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Case Laws
Showing 421 to 440 of 497 Records
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2005 (6) TMI 103 - CESTAT, CHENNAI
Cenvat/Modvat - Capital goods ... ... ... ... ..... ication of new cement mill in Mar. 95. Structural materials like Steel Rods were held to be eligible for capital goods credit under Rule 57Q in Final Order Nos. 404 to 407/2004 dated 14-5-2004 passed by the Chennai Bench of the Tribunal in Appeal Nos. E/1392 and 1393/1998 etc., to which the respondents herein were also a party. Ld. SDR has in this connection, pointed out that a civil appeal filed by the Department against a similar order was admitted by the Apex court. However, there is no stay of operation of the Tribunal s order challenged before the Apex Court. In the circumstances, it should be held that the benefit of capital goods credit is admissible to the respondents in respect of 20 mm Rod material. 4. In the result, capital goods credit is allowed to the respondents on cement and 20 mm Rod material, while such credit is denied to them in respect of Tooth Point. Accordingly, Appeal Nos. E/583 to 585/2004 stand partly allowed. (Dictated and pronounced in open Court)
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2005 (6) TMI 102 - CESTAT, BANGALORE
Appeal - Recalling of ... ... ... ... ..... nity to represent their case and to file appropriate rejoinder. They also submitted that the order passed by the Tribunal had not taken into account of the complete situation. Hence they requested the Tribunal to recall the Final Order. 4. We have gone through the records of the case. The Registry was asked to ascertain whether notice of hearing of the appeal was sent to M/s. Hindustan Tobacco Co. Ltd. Even though the notice of hearing appears to have been sent to them, there is no acknowledgement from the party. It has also been contended that they were not aware of the appeal filed by the Revenue against the Commissioner s order. Under these circumstances, we feel that it should be in the interest of justice to recall the Final Order. Therefore, the Final Order No. 821/2004, dated 26-2-2004 is recalled. Consequently, the ROM filed by the Revenue becomes infructuous. Registry to list the matter for final hearing on 8th July, 2005. (Pronounced in the open court on 16-6-2005)
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2005 (6) TMI 100 - CESTAT, MUMBAI
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... ... ..... ly to recorded media and not unrecorded media. It is not the case of the respondent that the description of the goods under Serial No. 174 covers even unrecorded media. Since serial No. 174 is very clear, we find that the benefit thereunder is not applicable to the goods in question, since as per the respondent, what has been imported is unrecorded media, but which gets subsequently recorded. 3. We therefore, set aside the impugned order by which the benefit was extended on the basis of Board s clarification dated 26-5-99, which has been subsequently revised by Board s clarification (communication) dated 9-10-98, and allow the appeal of the Revenue.
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2005 (6) TMI 97 - CESTAT, MUMBAI
Export Oriented Units, 100% EOU - Conversion into EPCG unit - Valuation (Customs) - Demand - Confiscation - Penalty
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2005 (6) TMI 96 - CESTAT, MUMBAI
Remission of duty ... ... ... ... ..... lant had given all the details of the goods destroyed and the demand notice was issued only for that duty and for those goods which were quantified by the appellant, therefore, the Department has no other information that the goods shown, as destroyed by the appellant, is not the correct quantity. The certificate dated 15-2-1999 (Page 180 of the paper book) issued by the New India Insurance Company Ltd. shows that no element of Modvat excise portion of the relevant stock in raw material, bought out parts, semi-finished goods and finished goods is included in the full and finally settled amount of damage loss payment. 7. In view of this, we do not find any merit in the arguments of the learned SDR and in the findings of the Commissioner. We, therefore, hold that the appellants are entitled for remission of duty under Proviso to Rule 49(1) of the Central Excise Rules. Accordingly, the appeal is allowed with consequent relief, if any. (Dictated and pronounced in the open Court)
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2005 (6) TMI 95 - CESTAT, CHENNAI
Valuation (Customs) - Enhancement of value - Contemporaneous imports ... ... ... ... ..... ced and accepted transaction value in respect of same goods from same supplier and the manufacturer through the same port but by a different importer with the value declared by the present importer in this case. The case of M/s. Basant Industries (supra) is distinguishable. 5. Smt. R. Bhagya Devi, ld. SDR appeared on behalf of the Revenue and none appeared on behalf of the respondents despite notice. 6. We have heard ld. SDR and gone through the records of the case carefully. The Commissioner (Appeals) has stated that the respondents has produced manufacturer s invoice and the remittances for the impugned goods have been made through proper Banking channel. He has also stated that there are no grounds to doubt the genuineness of the value of the imported goods. We also not find any strong reason for rejecting the transaction value. In these circumstances we do not find any merit in the Revenue s appeals and the same are rejected. (Order dictated and pronounced in open Court)
