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Case Laws
Showing 501 to 520 of 686 Records
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2009 (6) TMI 315
Eligibility for exemption on the physician samples under Notification No. 48/77-C.E., dated 1-4-1977 – revenue contend that there is no difference between trade packing and physician samples and therefore, as per 3rd proviso to Notification No. 48/77-C.E the respondents are not eligible for the benefit of Notification No. 48/77-C.E., dated 1-4-77 It appears that no enquiry was made at this regard that the clinical samples of their product were cleared without payment of duty. - We do not find any material or statement that packing of physician samples and trade packing were same. There is no dispute that the packing of the physician samples were mentioned “Physician samples, not to be sold”. We find the Commissioner after examining the evidences observed that the samples are distinctly different, dropped the proceeding. - We do not find any infirmity in the order of the Commissioner. Accordingly, the appeal filed by Revenue is rejected.
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2009 (6) TMI 314
Application for rectification of mistake in regard to confirmation of the interest amount - common inputs used in dutiable and exempted goods – demand of 8% and interest confirmed – interest on amount of 8% paid belatedly - Appellants states that by mistake, it was not argued on behalf of the Appellants at the time of hearing of the case leading to passing of the impugned Order that the Appellants had sufficient credit balance in their account and therefore, they had not utilized the credit and that in such a case no interest was payable - I find that the it is a fact that the Appellants had sufficient credit balance in their CENVAT Credit records at all points of time by taking the balance in the RG-23A and RG-23C Accounts altogether besides, I find that Rule 6 of the CENVAT Credit Rules clarified that the amount of 8% required to be paid by debit in Cenvat credit - I am of the view that no interest is payable in the present case. Accordingly, the impugned Order of the Tribunal is modified – application is allowed
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2009 (6) TMI 313
Appellant is a 100% E.O.U. and manufacture yarn and clear them mainly for export and the quantity permitted by the Development Commissioner into DTA - There is no dispute before us that the clearances made by the appellants is beyond the limit prescribed by the Development Commissioner. - the appellant have chosen to supply to special category of buyers covered under Rule 19(2) of the Central Excise Rules, 2002. We agree with the submission of the learned Advocate that Rule 19 does not exclude the clearances from 100% E.O.U. from its purview. The decisions of the Tribunal in the case of Kurt-O-John Shoe Components (I) Ltd. reported in 2003 (154) E.L.T. 651 (Tri.-Del.) and in the case of Paras Fab International v. CCE, Jaipur, reported in 2003 (153) E.L.T. 549 (Tri.-Del.) support the contention of the learned Advocate. – It cannot be said that appellant cannot avail the benefit under Rule 19(2) of the Central Excise Rules
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2009 (6) TMI 312
The credit has been denied to the appellant on the item 'Belt-Yule Cord Conveyor Belting Cord' installed and used in the conveyor belt machinery. Credit has been denied on the ground that the capital goods have not been used in the factory premises of the appellant. - We find that the conveyor belt is used for moving raw material from jetty to storage point and in this case, it has been submitted by the learned advocate that it is a captive jetty and it has been integrated within the factory - , the appellants are eligible for the credit.
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2009 (6) TMI 308
Error apparent on face of record - ROM application - it is the appellant’s contention that while passing the order, Tribunal did not deal with the issue of confiscation while dealing with issue of valuation and penalty - we find no justification for confiscation of the land & building, plant & machinery – The same is set aside – Mistake is rectified – Application for rectification of mistake is allowed
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2009 (6) TMI 303
Imposition of redemption fine and penalty - As the goods were admittedly not available for confiscation when the impugned order was passed, the redemption fine has to be vacated inasmuch as it is not the Revenue’s case that the goods were provisionally released to the importer against execution of bond or other undertaking - remaining question pertains to the penalty imposed on the appellant under Section 112(a) of the Customs Act, 1962 for import on forged licence – there is no finding of forgery or abetment thereof against importer - Having perused the statements of witnesses recorded by the investigators, it is not revealed that importer having conceded knowledge of any fraud committed by the original licensee - appellants consistently pleaded ignorance of the forged nature of the licence used by them for import of the goods in question – held that in a case where the transferee of forged licence has pleaded ignorance of the forgery, the burden of proof would shift to the department. - . Today I am told that the original licence is not available and that no ‘bulletin’ was ever received by the department from the DGFT – bulletins with details of licenses supposed to be sent fortnightly by DGFT not received by Customs for years together – Limited verification done based on sepceimen signature of licensing authority – held that this was woefully inadequate - held that there can be no penalty on the appellants. - In the result, these appeals are allowed.
