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Case Laws
Showing 481 to 500 of 1191 Records
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2011 (3) TMI 1303
Demand for payment of Central Excise due - Search - made production and cleared unaccounted finished products - period of limitaion - Held that:- If the letter sent through R.P.A.D. was not served, the same should be affixed at the Factory premises or at the residence as contemplated under Section 37C(1)(b) of the Central Excise Act - Tribunal passed the order dated 28-2-2005 without giving opportunity to the petitioner as notice as not served on them - Decided in favor of the assessee by way of remand
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2011 (3) TMI 1301
Demand - Clandestine removal - Classification - Held that:- Tribunal, on analyzing the materials, came to the conclusion that the author of the Slip was not examined and there were no materials, barring the statement of Liaison Officer and the Security Assistant, who had nothing to do with the production and clearance - no purpose in remanding the case back for fresh adjudication, as had been sought for by the Revenue - no Substantial question arises.
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2011 (3) TMI 1300
Writ - whether it would like to avail the opportunity of being heard in person, with regard to the amount of rebate claimed by the petitioner and with regard to the arrears of excise duty due to be paid by the petitioner - Held that:- Writ petition is premature in nature as the impugned notice had only requested the petitioner to confirm as to whether it would like to be heard in person, in respect of the rebate claimed by the petitioner and with regard to the excise duty due to be paid by the petitioner - the writ petition stands dismissed
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2011 (3) TMI 1299
Right to Information Act - whether information with the Public Service Commission [PSC] cannot be accessed under the RTI Act and that the answer scripts, marks awarded, including interview marks and other details touching the process of examination and interview cannot be made available, except to the extent provisions are made for such access by the regulations and decisions of the PSC – Held that:- Section 22 of the RTI Act provides that the provisions of that Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than that Act. Such statutory provision having been made by the legislature, within its competence, it cannot be watered down or modified except by recourse to legislative procedures. Therefore do not find way to accept the contention of the PSC in this regard.
Another plea of PSC is nothing but a managerial issue. It is pointed out that the PSC has to incur the huge expenses and administrative difficulties, including the deployment of staff exclusively to deal with such requests and this would result in undue hardship and clogging of its administrative setup. Once a piece of law is in place, inconvenience is no excuse to exclude adherence to it. The bounden has to obey and abide by it. This plea of PSC also does not commend acceptance. In the result, the decisions impugned by the PSC are upheld except to the extent they relate to information destroyed in terms of the provisions of the rules enabling destruction of records by PSC. The impugned orders and the orders sought to be enforced, through a couple of writ petitions by persons who have sought information, would stand regulated by what is stated herein. Further enforcement of those orders, including by invoking the penal provisions shall be only in strict conformity with what is stated herein. In view of the fact that the question of applicability of the RTI Act to PSC was being considered in this bunch of matters, orders imposing penalty, if any, are set aside and the PSC will have the statutory time, to comply with the directions of the SIC, running from today. The writ petitions are ordered accordingly. No costs.
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2011 (3) TMI 1298
Provisional assessment - whether addition of cost for beaching and whether tug charges are includible in the assessment over and above the contract value - beaching of the vessel was the responsibility of the seller and all amounts to be paid on that account were to be borne by the seller - Held that:- The contract price is for delivery at the time and place of importation and inclusive of all costs, charges and expenses to be incurred or actually incurred by the seller for effecting the delivery at the place of importation and nothing further can be added as is clear from the provisions of Section 14 of Customs Act, 1962 - Appeal is allowed
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2011 (3) TMI 1297
Re-export - Notification No. 93/2004-Cus. dated 10-9-2004 - It is claimed that due to slow down in economic activities the supplier did not want further job work to be done by the appellant and asked for return of the balance of imported parts as such - Held that:- In the present case, the goods have been imported duty-free i.e. subject to nil assessment. The appellants are only asking for re-export of the goods in the circumstances mentioned above. The reasoning adopted by the Commissioner for rejecting re-export cannot be appreciated. It is not the case that the condition of the notification has been violated and therefore the Commissioner has held the goods to be liable for confiscation or has demanded any duty. Therefore, the order of the Commissioner rejecting the request for re-export cannot be sustained. The same is set aside. The Commissioner shall allow re-export subject to the appellants proving that the goods sought to be exported are the same as the goods which were imported.
