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Showing 441 to 460 of 1678 Records
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2016 (9) TMI 1242
Release of detained goods - Form JJ - the goods transported from Sultanpur to Chennai were accompanied by defective documents more particularly that the consignee has not submitted the online Form JJ - Held that: - It is not in dispute that the Commissioner of Commercial Tax issued a circular to Check Post Officers as well as Assessing Officers, as a guiding principle, as to how the documents have to be verified and as to what are the records required to be produced by the transporter while the goods cross a check post. It has been observed in the circular that if certain forms are not available, then it is open to the officers to see the other records available, which are accompanying the goods, take note of any earlier movement of similar goods and render a decision.
Admittedly, the computer generated Form JJ was not produced and the petitioner produced the invoice and the lorry receipt and these are records, which can be taken into consideration by the fourth respondent in terms of the amended Rule 15 - the fourth respondent is directed to release the goods as well as the vehicle - petition allowed - decided in favor of petitioner.
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2016 (9) TMI 1241
Club or Association services - Commissioner (Appeals), Cochin set aside the Order-in-Original on the ground that M/s. National Club (respondent) is a Members club and not a Proprietary Club and in a members club there is no question of two sides i.e. Members and Club, both are same entity - Revenue submitted that the impugned order is not sustainable in law because the issue involved in the present case has not attained the finality. The judgment of the Hon’ble Jharkhand High Court at Ranchi and the Gujarat High Court at Ahmedabad relied upon by the Commissioner (Appeals) Cochin has been challenged before the Hon’ble Apex Court and the matter is still pending. During the pendency of the appeal before the Supreme Court, the orders passed by the Commissioner is in jeopardy and cannot be considered as precedent.
Held that:- there is nothing wrong in the order passed by the Commissioner (Appeals) and we are not inclined to interfere in the same. - Decided against the Revenue
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2016 (9) TMI 1240
Cenvat credit - service tax paid on input services - used in the manufacture of axles and gear boxes, which are used in the manufacture of final products i.e. motor vehicles & chasis Held that:- by respectfully following the decisions of the Hon’ble Bombay High Court in the case of Commissioner of Central Excise and Customs, Aurangabad vs. Endurance Technology Pvt. Ltd. [2015 (6) TMI 82 - BOMBAY HIGH COURT] which is an uphelded decision of Tribunal reported in [2011 (7) TMI 373 - CESTAT, MUMBAI] and the coordinate bench of the tribunal in the case of Parry Engg. & Electronics P. Ltd. vs. C.C.E. & S.T., Ahmedabad-I,II,III [2016 (1) TMI 546 - CESTAT AHMEDABAD], we hold that the appellants are the receiver of the services rendered by the 3rd party job worker and the said services have been used directly or in directly in or in relation to the manufacture of motor vehicles chassis. Hence, the appellants are entitled to credit of service tax paid on the input services.
In the case on hand, the goods, on which services were provided, instead of coming to the appellants factory were dispatched to another job worker of the appellants i.e. HVAL/HVTL. The definition of input services does not specify that the services should be received in the factory of the manufacturer. The condition to avail cenvat credit on input service is that it should be used in or in relation to the manufacture of final products. In this case the service was used in the manufacture of motor vehicle chassis directly or indirectly. It is also a fact that the service charge paid by the appellant to the job worker is included in the assessable value of the final products. - Decided in favour of appellant
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2016 (9) TMI 1239
Cenvat credit - availed irregularly - bank charges, AMC and pest control charges - nexus with the manufacturing activity of the appellant - Held that:- by following the decisions of tribunal in the case of MPI Machines Ltd. vs. CCE, Indore [2014 (1) TMI 718 - CESTAT NEW DELHI] and in the case of Hindustan Coca-Cola Beverages (P) Ltd. vs. CCE, Hyderabad [2009 (5) TMI 379 - CESTAT, BANGALORE], I am of the opinion that the impugned order is not sustainable in law and the learned Commissioner (A) has wrongly declined the CENVAT credit on the said services by holding that there is no nexus with the manufacturing activity of the appellant. I hold that the appellant is entitled to CENVAT credit as there is a nexus between the disputed services and the business of the appellant. - Decided in favour of appellant with consequential relief
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2016 (9) TMI 1238
Construction of complex service - period 16.06.2005 to 31.12.2006 - appellant engaged in construction of residential complexes - whether comes under indivisible works contract which merits classification under the category of works contract service - Held that:- in this case, it is seen, that the contract is an indivisible contract involving both transfer of property of goods and services and that appropriate sales tax/VAT is paid for the value of the goods involved in the execution of the works contract. It is also seen that the Learned Commissioner has merely confirmed demand only under construction of complex service. As per Explanation to Section 65(105)(zzzza), we find that the legislature has clarified that where the activity involves both transfer of property in goods to the service recipient, which is leviable to tax as sale of goods and also construction service, such activity would be classifiable as "works contract services".
