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Showing 501 to 520 of 1047 Records
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2011 (1) TMI 1011
Shortages of inputs and finished goods - SCN issued alleging that the shortages occurred are due to the fact that the noticee failed to adopt the prescribed procedure in such manner, as he is required to do and also failed to offer any plausible explanation for the discrepancies noticed by the officers proposing the demand of duty and on shortages of raw material and finished goods - Demand, interest and penalties - Held that:- In the absence of proper explanation and without corroborative evidence of removal of the goods from the factory premises of the appellants, the demand is not sustainable. Moreover, the show-cause notice also alleged that the appellants are not maintaining the statutory records in the manner prescribed under the law. In that event, the clandestine removal cannot be alleged. As it is an admitted fact that the appellants are not maintaining their records as prescribed under the law, they are liable to be penalized under Rule 27 of the Central Excise Rules, 2002 confirmed to the tune of Rs.5,000/-, otherwise the appeals of the appellants are allowed as discussed here-in-above.
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2011 (1) TMI 1010
Entitlement to avail credit on capital goods without filing the declaration under Rule 57T of Central Excise Rules, 1944 - Held that:- This issue has been answered in the case of ITC Ltd., (2007 (11) TMI 188 - HIGH COURT MADRAS) in favour of the appellant wherein held that Modvat credit should not be disallowed for procedural lapses - order set aside and allow the appeal of the appellant with consequential relief.
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2011 (1) TMI 1009
Valuation - job work - Demand of duty, penalty and interest - assessee discharged the duty liability on the MRP less abatement granted as per provisions - whether a pack of three soaps having individual MRP printed on them, which are secured by a wrapper indicating that three soaps are for sale for MRP of ₹ 24/- are to be assessed accordingly or on MRP of ₹ 12/- indicated on individual pack or not/- Held that:- The case laws cited by the assessee are of no help to him as in the case of CCE, Mumbai Vs. Godrej Soaps Ltd. [2005 (11) TMI 141 - CESTAT, MUMBAI] the issue was not of multiple pack. In the case of Henkal Spic India Ltd. [2009 (11) TMI 574 - CESTAT, CHENNAI] there is a clear finding that the maximum price of individual cake was not visible at the time of clearance of the goods as the same has been deleted from the wrapper. The decision in the case of Godrej Industries Ltd., Vs. CCE, Mumbai (2005 (10) TMI 298 - CESTAT, MUMBAI) is also of no help as in that case also the wrapper of each soap in addition had a MRP clearly struck out with a declaration individual cake not intended for retail sale branded thereto and each wrapper also indicated that the scheme Buy 2, Get 1 Free followed by a pack of 3 (3x75 Gms) MRP ₹ 27/- (inclusive of all taxes).
Thus factual findings of the adjudicating authority in this case, it is find find that the assessee has failed to make out any case. Accordingly the order of adjudicating authority that the assessee has to discharge the duty @ ₹ 36/- for a pack of three soaps less admissible abatement is confirmed. As no allegation of fraud, collusion, willful mis-statement, suppression of facts or contravention of the provisions of law with an intent to evade duty are made out, no penalty is imposable in this case - appeal filed by the Revenue is partly allowed.
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2011 (1) TMI 1008
Cenvat credit - Penalty under section 11C - respondent had issued debit notes to their supplier of inputs on account of rejection of inputs against which they have availed CENVAT credit - Held that:- As the appellant have not challenged the confirmation of demand on the basis of suppression of facts. Therefore, the mandatory penalty under Section 11AC is imposable. As regards the cross-objection filed by the respondent is concerned, the same has not been filed within the time limit prescribed, therefore, the same has to be rejected as such. The Commissioner (Appeals)' order setting aside the penalty under Section 11AC is not sustainable and hence, set aside to the extent.
As regards the contention of the respondent that since they have already paid the entire amount of duty involved in the case before the issuance of the show-cause notice they are liable to pay only 25% of the duty amount as penalty in view of the judgment of the Hon'ble Delhi High Court in the case of K.P. Pouches (P) Ltd. vs. Union of India (2008 (1) TMI 296 - HIGH COURT OF DELHI) - As this judgment of the Hon'ble Delhi High Court and to give option to the respondent was not before the lower authorities case is remanded to the lower adjudicating authority for the limited extent to decide the quantum of penalty under Section 11AC.