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2011 (3) TMI 1293
MODVAT Credit of duty paid on the inputs which were in stock - Notification No. 6/03-C.E., dated 1-3-02, w.e.f. 1-3-03 benefi claimed - Held that:- The condition against said S.No. required that no credit of duty paid on the duty stand availed by the assessee. The appellants, in terms of fulfilment of such condition, reversed the credit of Rs. 2,58,746/- on their own. The dispute relates to the credit of duty involved in respect of the input lying in stock as on 1-3-03. Inasmuch as the said inputs were used by the appellant in the manufacture of their final product, which were cleared in terms of said S.No. 182 of the notification, they were required to Reverse the MODVAT Credit of duty paid on such inputs, to fulfil the condition of S.No. 182 of Notification. As such, we do not find any infirmity in the view adopted by Commissioner (Appeals), vide which he has upheld the Revenue’s stand of reversal of MODVAT Credit of Rs. 1,71,021/- - Decided against the assessee
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2011 (3) TMI 1292
No separate show cause notice regarding clubbing of clearances - Misdeclaration - invoking the extended period of limitation - Held that:- When both the units are functioning separately, the question of issuing one show cause notice to both the units does not arise. As regards this issue no question of law could arise since it is admittedly a question of fact and both the appellate authorities had concurred with the said finding.
As regards plea of limitation too, the Tribunal had correctly come to a conclusion that having regard to the fact which establishes evasion of duty, extended period would apply to the appellant - no substantial question of law arise for consideration in this appeal.
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2011 (3) TMI 1291
Confiscation of 5 gold biscuits with foreign markings totally weighing 582.8 grams - Refund claim on sale of gold - Held that:- Since, the Assistant Commissioner of Customs, sold out the 5 gold biscuits overlooking the order passed by the Commissioner of Appeal, dated 28-8-1997, allowing the petitioner to redeem the gold on payment of fine and penalty the action of the Assistant Commissioner in selling the gold biscuits is contrary to the earlier order passed by the Commissioner of Appeal dated 28-8-1997 - assessee is entitle to get refund - Decided in favor of the assessee.
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2011 (3) TMI 1290
Demand - whether Tribunal is right in rejecting the appeal based on the admission of the Managing Director of the Company alone without going into the merits of the case ? And not taking into account the amount reversed/paid before issue of show cause notice for the purpose of imposition of penalty? - Held that:- When specific grounds are made attacking the order of the Commissioner, it goes without saying that the final fact finding body like CESTAT, ought to have considered the various grounds with materials available and pass orders on the plea taken by the assessee with the materials facts - the order passed by the Tribunal in no manner help to find out the reasons which persuaded the Tribunal to uphold the order of the Commissioner of Central Excise, Salem. Decided in favor of the assessee by way of remand
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2011 (3) TMI 1287
Application for stay - exemption notification No. 58/2003-C.E., dated 22-7-2003 - no proper service about the hearing of the matter - Held that:- As no affidavit filed by the inward clerk or the officer of the appellant-company stating that he had received the letter from the postal authorities on the particular date and at the particular time - Considering the provisions of law envisaged under Section 114 of the Evidence Act, read with Section 21 of General Clauses Act, 1897 it is to be presumed that the postal authorities had delivered the letter on 26-11-2010 to the addressee
The law in granting the benefit to the SEZ developers was introduced with effect from 31-12-2008 as it was published in the Official Gazette in December, 2008. In the circumstances, therefore, it cannot be accepted that the SEZ developers were also entitled for the benefit, which the SEZ units were entitled to, prior to 31-12-2008. The relevant period in the case the goods in hand from June, 2008 to October, 2008 it was obviously prior to 31-12-2008, being so the question of finding fault with the impugned order or accepting the contention of the appellants does not arise - Appeal is dismissed
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2011 (3) TMI 1286
Special Additional duty of Customs - Deciding the date of filing of Bill of Entry - Held that:- The corrections made in the Bill of Entry like number of packages etc., would rate back to 1-6-98, and consequentially, the Bill of Entry correction in all particulars, would be deemed to have been filed on 1-6-98 itself. Having regard to the said aspect, the question of levy of Special Additional Customs, which came into force on the midnight of 1-6-98 did not arise. See ACC for Appraisement, Group-II v. Associated Forest Products Pvt. Ltd. [1999 (11) TMI 72 - SUPREME COURT OF INDIA] wherein held that any amendment to Bill of Entry subsequent to the date of original filing thereof would relate back to the original filing date. When the Bill of Entry was numbered in accordance with the departmental procedure and in the case on hand, on the date of filing of Bill of Entry i.e. on 1-6-98 itself, the Bill of entry was represented with corrections carried out, the Tribunal rightly came to the Conclusion that exigibility on the Special Additional duty of Customs did not arise.
