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Showing 441 to 460 of 497 Records
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2005 (6) TMI 66 - CESTAT, MUMBAI
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... ... ..... pended to the Notification covers machine with its accessories. In other words, it is the case of the department that if the goods are imported without accessories the benefit of concessional rate of duty is not available. 2. We find it difficult to accept the submission of the Revenue. What is to be seen is whether the item in question satisfies the definition of fabric dyeing machine. If it does (as it does in the present case), the absence of accessories cannot be a ground for denial of benefit in terms of Sr. No. 150 to the Table of the Notification. The second aspect is that even if the accessories are not imported along with dyeing machine, the benefit is to be extended under the Notification, since the item imported functions as fabric dyeing machine as to satisfy the definition contained in Sr. No. 5 of list 10 appended to the Notification. We therefore, hold that the benefit of concessional rate of duty is available, set aside the impugned order and allow the appeal.
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2005 (6) TMI 65 - CESTAT, NEW DELHI
Penalty and interest - Show cause notice ... ... ... ... ..... interest are governed by the provisions of Rule 57-I. Mere wrong citation of a relevant provision of the law in the SCN for demanding penalty and interest from the respondents, did not invalidate the SCN. The respondents knew all the facts and circumstances under which the penalty and interest was being sought from them. In the SCN no prejudice can be said to have been caused to them by mentioning Sections 11AC and 11AB instead of Rule 57-I in the SCN for imposition of penalty and demand of interest. 3. Keeping in view the amount of credit wrongly availed by the respondents, the penalty imposed on them by the Commissioner (Appeals) is too low and disproportionate. Accordingly, the same is raised/enhanced to Rs. 50,000/-. The demand of interest against the respondents is also confirmed. In other words, they are liable to pay interest also as per law. The impugned order accordingly stands modified. The appeal of the revenue stands disposed of. Order dictated in the open Court.
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2005 (6) TMI 64 - CESTAT, MUMBAI
Sugar Syrup - Dutiability ... ... ... ... ..... not having shelf life/marketability as also they rely on the decision of CCE (A) on their own case for an earlier period for which no appeal was filed and plead that the product and process remain the same. 3. We find that in this case of Revenue s appeal ignoring the Chief Chemist of Revenue Central Laboratory s report was not called for when the product is unstable and has no shelf life and is therefore not marketable, there cannot be a levy of excisability thereon. Revenue s appeal therefore bereft of merit and is rejected. (Pronounced in Court)
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2005 (6) TMI 63 - CESTAT, MUMBAI
Fabrics - Exemption ... ... ... ... ..... which carried out by the appellants is not covered by the benefit of the Notification. According to the dictionary, calendering is a finishing process producing a flat, glossy, smooth surface by passing the fabrics under pressure between a series of heated cylinders, whereas decatising is defined as a method of sponging wool and worsted fabrics to set the width and length and to improve the lustre, hand and finish and as a finishing process for rayon and other MMF or combination of Fibre-Fabrics, which improves the hand, colour and lustre and may remedy uneven dyeing. It has been held that calendering process is not final process and fabrics can go for further process such as printing after calendering while decatising is a final stage. No satisfactory explanation based on reliable technical material or otherwise has been placed before us in the appeal to persuade us to take a different view. We, therefore, uphold the impugned order and reject the appeal. (Dictated in Court)
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2005 (6) TMI 62 - CESTAT, MUMBAI
Penalty - Silver - Smuggled nature of ... ... ... ... ..... rly. The penalties have been imposed on 3 melters holding that they have knowledge that they were dealing (melting) in goods which were smuggled. However, no evidence is forthcoming as to their knowledge or reasonable belief that they were dealing in smuggled silver. We, therefore, set aside the penalties imposed upon the 3 melters. As regards Mahendra H. Patel and Vinodbhai B. Parekh, the department has relied upon the statement of Shri Mohta and Shri Khandelwal in relation to past dealings in the smuggled silver. In other words, there is no material on record to link either Shri Mahendra H. Patel or Shri Vinodbhai with the consignment in question which is the subject matter of the show cause notice and the order, which has been confiscated by the Commissioner. Therefore, penalties on these two appellants is not warranted. We, therefore, set aside the same. 3. In the result, we set aside the penalties in so far as these 5 persons are concerned and their appeals are allowed.
