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Showing 401 to 420 of 851 Records

• 2011 (6) TMI 642
  

  Whether restriction regarding the requirement of minimum 20 cm. diameter contemplated under sub-clause (3) of Clause 7 in the table of the Notification No. 6/2006-C.E., dated 1-3-2006 as amended by the Notification Nos. 25/2006-C.E. dated 20-3-2006, applies to the pipes specified under sub-clause (2) of Clause 7 of the said table of the said notification also - Commissioner rejected the contention of the appellants that all the three sub-clauses of Clause 7 are to be read independently and thereby confirmed the demand pertains to the present appeal – Held that:- pipes required for delivery of water from its source to the plant and/or from the plant to the first storage point are necessarily to be bigger in diameter then the diameter of the pipes for further delivery of the water. Indeed it appears to us that there could not be any such case because the size of the pipes carrying the water beyond the storage point would essentially depend upon the requirement of supply of water. Being so, the interpretation which the learned Commissioner has sought to give to sub-clause (2) does not appear to be correct. The condition in sub-clause (3) cannot be read sub-clause (2) of Clause 7 of the Table, appeal allowed

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• 2011 (6) TMI 641
  

  Job work activity - appellant paid serivce tax on such activity - revenue demanded duty of excise considering the same as amounting to manufacture - appellants were in belief that their activity does not amount to manufacture and they have paid Service Tax on the job charges recovered by them form the principal manufacturer which have been accepted by the department - Held that:- legal aspect of the case whether the appellants are covered under SSI exemption Notification No. 8/03 or not has not been examined by the adjudicating authority, which needs examination, matter remanded to the original adjudicating authority, stay application are disposed of

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• 2011 (6) TMI 640
  

  Defaults in payment of duty beyond thirty days - case made out by revenue is that during the defaulting period the Appellants were required to pay duty on each consignment without availing Cenvat credit as required under sub-rule (3A) of Rule 8 - Held that:- interest will be payable from the date of each clearance to the date on which the default is made good that is 20-4-2007. - This is so because once the defaulted amount is paid, thereafter the payment made through Cenvat become proper even if it is paid before the date on which defaulted amount is paid, there is no case for demanding the duty paid through Cenvat credit to be paid again through cash/PLA. - Penalty under Rule 27 imposed amounting to Rs. 5000/-

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• 2011 (6) TMI 639
  

  Penalty - Appeals are being decided one from IDBI Bank Ltd. and another from Shri Ravinder Rajurkar an employee of the said Bank - fraudulent exports - adjudication order imposed a penalty of Rs. 5.00 lakhs on IDBI Bank Ltd. and Rs. 5.00 lakhs on Shri Ravinder Rajurkar under Section 114 of the Customs Act - There is no evidence forthcoming that Shri Ravinder had handled the impugned goods or even handled documents about which he was aware that they related to goods liable to confiscation under Section 113 of the Customs Act, penalty imposed on Shri Ravinder under Section 114 of the Customs Act is not maintainable - liability of IDBI Bank arises basically from the negligence of Shri Ravinder – Held that:- United Western Bank which was taken over by IDBI did not handle the goods. It is submitted that the banking transactions relating to the export goods were carried out in the normal course of business without any mens rea. It is also argued that the liability of IDBI Bank is further remote because the offence if any was committed by United Western Bank which they took over. It is argued that a company taking over another company cannot be held liable for the offence committed by the company taken over, arguments raised on behalf of IDBI are valid arguments. Further considering that we are setting aside penalty on Shri Ravinder, penalty on IDBI Bank is not maintainable, Misc. Application requesting for early hearing and the two appeals are allowed, penalties imposed on these two appellants in the impugned order are set aside

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• 2011 (6) TMI 638
  

  Assessable value - recovery of differential duty on the ground that the sale price of the respondents to M/s Zuari Cement Ltd. showed value and Rs.0.05 per bag towards freight as per the terms and conditions of the relevant purchase order and goods were cleared to the buyers as per contract for which actual freight was different from consignment to consignment – Held that:- respondents have cleared the goods on the basis of purchase order and the goods have been sold at their factory gate on a contract price and transportation cost has been shown separately, transportation cost is not includable in the assessable value, Appeal filed by the Revenue is dismissed

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• 2011 (6) TMI 637
  

  CENVAT credit - hire purchase - buyer took CENVAT credit of excise duty paid on the machinery and utilized it - on default by buyer, respondent took over the possession of machinery - demand and penalty imposed on the buyer for non payment of duty while removal of machinery - penalty also imposed on respondent - Held that:- respondent company had title to the goods till the loan was repaid by the lessee in full. Since the lessee defaulted in repayment of loan amount the lessor had the right to take possession of the machinery, which was owned by them. They have not committed any illegal activity. - Revenue loss that arose to the department was incidental and not intentional, redemption fines are imposed taking into account the profit that was likely to earn due to the activity which results in the confiscation of the goods. By taking repossession, the respondents were not earning any profit and were only trying to recover the money given on loan to lessee - a penalty of Rs.50,000/- imposed by the Commissioner (Appeals) not to be interfered. - revenue's appeal dismissed