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2011 (1) TMI 1007
Refund claim rejected - Classification - appeal of the respondent on the ground that the classification was due to an error of CHA, who classified the goods in the Bill of Entry under CTH 8414 5120 and that error could have been rectified under Section 154 - Held that:- From the records it is abundantly clear that the present case is not a case of clerical mistake. It is a claim of classification under different heading and consequently benefit of a notification. The respondent has not challenged the classification of the goods at any stage nor they have filed any appeal against the classification.
Commissioner (Appeals) has failed to appreciate that the case is covered by the judgment Priya Blue Industries Ltd. (2004 (9) TMI 105 - SUPREME COURT OF INDIA). Commissioner (Appeals) has erred in holding it as a rectifiable clerical error under Section 154. Therefore, this case is not covered under Section 154 of the Act. The Commissioner (Appeals) has not passed any order relating to the three Bills of Entry (out of the total 10 Bills of Entry) covered under Order-in-Original No. 1995/08 dated 16/12/2008 and admittedly the respondent has not challenged that aspect of the order-in-original. There the adjudicating authority's order would prevail to that extent.
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2011 (1) TMI 1006
Interest and penalty - short payment of duty on the clearance made by the respondent without following the Rule 8 of Central Excise Rules, 1944 - liability to pay interest - Held that:- Force in the contention of assessee that the provisions of Section 11AB of the Act came into force with effect from 11.5.2001. Hence, no interest for the period prior to 11.5.2001 is payable by the respondent.
The respondent is liable to pay interest for the period from 11th May 2001 to June, 2001 as per the show-cause notice. As there is no quantification of interest for the impugned period as per the impugned order, the matter is sent back to the adjudicating authority for the purpose of quantification of interest on short payment of duty paid by the respondent during the period 11th May, 2001 to June 01, after following the principle of natural justice.
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2011 (1) TMI 1005
Import of certain raw materials under six advance licences - clearance of the same duty-free under Notification No. 159/90-Cus dated 30.3. 90 - duty-free import of some of the above raw materials under Notification No. 204/92-Cus dated 19.5.1992 during the tenure of Exim Policy, 1992-97 - SCN issued stating that Glycerine imported by assessee was not liable to be exempted from payment of duty under any of the above notifications inasmuch as the input used in the export product was a different commodity, namely Sorbitol - importer availed MODVAT credit on indigenous inputs (Glycerine, Sorbitol and SLS) used in the manufacture of the export product and, therefore, the inputs subsequently imported as replenishment by them and sold in local market were not eligible for the benefit of Notification No. 204/92-Cus on account of breach of Condition No. (vi) thereof - demand of duty and also proposed to impose a penalty on the importer, apart from a proposal for confiscation of the imported goods - whether the benefit of Notification No. 159/90-Cus and No. 204/92-Cus is liable to be granted to M/s Fresh Laboratories in respect of the raw materials imported by them under the six advance licences during the material period.
Held that:- The show-cause notice has succinctly brought out the chemical, physical and other differences between Glycerine and Sorbitol. These differences were not disputed by the importer in their reply to the show-cause notice, nor even in the memorandum of appeal before us. If tinplates of thickness of 0.19 mm could be recognized as a commodity different from tinplates of 0.22 mm, in the case of Zenith Tin Works [1994 (4) TMI 183 - CEGAT, NEW DELHI] no hesitation to hold that Glycerine can come nowhere near Sorbitol in material characteristics/specifications. The contention raised by the learned counsel that, as both these materials were covered by the advance licences, duty-free import of any of them should be allowed where the other one was found to have been used in the manufacture of the resultant product, is not supported by any judicial authority and hence cannot be accepted.