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2011 (3) TMI 1285
Search and seizure - Cash found source from the smuggled goods - the allegation of the prosecution is that the currencies which were seized from the possession of A3 and A4 are the sale proceeds of smuggled gold bars which were brought through fraudulent evasion and mis-declaration of value and also by evasion of duty chargeable thereon - Revision petion - Held that:- As the learned Magistrate has already come to the conclusion that the perusal of evidence adduced by the prosecution would show that the prosecution has succeeded in establishing a prima facie case as alleged by the prosecution in the complaint and by adopting the very correct and legal tests, the learned Magistrate has concluded that there is no doubt, that if the accused are not able to rebut the above case made out from the preliminary evidence, it would warrant their conviction for the offences under Sections 132 and 135 of the Customs Act. Of course, the contention raised by the counsel for accused Nos. 5 to 7 that no offence under Section 135 of the Customs Act is attracted is a contention to be considered at the time of appreciation of evidence and it is for the trial Magistrate to come to a conclusion, on the basis of such contention, after appreciating the evidence.
Thus the learned Magistrate is perfectly legal, correct and proper in rejecting the prayer of the revision petitioners for a discharge under Section 245 of Cr.P.C. and as such, no merit in the Crl.R.Ps. and accordingly, the same are dismissed.
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2011 (3) TMI 1284
Penalty - Confiscation - contention urged by appellant is that the maximum penalty that could be imposed under Section 13 of the Act cannot exceed Rs. 2,00,000/- and once any penalty is imposed, question of further confiscating the currency involved in contravention of Section 3(a) of the Act is not permissible in law - Held that:- It is open to the Adjudicating Authority to impose any penalty as provided under sub-Section (1) as well as directing confiscation of currency/security/money or property in respect of which the contravention has taken place - Deputy Director was not right in exercising his discretion in ordering release of the seized foreign currency. It is relevant to state that possession of the foreign currency of US $ 20,000 by the appellant was admittedly illegal; he had not traced his possession of the foreign currency to any legitimate source of acquisition - no legal infirmity in the impugned order passed by the Appellate Tribunal to warrant interference - Appeal is dismissed
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2011 (3) TMI 1279
Export rebate retained - Application for stay - Deemed credit denied - Held that:- Notification No. 6/2002-C.E. (N.T.), dated 1-3-2002 under which the credit was availed, the manufacturer of processed fabrics is entitled to avail deemed cenvat credit to the extent of 66.67% of the duty payable on finished goods - The department, however, accepted 33.33% of duty paid in cash.Therefore, benefit of deemed credit under Notification No. 6/2002-C.E. (N.T.), cannot be denied.
Extended period invoked - Held that:- The grey fabrics were received by the appellant under the cover of challans and invoices and after processing, the clearance was done on payment of duty under the cover of Central Excise invoices and ARE-1s on making necessary entries. Necessary monthly returns also seem to have been filed. The show cause notice was issued on 4-5-2007, whereas the clearance of grey fabrics were made on 30-4-2002 and 2/3-5-2002, i.e. after five years. Therefore, invoking the extended period of limitation in this case is not justified - Decided in favor of the assessee
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2011 (3) TMI 1277
Notification No. 26/2000 read with Notification No. 19/2000-Cus. (N.T.) benefit denied - Confiscation - Penalty - Classification - Held that:- It is only visual examination by the visiting officer to say that the slabs were not completely polished and no technical or trade opinion obtained by the Revenue regarding the conditions of the slabs hence denial of benefit of Notification is not sustainable - goods in question are polished marble slabs and Appellants are entitled for the benefit of Notification - In favour of assessee.