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2005 (6) TMI 61 - CESTAT, MUMBAI
Penalty on Manager (Roadways) ... ... ... ... ..... e lower authorities have arrived at the role of Shri Shah Manager of the other appellant i.e. Roadways who has knowingly here to have knowingly dealt with the ball bearing seized and confiscated as non duty paid. Penalty on Shri Shah is therefore upheld, keeping in view the role played by him. Penalty of Rs. 30 thousand is therefore upheld. (b) As regards the appellant Corporation, it is well settled position that Corporation has no mind of its own. It therefore cannot knowingly deal with ball bearings knowing that they were liable to confiscation under the Central Excise Act, 1944. Penalty on Transport Corporation where the bearing were found in the routine course of its business i.e. therefore not upheld. Moreover their employee was acting beyond the scope of employment and they cannot be therefore be held vicariously liable. Penalty under Rule 209A of the Corporation is set aside. 3. Appeal of Shri Shah rejected. Appeal of M/s. Indian Roadways Corporation Ltd. is allowed.
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2005 (6) TMI 53 - CESTAT, NEW DELHI
Stay/Dispensation of pre-deposit ... ... ... ... ..... perly addressing, prepaying and posting by registered post, a letter containing the document and unless contrary is proved, to have been effected at the time at which a letter could be delivered in the ordinary course of post. We find that in the present case, the decision was sent by registered speed post. Therefore, the presumption is that, it would have been served on the applicants within a reasonable time. The appellants could not establish by any evidence that the letter was not served on them. Therefore, prima facie they have not been able to make out a case in their favour. We have also considered the financial hardship pleaded by them and considering the facts and circumstances, the applicants are directed to pre-deposit Rs. 3,00,000/- (Rupees Three Lacs only) within a period of eight weeks and report compliance on 25-8-2005. On such deposit, the recovery of the balance amount is waived till disposal of appeal. (Dictated and pronounced in the open Court on 20-6-2005)
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2005 (6) TMI 51 - CESTAT, NEW DELHI
Cenvat/Modvat - Welding electrodes - Capital goods - Whether welding electrodes are covered under the definition of capital goods as provided under Rule 57Q of the Central Excise Rule - HELD THAT:- The appellants are not disputing the fact that welding electrodes are classifiable under Heading 83.11 of the Central Excise Tariff. As such, the welding electrodes are not covered under Serial Nos. 1 to 4 of the above Rule. The appellant claim is that these are used in the repair of machines, therefore, become components and these become component, spare or accessories of the goods specified under Serial Nos. 1 to 4 of Rule 57Q of the Central Excise Rules.
On a specific query from the Bench that welding electrodes are part, component or accessory of which machines. Counsel appearing on behalf of the appellants could not explain this situation. There is no material produced by the appellants shw (sic) that claimed welding electrodes all used for the purpose other than maintenance. As such, welding electrodes are used in the maintenance of the capital goods and under the provisions of Rule 57Q of the Central Excise Rules, 1944, the goods used for maintenance are not covered.
Thus, we hold that appellants are not entitled for the benefit of Modvat credit as capital goods during the relevant period. The issue referred to the Larger Bench is answered in favour of the Revenue and the matter is to be placed before the regular bench for further action.