In relation to Notification No. 204/92-Cus also a firm case for the Revenue. In the instant case, the importer has submitted that demand of duty on five raw materials imported by them cannot be sustained inasmuch as no MODVAT credit had been taken on the corresponding inputs used in the exported product. These are items mentioned at clauses (c) Irish Moss, (d) (SMFP), (e) Flavouring Compound, (h) Stearic Acid (i) Aromatic Chemicals, of para (ii) of the operative part of the Commissioner’s order. In the case of other raw materials imported by M/s Fresh Laboratories, the learned counsel has submitted that whatever MODVAT credit had been taken on the corresponding inputs contained in the exported final product was reversed with interest and, therefore, the benefit of Amnesty Scheme should be granted. We have not found any valid ground to accept these contentions either. First of all, the claim that no credit was availed on duty-paid inputs contained in the exported product, against which the aforesaid five materials were imported as replenishment, has not been substantiated. Secondly, the plea for Amnesty Scheme cannot be considered against breach of conditions of notifications 159/90-Cus and 204/92-Cus. Thus demand of duty raised on M/s Fresh Laboratories has to be sustained.
All the goods imported by them were admittedly covered by advance licences and none of those goods were in the prohibited category so as to attract this provision of law. Considering the fact that M/s Fresh Laboratories reversed MODVAT credit to the extent of Rs 18.8 lakhs and paid interest thereon subsequently, and also considering the inapplicability of Section 111 (d) to this case, we are of the view that the penalty of Rs 4 crores imposed on them is harsh thus be reduced to Rs 50 (fifty) lakhs. Where a penalty stands imposed on the partnership firm, there is no reason why there should be separate penalty on a partner under the same provision of law. Therefore, the penalty on Shri Bhupendra J. Shah is vacated.
The records indicate that 60 MT of Glycerine imported by M/s Fresh Laboratories were sold to Mahavir Export and Import Company, of which Mr. Yogesh Korani was the proprietor. There cannot be separate penalties on M/s Mahavir Export & Import Co and its proprietor. In the result, we set aside the penalty imposed on Mr. Yogesh Korani and reduce the quantum of penalty on M/s Mahavir Export and Import Co to Rs one lakh.
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2011 (1) TMI 1004
Demand of duty, interest and penalty - extended time of limitation invoked - Duty liability on work in progress goods at the time of final de-bonding order - assessee paid @ 16.48% instead of 34.13% as required under Section 3 (1) (b) (ii) of the Central Excise Act, 1944 - Held that:- It is the duty of the officer, who give no dues certificate to verify the contents whether any dues liability is pending against the assessee or he has correctly declared the true facts for de-bonding of unit. When the concerned officer has de-bonded the unit along with no dues certificate, allegation of suppression cannot be alleged against the respondents in this case - no infirmity with the impugned order, wherein the lower appellate authority has held ‘that facts that how the extended period under Section 11A(1) is invocable in the above circumstances, the demand raised against the respondent is time barred’. order is upheld, the appeal filed by the Revenue is rejected
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2011 (1) TMI 1003
Maintainability of appeal - warehoused goods could not be cleared within the warehousing period - applied for extension rejected by the proper officer of customs - goods auctioned - It is submitted by the ld. SDR that no order of a Chief Commissioner is appealable to this Tribunal under Sec.129 A of the Customs Act, order is an administrative order rather than quasi-judicial and hence not appealable - Held that:- It is not in dispute that the application submitted by the applicant to the Asstt. Commissioner pursuant to the Hon’ble High Court’s order could be considered only by the Chief Commissioner of Customs under the proviso to sub-section (1) of Sec.61 of the Act. Again it is not in dispute that the Chief Commissioner passed the impugned order after following the principles of natural justice. Obviously, the party subjected themselves to the jurisdiction of the Chief Commissioner question whether the Chief Commissioner’s order is appealable to this Tribunal needs to be answered in the negative - dismiss the appeal as not maintainable.
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2011 (1) TMI 1002
Application for stay - assessing authority doubted the correctness of the importer's declaration of 'prime quality' - Chartered Engineer certified the goods to be prime quality of stainless steel of hot rolled coils grade 304 and ruled out secondary or defective or non-standard material - Held that:- Considering the fact that the inspection of the goods by an approved Chartered Engineer was held as permitted by the assessing authority but no representative of the department could witness the proceedings of the Chartered Engineer, thus the Chartered Engineer should conduct a reexamination of the goods in the presence of the respondent and representatives of the department and submit a report to the assessing authority.