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2009 (6) TMI 302
Whether the freight and transit insurance charges form part of the assessable value or not - The Circular No. 251/85/96-CX, dated 14-10-1996 placed before us does not indicate that the place of removal is buyer’s place. The Circular only indicates that if the seller or manufacturer are having different places for removal of the goods for sale, these different places are to be considered as place of removal. - The Officer, who authorised to file this appeal before tribunal, herself has given the findings that the place of removal is the factory gate in the Order-in-Original in the case of the respondents themselves. Therefore, there remains nothing for tribunal to decide - In view of the above, we hold that in the facts and circumstances of the case, the place of removal is the factory gate of the respondents and the freight and transit insurance will not form part of the assessable value. Accordingly, the appeal of the Revenue is devoid of any merit and is rejected.
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2009 (6) TMI 300
The appellant is a manufacturer of anhydrous Dextrose. The two contending entries for classification of the same are sub-heading 17.02 as claimed by the appellant and sub-heading 2942.00 as held by the lower authorities. - Support can be drawn from HSN Explanatory Note where the Dextrose stand mentioned under Glucose as chemically pure Glucose. - Chapter Note 1(b) of the Chapter states that Chapter does not cover chemically pure sugar, other than glucose - It is an exclusion from exclusion clause - However, Glucose is further excluded from the purview and definition of chemically pure sugar which is covered under Chapter 29 - It leads us to only one inevitable conclusion that while excluding chemically pure sugar from the coverage of Chapter 17, Glucose is not excluded. - The Dextrose being nothing more than chemically pure glucose, falls within the ambit of Heading 17.02. - The impugned order holding classification of the Dextrose as under 29.42 is set aside. Appeal is allowed accordingly
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2009 (6) TMI 299
Packaged drinking water - Revenue states that the respondents are indicating on the label of the sample, which has been produced before us, that the packaged drinking water is marketed by Mother Dairy, Calcutta. Therefore, the impugned goods have to be considered as branded goods bearing the brand name of Mother Dairy, Calcutta. Consequently, according to department, the impugned goods should be classified under Sub-Heading 2201.19. - Nowhere on the label, the logo of Mother Dairy is printed nor anywhere there is indication that the product of Mother Dairy is being manufactured by the respondents under franchise from Mother Dairy or otherwise. - Lower appellate authority has come to the finding that the respondents, who manufacture packaged drinking water, did not use the brand name of ‘Mother Dairy’ and therefore, their product is classifiable under Sub-Heading 2201.11 attracting nil rate of duty. - The lower appellate authority’s order requires no interference. The Department’s appeal is rejected.
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2009 (6) TMI 294
Credit was disallowed on the ground that duty paying document does not contain the name of the impugned product and the credit was availed on the strength of extra copy or on the original copy of the invoice. In some cases, credit was disallowed as the appellant failed to produce any duty paying document - As per the Central Excise Rules, the duplicate copy of invoice is the valid duty paying document - credit availed on other than the duplicate copy of invoice that too without seeking department’s permission is not available to the appellant - In another case where duty paying document does not contain the name of input, in these cases also the credit is not available as there is no way to verify which input has been received in the factory – Appeal dismissed
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2009 (6) TMI 280
Appellants could not produce proof of re-warehousing - Appellant had cleared various petroleum products under Rule 173N of CER, 1944 to different warehouses – as per rule the duplicate copy of AR3A (Application for removal) is not produced with endorsement of re-warehousing of the goods cleared – whether absence of entry number in AR3A form submitted by the appellant, is a substantive requirement or not - we are unable to accept the submission of the appellant that entry number is not at all a substantive requirement and without entry number the AR3A submitted by them should have been accepted - We find that this is a very fair offer and the appellants should be given another opportunity to submit details of entry number against which the goods were received in respect of consignment in dispute or produce collateral evidence to show that the quantities shown to have been received as per re-warehousing certificate have actually been received - For this purpose, we remand the matter to the original adjudicating authority – Since goods are dispatched to re-warehousing all over the country not only belonging to the IOCL but also other oil marketing companies, we find that the penalty need not be imposed on the appellant.