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2005 (6) TMI 50 - GOVERNMENT OF INDIA
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... ... ..... t, 1962. Govt. also observe that the Commissioner (Appeals) have not bothered to go through the judgment of Hon ble Bombay High Court in case of M/s. Shaw Wallace and Co. Ltd. v. Asst. Collector of Customs and Ors. - 1986 (25) E.L.T. 948 (Bom.) which laid down general guidelines to be followed by Customs Authorities Bombay Port Trust and person in charge of conveyance and their agent under Section 116 of the Customs Act, 1962. Relevant guidelines in respect of FCL containers are reproduced below - Cargo brought in Container FCL container (Full container load) A full container load when unloaded from the vessel and the seal are found intact, then the vessel owner shall not be held responsible for any short-landing or be made liable to pay penalty. 7. In view of the above fact, cited judgment of the case as discussed Govt. find no force in the Order-in-Appeal. Hence same is sets aside accordingly. 8. The Revision Application succeeds with consequential relief to the applicant.
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2005 (6) TMI 49 - HIGH COURT OF JUDICATURE AT BOMBAY
Redemption fine ... ... ... ... ..... egard to each metric tonne. It appears that it is an established practice of Customs to condone such exchange rate fluctuations. In this case, the CESTAT has rightly held that no redemption fine has to be levied view of currency rate fluctuations. There is no dispute that the goods imported by the Respondent are freely allowed to be imported without a licence. Under the circumstances, we do not find any substantial question of law in the Appeal. Hence, the Appeal stands dismissed.
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2005 (6) TMI 48 - HIGH COURT OF JUDICATURE AT MADRAS
Penalty - Short landing of goods ... ... ... ... ..... The original authority as well as the appellate authority and the revisional authority have considered the relevant aspects and have come to a definite conclusion. The factual conclusion arrived at by them cannot be said to be perverse warranting any interference. On the basis of such factual conclusion, it is apparent that Section 116 of the Customs Act was applicable and imposition of penalty on the petitioner cannot be said to be illegal. 11. In view of the above discussion, the writ petition is liable to be dismissed. However, the issue as to whether the short fall was on account of the petitioner s default or on account of the default of M/s. Prabhu Shipping Services Pvt. Ltd., is a matter between the petitioner and M/s. Prabhu Shipping Services Pvt. Ltd., and it would be open to the petitioner to recover the amount from M/s. Prabhu Shipping Services Pvt. Ltd., by proceeding in accordance with law. 12. With the above observation, the writ petition is dismissed. No costs.
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2005 (6) TMI 47 - HIGH COURT OF GUJARAT AT AHMEDABAD
Writ jurisdiction - Classification dispute - Appeal - Limitation for demand ... ... ... ... ..... appeal has, after referring to the submissions of the assessee, hedged its findings by the aforesaid observations and restored the matter to the file of the Commissioner. 15. Reliance on decision in case of L.G. Industries v. CCE, Rajkot, 2002 (148) E.L.T. 43 (Tribunal) 2002 (53) RLT 356 also cannot carry the case of the petitioner any further considering the finding recorded in paragraph No. 6 that, the inputs received were re-rollable material obtained by breaking up of ships and this factual stand had not been recognizes that the one of the sources for receipt of inputs was ship breakers. 16. Therefore, reliance on various decisions is not supported by any factual foundation and each one of the decisions cited turned on the individual facts obtaining in each of those cases. 17. In the result, the petition is allowed partly to the aforesaid extent. Interim relief granted earlier stands vacated. Rule made absolute to the aforesaid extent. There shall be no order as to costs.
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2005 (6) TMI 46 - HIGH COURT OF GUJARAT AT AHMEDABAD
Production capacity based duty - Fortnightly payment ... ... ... ... ..... he aforesaid principles have been taken into consideration while passing the order. In the circumstances, it would be in the interest of justice if the impugned order (Annexure C ) is quashed and set aside, restoring the matter to respondent No. 3 for the purposes of fresh adjudication in light of the legal principles enunciated by the Apex Court and this Court, considering the peculiar facts and circumstances of the case. 8.Accordingly, the order in original dated 29 December 2000 imposing penalty of Rs. 5,00,000/- under Rule 96ZQ(5)(ii) of the Rules (Annexure C ) is hereby quashed and set aside. Respondent No.3 is directed to pass a fresh order after taking into consideration the submissions that may be made by the petitioner at the time of hearing in light of the settled legal position. As a consequence, the appellate order dated 11th June 2002 (Annexure D ) would not survive. The petition is accordingly disposed of. Rule made absolute. There shall be no order as to costs.