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• 2011 (6) TMI 636
  

  Valuation of goods captively consumed - submitted that for the period January, 1992 to December, 1995, a show-cause notice was issued to them on the identical issue of undervaluation of their captively consumed goods and vide Order No. 2012 & 2013 of 2005 dated 6.10.2005, the Bangalore Bench of this Tribunal has held that addition of notional profit of 10% is good enough – Held that:- appellants had correctly valued their captively consumed goods, appellants have already paid differential duty as demanded by the department and credit has been taken at the recipient's, appeal is disposed of accordingly

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• 2011 (6) TMI 635
  

  Non-existent/fake/bogus/fictitious firm – disallowance of fraudulently availed credit - Held that:- M/s. Anjani International as fake and fictitious firm and on the other hand, he is imposing penalty upon the said non-existent firm, Tribunal vide its earlier orders has held that such confirmation of demands and imposition of penalties jointly and severely on various persons, is not in accordance with law, matters remanded for fresh decision, appeals get disposed off

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• 2011 (6) TMI 634
  

  Assessable value - contract manufacturer jobworker - clearance of physician samples - assessable value of physician samples was lower than the assessable value of the same medicaments cleared in trade packs. In that case the appellants were not clearing physician samples for free distribution to the Doctors but are selling to other companies at an agreed price as per the purchase order placed on them – Held that:- in the case of contract price the appellants have rightly assessed these physician samples which were cleared by them free of cost at the time of clearance on a transaction value on principal to principal basis and in case of jobwork these physician samples have been cleared on cost construction method i.e. CAS-4, transaction value/CAS 4 value are the correct value arrived at by the appellants, requirement of pre-deposit of duty, interest waived, Stay applications are allowed

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• 2011 (6) TMI 633
  

  100% EOU - respondent was not able to meet the conditions imposed on them at the time of approval of their EOU regarding export of final products - show-cause notice was issued proposing demand of customs duty - argument that the entire activities were contrived to evade customs and excise duties is prima facie not acceptable and no evidence to prove the contrary has been submitted by the Revenue, argument of the Revenue that the respondent had a guilty intention of evading customs and excise duties rejected, penalty of Rs. 5000/- on the respondent under Rule 173Q of the Central Excise Rules, show-cause notice there is no proposal for confiscation of the goods under the Customs Act. The proposal was for imposing penalty under Section 114A of the Customs Act. Under Section 114A of the Customs Act, mens rea is to be proved, which has not been proved by Revenue, appeal is disposed of by modification of the Order-in-Original

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• 2011 (6) TMI 632
  

  Whether a jurisdictional condition which is imposed by the proviso to Section 127-B(1) can be obviated by the applicant contending that he has waived the issuance of a notice to show cause – Held that:- An application cannot be filed unless the applicant has filed a bill of entry or shipping bill in respect of the import or export of goods and in relation to such bill of entry or shipping bill a show cause notice has been issued to him by the proper officer. These conditions have to be cumulatively fulfilled and are mandatory. assumption of the jurisdiction by the Settlement Commission in the present case was contrary to law

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• 2011 (6) TMI 631
  

  Effective date of corrigenda notification - Rebate under central excise - export of goods - respondent issued a show cause notice on the ground that the petitioner was not eligible for the rebate sanctioned unless they had availed the benefit of the Notification No. 43/2002-Cus., dated 19-4-2002 in respect of the inputs imported under the advance licence – Held that:- notification itself states that the words and figures ‘under Rule 18’ shall be corrected to read as ‘under Rule 18 (rebate of duty paid on materials used in the manufacture of resultant product)’. - A corrigendum indicates the intention to correct and rectify the notification. corrigendum in question has been issued for correction of the notification and it relates back to the date of the notification corrected. - It ceases to be a correction if it is effective from the date of its issuance. It then becomes an amendment. - A correction relates back to the date of the notification itself. If that is so, the order of the appellate authority as also the revisional authority are contrary to the notification dated 29-11-2002. orders of the revisional authority and the appellate authority impugned herein are hereby quashed and the order of the assessing authority is restored. Writ petition is allowed accordingly

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• 2011 (6) TMI 630
  

  Writ petition - Failure to produce end user certificate (EU) - case of the petitioner is that no prior notice as contemplated under Section 28 was ever served before Ext.P30 order was passed on 08/06/2007 and it was not communicated to the petitioner till 2010 - Held that:- goods were cleared on 29/01/2005, on the undertaking that the petitioner will produce the EU Certificate within 6 months, which was not complied with by the petitioner. Under such circumstances, Ext.R(a) letter dated 14/12/2005 was issued, requiring the petitioner to produce the same. Since the petitioner did not comply with the same, a further notice dated 21/6/2006 was issued demanding the petitioner to repay the short levy amount as per Ext.R(b) and another letter was issued, asking the petitioner to re-validate the bank guarantee already furnished, as the same was to expire on 18/01/2006. In reply to the same, the petitioner, as per Ext.R(c) letter dated 24/06/2006, requested 90 days' time to produce the EU Certificate, no merit or bonafides in the contention raised by the petitioner as to the allegedly loss of opportunity of hearing, writ petition fails and the same is dismissed

