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Case Laws
Showing 161 to 180 of 630 Records
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2000 (8) TMI 818 - CEGAT, KOLKATA
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... ... ..... his impugned order observed that as further details regarding importation could not be collected from M/s. D.G. Electronics, it was assumed that the aforesaid consignment of lsquo Tussah Silk rsquo was imported by some fictitious firm with obvious intention of clearing the same manipulating advance licence. However, we find that there is no evidence on record to link the appellants with the imported materials. As such, we agree with the learned Advocate that penalty could not be imposed upon the appellant on the basis of assumption. Accordingly, we observe that appellants have a good prima facie case in their favour and allow stay petition unconditionally. 5. emsp As nothing more is to be argued from either side, we take up the appeal with the consent of both sides. In view of what has been stated in the preceeding paragraph, we set aside the impugned order insofar as the same relates to the imposition of penalty upon the appellants M/s. D.G. Electronics and allow the appeal.
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2000 (8) TMI 817 - CEGAT, KOLKATA
Valuation (Customs) - Rate of Exchange ... ... ... ... ..... r - ldquo (b) Service charges payable to MSTC 2.5 of the value of goods as per (a) above. rdquo However, we find that the appellants have nowhere contended that the factum of payment of Service Charges was endorsed on the bill of entry. The Tribunal in the case of Godavari Fertilizers and Chemicals Ltd. v. C.C., Visakhapatnam reported in 1996 (81) E.L.T. 535 (Tribunal) has observed that in the absence of endorsement on the bill of entry, the allegations of misstatement and suppression are proved. As admittedly, the said factum was not endorsed on the bill of entry, following the ratio of the Tribunal rsquo s decision in the case of Godavari Fertilizers (supra), we hold the demands not to be hit by limitation. 11. emsp However, we find that in the facts and circumstances of the case, penalties imposed upon the appellants are required to be reduced. Accordingly, we order 50 reduction in penalties imposed in each and every appeal. The appeals are disposed of in the above manner.
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2000 (8) TMI 816 - CEGAT, CHENNAI
Reference to High Court - Confiscation and penalty ... ... ... ... ..... the Tribunal in terms of Section 130(b) of the Customs Act, 1962 - ldquo 1. emsp Whether the order of the Tribunal holding that the word lsquo Sussie rsquo does not refer to gold biscuits under the brand name lsquo Credit Sussie rsquo is, correct in law, in the light of the petitioner rsquo s claim that it had shown that the gold that was seized was minted in Switzerland and the minting of gold therein was by lsquo Credit Sussie rsquo ? 2. emsp Whether the Tribunal has erred in directing confiscation of silver ingots on the sole ground that there is difference in weight, when the difference is relatively small being about 3 Kgs. while the total quantity of the silver seized 234.904.Kgs.? rdquo 12. emsp In terms of the above order of the Hon rsquo ble High Court, this reference application is made to enable the Hon rsquo ble High Court to answer the same. Registry to file the paper book to the Hon rsquo ble High Court to answer the question sought by them. Ordered accordingly.
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2000 (8) TMI 815 - CEGAT, KOLKATA
Valuation - Invoice price whether FOB or CIF - Evidence ... ... ... ... ..... ial invoice showing the value as CIF is not correct. As such, commercial invoice read with the contract showing total value as CIF, we agree with the appellant that the value of the goods paid by him to the foreign supplier was CIF. 5. emsp We also note that Commissioner in his impugned order has referred to some clarification form the foreign supplier but has rejected the same as afterthought. Though the said clarification has not been placed before us, we do not appreciate the Commissioner rsquo s observation that the clarification was an afterthought. As the clarification has necessarily to come from foreign supplier, either when there has been a mistaken or some dispute has arisen at the time of importation of the goods. As such, clarification from the foreign supplier cannot be treated as an afterthought and be rejected on this simple ground. 6. emsp In view of the foregoing, we set aside the impugned order and allow the appeal with consequential relief to the appellant.
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2000 (8) TMI 810 - CEGAT, KOLKATA
Refund - Modvat - Removal of input ... ... ... ... ..... Rule 57F(2) permits the same, and there cannot be cause for denial of Refund of Modvat credit if eligible otherwise under Rule 57F(3). (b) The finding of the removals to be permissible only under Rule 57F(1) i.e. lsquo inputs as inputs rsquo , as arrived at by the lower authorities, also is not correct, since it is for the assessees to opt for the route of Rule 57F(1) or Rule 57F(2) when both routes are available no insistance on Rule 57F(1) removal is called for. (c) We find that refund of the credit in the Books of the appellants would be eligible under Rule 57F(3), if the conditions prescribed therein and the Notification are satisfied. There is no finding on this aspect in the orders of the lower authorities. Therefore the order is set aside with direction that the clerance of the subject inputs is covered under Rule 57(2) and the Refund claims be examined and dealt with reference to Rule 57F(3). The appeal is allowed for consideration of the refund claim in above terms.