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2005 (6) TMI 93 - CESTAT, CHENNAI
Confiscation of goods - Penalty ... ... ... ... ..... nvoked for imposing penalty on the assessee for the alleged contravention in relation to non-cancellation of invoice and non-furnishing of D3 intimation. Coming to non-cancellation of invoice, I note that the show-cause notice is silent on the question as to which specific Rule was contravened by the assessee. As regards non-furnishing of D3 intimation, however, the show-cause notice implicitly alleged contravention of Rule 173L and any contravention of Rule 173L could be visited with a penalty under Rule 173Q. If that be so, it was not necessary to invoke Rule 210 at all. It is quite apparent that the show-cause notice was prepared with a confused mind. This confusion appears to have crept into the orders passed by both the authorities. Moreover, a composite penalty (without break-up) under two independent penal provisions is unsustainable in law. 4. For the reasons recorded above, I set aside the impugned order and allow this appeal. (Dictated and pronounced in open Court)
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2005 (6) TMI 92 - CESTAT, BANGALORE
Classification under CSH 2618.00 - demands - Process of manufacture - whether on carrying on the process of grinding, the Granulated Blast Furnace Slag (GBS) would bring into existence a new product viz. Ground Granulated Blast Furnace Slag (GGBS) - HELD THAT:- We find that the activity of mere grinding of GBS to bring into existence GGBS would not amount to a process of manufacture. There is no chemical change nor does it change the character of the slag. The slag remains slag and, therefore, the finding given by the Commissioner, without examining the ratio of 23 judgments cited by the assessee, is not justified and not correct in law. Mere physical change will not bring into existence a different commodity. The change should bring a change in the name and character and use of the commodity as held by the Apex Court in a large number of judgments.
In the case of Iswar Grinding Mills v. CCE [1999 (8) TMI 387 - CEGAT, CALCUTTA] wherein crushing/powdering of tobacco leaves first manually and then with power aided crushing/grinding machine to form tobacco flakes/powder has been held to be not a process of manufacture. Likewise, the judgment of Alchemie Pvt. Ltd. v. CCE [1999 (8) TMI 380 - CEGAT, MUMBAI] wherein it has been held that Concentrate spent liquor/wash containing 4 to 6% caustic soda obtained by concentration of 16-18% after removing impurities has been held to be not a new product and the process has been held to be not a process of manufacture.
In the present case, there is no change in the character nor in its use and hence the ratio of the judgments cited by the Sr. Counsel would apply to the facts of the case. The impugned order is not correct and legal and hence the same is set aside by allowing the appeal with consequential relief, if any.
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2005 (6) TMI 91 - CESTAT, CHENNAI
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... ... ..... l for recovery of Modvat credit was withdrawn, no penalty was liable to be imposed on the assessee. The Larger Bench of this Tribunal in the case of Godrej Soaps (supra) held that, when the demand of duty was dropped on any account, any penal provision could not survive against the assessee. This consistent view of the Tribunal was upheld by the Apex Court in Nagpur Alloy Castings Ltd. (supra). The facts of the case of Meridian Industries (supra) are found to be similar to the facts of the present case. In that case, a demand was raised by the Department on the assessee on the ground of simultaneous availment of Modvat credit under the Central Excise Rules and depreciation of capital goods value under the Income-tax Act. The Tribunal found that the said ground was non-existent and, accordingly, the penalty imposed on the assessee was vacated. 6. In the result, the impugned order imposing penalty is set aside and this appeal is allowed. (Dictated and pronounced in open Court)
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2005 (6) TMI 89 - CESTAT, MUMBAI
Valuation (Customs) ... ... ... ... ..... he Revenue made an assessment that the goods are over valued on the basis of the PMV declared. 2. We have heard both sides. 3. The Revenue s contention is that the goods shipped were overvalued is not supported by any evidence. It appears that similar T-Shirts were exported at the price declared by the respondent on an earlier occasion also no objections were raised about the FOB value of those goods. We observe that Commissioner (Appeals) as well as lower authority restricted the DEPB claim to 50 of the PMV. The Revenue s contention that the restriction imposed on DEPB claim does not necessarily mean that the exporter has not overvalued the goods. While such a contention is valid the fact remains that there is evidence of over valuation in respect of the impugned goods. It is for this reason we hold that the Commissioner s order is correct. In any case DEPB restricted to 50 of the PMV declared. 4. In view of what has been discussed above, we reject the department s appeals.