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2011 (1) TMI 1000
Sale of scrap of old and use capital goods - demand of duty, interest and penalty - Ld. advocate for the appellants submits that the waste and scrap cleared by them is generated from the non-modvatable capital goods procured by them - Held that:- Matter is remanded back to original authority to examine whether waste and scrap cleared by the appellants is a waste and scrap of non-modvatable goods or not. The adjudicating authority, after satisfying by the documents produced by the appellants in support of their defence, shall pass a fresh order.
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2011 (1) TMI 999
Classification - show-cause notice issued by the Range Superintendent to recover differential duty on the products manufactured by the respondent denying the exemption under Notification 52/86 - Held that:- Classification has been approved by the Asst. Commissioner on 20.1.1987 by giving benefit of exemption Notification 52/86 at concessional rate of duty. The said order was not challenged by the department and same has attained finality during impugned period. Later on, the show-cause notice issued for the same period, by the Asst. Commissioner, demanding differential duty is not sustainable in the eyes of law, order confirming the demand for the impugned period for which classification issue has been settled in favour of respondent by giving the benefit under Notification no. 52/86 at concessional rate of duty which has attained finality, is not sustainable. In favour of assessee.
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2011 (1) TMI 998
Cost of drawings and designs - whether includable in the assessable value? - quantification of the cost - Held that:- From the records it is find that it is not coming out what is the cost of drawings and designs and how much is the goods manufactured by the appellants and that the issue was not dealt by the lower authorities in detail. Therefore, the matter needs re-examination for quantification of demand for how much is the value of drawings and designs that is includable in the assessable value - matter remanded back to the original adjudicating authority.
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2011 (1) TMI 997
Cost of moulds and dies used in the manufacturing of the impugned parts - whether not amortized in the assessable value of the parts on their clearances - invoking extended period of limitation alleging suppression - Held that:- It is well settled law that the cost of moulds and dies are to be amortized in the assessable value of the goods cleared by the respondents.
As the challans and invoices on which M/s.Bajaj Auto Ltd., had supplied the moulds and dies to the respondents in free of cost on loan basis was on record during the course of audit before the audit party & when the audit party has not taken any objection for non-inclusion of the amortized cost of moulds and dies in the assessable value by the respondents, allegation of suppression does not survive as held by the lower appellate authority - It is the duty of the audit party to audit the records and to point out the discrepancies found out during the course of audit - Decided in favor of the assessee.
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2011 (1) TMI 996
Demand of differential duty and penalties - enhance the value of the goods - amount of duty was determined by the adjudicating authority by rejecting the declared value in two Bills of Entry and enhancing the value of the goods on the basis of Bank Advice - Commissioner further relied on Anil Modi's [indenting agent] statements to buttress his findings having admitted of receiving commission from ODC based on the higher price of the goods mentioned in the commission-related fax message - Dungarmal submitted that the transaction value was correctly declared by them and that no valid reason was stated by the Commissioner for rejecting the same & department should have given cogent reasons for rejection of the declared value - Held that:- Xerox copies of the alphabetically marked invoices were purported to have been issued by ODC as invoices covering a certain quantity of CRGO material sold to Dungarmal, it has not been established by the Revenue that the document was issued by ODC to Dungarmal as a supplementary invoice in respect of the goods already supplied under an original invoice. In fact, even the source of these alphabetically marked invoices was not disclosed to the appellants. Thus the Revenue could not produce the originals of these documents either. In the circumstances, the contention raised by assessee had to be accepted that the presumption under Sec.139 of the Customs Act is not available in respect of the xerox copies of what appeared to be alphabetically marked invoices issued by ODC to Dungarmal .
In any case, Dungarmal did not admit having received such invoices, nor did they admit that payment of any amount mentioned in any of such invoices was made to ODC either through banking channels or otherwise. The statements of Anil Modi, who was apparently confronted with these documents, would not be of any avail to the Revenue inasmuch as, undisputedly, the documents were not retrieved from his premises and also did not mention his name as indenting agent. Whatever was stated by Anil Modi in relation to the alphabetically marked documents will be of no relevance. For all these reasons, unable to accept the said alphabetically marked documents as evidence of undervaluation of goods by those who filed the relevant Bills of Entry. In the result, the value declared in the relevant Bills of Entry will have to be accepted, particularly in the absence of proof of contemporary imports of identical/similar goods at higher value.