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2000 (8) TMI 809 - CEGAT, KOLKATA
Demand for Modvat - Limitation - Penalty ... ... ... ... ..... d Appellants Company under Rule 173Q of the Central Excise Rules, 1944. No doubt the Rule 173Q provides for the levy of penalty for contravention by a Registered person availing Modvat. However, the rules do not provide for imposition of penalty if the credit has been availed correctly on duty paying documents/permissible documents and an account of the receipt and disposal has been tendered. There is no finding that this has not been complied with, except that ldquo consolidated RG 23A entries were being maintained rdquo . We have not been able to find any provisions in the rules to prohibit the maintenance of such consolidated entries. Therefore, no cause for imposition of penalty under Rule 173Q arise. In any case there is no mens rea the demands are time barred by limitation as per our findings and not maintainable on merits. Therefore, there is no question of imposition of penalty. 3. emsp In view of our findings the impugned order is set aside and the appeal is allowed.
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2000 (8) TMI 806 - CEGAT, KOLKATA
Valuation - Redemption fine and penalty ... ... ... ... ..... n value. We, therefore, agree with the learned Consultant on this count. 4.1. emsp We find that the impugned goods were confiscated on the grounds of undervaluation and failure on the part of the appellant to produce import licence. The appellant concedes contravention of the import policy but seriously contended the charge of undervaluation. We find that the method of valuation adopted by the Revenue is improper. As such, impugned goods are liable to confiscation only on the ground of non-production of import licence. We are, therefore, of the view that imposition of redemption fine of Rs. 5,87,000/- is excessive. Accordingly, we reduce the redemption fine to Rs. 1,50,000/- (rupees one lakh fifty thousand only). Consequently, having regard to the facts and circumstances of the case, we also reduce the penalty from Rs. 47,000/- to Rs. 10,000/- (rupees ten thousand only). The appeal is thus disposed of in the above in the above terms, with consequential relief to the appellant
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2000 (8) TMI 804 - CEGAT, CHENNAI
Media - Culture media - Muller and Miller media - Excisability - Marketability ... ... ... ... ..... d that the product although covered by tariff item is not exigible to duty, unless marketable. Therefore, establishment of marketability is sine qua non before it could be decided. Mere specification in the tariff would not call for visiting of the Central Excise levy. The revenue has to establish marketability without any iota of doubt. Establishment of marketability based on similar product will not render Miller and Muller media to be excisable. What is required is article rsquo s technical and commercial evidences to be brought on record. (c) emsp Appellants have contested the question of time bar and valuation. Since we are inclined to set aside the order and direct re-determination of the marketability based on technical and commercial evidence to be brought on record, we refrain from giving a finding on the issue and leave the matter open to be agitated before the lower authority. 5. emsp In view of the above, the appeal is allowed as remanded for de novo adjudication.
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2000 (8) TMI 777 - CEGAT, NEW DELHI
Demand - Limitation ... ... ... ... ..... demand of duty, in the appellants rsquo case, is not justifiable. Learned Judicial Member rsquo s decision on the point is also concurred with. 29. emsp In respect of the issues touching Arnica Hair Shampoo, there is no difference of opinion between learned Member (Judicial) and learned Vice-President. 30. emsp The point of difference referred to me stands answered as follows - The appeals are to be allowed insofar as lsquo Arnica Hair Oil rsquo is concerned and the disputes relating to lsquo Arnica Shampoo rsquo require to be remanded to the lower authority for the purpose stated by the regular Bench. Registry shall take appropriate steps to formalise the final order in the appeal. Sd/- (P.G. Chacko) Member (J) MAJORITY ORDER 31. emsp The majority order is that appeals are to be allowed in so far as Arnica Hair oil is concerned and the dispute relating to Arnica Shampoo requires to be remanded to the lower authority. Sd/- (S.S. Kang) Member (J) Sd/- (G.R. Sharma) Member (J)
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2000 (8) TMI 769 - CEGAT, KOLKATA
SSI Exemption - Clubbing of clearances - Clubbing of clearances ... ... ... ... ..... the trading company. We find that the appellants as also the trading company have been held to be using the brand name - ldquo Monalisa rdquo . As such, it is important to find out who was the actual owner of the said brand name for which the onus lies upon the Revenue. 13. emsp As we have already observed that the objections raised by the appellants as regards the statement, needs to be re-examined after taking the expert rsquo s opinion and the factum of the appellants rsquo claim of having applied for registration of the said brand-name in their name needs to be looked into and whether the said brand-name has been registered in their name or not is required to be gone into, we are of the view that the matter needs to go back to the original adjudicating authority for de-novo decision in the light of the observations made by us as above. 14. emsp As such, after allowing the Stay Petition unconditionally, we set aside the impugned order and allow the appeal by way of remand.