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2009 (6) TMI 276
Classification of Calcium Gluconate - Appellant’s claim classification of the product under CETH 3003.30 as medicaments whereas the Commissioner in the Order-in-Original has confirmed the classification of the product under CETH 2918.00 as organic chemical. – Held that Calcium gluconate IP manufactured by the appellants is clearly classifiable under CETH 2918.00 - As regards penalty we agree that the Commissioner has gone beyond the remand order and the appellants could not be visited with demand for extended period and penalty when the department has not even appealed against the Order-in-Original limiting the demand to the period of limitation and not imposing any penalty. Therefore, we set aside the penalty imposed on the appellants and also demand for extended period. - The learned advocate’s contention that the decision of the Tribunal in Shanpur Industries was rendered ex parte and therefore is not relevant is clearly not correct. – Absence of assessee may indicate their realization that Revenue’s case is correct – such decision can be relied on especially if statements of assessee recorded earlier are on record
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2009 (6) TMI 275
Contemporaneous import – valuation - Importer made a contract with manufacturer for supply of goods for a period of six months - Revenue has not advanced any evidence to show that the contract price was not correct. They have also not effectively rebutted the reasoning of the Commissioner (Appeals) as regards the effect of fluctuating market, which stands dealt in by Tribunal in the case of Finolex v. CCE, Pune The product in question being petroleum based product, the price of which swing in the international market along with swing in the petroleum price. The appellate authority has taken into account the evidence showing fluctuations in the international market of the goods in question. - We do not find any infirmity in the order passed by the Commissioner (Appeals). Accordingly, the appeal filed by the Revenue is rejected.
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2009 (6) TMI 274
The appellants were manufacturing Polyester Texturised Yarn (PTY) by utilizing the raw materials supplied on job work basis and for this purpose, they were availing benefit of Cenvat Credit under Cenvat Credit Rules, 2002/2004 (hereinafter referred to as CCR). In the impugned order, it has been held that Notification No. 214/86-C.E., dated 25-3-1986 had excluded the filament yarn from the purview of the said Notification. - There is no dispute that the raw materials were sent under challan and finished products were returned to the principal. There is also no dispute that the principal had paid duty on the finished product. In these circumstances, the requirement of provisions of Rule 4(5)(a) of CCR have not been fulfilled - Tribunal in case of CCE, Vapi v. Sunflag Filaments Ltd. clearly observed that in the absence of amendment of Rule 4(5)(a) of CCR, which excluded PTY from following the procedure, the assessee cannot be prevented from availing this facility and, therefore, the clearance cannot be held as irregular. – Hence no duty payable, confiscation and penalty set aside
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2009 (6) TMI 273
Claim for refund of redemption fine and penalty rejected on the ground of unjust enrichment - As held by the apex court in Sahakari Khand Udyog Mandal Ltd. v. Commissioner of Central Excise & Customs, the doctrine of unjust enrichment is based on equity and, therefore, irrespective of applicability of Section 27 of the Customs Act, the doctrine could be invoked to deny refund to a person who is otherwise entitled. - regards claims for refund of amounts not representing duty, the above doctrine remains operative in common law based on equity. It is therefore applicable to a claim for refund of fine or penalty – held that doctrine of unjust enrichment is applicable – burden is on department to show that incidence of duty is passed - in my considered view, the doctrine of unjust enrichment based on equity would work in the reverse direction vis-à-vis the doctrine as embodied in Section 11B of the Central Excise Act, Section 27 of the Customs Act and similar statutory provisions. - Fine and penalty stand on a different footing. Both are penal in nature. The law does not permit transfer of penal liability by a person who has been found to have committed an offence, to another person who has not. In other words, a penal liability is not transferable. Neither the Customs Act nor the Central Excise Act provides for recovery of fine or penalty by a person from any other person.
