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Case Laws
Showing 481 to 500 of 1054 Records
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2011 (2) TMI 1083
CHA Licence - Commissioner of Customs (General), suspended the CHA licence on the ground that it was 'necessary to prevent the CHA to transact business for further misuse of the CHA Licence' - Commissioner's order was passed under sub-regulation (2) of Regulation 20 of the CHALR, which authorized the Commissioner 'in appropriate cases where immediate action is necessary, suspend the licence of a Customs House Agent where an enquiry against such agent is pending or contemplated' - Held that:- no enquiry whatsoever was initiated against the appellant under the CHALR, neither the investigating agency nor the adjudicating authority had passed on the requisite information to the Commissioner of Customs (General) - order of suspension set aside, appeal allowed.
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2011 (2) TMI 1082
CHA licence suspended - exporter illegally exported 'non-basmati rice' by misdeclaring it as 'basmati rice', as export of 'non-basmati rice' being prohibited upon receipt of such information, the Commissioner suspended the operation of the CHA licence contemplating enquiry against the appellant - Held that:- It appears from the records that memo of articles of charges against the appellant is under preparation and that an inquiry officer and a presenting officer are being nominated. Under instructions from the Commissioner, the JDR submits that the articles of charges will be issued to the appellant within a week's time and that, if the appellant co-operates with the Commissioner, the proceedings against him would be completed within a period of three months. These submissions have been made under instructions from the respondent-Commissioner and hence will be taken in their face value. Now that the proceedings against the CHA under Regulation 22 of the CHALR 2004 stand initiated, we are of the view that such proceedings should continue expeditiously to its logical conclusion and that a final decision should be taken by the Commissioner within a reasonable period of time
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2011 (2) TMI 1081
Cenvat credit wrongly availed - allegation that the appellants have taken credit on photocopy/zerox copy of the challans/invoices - Commissioner (Appeals) directed the appellants to make pre-deposit of 50% of duty and 50% of penalty - Held that:- Commissioner (Appeals) directed the appellants to make pre-deposit, without looking into the merits for such demands - as the appellants have submitted before the lower appellate authority that they have taken credit on the basis of original invoice, which was not considered by the lower appellate authorities, the order to make a pre-deposit of 50% of duty and 50% of penalty is not sustainable. Hence, the impugned order is set aside and remand back to the Commissioner (Appeals) to decide the issue on merits without insisting the appellant to pre-deposit.
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2011 (2) TMI 1080
Cenvat credit - appellants transferred capital goods under job work, no credit reversed - SCN issued alleging fraud, collision, mis-statement, etc. - Held that:- It is admitted fact that the capital goods were moved from unit No.1 to unit No.2, it is also admitted fact that in the earlier round of litigation it was held by this Tribunal that it is a matter of interpretation of statute and the allegation of fraud, collision, mis-statement, suppression of facts, etc., and it was not an intent to evade duty are not sustainable. As these facts were brought by the appellants before the Commissioner (Appeals), who did not consider this submission at all larger period is not invocable in the facts of this case - demands confirmed by the impugned orders are set aside and the appeals are allowed with consequential relief.
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2011 (2) TMI 1079
Cenvat credit denied - zerox copy of the invoices submitted - Held that:- It is an admitted fact that the manufacturer of inputs have issued the invoices and the same have been received in the factory of the appellants. It is also an admitted fact that the original invoice issued by the manufacturer was lost during accident. An FIR has been registered against the said accident by the transporter.
As relying on UOI Vs. Kataria Wires Ltd. [2007 (1) TMI 183 - MADHYA PRADESH HIGH COURT] the claim of availment of Cenvat credit cannot be defeated especially when department did not dispute receipt of the goods, their use in the manufacture of final products and duty paid character of input. As this facts are not in dispute, the claim of availment of Cenvat Credit cannot be denied on the strength of Xerox copy of the invoice issued by the manufacturer. In favour of assessee.