The issue regarding demand's sustainability under construction of complex services for an activity that merits classification under works contract services is no longer res-integra in view of the Hon’ble Supreme Court's judgment in the case of Commissioner of Central Excise and Customs, Kerala Vs. Larsen and Toubro Ltd. [2015 (8) TMI 749 - SUPREME COURT]. The Honourable Supreme Court in its judgment has held that prior to 01/06/2007, there was no section specifically levying service tax on works contract and accordingly, no service tax can be imposed on works contract services entered prior to 01/06/2007. Accordingly, we are of the view that the works contract is subject to levy of service tax only with effect from 01/06/2007 and the demand of service tax under construction of complex service is being set aside. Since the original demand itself is being set aside, demand of interest under Section 75 and penalty under Section 76 of the Finance Act, 1994 is also being set aside.
As regards imposition of penalty under Section 77 of the Finance Act, 1994, we find that penalty is unsustainable as the issue as to whether the activity of construction of complex would fall under construction service or works contract service has always been under dispute and hence we find that there is a reasonable cause for not taking registration within the prescribed time limit.
Invokation of extended period of limitation - Imposition of penalty under Section 78 of the Finance Act, 1994 - Held that:- it is found that there have been conflicting views prevalent on the issue and that the issue has attained finality only after the Supreme Court verdict in 2015. In view of the conflicting views being prevalent, we find that there is no suppression/fraud/contravention with an intention to evade payment of tax and accordingly, invocation of extended period of limitation also fails and consequently penalty under Section 78 is set aside. - Decided in favour of assessee
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2016 (9) TMI 1237
Classification - Whether the brass granules manufactured by the appellant are required to be classified under CETH 74.0-3.21, as claimed by the Revenue or under CETH 74.06 as claimed by the Respondent - Held that:- copper predominates by weight and brass granules has to be treated as copper granules on the basis of predominance criteria. It is further observed that CETH 74.07 also pertains to copper bars, rods and profiles' but it also covers alloys of copper under CETH 7407.12. Accordingly, non mention of copper alloys or Brass in CETH 74.06 does not mean that it will not contain copper alloys in its ambit - Section note-6 to Section-XV of CETA also confirms this interpretation. Accordingly, this bench does not find any reason to interfere with the order passed by the first appellate authority regarding classification of brass granules.
Classification - Whether the cast form of Copper made by the Respondents should be classified as 'billets' as claimed by the Respondents or the same should be classified as 'Ingot' claimed by the Revenue - whether the chapter notes under Chapter 72 of CETA can be made applicable to Chapter 74 entries - Held that:- if the definitions of 'Ingot' & 'Billet' were uniform for all base metal then the same could have been placed as Section notes under Section XV of CETA. As per the above definition given in Indian Standards for copper and copper alloys both Billets & Ingots are products of casting. Billets of Copper & Copper alloys are intended for further working whereas Ingots are primarily for re-melting for production of copper and copper alloys. In the present appeals it is not the case of Revenue that cast products are meant for re-melting. In view of the above definitions given in Indian Standard for Copper and copper alloys will be more appropriate and the definitions of 'Billets & Ingot' given in chapter notes under Chapter 72 of the CETA cannot be applied to interpret entries of Chapter-74, as these notes are not existing as Section notes under Section XV of CETA. In view of the above, we hold that cast articles manufactured by the Respondents for further working are appropriately classified as 'billets' and will be eligible to exemption under Notification No.9/2003-CE dated 01.03.2003, as amended. - Decided against the Revenue
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2016 (9) TMI 1236
Cenvat credit - wrongly availed on the invoices raised by their unit no. 1 at unbranded goods - Held that:- it is found that there is no dispute that the unit no. 1 of the appellant has discharged the duty liability on the said unbranded pickles the same was received by the appellant and repacked into branded goods. If there is no dispute as to the receipt of goods by appellant, discharge of Central Excise duty on the goods received and consumed, CENVAT credit cannot be denied at the recipient unit, only on the ground that manufacturer should not have paid the Central Excise duty. This law is clearly settled in favour of the appellant.
