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Case Laws
Showing 401 to 420 of 497 Records
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2005 (6) TMI 132 - CESTAT, MUMBAI
Valuation (Central Excise) ... ... ... ... ..... aterial which could be relied upon to upset the CCE(A) order. Mere assertion that the assessee has not refuted the market price quoted in the notice will not induce us to upset the order. Moreover, for valuation of removals from a DTA the market price in India is not relevant to arrive at a valuation required as prescribed under second proviso to Section 3 of the Central Excise Act, 1944. Therefore, we find no reason to uphold the valuation as proposed in the notice and differential demands made on basis of the assessable values of comparable goods manufactured by one M/s. Sunil Plastic of Dhule in this case. 4. Appeal rejected. (Pronounced in Court.)
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2005 (6) TMI 131 - CESTAT, MUMBAI
EXIM - Export obligation - Refund ... ... ... ... ..... at there was any demand of duty against the appellants. It is only subsequently when the importer fails to fulfil the export obligation then the proceedings can be initiated against him and in case the demand stands confirmed, the bank guarantee can be encashed for recovery of the said confirmed demand. Inasmuch as in the present case, the appellants were able to show fulfilment of export obligation, the Revenue was not justified in refusing to refund the encashed bank guarantee to the appellants. 5. We also take note of the Rajasthan High Court s decision in the case of Union of India v. Grasim industries Ltd., reported in 2005 (183) E.L.T. 12 (Raj.) 2005 (123) ECR 105 (Rajasthan) laying down that furnishing of bank guarantee is not equivalent to payment of excise duty and the provisions of Section 11B are not attracted. 6. In view of the above discussion, we set aside the impugned order and allow the appeal with consequential relief to the appellants. (Pronounced in Court)
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2005 (6) TMI 130 - CESTAT, NEW DELHI
Cenvat/Modvat - Capital goods ... ... ... ... ..... 14) E.L.T. 950, referred to by the learned SDR, is not attracted to the facts of the present case, as the user of the items involved therein, in the factory, as capital goods, was not approved by the assessee. The argument of the learned SDR that in the above referred cases relied upon by the counsel, the issue regarding the capital goods was examined in the light of the amended definition of the capital goods and as such has no application, is wholly misconceived. There has been no material or substantial change in the definition of the capital goods before or after the amendment in respect of the components, parts, spares and machinery. Therefore, the impugned order allowing the Modvat credit to the assessee on the above said items, is upheld. 5. In view of the discussion made above, the appeal of the assessee bearing no. E/3231/03-NB(S) is allowed in toto, while the appeal of the Revenue bearing no. E/3180/03-NB(S) is dismissed. (Dictated and pronounced in the open Court)
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2005 (6) TMI 129 - CESTAT, MUMBAI
Valuation (Central Excise) ... ... ... ... ..... Section 4A was not called for. The reliance placed on Rule 34 was applicable to all the provisions of these Rules and note under Chapter II. It was also pleaded that vide para 4 of the Board s Circular No. 626/16/2002-CX, dated 28-2-2002 assessments under Section 4A will not apply and Section 4 value determination and thereafter ad valorem duty as paid were in order. 2.2 After perusal of the rules, and Board s instructions and on finding that the admitted fact is no MRP was printed on the free sample , i.e. the exemption under Rule 3 availed and no objection from the State Government authorities, who were as per para 7 of Boards authority are proper authority to determine the statutory mandatory printing requirement of MRP, is on record, then there can be no reason to assess the free sample under Section 4A of the Central Excise Act, 1944. 2.3 We find no infirmity in the CCE (Appeals) orders. 3.1 In view of the finding, the Revenue appeal is rejected. (Pronounced in Court.)