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2011 (3) TMI 1273
Refund - dept. seek to enforce the bond - Held that:- Since refund claim proceedings are pending with the Assistant Commissioner, in two rounds of litigations, the Tribunal had already set-aside the demand of excise duty against the petitioners, the refund claim should be processed expeditiously, without any further delay. As consedring the case of the petitioners that they are not aware of such bond; if any, given, the Department must point out the reason why they seek to enforce the bond- directions for Respondents to supply copy of the bonds, or such other documents; as may be available with them, with respect to such bonds, within four weeks from today upon receipt of which it would be open for the petitioners to file additional reply within four weeks thereafter.
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2011 (3) TMI 1272
Revision - rebate of duty paid on export of inputs/capital goods by reversing the amount equal to the amount of Cenvat credit taken on the said inputs/capital goods denied - Held that:- Contention of the revenue is without any merit because, firstly there is nothing on record to suggest that the amount paid on clearance of inputs/capital goods for export as duty under Rule 3(4) & 3(5) of 2002 Rules cannot be considered as payment of duty for granting rebate under the Cenvat Credit Rules. If duty is paid by reversing the credit it does not loose the character of duty and therefore if rebate is otherwise allowable, the same cannot be denied on the ground that the duty is paid by reversing the credit.
Secondly, the Central Government by its Circular No. 283/1996, dated 31st December, 1996 has held that amount paid under Rule 57F(1)(ii) of Central Excise Rules, 1944 (which is analogous to the Cenvat Credit Rules, 2002/Cenvat Credit Rules, 2004) on export of inputs/capital goods by debiting RG 23A part II would be eligible for rebate. In these circumstances denial of rebate on the ground that the duty has been paid by reversing the credit cannot be sustained.
Argument of the Revenue that identity of the exported inputs/capital goods could not be corelated with the inputs/capital goods brought in to the factory is also without any merit because, in the present case the goods were exported under ARE 1 form and the same were duly certified by the Customs Authorities. In favour of assessee.
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2011 (3) TMI 1271
Confiscation - Misdeclaration - it was submitted that Supplementary Vegetable Tanning Agents, are allowed to be imported on actual user condition and that the petitioner not being an actual user, is even otherwise not entitled to import the said goods under the DFIA Schenne - Held that:- A perusal of the Bill of Entry annexed along with the affidavit-in-reply indicates that the petitioner has described the subject goods as Beetle Nut Industrial Grade and has also indicated the Tariff Heading under which the same are classifiable - all that the petitioner has done is that it has made a claim that it is entitled to exemption of duty in respect of the goods imported by it under the DFIA Scheme on the ground that Areca Nut would stand covered under Item No. 12(c)(i) of the group G-7 of the SION - prima facie, the provisions of Section 111 of the Act would not be attracted in the facts and circumstances of the present case. Consequently, it cannot be said that there is any material on the basis of which the proper officer could form the requisite belief that the subject goods are liable to seizure under Section 110 of the Act - Decided in favor of the assessee by way of direction to deposit 50% in cash and balance by way of bank guarantee
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2011 (3) TMI 1269
Duty Demand - Petitioner produces chemical preparations for processing cinematography films - Held that:- The argument advanced on behalf of the petitioner that the impugned show cause notices have been issued contrary to the decision of the Tribunal dated 11-7-2008 as also the decision of this Court dated 24-6-2009/12-11-2009 is also totally incorrect. By order dated 11-7-2008 the Tribunal has set aside the order-in-original dated 24-4-2007 and not the order dated 31-5-2000. Show cause notices have been issued on the basis of the order in original dated 25-8-2009 and not on the basis of the order dated 31-5-2000 issued on 26-6-2000 - merely because the order dated 31-5-2000 is referred to in the impugned show cause notices, it cannot be inferred that the show cause notices are issued on the basis of the order dated 31-5-2000 - Decided against the assessee
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