Demand - cash discounts were not passed on but claimed as deduction - Held that:- the issue is now settled by the Hon'ble Apex Court in the case of Purolator India Ltd. Vs. CCE, Delhi-III [2015 (8) TMI 1014 - SUPREME COURT]. In the said judgment their Lordship have clearly held that the cash and volume discount between assessee and its buyers is known at or prior to clearance of goods, it can be deducted from the sale price. In the case in hand the appellant had produced evidence in form of Xerox copies of credit notes before first appellate authority, which indicated they have passed on cash discount as contracted between them and their purchaser. In our view they have passed on the cash discount as had been evidenced from the invoice. Hence, respectfully following the above judgment of Hon'ble Apex Court, we hold that the appellant is eligible for the cash discount deduction in assessable value. - Decided in favour of appellant with consequential relief
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2016 (9) TMI 1235
Demand and imposition of penalty - cash discount granted on the chassis cleared on payment of duty - non-inclusion of the amount of freight, insurance and octroi paid on the chassis received by it from M/s.Tata Motors in arriving at the assessable value on which the duty was paid by it - Held that:- the goods namely chassis were received by the appellant from M/s. Tata Motors Ltd. under proper central excise invoices and central excise duty paid thereon was clearly mentioned in those invoices. The appellant merely took credit of the duty so paid by M/s. Tata Motors Ltd. Therefore, if there is any discount allowed by M/s. Tata Motors Ltd. which the Revenue was of the view was not admissible then it follows that the demand should have been raised on Tata Motors, which had paid duty on chassis after allowing such discount.
Regarding non-inclusion of freight, insurance and octroi in respect of such chassis supplied by Tata Motors in arriving at the assessable value of the final product by the appellant, we find that Chartered Accountant’s Certificate dated 01.06.2007 was submitted by the appellant to the effect that cost of transportation, insurance, road tax, entry tax, octroi etc. upto the place of the consignee was included on the average basis in the assessable value of the final product of M/s. Tata Motors Ltd. and that such assessable value is used for payment of duty of excise at the time of removal of finished goods from Lucknow plant.
Notwithstanding the C.A. Certificate to support the appellants contention, we find that in the impugned order it is stated that “it also appeared that M/s.Tata Motors Ltd. has not considered other elements such as freight, insurance, entry tax to arrive at the assessable value of the chassis for discharging duty.” That being the case, the duty demand in respect of such elements even if they were held to be includible in the assessable value can be raised on M/s. Tata Motors and not on the appellant. Further there is nothing on record to suggest that the appellant paid anything more than the amount mentioned in the Tata Motors invoices. In other words, the appellant has not paid any freight, insurance or octroi in respect of such chassis, and therefore, question of the appellant adding these elements in arriving at the assessable value of its final products would simply not arise. Also when the impugned demand is not found sustainable, the penalty obviously cannot survive. - Decided in favour of appellant
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2016 (9) TMI 1234
Cenvat Credit - sale of waste and scrap of metal goods arisen during the course of repair and maintenance of various plant and machinery - non-payment of central excise duty - Held that:- in view of the settled principles of law, we are not in agreement with the findings of the lower authority that prescription of Chapter Note in the tariff will create the duty liability on the waste and scrap of metal goods arisen during the course of repair and maintenance of plant and machinery. With regard to applicability of Rule 3(5A) of Cenvat Credit Rules, 2004 to the facts of the present case, we find that on initial procurement of capital goods, the appellant had not taken any Cenvat credit and such facts were brought to the notice of both the lower authorities by the appellant. Therefore, the burden lies with the Department to prove availment of Cenvat credit on the disputed goods has not been satisfactorily discharged, and thus, confirmation of duty demand on this ground also is not tenable. - Decided in favour of appellant
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2016 (9) TMI 1233
Seeking destruction of cigarettes and remission of duty thereupon - Notification issued by Ministry of Health & Welfare requiring adherence of specified pictorial warning on the retail packages as an essential condition of marketing - goods reached their date of expiry as per industrial standard as the Central Excise Authorities did not permit the appellant for slitting of 457 cardboard boxes containing 5482200 cigarettes so as to repack said cigarettes into retail packages having specific warning.