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2005 (6) TMI 127 - CESTAT, CHENNAI
SSI Exemption - Brand name - Valuation (Central Excise) - Demand - Limitation ... ... ... ... ..... ible in the assessable value in view of the Supreme Court s decision in Thermax Ltd. (supra). Hence, the first allegation is now irrelevant. As regards the second allegation, we find that there is a decision of this Tribunal in the case of Intercity Cable Systems (supra), which has been upheld by the apex court, that it is not obligatory on the part of an SSI unit to disclose, in their Rule 173B declaration, that they were using the brand name of another person on their goods. Hence, apparently, the allegations raised in the SCN for invoking the extended period of limitation against the assessee cannot be upheld. The extended period of limitation was not invocable against the assessee. In the result, we have to hold that the entire demand of duty is time-barred. Consequently, no penalty can be sustained against them. 6. The demand of duty is set aside as time-barred and the penalty is vacated consequentially. The appeal stands allowed. (Dictated and pronounced in open court)
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2005 (6) TMI 125 - CESTAT, BANGALORE
Recovery of dues - Confiscated goods ... ... ... ... ..... e ratio of all the above-mentioned cases is squarely applicable to the present case. It is very clear that the department has sold the goods on the understanding that the first order of the original authority is the final order. In other words when the appeal was pending the car has been sold without informing the petitioner and also the Commissioner (Appeals). Hence the appellant is entitled for the full mahazar value of the car. Since the goods were not released to the appellant as per the order in appeal neither the duty nor the penalty is chargeable from the appellant, as the goods have disappeared for no fault of the Appellant. Hence, we order payment of Mahazar value and interest 12 p.a., from the date of auction. As regards the penalty deposited, the same is liable to be refunded in view of the ratio laid down by Hon ble Supreme Court in the Shilps Impex case. The impugned order is set aside and appeal allowed on the above terms. (Pronounced in open Court on 21-6-2005)
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2005 (6) TMI 124 - CESTAT, CHENNAI
Valuation (Customs) ... ... ... ... ..... 1996 (84) E.L.T. A47 . 3. In the case cited by ld. Counsel, the value of certain goods imported by M/s. Sai Impex, as declared by the importer, was accepted by the Tribunal after holding that the manufacturer s invoices produced by the party was the best evidence of the declared value. In the instant case, the declared value was based on a Hong Kong party s invoice (supplier s invoice) and the invoice of the Chinese manufacturer was produced subsequently. Ld. Commissioner found that both these invoices pertained to the imported goods and hence there was nothing to suspect the genuineness of the value declared by the importer. In such circumstances, the value cannot be questioned by the Department by citing a contemporaneous invoice without making further enquiries in relation to the goods covered thereunder. We have to follow the cited case law and to uphold the Commissioner s order. It is ordered accordingly. The appeal is dismissed. (Dictated and pronounced in open Court)
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2005 (6) TMI 121 - CESTAT, MUMBAI
Manufacture ... ... ... ... ..... ) Board having issued subsequently another Section 37B Order No. 2/93 stipulating - 5. 8195 Keeping this in view, it is hereby clarified that the printing paste prepared from formulated, standardised or prepared dyes by simple mixing with other material shall not amount to manufacture and as such not be classified under sub-heading 3204.91 of the Tariff. (iii) Bombay High Court in case of Phoenix Mills Ltd., 2004 (168) E.L.T. 310 (Bom.) holding that such conversion of Vat dyes to Vat Paste would not amount to manufacture. 3. Consequently, the Revenue s appeal is dismissed. (Pronounced in Court.)
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2005 (6) TMI 117 - CESTAT, NEW DELHI
Cenvat/Modvat ... ... ... ... ..... aking of credit on spares. The appellant relied upon the decision of the Tribunal in the case of Grasim Industries v. CCE reported in 2004 (168) E.L.T. 238 . I find that this case relates to the capital goods imported under EPCG scheme. In this case in the year when the duty was paid on debonding of the capital goods, the credit was not taken but in the subsequent year 100 credit was taken whereas in the present case the credit was taken on receipt of the capital goods in the same financial year, therefore, the ratio of the above decision is not applicable in the facts of the present case. Keeping in view the facts and circumstances of the case, the appellants are entitled for 50 of the credit in the financial year when the capital goods were received. I find no infirmity in the impugned order and the appeal is dismissed. However, appellant shall have liberty to take credit on remaining amount of 50 in accordance with law. (Dictated and pronounced in open Court on 10-6-2005)
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2005 (6) TMI 115 - CESTAT, NEW DELHI
Cenvat/Modvat ... ... ... ... ..... oods from the dealer under the duty paid valid invoices. The actual receipt of the goods received by them, the duty paid character and utilisation of the goods by the appellants in their factory remains undisputed. There is also nothing on the record to suggest if any, proceedings had been initiated against the dealer. Under these circumstances, the appellants could not be denied the Modvat credit on the basis of the invoices in question. Therefore, the impugned order is set aside. The appeal of the appellants is allowed with consequential relief, as per law. (Order dictated in the open Court.)
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2005 (6) TMI 114 - CESTAT, MUMBAI
Customs House Agents licence - Suspension of ... ... ... ... ..... ut are freelancers paying commission to the CHA for the use of the licence. It appears that this contention of the Commissioner is not born out by evidence. The two persons who were acting on behalf of the CHA were the employees of the appellant. They were not being paid a regular monthly salary. All the same they were holding a Customs House pass on behalf of the CHA and therefore should be considered as the CHA s employees. Further acts of commission and omission narrated by the Commissioner are not strictly related to the clearance of goods handled by the appellant. We, therefore, observe that the Commissioner s order suspending the licence under Regulation 22 of CHALR is not entirely justified in the facts of this case. We accordingly allow the appeal and set aside the order. However, the Commissioner is at liberty to proceed against the CHA under the above Regulations for revocation or otherwise of the licence under appropriate Regulation. 2. The appeal is thus allowed.
