evidence, case cannot be based on assumption and presumption and surmises or conjunctures, revenue’s appeal is dismissed
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2011 (6) TMI 643
Interest - payment of interest to the petitioner at the rate of 12% per annum on the amounts deposited by the petitioner, and has sought further interest at the rate of 24% per annum on the amount of interest - petitioner became entitled to refund of the amounts deposited by it along with interest at the rate of 12% in terms of the order of the High Court once the proceedings attained finality by the order – Held that:- deposits made by the petitioner will be governed by the aforesaid order dated 28th July, 1988. A perusal of the said order makes it clear that the same does not make provision for payment of interest on interest. In the circumstances, the petitioner in a writ petition under Article 226 of the Constitution of India cannot be granted any further relief than that flowing from the said order. However, non-granting of the said relief in the present petition shall not preclude the petitioner from availing of the ordinary civil remedy in relation to its claim for interest on interest on account of delayed payment of interest. petition succeeds in part and is accordingly allowed
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