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2005 (6) TMI 84 - CESTAT, NEW DELHI
Demand - Limitation ... ... ... ... ..... asuring instrument but as micrometer , then it could only be said a mistake on the part of the Customs Officers and it cannot lead us to conclusion that there has been suppression on the part of the importer (respondent). 6. We find that the assessment was done by the Customs Officers. The goods were also examined by the Customs Officers and they have found that goods as per description given in the invoice. Therefore, if there has been mistake on the part of Customs Officer in proper assessment of the goods, the respondents cannot be held liable for any suppression of facts as they have neither colluded or suppressed the facts. Therefore, the findings of the Commissioner are correct and based on evidence on record. We, therefore, find no reason to interfere with the Order of the Commissioner in dropping the demand for imports made under Bill of Entry No. 82 dated 26-5-94. The appeal of Revenue is accordingly rejected. (Dictated and pronounced in the open Court on 28-6-2005)
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2005 (6) TMI 82 - CESTAT, CHENNAI
Cenvat/Modvat - Quantum of - Penalty ... ... ... ... ..... . After a perusal of the relevant invoices (copies available on record), I find that, in each of these invoices issued by M/s. VTL, the amount of BED shown as paid (by M/s. VTL) is only 50 of the amount of BED paid on the goods by its manufacturer. The appellants are entitled to credit of the duty shown in the relevant invoices as paid by the supplier (M/s. VTL.). This is the view taken by the lower authorities and the same is upheld. However, I do not find any justification in the imposition of penalty on the appellants inasmuch as, obviously, they had no intention to avail Cenvat credit illegally or irregularly. Apparently, the party was under the impression that they were entitled to take credit of the full amount of duty paid by the manufacturer of the capital goods. Hence the penalty is set aside. The impugned order shall stand modified accordingly. 2. The appeal is disposed of in the above terms. (Operative portion of the order was pronounced in open Court on 2-6-2005)
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2005 (6) TMI 81 - CESTAT, NEW DELHI
Manufacture - Demand - Limitation ... ... ... ... ..... se, in view of our above findings. There is no dispute over proposition that the assessee will be entitled to claim Modvat credit as per the Rules in respect of the cold rolled steel strips used as raw material for manufacturing the box strappings in the period in question. The learned Authorised Representative for the Department also states that Modvat credit will be available if proper evidence is adduced. The Modvat credit as may be admissible under the rules will be worked out by the adjudicating authority. 12. For the foregoing reasons, we set aside the impugned order dated 16-8-88 of the Collector of Central Excise, Hyderabad and remit the matter to him for calculation and recovery of the excise duty payable by the respondent-assessee for the goods removed during the period of six months from the relevant date till 19th February, 1987 in accordance with law and in the light of observations made in this judgment. Order dictated and pronounced in open Court on 27-6-2005.
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2005 (6) TMI 79 - CESTAT, BANGALORE
Valuation of Physician's Samples for free distribution among Doctors through Medical Representatives - Method to be followed - HELD THAT:- Rule 6(b)(i) is the method of valuation on the basis of the price of comparable goods. The Commissioner (Appeals) has given 3 reasons for holding that the physician's samples and the goods cleared for wholesale trade are not comparable. Moreover, the Hon'ble Supreme Court, in the of CCE, Meerut v. Universal Glass Ltd. [2005 (3) TMI 122 - SUPREME COURT] by the learned respondent, has held that comparable goods under Rule 6(b) should be as far as possible identical goods. Moreover, the CESTAT in Sun Pharmaceuticals [2004 (12) TMI 501 - CESTAT, MUMBAI], has held that the value of physician's sample in smaller pack cannot be increased pro rata to price of commercial pack by applying Rule 4 of the erstwhile CE Valuation Rules. In the same case, valuation of smaller pack by applying Rule 6(b)(ii) was upheld. Even though, Revenue in its appeal relied on two decisions of the CEGAT, we are of the view that the physician's samples and the goods cleared on wholesale cannot be considered as comparable goods in view of the Supreme Court's decision that comparable goods should be as far as possible identical goods.
The Commissioner (Appeals) has reached his conclusions on sound reasoning. Therefore, we do not find any reason to interfere with the impugned order. The Revenue's appeal is rejected.
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2005 (6) TMI 77 - CESTAT, BANGALORE
Refund - Interest ... ... ... ... ..... 6) E.L.T. 807 (Tri. Del.) (ii) Jaipur Syntex Ltd. v. CCE, Jaipur 2002 (143) E.L.T. 605 (Tri. - Del.) Even at the time of initial hearing the appellant had established that he incurred a huge loss of about Rs. 80 lakhs on selling the equipments. On the basis of these facts only, the excess interest was refunded in de novo adjudication. Hence in our view the appellant had produced necessary documents even at the time of initial claim for refund. The Commissioner (Appeals) has upheld the decision of the lower authority without going through the documents. We are of the considered opinion that the action of the lower authority in restricting the interest payable to the appellants up to 31-5-96 is incorrect. The appellant is entitled for the interest from 1-6-96 to 17-8-98 which is out of payment of excess interest collected from the appellants in accordance with the Supreme Court decision. Hence we allow the appeal with consequential relief. (Pronounced in the Court on 6-6-2005)
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2005 (6) TMI 74 - CESTAT, MUMBAI
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... ... ..... 3. Following our decision in appellants own case vide Order No. A/589/WZB/05/C-I, dated 12-5-2005 para 8 thereof, this recovery under Section 11D cannot be upheld. In any case, resort to Rule 9(2) read with Section 11A is bad in law since the recovery under Section 11D is not a levy of duty under Section 3 of the Central Excise Act, 1944. On same reasons penalty under Section 11AC and interest under Section 11AB cannot be upheld. We find force in the reliance on the decision in case of M/s. Bharat Petroleum Corporation Ltd. 2002 (146) E.L.T. 646 by ld. Advocate to not to upheld the recovery ordered. Order impugned is set aside and appeal allowed. (Pronounced in Court.)