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2005 (6) TMI 45 - HIGH COURT OF JUDICATURE AT BOMBAY
Entitlement to any relief in exercise of(C) writ jurisdiction - Manufacturer of Processed Fabrics - Kar Vivad Samadhan Scheme (KVS Scheme) - Pendency of dispute - Refund - Unjust enrichment - Whether the designated authority, respondent No. 2 herein;(A) was justified in not considering the declaration filed by the petitioner under KVS Scheme in respect of tax arrears determined in RT-12 based on Delhi High Court decision? - declaration filed by the petitioner falls under the exclusion of Section 95(ii)(b) of the Finance (No. 2) Act, 1998.
HELD THAT:- In the instant case, admittedly, no writ petition was pending on the date when the declaration was made or filed by the petitioner. No demand notice requiring the petitioner to pay disputed tax arrears was pending. What was holding the field, on the date of filing of declaration, was the endorsement on RT-12 assessment; which by no means can be said to be a notice of demand under any indirect tax enactment. That endorsement, though prime facie; at the first sight gives a picture of notice of demand but on deeper scrutiny we find that it was not a notice of demand since no demand was pending against the petitioner on that date. In any event a demand was raised in the light of the concluded decision of the Delhi High Court. The bank guarantees did not remain actionable claim. It culminated in a decree of the Court in the nature of mandamus; wherein encashment of bank guarantees was ordered with further order to pay interest thereon @ 17.5% p.a. It becomes a property of the Revenue.
In order to make the record straight and for the purposes of accounting, it was necessary to pass final assessment order based on the concluded decision of the Delhi High Court so as to adjust the amount of bank guarantees against the duty amount. So just to show execution of the order in the nature of writ or decree passed by the Delhi High Court and to report compliance thereof, or in other words, to report compliance of the writ issued by the Delhi High Court, the RT-12 assessments with necessary endorsements thereon were necessary. Those orders were nothing but were in the nature of execution of the order of the Delhi High Court; whereby the dispute between the parties for all time to come; came to be settled; as such no dispute warranting settlement of any dispute under KVS Scheme was pending. No dispute was pending or involved on the factual matrix of this case, as such, in the facts of this case, KVS Scheme or benefits thereof were not available to the petitioner. The submissions made in this behalf by Mrs. Bharucha appearing far the Revenue deserves acceptance in toto.
Thus, we confirm that the designated authority was perfectly justified in not considering rather rejecting the declaration filed by the petitioner under the KVS Scheme.
In the instant case, the judgment and order of the Delhi High Court passed in Writ Petition has become final and conclusive with the dismissal of the petition followed by dismissal of S.L.P.; wherein the bank guarantees furnished by the assessee/petitioner culminated into enforceable decree in the nature of writ of mandamus, as such, in our view, no dispute with respect to the tax arrears was pending. In the instant case, what was pending was only a formal assessment order to be passed merely on the basis of the returns filed by the petitioner; which was nothing but a formality to be completed to make the record complete. In such event, if any formal demand notice in execution of the final order is issued just to record satisfaction of the amount already recovered, or secured by way of bank guarantees; can such demand notice be said to be a notice of demand raising dispute as contemplated u/s 95(ii)(b) of the KVS Scheme. (In our view, such notice of demand issued by making endorsement on RT-12 assessment may be a notice of demand as ordinarily understood but not as contemplated under the KVS Scheme. Therefore, the impugned order is perfectly legal and valid.
The pendency of the writ petition contemplated under Section 95(ii)(c) is a writ petition arising out of an order passed in appeal and/or reference and/or revision passed under the provisions of the indirect tax enactment. The civil suit has been specifically excluded from the purview of the provisions of KVS Scheme. Consequently, it would be reasonable to infer that the writ petition arising from the civil suit has also been excluded and, therefore, no proceedings as contemplated under clause (c) of Section 95(ii)(c) were pending in the instance case on the date of declaration made by the petitioner under the KVS Scheme.