Held that:- due to issue of Notification dated 03.5.2009 it became mandatory that at least 40% of the principal display area of the front panel of the pack was required to have specified health warnings. The impugned goods were packed much before the issue of said Notification. Rules 21 of Central Excise Rules, 2002, provide that Commissioner is empowered to remit duty payable on goods which are claimed by a manufacture as unfit for marketing at any time before removal. We find that impugned order rejecting such permission is not tenable in law. We, therefore, allow appellant's application dated 14/4/2011 filed before Commissioner Central Excise, Ghaziabad, for remission of duty of ₹ 54,71,419.74 and allow destruction of 548200 cigarettes referred to earlier and direct the Commissioner Central Excise, Ghaziabad to ensure destruction of said cigarettes by following procedure provided by law for the time being in face for such destruction. - Decided in favour of appellant
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2016 (9) TMI 1232
Notification No.167/71-CE dated 11.09.1971 - eligibility for exemption - carrying out research and development in the area of polymers, resins, adhesives, bulk drugs and drug intermediates - Held that:- the said Notification dated 11.09.1971 provides for full exemption to all excisable goods produced in a research Institute during the course of carrying out research. The condition of the said notification is that the Assistant Commissioner of Central Excise is satisfied that the goods produced in such research institute are produced during the course of carrying out research. It further provided that further condition for availing notification is that the manufacturer has to produce such certificate as may be required by said Assistant Commissioner of Central Excise for verifying that the goods have been produced during the course of carrying out research.
Appellant have produced the said certificate which is in the form of letter issued by authority in the Ministry of Science and Technology, Department of Scientific and Industrial Research, New Delhi on 18th December, 2003 referring to the subject of recognition of appellant’s In-House R&D unit by department of Scientific and Industrial Research and informs that it has been decided to accord recognition to the In-House R&D unit of appellant’s firm. We find that the said certificate is sufficient evidence to establish that the goods produced by the appellant are produced during the course of carrying out research. - Decided in favour of appellant
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2016 (9) TMI 1231
Imposition of penalty - Rule 25 of the Central Excise Rules 2004 - duty evasion - default in payment of duty - one day in an instance and two days in another instance owing to severe financial difficulties - Held that:- by respectfully following the decision of Tribunal in the case of M/s Annapurna Earcanal Ltd V/s Commissioner of customs and C.E., Hyderabad [2016 (9) TMI 1113 - CESTAT HYDERABAD], the impugned order to the extent of imposition of penalty under Rule 25(1) of Central Excise Rules 2004 is set aside. - Decided in favour of appellant
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2016 (9) TMI 1230
Invokation of extended period of limitation - Classification - Gloves, manufactured and used for sports - whether to be classified under Chapter heading No.9506 of Schedule to CETA, 1985 or under Tariff Item No.4203 2110 of said schedule - notification issued by Government of India for All Industries Rate of Drawback through which the goods manufactured by appellant, were shown to have been classifiable under Tariff Item No.950621 - Held that:- the show cause notice was issued by invoking proviso to Sub-Section 1 of Section 11A to Central Excise Act, 1944. The show cause notice was issued on 25.06.2013 and the period covered by the show cause notice, is from June, 2008 to February, 2012. For issue of show cause notice under extended period, separately it is to be established that the noticee has either suppressed information or miss-declared the information or contravened the provisions of Central Excise Law or Rules made thereunder, and separately, they had intention to evade duty. In the present case, we find that Government of India through their notification for All Industry Rate of Drawback classified the goods manufactured by noticee, under Tariff Item No.9506 21, and admittedly, the noticee have paid the Central Excise duty liable to be paid for the goods classifiable under Tariff Item No.9506 21. Therefore, Revenue could not establish that the appellants had intention to evade duty. We, therefore, hold that the show cause notice is hit by limitation. - Decided in favour of appellant
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2016 (9) TMI 1229
Cenvat credit - various iron and steel articles - steel items used in fabrication of capital goods and welding electrodes, Oxygen Gas and LPG Gas used in the manufacture of capital goods or for repair of the same - Held that:- without going into the factual aspect as to whether the iron and steel articles were used for construction or as supporting structurals, in view of the decision of Hon’ble Gujarat High Court in the case of Mundra Ports & Special Economic Zone Ltd. [2015 (5) TMI 663 - GUJARAT HIGH COURT] which is an over-ruled decision, held that the amendment issued on 07.07.2009 cannot be held to be clarificatory amendment and as such, would be applicable only prospectively, we are of the view that the same would be entitled to credit inasmuch as the period in the present appeal is before 07.07.2009.