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2011 (1) TMI 995
Assessable value - whether the freight charged by assessee from their buyers in respect of goods sold to the latter during the period from October 2001 to July 2002 is liable to be included in the assessable value of the said goods? - Held that:- The cost of transportation was shown in the invoices issued to the buyers and the same was recovered from them. Further, the duty was paid on the excess freight collected from buyers, which would mean that what was sought to be excluded from the assessable value was the freight shown separately in the invoices issued to the buyers to the extent actually incurred. Such deduction was allowed by this Tribunal in the assessee's own case and that decision stands accepted.
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2011 (1) TMI 994
Condonation of delay - Period of limitation - Held that:- From the records, it is clear that the appellants had filed the appeal before the Commissioner (Appeals) with a delay of 23 days i.e. well within the period of 90 days of the impugned order. In that view, the delay in filing the appeal before the Commissioner (Appeals) condoned and in the interest of justice, the matter is sent back to the lower appellate authority to pass an appropriate order on merits after hearing the appellants by giving them a reasonable opportunity to defend their case. As the appellants have already paid the duty and interest involved in this case, the waiver of penalty is granted.
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2011 (1) TMI 993
Stay application - waiver of pre-deposit - appellants have opted for provisional assessments - without hearing the appellants, the final assessments were made holding that the appellants have failed to produce the duly certified certificate of their assessable value by the Chartered Accountant - appeal was rejected holding that the appellants have failed to comply with the condition of Section 35F of the Central Excise Act, 1944 - Held that:- No notice was given to the appellants to produce the required documents to finalize the assessments and it is alleged that the appellants have failed to produce the Chartered Accountant's certificate, which has no merits, order set aside and matter remanded back to the original adjudicating authority to re-adjudicate the case after giving a reasonable opportunity to the appellants to produce the required documents, appeal is allowed by way of remand.
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2011 (1) TMI 992
Undervaluation of processed fabrics by suppressing the actual value of the grey fabrics with intention to reduce the assessable value of the fabrics processed and finished, thereby evading duty - Duty demand, interest and penalty of equivalent amount - Held that:- In the case of Lajya Dyeing & Bleaching Works (2008 (2) TMI 41 - SUPREME COURT) held that for the misdeclaration of the merchant manufacturers extended period is not invocable in the absence of allegation or finding that assessee job worker knew or deliberately failed to declare the correct cost of grey fabrics and there is no legal requirement for the processors to verify the correctness of the declaration furnished by the owners, in the absence of evidence showing misdeclaration of value by the respondent processor in connivance with the supplier, the job worker/processor cannot be saddled with the demand on the ground that the value declared by them was low. The ratio of these judgements squarely apply to the facts of the present case, order of the lower appellate authority set aside and allow the appeal of assessee.
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2011 (1) TMI 991
Clubbing of factory - SCN issued alleging that the units I & II of Malu Paper Mills Ltd., should be treated as one manufacturing unit and clearances of paper of both the units should be taken into consideration for calculating the total quantity exemption of 3500 MT under Notification No.3/2001 and demanding Central Excise duty and also proposing to impose penalty and also demanding interest on the duty payable - Held that:- As decided in Rollatainers Ltd. [2004 (7) TMI 92 - SUPREME COURT OF INDIA] two factories in the same premises owned by the same owner with common balance sheet would be eligible for exemption under Notification No.6/2000-CE separately as they are registered separately with the Central Excise department. The said exemption which was the predecessor to notification No.3/2001 pertained to paper and paper board if the aggregate clearance from a factory in a financial year did not exceed 3500 MT, which is also the position in the case before us. Also see Amaravathi S V Paper Mills Ltd. [2010 (7) TMI 172 - SUPREME COURT].
Thus Unit No.I & II of Malu Paper Mills Ltd., are separate factories and each one of them is entitled for separate exemption under Notification No.3/2001-CE dated 01/03/2001. In favour of assessee.
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