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2005 (6) TMI 113 - CESTAT, CHENNAI
Demand and penalty - Cenvat/Modvat on inputs ... ... ... ... ..... tatutory mechanism for recovery of Rule 57CC dues and accordingly the appellants resisted the demand. Such mechanism has been introduced by the Finance Act, 2005, with retrospective effect. Thus it is by the operation of law that the dues adjudged by the lower authorities have become recoverable. In such circumstances, according to the Counsel, no penalty is imposable on the assessee. This argument has been contested by ld. DR. The Counsel s argument cannot be accepted inasmuch as Parliament while inserting the above explanation to Rule 57CC, did not intend to exonerate the affected parties from penal liability. Irregular availment of Modvat credit is not in dispute in this case. Penal provisions covering irregular availment of Modvat credit were pre-existing in this case. Hence there is no escape for the present assessee from penal liability. Thus the penalty will also stand affirmed. 4. In the result, the appeal gets dismissed. (Order dictated and pronounced in open Court)
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2005 (6) TMI 111 - CESTAT, CHENNAI
Refund claim consequential to finalisation of provisional assessments ... ... ... ... ..... (2) the relevant date for application of Rule 9B(5) is not the date on which the SCN was issued, nor the date on which that notice was adjudicated upon. The event relating to Rule 9B(5) is assessment which relates to excisable goods cleared during the specified period. Hence what is relevant to both provisional and final assessments under Rule 9B is the period of clearance of the excisable goods. Admittedly, this period covered by the SCN referred to by ld. SDR is 1998-99, which is prior to the above amendment. The provisional assessment and its finalisation were for this period. Hence both the provisional and final assessments would be governed by Rule 9B(5) as the rule stood during the above period. In other words, the amended provisions of the rule has no application to the SCN in question. 6. In the result, the impugned order rejecting the refund claims as barred by unjust enrichment is set aside and all these appeals are allowed. (Dictated and pronounced in open Court)
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2005 (6) TMI 110 - CESTAT, MUMBAI
Demand - Limitation ... ... ... ... ..... nd following the catena of decision in the case of Fabrics Processors and Ujjagar Prints formula of constitutional Bench of S.C. 1988 (38) E.L.T. 535 (S.C.) applicable to determine the value and demand be directed on the job worker. However the sale from job worker to appellant is not impugned i.e. it is on principal to principal basis, then how is sale from Appellants to the job worker is not so is not apparent from the orders of the lower authority. (d) We find the appellants were earlier issued a notice on same basis and that was dropped by Assistant Commissioner. This demand and notice is therefore barred by limitation on the basis that facts were within the knowledge of the department. Demands barred by limitations as there is no suppression or ingredients intent to evade cannot be upheld. (e) In view of the above, we find no merits in upholding the orders of the lower authority. 3. In view of the finding, the order is set aside and appeal allowed. (Pronounced in Court)
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2005 (6) TMI 109 - CESTAT, MUMBAI
Valuation (Central Excise) ... ... ... ... ..... o reasons exist to do so, if that be a fact, we would consider no deliberate attempt to evade tax and thus bar of limitation be available. Following the decision in Aquamall Water Solutions Ltd. v. CCE, Bangalore case 2003 (153) E.L.T. 428 the provisions of rules also may not he invokable and the values as per Section 4(1) need be accepted. In any case, if the formula of Rule 9 and Rule 8 is applicable, it has to be applied to all the removals, now being questioned, and credits and debits of excess and short payments of duty be adjusted to determine if any demand overall could be made since all the assessments over the period are being opened by this notice and only thereafter other liabilities, if any, on the appellants be arrived. 3. In view of the findings herein, we would, after waiver of pre-deposit, set aside the order and allow the appeal as remand to redetermine the issues. All issues being kept open to both sides. 4. Appeals allowed as remand. (Pronounced in Court.)
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2005 (6) TMI 108 - CESTAT, CHENNAI
Redemption fine - confiscation of the vehicle - clandestine removal of yarn - Quantum of - Penalty - HELD THAT:- There is a penalty of Rs. 3,000/- on M/s. SSKT under Rule 209A. Under this provision of law, a penalty could be imposed on a person who acquired possession of, or otherwise physically dealt with, any excisable goods which, according to his belief or knowledge, was liable to confiscation. The above penalty is in relation to confiscation of the cotton yarn, the goods was seized while in transit. The department has no case that M/s. SSKT had physically dealt with the goods in any manner whatsoever. Hence Rule 209A was not invocable against them. Appeal No. E/911/2004 is allowed. In the result, penalty on the appellant stands vacated.