Invokation of extended period of limitation - Demand - show cause notice stands issued on 30/09/2008, for the period, September, 2007 to December, 2007 - Held that:- the credit was being availed after reflecting the inputs in the statutory RG-23 D Part-I and Part-II records. The fact of availment of credit was also being reflected in the statutory returns being filed with the Revenue. Non-disclosure of a fact for which there is no column in the records or in the returns, does not ipso facto lead to the conclusion that such non-disclosure is with malafide intention, especially, when there is no legal obligation on the part of the assessee to disclose a particular fact. As such, it is well settled law that if during the relevant period, the decisions of the higher authorities are in favour of the assessee and the law was reversed only subsequently, by a Larger Bench or by any other decision, no malafide can be attributed to the assessee and longer limitation period would not be available to the Revenue.
As regards the welding electrodes and Oxygen Gas etc, we find that he issue again is no more res-integra and stand decided by various High Courts. One such refercne can be made to Chhattisgarh High Court in the case of Ambuja Cements Eastern Ltd. Vs. Commissioner of Central Excise, Raipur [2010 (4) TMI 429 - CHHAITISGARH HIGH COURT] wherein welding electrodes used for repair and maintenance purpose were also held to be cenvatable. Similarly, in the case of Hindustan Zinc Limted Vs. Union of India [2008 (7) TMI 55 - HIGH COURT RAJASTHAN], the Hon’ble High Court allowed the CENVAT Credit on the welding electrodes. By following said decision, we hold that the appellant is entitled to the credit. - Decided in favour of appellant with consequential relief
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2016 (9) TMI 1228
Rejection of declared value - Regrind ABS 20% Glass filled - Rule 10A under the Customs Valuation Rules, 1988 - Notification No. 10/98-Cus (NT) dated 19.2.1998 allowed rejection of transaction value in certain circumstances - discount of 35% over the PLATT price - Held that: - the declared value of Regrind ABS 20% Glass filled has been rejected for the reason that it is significantly different from the PLATT price of the ABS. The price of the two commodities, which is significantly different, cannot be compared in this manner. Only if ABS is imported at a price significantly different from the PLATT price then the question on the declared value can be raised on the basis of PLATT price.
The item imported i.e. Regrind ABS 20% Glass filled has very remote connection if at all with the PLATT price - the rejection of declared value cannot be upheld - appeal allowed - decided in favor of appellant.
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2016 (9) TMI 1227
Legality and correctness of levy of Anti-Dumping duties - digital plates imported from China and Japan - Customs Notification No. 3/2012 -CUS (ADD) - Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 - Chinese producers should have been considered as operating in market economy conditions - Held that: - the DA has recorded that in the past three years China PR has been treated as non-market economy in the anti-dumping investigations by other WTO Members. Hence, a rebuttable presumption of non-market economy status has been made in terms of para 8 (2) of Annexure I of AD Rules. The DA on analyzing the responses provided by the producers/exporters of the subject goods from China PR and the DI, concluded that there is significant government interference in the aluminium industry in China. Reliance was also placed on the findings of Canadian authorities in their anti-dumping and subsidy investigation. It was concluded that the price of major raw material, aluminium, is not market determined and hence, the market economy treatment was denied by the DA to the appellants.