It is needless to mention that where a decision is arrived at for a wrong reason, but the same decision must as a matter of law has been arrived at if the right reason had been relied on, the decision will not be quashed. In the instant case the impugned order can be sustained jointly and severally on the basis of both grounds i.e. the exclusion clauses incorporated in clauses (b) and (c) of Section 95(ii). Even otherwise, if no writ petition was pending, then there was no question of any demand being pending for adjudication. Therefore, the view taken by respondent No. 3 can very well be sustained on the basis of either of the above clauses. Issue "B" accordingly, stands answered.
It is clear that the doctrine of 'unjust enrichment' is based on equity and has been accepted and applied in several cases. In our opinion, therefore, irrespective of applicability of Section 11B of the Act, the doctrine can be invoked to deny the benefit to which a person is not otherwise entitled. Section 11B of the Act or similar provision merely gives legislative recognition to this doctrine. That, however, does not mean that in absence of statutory provision, a person can claim or retain undue benefit. Before claiming a relief of refund, it is necessary for the petitioner/appellant to show that he has paid the amount for which relief is sought, he has not passed on the burden on the consumers and if such relief is not granted, he would suffer loss.
In the instant case it is not in dispute that the petitioner has recovered the amount of duty from its customers. In view of this undisputed fact, it is an academic debate as to whether or not the show cause notice or demand notice was issued to the petitioner. Irrespective of the applicability of the KVS Scheme no writ jurisdiction can be invoked in favour of the petitioner.
The power under Article 226 has to be exercised to effectuate the regime of law and not to abrogate it. While exercising writ jurisdiction this Court cannot ignore that exercise of power under Article 226 will result in enriching the petitioner and allowing him to retain the amount of duty which it had already collected from its customers. In this view of the matter, we decline to issue writ in favour of the petitioner.
Thus, this petition deserves to be dismissed. In the result, petition is dismissed with no order as to costs.
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2005 (6) TMI 44 - HIGH COURT OF KERALA AT ERNAKULAM
Interpretation of statute - Residuary clause - Demand ... ... ... ... ..... ence between Rule 11 and Rule 12 is patent and when under Rule 11, the assessment can be done in respect of a period of six months from the date on which the duty and charge is paid, restrictions or limitation for demand is not there in Rule 12. Although it would have been possible to construe Rule 12, so as to bring in the matter similar, as covered by Rule 11 since so far as Rule 11 has specifically referred to the circumstance of mistake in the matter of assessment, we do not think the benefit that is otherwise available to an assessee could be denied by application of Rule 12. 7. We find that the matter has been examined in detail by the Division Bench in Padmanabhan Nair s case and a further probe on the observations made under a different statute is not to be called for. In these circumstances, we hold that the petitioner is entitled to the benefit of limitation provided by Rule 11. Consequently, Exts. P1, P2 and P3 will stand quashed. The Original Petition is allowed.
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2005 (6) TMI 43 - HIGH COURT OF KARNATAKA AT BANGALORE
Appeal - Restoration of, after pre-deposit ... ... ... ... ..... d taken a liberal view, restored the appeal and decided the appeal on merits, it would not have caused any inconvenience or prejudice to the revenue. In that view of the matter, we are of the opinion, that the Tribunal was not justified in rejecting the application filed by the appellant for restoration of the appeal and to decide the same on merits. 6. In view of the above, the following ORDER I. Appeal is allowed. II. The impugned order passed by the Tribunal in appeal No. E/l265/1998 dated 27-8-2004 is set aside. III. A direction is issued to the Tribunal to restore the appeal filed by the appellant since the appellant has now made pre-deposit of the entire amount as ordered by it and to decide the same on merits as expeditiously as possible. IV. The order made by us shall not be treated as precedent in any other case. V. Shri Devadas, learned Additional Solicitor General of India is permitted to file his memo of appearance within six weeks from today. Ordered accordingly.