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2011 (2) TMI 1078
Drawback claim rejected - confiscation under Section 113(i) of the Customs Act - penalty under Section 114(iii) of the Act - reasons stated for denial of drawback was that the input used in the manufacture of the exported product was grey fabric on which Central Excise duty/countervailing duty (CVD) was not payable and hence the appellant was not eligible for drawback - Held that:- Input used is Grey Fabric, should be reviewed and steps be taken to recover the drawback already sanctioned. For future exports, the exporters may be directed to clearly declare on the shipping bills the inputs used in the manufacture of such fabrics and the drawback be allowed strictly only in such cases where the inputs like fibre/POY/yarn are duty paid or where the duty would be payable on such inputs, All Industry rates of drawback are applicable only to those exports of processed fabrics under DFRC scheme where the input used is POY (partially oriented yarn)/fibre/yarn and not applicable to the exports of man-made fabrics involving grey fabrics as input, adjudicating authority did not consider the Circular No.3/01-Cus. dated 16.1.2001, order set aside and allow this appeal by way of remand with a request to the Commissioner to pass fresh speaking order on the issue after hearing the party and considering the relevant EXIM policy provisions, rules, circulars etc.
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2011 (2) TMI 1077
Redemption of goods for home consumption - feeding bottles imported by the respondent were prohibited for want of BIS registration - appellants submittion that the goods should have been re-exported instead of clearance for home consumption - Commissioner (Appeals), while upholding the confiscation, reduced the quanta of fine and penalty to Rs.5,000/- and Rs.2,000/- respectively and also ordered that the goods be redeemed for home consumption - Held that:- With regard to the plea for re-export of the goods there is no evidence of physical availability of the feeding bottles to be re-exported. The appellate Commissioner passed the order in December 2002, eight years ago, directing that the goods be redeemed for home consumption against payment of the fine and penalty determined by him. The application filed by the Revenue (appellant) for stay of operation of the appellate Commissioner's order was rejected by this Bench in December 2003, i.e. seven years ago. Obviously, the appellate Commissioner's order for clearance of the goods for home consumption has been in force for more than seven years. By no stretch of imagination can it be held that the bottles are still available - thus unable to accept the plea for re-export of the goods.
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2011 (2) TMI 1076
Penalty under Section 112 of the Customs Act - misdeclaration and undervaluation - Held that:- As description of the machine was misdeclared vis-a-vis its different description mentioned in his agreement with the U.S. supplier. The Commissioner has also found that the appellant had admitted that he did not import the machine in question in his firm's name - Commissioner constitute a valid ground for penalty under Section 112 of the Customs Act and, consequently, this appeal cannot be allowed, appeal is dismissed - reduce the quantum of penalty to Rs.2,00,000/-
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2011 (2) TMI 1075
Penalty - Commissioner had confiscated a consignment of what was declared as 'glass stone-beads' in a bill of entry filed by the respondent, under Section 111(d) & (m) of the Customs Act on the ground that the goods imported by the company was actually jewellery stones which were misdeclared as glass stone-beads & that no import licence was produced by them and that the value of the goods had also been misdeclared - Held that:- As it is yet to be shown that the respondent wanted to clear the goods for home consumption in a fraudulent manner. What is disclosed from the records is that he wanted to re-export the goods albeit belatedly. In the circumstances, the reason stated by the learned Commissioner for not imposing a penalty on the respondent under Section 112 has not been rebutted. In the result, the appeal gets dismissed.