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2000 (8) TMI 768 - CEGAT, CHENNAI
Modvat - Capital goods ... ... ... ... ..... aining the proper environment in the factory for producing pharmaceutical products are required to be treated as eligible capital goods. He submits that this control panel is essential for maintaining the proper temperature for the manufacture of watches in the factory and these judgments directly apply to the facts of the present case. 4. emsp On consideration of the submissions made, I notice that in the noted judgments the Tribunal has gone into the facts in detail and held that Air Conditioning Plant is essential to maintain the required temperature for manufacture of watches and parts and as such the said item is required to be treated as capital goods. In the present case, the item is copper cable (copper conductor) which is used in the Air Conditioning plant which has been held to be essential for the manufacture of watches. The cited judgments clearly apply to the facts of the present case. The impugned order is therefore, confirmed and the Revenue appeal is rejected.
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2000 (8) TMI 767 - CEGAT, CHENNAI
Modvat on capital goods - Duty paying document ... ... ... ... ..... bmission and perusal of the order, there is no allegation in the show cause notice or in the Order-in-Original that the first invoice was destroyed. The only allegation was the change of invoice was not permissible without the permission from the department and the initial invoice supplied showed the Unit-I, Salem which cannot be replaced by another invoice without the department rsquo s permission. The Commissioner has noted that there is no supply of two items and the same item has been supplied. The same items rsquo invoice was corrected by proper authentication from the manufacturer. Such pre authentication and correction of invoice have been held to be curable defects as held in the case of Ramgarh Chini Mills Ltd. supra. The grounds raised in the appeal are not in the nature of serious infirmity in the grant of Modvat credit. Therefore, there is no infirmity in the order and the findings are legal and proper and hence the Revenue appeal is rejected. Ordered accordingly.
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2000 (8) TMI 766 - CEGAT, CHENNAI
Departmental clarifications - Modvat ... ... ... ... ..... binding on the authorities and any amendment or direction given in the Board rsquo s circular pertaining to a procedure always has retrospective effect. Therefore, points raised in the appeal that the destination shown in invoice that of registered office and not in the name of factory should be a ground for rejecting the Modvat credit has already been overruled by Board itself as regd. office and factory belong to same assessee and therefore there cannot be serious objection in taking Modvat credit. It is also pointed out by ld. Consultant that invoices also indicate assessee rsquo s factory address and the contention of Revenue that the factory address has not been shown in the invoice is also not correct. On verification, the submission is found to be verified and correct. It is also not the case of Revenue that imported items have not reached the factory and same has not been utilised. Therefore, grounds taken are not valid for consideration and hence appeal is rejected.
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2000 (8) TMI 765 - CEGAT, MUMBAI
Appellate Order - Refund - Provisional assessment ... ... ... ... ..... the amount of incidence of excise duty has been passed on to the consumer before the amount can be directed to be credited to the Consumer Welfare Fund. 11. emsp In the result, we allow the appeal with consequential benefits to the appellants. 12. emsp Assent per Gowri Shankar, Member (J) . - I agree with the reasoning and the conclusion expressed in paragraph 9 of the preceding order that the amount due as refund should be paid to the appellant instead of being credited to the Consumer Welfare Funds. 13. emsp I am however not able to persuade myself to agree with the view expressed in paragraph 10 of the order. But I do not propose to indicate the reasons for my disagreement. Once it is held that the refund arose consequent upon the finalisation of the provisional assessment, it is not necessary to consider what the situation would be if sub-section (2) of section 11B of the Act were to apply. The appeal can be disposed of without entering that area. 14. emsp Appeal allowed.
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2000 (8) TMI 764 - CEGAT, KOLKATA
Import - Art silk fabrics - Velvet fabrics, used in upholstery ... ... ... ... ..... e intended to be used as Upholster and certified by the importers as intended for use as outer covering in the manufacture of upholstered furniture. It is also seen from the evidences produced by the appellants that Velvet Fabrics find their uses not only for garments but also for upholstering. As such, in our view, the excess quantity of fabrics can be allowed clearance on payment of duty and on the importer rsquo s giving an undertaking to the effect that the same are intended for use as outer covering in the manufacture of upholstered furniture. As a result, we set aside the confiscation of the 72 cartons imported by the appellants against Advance Licences unconditionally, and the confiscation of the balance 88 cartons, subject to the appellants rsquo giving a certificate to the above effect, and allow their clearance on payment of duty. In view of the foregoing, we do not find any justification for imposition of personal penalty upon the appellants and set aside the same.