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2005 (6) TMI 42 - HIGH COURT AT CALCUTTA
Port - Demurrage - Waiver ... ... ... ... ..... re-calculate the demurrage charges for the aforesaid period separately and adjust the dues already realized from the petitioner. I hold as rightly submitted by Mr. Mullick the petitioner is entitled to be reimbursed for all costs expenses incurred for sale of the goods in terms of the Court s order. Before such reimbursement I think the remuneration of the Special Officer and his clerk has to be paid and/or deducted out of the sale proceed first, thereafter the reimbursement is to be made to the petitioner. Accordingly I direct the Special Officer to pay a sum of Rs. 54,128/- to the petitioner on account of reimbursement of costs of sale and initial remuneration, and further direct to retain a sum of Rs. 30,000 Rs. 3,000 on account of his final remuneration and his clerk respectively. The balance amount together with interest if accrued, shall be made over to the port authority. The port authority shall allow the container to be removed. 21.There will be no order as to costs.
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2005 (6) TMI 41 - GUJARAT HIGH COURT
Order - Service of ... ... ... ... ..... evidence on record that in fact the order has been served as in absence of the acknowledgment receipt in possession of the respondent authorities, the certificate issued by the postal authorities remains undisputed. 6. The petition is, accordingly, required to be allowed. The respondent authorities are directed to serve a copy of the order of Commissioner (Appeals) bearing OIA No. YPP/805/SRT/2003, dated 24th November, 2003 on or before 2nd July, 2005. The petition is allowed to the aforesaid extent. Rule made absolute. The respondent authorities shall pay the costs quantified at Rs. 1,500/-. 7. On 3rd May, 2005 when the order was made the petitioner was directed to deposit a sum of Rs. 5,000/- on or before 7th May, 2005 and the petitioner has, accordingly, deposited the same with the Registry of this Court on 6th May, 2005. Considering the fact that the petitioner has succeeded, the Registry is directed to return the said amount to the petitioner by an Account Payee Cheque.
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2005 (6) TMI 40 - HIGH COURT OF KARNATAKA AT BANGALORE
Recovery of Customs dues ... ... ... ... ..... pinion, such of those goods which have been imported, as aforesaid, are the only goods in respect of which the Customs Department could claim a priority of recovery of dues and not in respect of other goods over which the Petitioner claims as a secured creditor. Applying the principle laid down in Macson Marbles case, supra, the Petitioner would be liable to meet the customs dues as a successor of the defaulting importer. The first issue is answered accordingly. 26.The proposition that the Act is a special enactment and it prevails over the Customs Act, 1962 in terms of Section 46B of the Act, is not acceptable. A plain comparative reading of the objects and the scheme of the two Acts with regard to their provisions would indicate that they are both special enactments and in the absence of a conflict in the enforcement of the same, the question of considering the second issue would not arise. 27.In the result, the petitions are partly allowed. Parties to bear their own costs.
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2005 (6) TMI 39 - HIGH COURT OF KARNATAKA AT BANGALORE
Show cause notice - Protective demand notice ... ... ... ... ..... e and even in such an event, the amount can be recovered as a consequential action and not independently, respondents have realized the futility in issuing such a notice, the show cause notice being wholly unnecessary and also not one within the scope of the power under Section 11A of the Act. 6.The respondents having realized this position, have now filed a memo through their Standing Counsel today, inter alia indicating that the department is now taking steps to withdraw the notice. The memo is received on record. 7.Sri Raghuraman, learned Counsel for the petitioner submits that as the department itself is withdrawing the notice, nothing survives in this writ petition. 8.In the result, this writ petition is disposed of, as having become unnecessary in the light of the undertaking given in the memo indicating that the department itself is withdrawing the show cause notice. Ordered accordingly. The respondents should take such action within a period of eight weeks from today.
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