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2011 (2) TMI 1074
Penalty under section 11AC - Demand of differential duty - Praxair entered into an agreement with Vikram Ispat to manufacture pure/refine carbon dioxide for which Praxair supplied plant and equipment on lease basis and also personnel at the premises of Vikram Ispat. Vikram Ispat sold the entire carbon dioxide to Praxair at a contract price of Rs.431 per kg. whereas M/s Praxair sold the goods subsequently at a higher price. The department was of the view that Praxair are the real manufacturers of the pure carbon dioxide and hence they were liable to pay duty
Held that:- As decided in MAHYCO SEEDS LTD. [2003 (11) TMI 108 - HIGH COURT OF JUDICATURE OF BOMBAY AT AURANGABAD] raw materials supplier could not be treated as manufacturer under Section 2(f) of the Central Excise Act. Also in the case of Kambatwala [1996 (5) TMI 84 - SUPREME COURT OF INDIA] where in held that goods produced by household ladies in their own premises out of the raw materials supplied by the respondent who paid wages on the basis of number of pieces manufactured - in such cases, the household ladies have to be treated as manufacturer of the goods and the goods cannot be said to have been manufactured on behalf of the respondent. In the instant case, the raw material namely impure carbon dioxide has been manufactured by Vikram and the cost of manufacturing has been borne by them. That being so, there is no way it can be held that they are not manufacturers, transaction between Vikram and Praxair are between principal to principal basis and the price at which Vikram has sold the goods to Praxair is the price at which duty liability has to be discharged, in the absence of any evidence indicating that the transactions were not at arms length and there were additional considerations flowing from Praxair to Vikram, appeal filed by the department rejected
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2011 (2) TMI 1073
Assessment of goods (polished, vitrified porcelain tiles) imported from China - whether liable to be assessed to countervailing duty on the basis of MRP (with abatement of 43% from the MRP) in terms of Section 4A as claimed by the appellant or otherwise in terms of Section 4 as claimed by the respondent - Appellant have imported the goods meant for sale to the institutional/ industrial consumers who use such tiles for construction purposes. They do not sell the same further in the market - Held that:- Fact to be found is whether the goods imported by the respondent by declaring that they were meant for sale to industrial/institutional consumers and not for retail sale were actually sold to such consumers. The finding of the original authority on this question of fact is in favour of the Revenue and that of the appellate authority on the same question is against the Revenue. Apparently, this has resulted from non-application of mind on the part of the Commissioner (Appeals), Commissioner (Appeals) misunderstood certain marks found on the packaged commodity. The imported packages had come with the mark "imported and marketed by M/s. NITCO Tiles Ltd.". It appears, the words "imported and marketed" were misunderstood by the appellate authority as "imported and marked". This misunderstanding lead the appellate authority to the erroneous notion that the importer had to be treated as 'manufacturer' in India on account of having "marked" the packages. This mistake bred other mistakes also, like pressing into service Rule 2(h) - as the burden of the respondent to establish before the adjudicating authority that the provisions of Chapter II of the SWM (PC) Rules are not applicable to the packaged commodity imported by them the respondent should get a reasonable opportunity of adducing evidence and of being heard so that the original authority can take a decision afresh.
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2011 (2) TMI 1072
Goods cleared at Nil rate of duty - Subsequently assessee raised supplementary invoices and recovered the amount reversed under Rule 6(3)(b) from their customers - Department was of the view that the said amount collected from the buyers by the appellant is recoverable under section 11D of the Central Excise Act as it represents duty of excise collected from the buyers in terms of the Board's Circular No. 599/36/2001-CX dated 12-11-2001 wherein it has been clarified that the provisions of section 11D gets attracted when any amount representing excise duty is recovered from the buyer on the basis of documents - Held that:- In the case of Unison Metals Ltd. Case (2006 (10) TMI 171 - CESTAT, NEW DELHI) assessee had paid 8% of the value of the goods in terms of Rule 57CC at the time of removal from the factory. The amounts so paid were recovered from their buyers and in the sales documents the amount was described in different terms such as '8% reversal of assessable value', '8% value' , '8% duty' etc. Since the amounts so collected from the buyers did not remain unpaid to the revenue and no amount was retained by the assessee, the Tribunal Larger Bench held that section 11D has no application, provisions of section 11D of the Central Excise Act, 1944 is not attracted in the facts of the present case, order set aside of the lower appellate authority and appeal allowed
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2011 (2) TMI 1071
Pre-deposit of the penalty - Held that:- Deposit as one made on behalf of Rafiq Tinwala, the appellant in appeal No. C/863/2009 penalty on him amounts to Rs. 14 lakhs and its 15% is Rs. 2.1 lakhs which stands deposited.
Ramesh Agarwal, appellant in appeal No. C/842/2009 cosidering his application for extension of time & that he deposited Rs.1.25 lakhs allow him further period of eight weeks for pre-depositing the balance amount.
As for appeal Nos. C/1001/09-Mum. & C/1250/2009-Mum no evidence of pre-deposit, nor any representation. Both the appeals get dismissed for want of compliance with Section 129E of the Customs Act.