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2009 (6) TMI 272
Revenue is against the order of the Commissioner (Appeals) holding that the respondent (assessee) is not liable to pay anti-dumping duty on Poly Vinyl Chloride (PVC) imported from the People’s Republic of China and cleared under Bill of Entry dated 23-1-2008. - Notification No. 11/08-Cus. dated 23-1-2008 imposing anti-dumping duty on Poly Vinyl Chloride (PVC) - There is no evidence, in this case, of any advance Bill of Entry having been filed by the importer and, therefore, there is no question of the proviso to sub-section (1) of Section 15 of the Customs Act being applied. What is applicable is Section 15(l)(a) of the Act, according to which the rate of duty and tariff valuation shall be the rate and valuation in force on the date on which the Bill of Entry was presented under Section 46 of the Customs Act. The Bill of Entry in this case was presented, admittedly, on 23-1-2008 and, therefore, Notification No. 11/2008-Cus. dated 23-1-2008 cannot be kept out of reckoning on the ground mentioned by the lower appellate authority. - In the result, the order of the Commissioner (Appeals) is set aside and this appeal and cross-objection are allowed by way of remand
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2009 (6) TMI 271
Quantum of penalty and confiscation - Central Excise officers visited the respondents’ factory premises and found one parallel challan book. It was also found that challans were issued for clearance of the goods without payment of duty - Thus, it is a case of clandestine removal of goods. - Hon’ble Delhi High Court in the case of K.P. Pouches (P) Ltd. v. UOI and Anrs. – [2008 - TMI - 30328 - HIGH COURT OF DELHI] held that in terms of 1st proviso to Section 11AC where entire duty is paid before issuance of show cause notice, the adjudicating authority should specifically give an option to the party to pay 25% of the duty as penalty within 30 days. In the present case, it is clearly evident that the goods are cleared clandestinely and, therefore, penalty under Section 11AC of the Act is warranted. It is noted that the respondents have already deposited the duty along with penalty of 25% of duty amount as penalty. In view of the decision of the Hon’ble Delhi High Court in the case of K.P. Pouches (P) Ltd. penalty of 25% of duty is warranted. – Raw materials confiscated under rule 25 of Central Excise Rules, 2002 - Regarding confiscation of the raw material the learned Advocate submits that they have not availed any benefit on the seized raw material - We agree with the learned Advocate that Rule 25, under which the semi-finished processed goods has been confiscated is applicable only to finished excisable goods. As such, Hence, Commissioner (Appeals) rightly set aside confiscation of goods.
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2009 (6) TMI 270
Allegation that the assessees were manufacturing sugar syrup at the intermediate stage and were consuming the same captively without payment of duty in the manufacture of exempted final product. – Ground plan approved by department showing location of machinery for manufacture of sugar syrup and acknowledged modvat declaration showing it as inputs - it can be concluded that the department was having full knowledge about the preparation of Sugar Syrup by the appellant at the intermediate stage and no charge of suppression can be alleged against the appellants. - it cannot be said that the assessees had suppressed anything from the department so as to make the extended period of limitation available to the department. - In the cross-objection filed by respondents, no relief is sought for as the impugned order is entirely in their favour. The cross-objection is, therefore, to be treated as comments on and reply to the Revenue’s appeal and is, accordingly, dismissed.
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2009 (6) TMI 268
This application is for condonation of delay of 1042 days in filing the appeal. - when the impugned order was sent by speed post or it was pasted at the main gate of the appellant’s factory under panchnama, the factory premises were under the full control of the appellant only. If their own security personnel failed to inform the Managing Director or if they fail to receive or refuse to accept the same or inform the Managing Director, when the order was brought by postman or pasted at the main gate under panchnama, the appellants cannot blame anybody else but themselves for the failure. We find that the appellants have not been able to make out a case for condonation of delay and have not shown sufficient cause for the delay which has occurred in filing the appeal. - COD Application has been rejected
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2009 (6) TMI 261
Grievance of the petitioner is that his application for stay was dismissed ex parte. It appears that by order dated 17th December, 2008, petitioners were directed to deposit entire amount of penalty. By order dated 31st March, 2009, the order was varied by adjusting the amount already adjusted against the amount of penalty. – Held that Tribunal really cannot be faulted for having proceeded ex parte in absence of lawyer who has filed his vakalatnama. However, in order to enable the petitioner to prosecute the appeal, order passed to make some deposits - On such deposit, the appeal to be heard on merits.
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