A redemption fine of Rs. 25,000/- has been imposed in lieu of confiscation of the tempo. It has been argued by ld. Consultant that neither the driver nor the owner of the tempo had any knowledge of the fact that goods liable to confiscation were being transported by the vehicle. It has been pointed out that the original authority recorded a finding that the driver had no knowledge of the said fact. There is also nothing on record to indicate that the owner of the vehicle was knowing that it was being used for transporting goods which were liable to confiscation. The mandatory condition for confiscation of a vehicle u/s 115 of the Customs Act (made applicable to goods under the Central Excise Act) is that the owner of the vehicle, his agent, if any, and any person in charge of the vehicle (driver) should have the knowledge that the vehicle was being used for transportation of offending goods. This condition has not been satisfied in the instant case.
Consequently the redemption fine requires to be set aside. Appeal is accordingly allowed.
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2005 (6) TMI 107 - CESTAT, CHENNAI
Manufacturer - Hired labour ... ... ... ... ..... supplied by the appellants would detract from the fact that they (job workers) manufactured the goods. They can hardly be considered as hired labour inasmuch as their aforesaid role was not merely one of providing labour and collecting wages. According to the concept of hired labour brought out in the Tribunal s judgment in Motor Industries Company Ltd. (supra) by relying on the Apex Court s judgment in the case of M.M. Khambhatwala (supra), only one who merely provides labour and collects wages for the same could be treated as hired labour. The job workers in the instant case would not fit into this concept. 6. For the reasons noted above, we hold that the appellants were not the manufacturers of the goods in question and hence not liable to pay duty thereon. The demand of duty raised on them is set aside and consequently the penalty imposed on them is vacated. The appeal stands allowed in the above terms. (Operative part of this order pronounced in open Court on 7-6-2005)
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2005 (6) TMI 106 - CESTAT, BANGALORE
Refund claim - extra duty deposit - Unjust enrichment - HELD THAT:- The appellants have furnished enormous evidence to show that the extra duty deposit has not been passed on to the buyers of the goods. They have explained the reason for showing the amount in the accounts of the year 2000-01 as the amount receivable and not in the year 1995. They have explained that in the year 1995, when the imports were made and they were asked to pay extra duty deposit by the Customs, they were not very sure of getting back the money from the Customs. The fact is that the money is not payable was confirmed only in 2001. This is the reason for showing the duty as receivable in the accounts of 2000-01. In our view this explanation is acceptable. Moreover, the appellants have also demonstrated that the prices before import and subsequently remain the same.
In our view, sufficient evidence has been produced by the appellants to prove that they have not passed on the duty burden to their buyers. The Apex Court in the case of Mahavir Aluminium Ltd. v. Collector of Central Excise, [1999 (3) TMI 89 - SUPREME COURT] has rejected the Department's plea that refund of the amount pre-deposited for hearing of an appeal not to be released to the assessee unless it is established that he has not wrongly enriched himself by collecting duty from his customers.
The High Court of Judicature at Bombay in the case of Suvidhe Ltd. v. Union of India [1996 (2) TMI 136 - BOMBAY HIGH COURT] has held that provisions of Section 11B can never be applicable to the deposit made under Section 35F. In our view, the ratio of these decisions is clearly applicable to the present case. Hence we allow the appeal with consequential relief.
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2005 (6) TMI 105 - CESTAT, NEW DELHI
Cenvat/Modvat - Inputs ... ... ... ... ..... Rule 2(g) of the Cenvat Credit Rules, 2002 which reads as under Inputs include goods used in the manufacture of capital goods which are further used in the factory of the manufacturer . 2. In view of this definition of the inputs, the appellants are entitled to Cenvat credit on the goods. Therefore, the impugned order is set aside and appeal of the appellants is allowed with consequential relief as per law. Order dictated in the open Court.
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2005 (6) TMI 104 - CESTAT, MUMBAI
Confiscation and penalty ... ... ... ... ..... led to import the medical equipment duty free. However, we agree with the appellants that the payment of customs duty as confirmed is required only in the event of their exercising the option to redeem the goods in which case not only redemption fine is required to be paid but also the Customs duty. The penalty under Section 112 on the hospital cannot be set aside entirely in view of our findings on the non-availability of benefit of duty free import. However in the facts and circumstances of the case, we are of the view that the penalty imposed is too high we reduce it to Rs. 50,000/-. Penalty on Shri Noshir A. Patel Secretary of the Hospital is set aside as there is no evidence on record to show that the ingredients of Section 112(a) of the Customs Act, are made out against him. 3. In the result, Appeal No. C/32/200-Mum. filed by the hospital is partly allowed while Appeal No. C/33/2000-Mum. filed by Mr. Noshir Patel is allowed in full. (Operative part pronounced in Court)
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