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2011 (2) TMI 1070
Pre-deposit - Modification of stay order - application does not disclose any change of circumstance since the stay order was passed - Application rejected - Held that:- Tribunal shall first make prima facie, enquiry whether application needs consideration on merits. If the Tribunal finds that prima facie case for modification is made out, then, only a Tribunal shall deal with such application on merits, application dismissed following the ruling of Baron International vs Union of India [2003 (9) TMI 97 - HIGH COURT OF JUDICATURE AT BOMBAY] & Jai Prakash Strips vs. Commissioner of C.Ex. & Cus., Nasik [2009 (6) TMI 620 - CESTAT, MUMBAI)- having found no prima facie case for the appellant for modification of our stay order, no evidence of pre-deposit of the aforesaid amount or any part thereof. Hence appeal is also dismissed for want of compliance with Sec. 35F of the Central Excise Act
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2011 (2) TMI 1069
Stay applications - denovo adjudication - Held that:- As first appellate authority in her order-in-appeal has recorded the findings that all the arguments put forward by the consultants have succeeded in creating a doubt regarding the fairness of investigation and adjudication also. The arguments appear to seek an order in favour of denovo adjudication by remanding the matter back to original adjudicating authority & the Revenue has not appealed against the above reproduced findings recorded by the learned Commissioner (Appeals). Thus if the first appellate authority has been convinced of there being no fairness in the adjudication, it is imperative, in the interest of the justice the matter needs to be re-adjudicated by the adjudicating authority.
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2011 (2) TMI 1068
Waiver of pre-deposit and unconditional stay by way of modification - modification of the Tribunal's order contain only grounds of review - Tribunal directed to make prima facie, enquiry whether application needs consideration on merits - Held that:- If the Tribunal finds that prima facie case for modification is made out, then, only a Tribunal shall deal with such application on merits - application dismissed following the ruling of Baron International vs Union of India [2003 (9) TMI 97 - HIGH COURT OF JUDICATURE AT BOMBAY] & Jai Prakash Strips vs. Commissioner of C.Ex. & Cus., Nasik [2009 (6) TMI 620 - CESTAT, MUMBAI)- having found no prima facie case for the appellant for modification of our stay order, no evidence of pre-deposit of the aforesaid amount or any part thereof. Hence appeal is also dismissed for want of compliance with Sec. 35F of the Central Excise Act
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2011 (2) TMI 1067
Refund - unjust enrichment - refund of excess amount of duty paid, that arose as finalisation of assessment - Held that:- Commissioner (Appeals) has only recorded that 'the respondent have not adduced any evidence to substantiate that they have themselves borne the element of duty.' After recording such a finding, he has set aside the impugned order and allowed the appeal of the Revenue. If the assessee can produce evidence and substantiate their claim that they have borne the element of duty, the refund needs to be allowed to them. Since at the second appellate stage such details could not be gone into, the evidence needs to be gone into detail by the adjudicating authority - remand the matter back to the adjudicating authority to reconsider the issue.
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2011 (2) TMI 1066
Penalty - appellants has suppressed the production of products - Held that:- Merits in the assessee submission, as to if the clearances made by them availing the benefit of SSI Notification for the branded goods is to be considered as full duty paid clearances, then he is eligible for exemption for his own products to extent of value of goods cleared on full payment of duty. This aspect has not been considered by the lower authorities in their impugned orders - remand the matter back to the adjudicating authority to reconsider the issue afresh.
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2011 (2) TMI 1065
Refund claim - assessee is a 100% EOU - lower authority had directed the appellant to deposit the amount of differential duty which was deposited 'under protest'. Subsequently, the appellant felt that the amount which had been paid by them should not have been paid and sought refund of the same which was rejected on the ground that the duty paid is not under protest and the amount paid is customs duty - Held that:- TR-6 challan indicates that the duty has been paid 'under protest, appellant has not been able to provide evidence regarding the non-passing of the incidence of the duty to their customers. The learned Counsel submits that the appellant had exported almost 70% of the goods as finished goods, order is set aside and the matter is remitted back to the adjudicating authority to reconsider the issue afresh for sanctioning the refund claim, Appeal is allowed by way of remand
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2011 (2) TMI 1064
Cenvat credit on waste - Pellets of less than 6 mm is a waste for assessee as it cannot be used by them in their manufacturing process - Held that:- As in the case of Collector v. Rajasthan State Chemical Works (1991 (9) TMI 73 - SUPREME COURT OF INDIA) held that the process of handling / lifting / pumping / transfer / transportation of raw materials also a process in or in relation to the manufacture, it integrally connected with further operations, which constitute manufacture, credit has been correctly availed and revenue's appeal dismissed.
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