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• 2011 (6) TMI 629
  

  Cenvat credit - credit on molasses on the quantity shown in the invoices which is more than the actual receipt of the molasses - variation is 0.87% - Held that:- loss of molasses is within the permissible of 1% as per Bombay Molasses Rules, 1955 and the respondents are entitled to take the credit as per the quantity shown in the invoices, as the loss of molasses is within the permissible limit, Appeal filed by the Revenue is dismissed

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• 2011 (6) TMI 628
  

  Shortage – clandestine removal - shortage of goods in four different categories of finished goods – Held that:- authorised signatory vide his statement recorded under Section 14 admitted the shortage but strangely expressed his inability to explain, shortage cannot be presumed to be a case of clandestine removal in the absence of other evidence corroborating the same - however charge of improper maintenance of accounts is established - duty demand along with interest is upheld, Penalty imposed under Section 11AC is converted into a penalty under Rule 25 and the same is reduced

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• 2011 (6) TMI 627
  

  Cenvat credit - denial of Cenvat credit to the appellant on the goods which are used as paints – Held that:- Inclusive part of the definition indicates that goods which are used as paint within the factory of production are eligible for availing Cenvat credit. As already recorded, there is no dispute that paints on which the credit was availed was received in the factory premises and used by the appellant for painting of pipes and machinery, order is not sustainable, appeal is allowed

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• 2011 (6) TMI 626
  

  Application for rectification of alleged mistakes – Held that:- application proceeds on the presumption that all grounds mentioned in the appeal memo have been actually canvassed by the learned advocate during the hearing. It also overlooks the fact that arguments by both sides should precede dictation of the order. After the hearing is over, when the order being dictated is going against any party, they cannot be allowed to plead fresh grounds, as such a procedure is not a healthy one. The application also proceeds on the assumption that the only submissions which have been specifically discussed in the order have been considered by the Tribunal. It also overlooks that whatever submissions not specifically discussed did not find favour with the Tribunal. The non-acceptance of the submissions/view points urged on behalf of either party cannot be treated as errors or mistakes that too apparent on face of records. not all grounds in the appeal memoranda were argued during personal hearing. Whatever grounds argued before the Tribunal by the learned Advocate have been considered and not found acceptable. This application in my considered opinion, stands filed merely because the appeal has been decided against the applicant. There are no errors on the face of the records warranting recall of the order and for rehearing the appeal. application is rejected

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• 2011 (6) TMI 625
  

  Whether diamonds confiscated by the learned Commissioner and offered for redemption by the Courier were liable to confiscation under Section 113 of the Customs Act - Counsel has relied on the interpretation given in the aforecited cases to the expression 'attempt to export'. In his view, an attempt to export any goods should be reflected by positive acts like bringing of the goods to the customs area, filing of shipping bill etc. In the absence of such acts in this case, it cannot be held that the diamonds were attempted to be exported. In this manner, it has been argued that clauses (d), (e) and (i) of Section 113 of the Customs Act are not applicable. Therefore, the goods are liable to be released unconditionally to the owner adjudged by the Criminal Court – Held that:- as the goods were not brought within the limits of any customs area for any purpose whatsoever, clause (d) cannot be applicable. Obviously, the opening part of the said clause has been overlooked by the learned Counsel. 'Any goods attempted to be exported' is an independent leg of clause (d). The adjudicating authority has to determine whether the diamonds were 'attempted to be exported contrary to any prohibition imposed by or under the Customs Act or any other law for the time being in force. appeals allowed by way of remand

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• 2011 (6) TMI 624
  

  Conversion of shipping bills to DEPB-cum-drawback shipping bills - Classification -classification was decided in favour of the appellant - application was rejected as time-barred - Commissioner rejected the request for conversion of DEPB shipping bills to DEPB-cum-drawback on the ground that As per Rule 6(1)(a) and Rule 7(1)(a) of Customs and Central Excise Duties Drawback Rules, 1995, the application for brand rate shall be filed within sixty days from the date relevant for applicability of amount or rate of drawback in terms of sub-rule (3) of Rule 5 of the said rules. No such application was filed - Held that:- denial of the benefit is not legal because there is no time limit prescribed in Rule 12(1)(a) to set right such wrong. Therefore, we hold that the impugned order is not maintainable and it is therefore set aside. conversion of shipping bills to DEPB-cum-drawback shipping bills should be allowed the appellant granted drawback as is eligible to it

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• 2011 (6) TMI 623
  

  Duty demand - imposition of penalties - redemption fine –Held that:- source of procurement of CD roms were deliberately concealed to enable showing a higher purchase price and exported by declaring highly inflated value to claim undue benefit of DEPB credits. - The goods so exported are to be held liable for confiscation. - However, as they are not available for confiscation , the redemption fine imposed is set aside.

  Demand of duty confirmed against M/s. Classic ITM for imports made through third parties is set aside. Penalty of Rs. 10 lakhs under Section 114 and Rs.10 lakhs imposed under Section 112 on M/s. Classic ITM are upheld.

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