Impact of safeguard duty on imported raw material - Held that: - the transitional, product specific, safeguard duty was in force on the imports of aluminium coils from China PR from 23/3/2009 to 22/3/2011. Safeguard duty of 14% and 12% for first and second year were imposed. The duty was to remedy the market disruption caused by increased imports. The DA examined the impact of this duty on domestic industry who use this as raw material to produce subject goods. Noting that such imports by DI are only negligible, the DA concluded that the impact of safeguard duty on arriving at NIP is not significant.
Erroneous fixation of NIP by the DA - Held that: - the methodology adopted for arriving at the NIP is well within the guidelines framed under AD Rules. The rate of return, costing parameters, differential treatment to violet and thermal plates, exclusion of selling/distribution cost, exchange note fluctuation etc. have all been taken into consideration by the DA - No material point found to interfere with the reasoning adopted by the DA while arriving at the NIP.
Wrong determination of injury to DI - Held that: - there is material injury to DI caused by the dumped imports of subject goods. Recommendation was, thereupon, made for imposition of AD duties. - no material ground with supporting evidence to interfere with the findings of the DA and the final customs notification imposing AD duties.
Appeal dismissed - decided against appellant.
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2016 (9) TMI 1226
Demand of customs duty on capital goods imported - imposition of penalty - 100% EOU - tissue culture plants - capital goods originally imported duty-free for setting up of the unit. On account of failure to carry on the business, the factory had to be shut down and approach made to Development Commissioner in February 1997 for de-bonding of the unit - whether the appellant is entitled to depreciation on the capital goods on which he is required to pay customs duty now?
Held that: - The CBEC circular No. 43/98 dated 26th of June 1998 issued from file No. 314/19/98 allows depreciation for the capital goods other than computers and computer peripherals up to a maximum extent of 90% with the following stipulations for the units operating under EOU scheme for capital goods cleared in DTA. From a careful reading of the notification No. 53/97 customs dated 3rd of June 1997, it is seen that the capital goods at the time of clearance will be entitled to payment of customs duty on depredated value provided that the said unit has been allowed by the Development Commissioner to clear such goods in DTA.
the unit commenced its production in the year 1994. The appellant has approached the Development Commissioner for de-bonding of the unit as early as 4th of February 1997. The adjudication order passed by the Commissioner originally, demanding customs duty on capital goods was passed in the year 1999. This order was received by the appellant only in the year 2011. As per the directions of the Tribunal in the 1st round of litigation, the Commissioner was directed to pass a de-novo order. Accordingly the impugned order came to be passed. Meanwhile the appellant has chosen to pay the duty, interest and penalty in the year 2011 in terms of Commissioner's order in the original proceedings and has since de-bonded the unit. Hence it is fair to take the view that the capital goods have been allowed to be cleared in DTA and hence depreciation upto 90% will be allowable to the appellant in calculating the duty payable on the capital goods.
Requirement to pay customs duty - goods auctioned by department and assessee not in possession of the goods - Held that: - The appellant's unit was registered as 100% EOU. The unit was started in 1994 and was in existence till 2011, i.e. till de-bonding of the unit. The customs duty as computed originally by the Commissioner was discharged by the appellant in 2011 and thereafter the capital goods were auctioned by the government. - appellant liable to pay the customs duty and cannot take shelter under the fact that the government has auctioned the goods.
Customs duty payable on the capital goods need to be reworked after allowing 90% depreciation. Consequently the customs duty payable by the appellant will considerably come down as also the interest payable thereon - in view the facts and circumstances of the case and also the fact that the appellant could not carry on its business because of adverse turn of business circumstances, a lenient view taken and the penalty imposed is waived.
Appeal disposed off - decided partly in favor of appellant.
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2016 (9) TMI 1225
Imposition of Anti-dumping duty - import of hot rolled flat products of stainless steel - Final Findings dated 11.10.2011 of Designated Authority (DA), Directorate General of Anti-Dumping and Allied Duties, Ministry of Commerce & Industry - notification No. 104/2011-Cus dated 25.11.2011 of Ministry of Finance - Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 - Held that: - market share alone is not a fair indicator of presence of injury or otherwise. Domestic prices have been undercut by imports from the subject countries throughout the injury investigation period. Further, the prices of domestic industry has not increased in line with increase in costs. The profitability of the domestic Industry has been shown to be adversely affected during the said period.