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2005 (6) TMI 73 - CESTAT, CHENNAI
Pressure pan with lid ... ... ... ... ..... long with gasket, would work as a Pressure Cooker. After inspecting these parts and assembling them into a composite article, anyone in the trade would treat it only as a Pressure Cooker. Hence, going by the Trade Parlance Test laid down by the Apex Court in the case of G.S. Auto International (supra) and relied on by ld. Counsel, we have to classify the Pressure Pan with Lid as a Pressure Cooker. By the same logic, Pressure Pan without Lid can be treated only as a part of Pressure Cooker. Pressure Cooker and parts thereof were kept out of the purview of kitchen articles under S. No. 4 of the Table annexed to Notification No. 41/94-C.E. as amended by Notification No. 66/94-C.E., dated 9-3-1994. Hence the benefit of nil rate of duty in terms of S. No. 4 ibid is not available to Pressure Pan with Lid and Pressure pan without Lid . 4. In the result, the Revenue s appeals succeed and the same are allowed. (Operative portion of the order was pronounced in open court on 10-6-2004)
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2005 (6) TMI 72 - CESTAT, BANGALORE
Medicaments - Intermediary goods - Excisability - Demand - Limitation ... ... ... ... ..... case laws relied on by the appellants are very relevant. The Board in it s Circular dated 16-9-97 has clarified that the vegetable extracts which emerge at intermediary stage in the manufacture of Ayurvedic, Unani or Siddha medicines are not marketable unless subjected to preservative process. Therefore, such vegetable extracts unless subjected to preservative process are not liable to be considered as goods attracting excise duty. In view of the fact that there is specific prohibition to sell these goods to other buyers these goods cannot be compared with the products manufactured by others for sale. We have to consider the products at Delhi Unit only as intermediary goods. Therefore we hold that the impugned goods are not excisable. We also do not find any justification for invoking longer period. In view of the above finding, we allow the appeal with consequential relief if any. (Operative portion of the Order already pronounced in open Court on conclusion of the hearing)
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2005 (6) TMI 68 - CESTAT, BANGALORE
Demand and penalty - Cenvat/Modvat ... ... ... ... ..... there is no prohibition for 100 E.O.U. to take Cenvat credit appears to be correct. However, in view of Rule 17 of the Central Excise Rules, the duty should be paid by a 100 E.O.U. only through account current. Account current refers to PLA. In view of this position, the appellant cannot pay duty through Cenvat credit. In that case, the appellant will not be in a position to utilize the Cenvat credit at all and it does not make any sense to allow him to take credit. The inconsistency between Cenvat Rules and Central Excise Rules can be removed only by the legislature. As such in view of the Rule 17 of the Central Excise Rules, the appellant cannot avail the credit taken by him for payment of duty in respect of clearance to DTA. Therefore, the demand of duty only is confirmed. As already stated, the penalties are set aside. However the demand of interest under Section 11AB is upheld. These two appeals are disposed of in the above terms. (Pronounced in the Court on 16-6-2005)
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2005 (6) TMI 67 - CESTAT, CHENNAI
Stay of order ... ... ... ... ..... cceded to for the ends of justice. The amount of duty demanded under the above Order-in-Original is over Rs. two crores, coming within the jurisdiction of the two-Member Bench. But there is no such Bench right now to deal with the matter. This circumstance should not prejudice the aggrieved party. In the circumstances, following the precedent in ARS Metals Ltd. v. CCE, Chennai - 2004 (174) E.L.T. 74 (Tri.-Chennai), I am inclined to step in for granting an interim relief to the appellants under Rule 41 of the CESTAT (Procedure) Rules, 1982 till the regular Bench gets seized of the matter. Accordingly, after hearing ld. DR and taking into account the above circumstances, I grant stay of the Deputy Commissioner s proceedings for enforcement of the bank guarantee until further orders. The application for early hearing of the regular stay application may be posted before the Division Bench as soon as that Bench is available. Order by dasti. (Dictated and pronounced in open Court)
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