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2000 (8) TMI 763 - CEGAT, NEW DELHI
SSI Exemption - Clubbing of clearances - Penalty ... ... ... ... ..... /s. Kinotone and worked out the duty payable by M/s. Kinotone after denying the benefit of small scale exemption. We, therefore, uphold the duty demand and penalty on M/s. Kinotone. 4. emsp As regards penalty on M/s. Cine Lamp, the Collector has relied upon the statement of Manager of M/s. Patel Roadways, Bhiwandi that consignment of Cinema projector equipment used to be booked through his transport company by M/s. Cine Lamp and M/s. Kinotone. The evidence on record clearly establishes that M/s. Cine Lamp was concerned in acquiring possession or transporting, removing...... or purchasing excisable goods in question which they knew or had reason to believe are liable to confiscation and M/s. Cine Lamp has not specifically denied this fact. Therefore, we agree with the Collector that the ingredients of Rule 209A are attracted against M/s. Cine Lamp. We, therefore, uphold the penalty imposed upon M/s. Cine Lamp. In the result, we uphold the impugned order and reject the appeals.
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2000 (8) TMI 762 - CEGAT, KOLKATA
Smuggling - Gold - Purity - Natural justice - Cross-examination ... ... ... ... ..... the Customs Officers to conduct a probe to elicit truth and to test the veracity of such a statement. In the instant case, no such attempt was made. Brushing aside the claim of the appellant as an afterthought without any justification constitutes a serious infirmity specially when the customers had filed their affidavits in support of the said claim. Another serious infirmity is denial of the opportunity to cross-examine the withnesses etc. The reasoning given by the adjudicating authority for such a denial of the opportunity is not at all convincing inasmuch as the appellant had been contesting the purity as well as the smuggled nature of the impugned gold. In such a situation, denial of cross-examination puts the appellant in a disadvantageous position in violation of the principles of natural justice. 6. emsp In view of the foregoing discussion, I set aside the order impugned with consequential relief to the appellant, as per law. Consequently, these appeals are allowed.
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2000 (8) TMI 761 - CEGAT, KOLKATA
Order - Appellate order ... ... ... ... ..... ve that the Assistant Commissioner responsible for implementation of the Tribunal rsquo s Order has shown his irresponsibility and disrespect to the Tribunal as well as to the law of the land which requires disposal of the Refund Claims within a period of three months from the date of passing of the Tribunal rsquo s Order. This having not been done, we direct the Revenue to grant the Refund to the applicant firm along with the interest at the rate of 12 per p.a. from the date of expiry of three months rsquo period from the passing of the Tribunal rsquo s Order, as has been held by the Tribunal in the case of Gulf Olefines (P) Ltd. v. C.C.E., Madurai reported in 2000 (126) E.L.T. 1225 (Tribunal) 1999 (39) RLT 226 (CEGAT). We leave it to the Revenue to decide as to whether the said interest amount has to be recovered from the concerned person on whose account the Refund has been delayed to the applicants. With the above observations, we dispose of the Miscellaneous Application.
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2000 (8) TMI 760 - CEGAT, MUMBAI
Confiscation and fine - Import - Consumer goods ... ... ... ... ..... of the literature and catalogues nor is it possible for me to judge the argument on the excessive quantum of the fine in the absence of background data. Shri Nankani claimed that the specific reasons for quantification of the fine are not apparent on the face of Commissioner rsquo s orders. The adjudicating Commissioner would arrive at the quantum of fine on a number of factors which would be available to him on the case records and would not normally or necessarily find their way in the adjudication order. I also notice a later judgment of the Supreme Court in the case of Novapan India Ltd. v. CCE, 1994 (73) E.L.T. 769 in which the court has observed that the quantification of the fine would be done according to the facts and circumstances in each case. 13. emsp I therefore find no reason to reduce the quantum of fine. However, in view of the submissions made, the penalty imposed upon the appellants is remitted in full. Subject to this modification, the appeal is dismissed.
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2000 (8) TMI 759 - CEGAT, KOLKATA
Import - Loaded printed circuit boards ... ... ... ... ..... goods accordingly appear to be in the nature of kits, or assemblies ready for fitment and not just printed circuit board to be subsequently fitted with active and passive elements and other components and fittings before they can be used as assembly or component. The impugned goods were accordingly covered by the entry under Serial No. 610 of Appendix 3 Part A and cannot be deemed to be covered by OGL as per Sl. No. 565(15) of list 8, Part 1 Appendix 6 which contains only PCBs but not PCBs loaded or stuffed with semi-conductor device. Accordingly, the decision of the Tribunal in Atari (India) Electronics, supra, is not applicable as the goods impugned in that case were loaded printed circuit boards and not PCBs mounted with semi-conductor devices and other items and fittings and as such the impugned goods could not be imported without a licence. Accordingly we do not find any reason to interfere with the impugned order and all the appeals filed by the Appellants are rejected.
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