The Tribunal in Kothari Sugars & Chemicals Limited Vs. Designated Authority [2005 (8) TMI 411 - CESTAT, NEW DELHI] held that if the volume of imports at a particular price level is sufficient enough to have adverse impact on domestic selling prices, the same should not be taken into account and given due weightage in the analysis. It otherwise meant that even if there are high priced transactions and low price transactions from a country, the very fact that the low price transactions cause injury (with positive injury margin) justifies imposition of duty on the entire country.
Regarding source data it has been recorded that the DGCI & S and IBIS data have been used wherever required. The methodology for arriving the NIP has been disclosed. 22% return on investment has been granted to domestic industry as per consistent practice followed in this regard. The injury margin calculation for residual exporters of a country follows a methodology different from that adopted for price underselling which is determined in respect of a country as a whole - imposition of duty justified.
Appeal disposed off - decided against appellant.
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2016 (9) TMI 1224
Application for renewal of CHA Chennai license - license issued at Vishakapatnam and their branch license registered with Chennai Customs - expiry of Chennai license - respondent allowed to operate as CHA in Chennai Customs under Regulation 10(2) of the Customs House Agents Licensing Regulations (CHALR), 1984, on the basis of CHA licence issued to them, under Regulation 10(1) of the said Regulations, by Visakapatnam Customs - whether, merely because, the Commissioner of Customs (Seaport-Import), the licencing authority, has acted as an adjudicating authority, to adjudge an issue, as to whether, the 1st respondent is entitled to get the licence, issued by the Commissionerate, Chennai, renewed under Regulation 10(2), irrespective of the fact that when the original licence, at Vizag Customs has not been renewed, whether the duty to be discharged by him, at the time of considering a renewal application is adjudicatory or administrative, in nature?
The decision in the case of GAJRAJ SINGH Versus STATE TRANSPORT APPELLATE TRIBUNAL [1996 (9) TMI 607 - Supreme Court Of India] has been relied upon. It was held that adjudication is not required, while considering a renewal application. Grant or renewal of licence, is administrative in nature.
Section 129 of the Customs Act, 1962, provides for an appeal. Bare reading of the Section may indicate that any decision or order passed by the adjudicating authority, can be appealed to the Tribunal. The Regulations dealing with grant of licence for renewal should be harmoniously read with the provisions of the Customs Act, 1962 and should be given the effect, in conformity with the legislative intent. On the principle of harmonious construction and going through the entire Regulations, it was held that an order, rejecting an application for renewal, is administrative in nature.
The Tribunal held that the appeal filed against the order, on the application to renew the licence issued to the Customs House Agent, under the CHALR, 1984 or 2004, as the case may be, is not maintainable - no interference required with the order of the Tribunal - appeal dismissed - decided in favor of respondent.
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2016 (9) TMI 1223
Scope of the term 'Dealer' - a public charitable trust running and maintaining a public hospital - Bombay Public Trust Act - The hospital has a medical store in the premise from where the medicines and other pharmaceutical drugs and equipments are sold - requirement of registration of this medical store as a dealer for the purpose of the Gujarat Sales Tax Act, 1969 - identical issue came up in the case Bhailal Amin General Hospital vs. State of Gujarat and anr [2016 (8) TMI 670 - GUJARAT HIGH COURT] where it was held that the definition of term 'dealer' contained in Section 2(10) of the Gujarat Value Added Tax Act would not include the medical store.
Section 2(10) of the Gujarat Sales Tax Act - Section 2(10) of the VAT Act - is the petitioner coming within the definition of dealer under GST Act? - Held that: - on all material counts the definitions in both the Acts are similar. Only minor difference being that in the GST Act in the exception, the words “which are not in the nature of business” are added, which forms part of perimateria Explanation II to section 2(10) of the GST Act. If at all, this explanation is wider than the Exception III of 2(10) of the VAT Act, it may be possible to argue that the later expression of “which are not in the nature of business” is only by way of a clarification and there is no material change between the two definitions. - In any case, the petitioner must get the benefit of judgement of this Court in case of Bhailal Amin General Hospital.
Petitioner not a dealer - petition disposed off - decided in favor of petitioner.
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