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Showing 121 to 140 of 568 Records
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2003 (10) TMI 578 - CESTAT, NEW DELHI
Penalty - Intention to evade duty ... ... ... ... ..... to evade duty. The appellant further submitted that appellant is entitled to take Modvat credit of the duty which was found short levied and was paid before SCN was issued. 3. emsp We have gone through the SCN. We do not find any allegation in the SCN that the appellant had intention to evade duty. In the absence of any such allegation, we are of the view that the imposition of penalty under Section 11AC will not be sustainable. We are also of the view that in view of the facts of the case penalty under Rule 173Q is also unsustainable. We, therefore, set aside the order impugned to the extent of imposition of penalty. The appeal is allowed as above.
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2003 (10) TMI 577 - CESTAT, NEW DELHI
Demand and penalty - Clandestine removal ... ... ... ... ..... record recovered from their possession does not belong to them. The entries made in the private record, as interpreted by the excise clerk of the appellant shows the clearance of goods without payment of duty. 8. emsp Further, we find that the appellants tried to plead that chimneys and lamp shades are one and the same thing. We find that Notification 335/86-C.E. exempts glass globe and glass chimney for lamps and lanterns whereas the appellants are manufacturing lamp shades which are different from the glass chimneys and glass globes. Further, the appellants had not produced any evidence to show that the lamp shades are for lamps and lanterns. On the contrary, the customers of the appellants, during investigation, submitted that they were receiving decorative lamp shades. Therefore, we find no merit in this argument of the appellants that lamp shades are chimneys and glass globes. 9. emsp In view of above discussion, we find no merit in the appeal and the same is dismissed.
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2003 (10) TMI 576 - CESTAT, MUMBAI
Stay/Dispensation of pre-deposit penalty ... ... ... ... ..... tamp of the CHA. 2. emsp We have heard both sides. We find that other than the statement of Girish Gopal Parab, there is prima facie no evidence to connect the applicant before us with the offence of abetment in transportation of the consignment of concealed foreign currency by misuse of the CHA licence under oral instructions from the applicant. The applicant rsquo s statement is exculpatory and no other statement has been recorded from any of the noticees about the involvement of the present applicant. Therefore, a prima facie case for waiver of pre-deposit has been made out by the applicant. Pre-deposit of penalty is waived and recovery thereof stayed pending the appeal.
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2003 (10) TMI 575 - CESTAT, MUMBAI
Stay/Dispensation of pre-deposit ... ... ... ... ..... oth sides and noting that in the case of M/s. Gulf Air who were the carriers, the Tribunal by its Order No. 810/96/WRB, dated 8-2-1996, has granted waiver of pre-deposit on the applicants furnishing a personal bond to the extent of penalty amount, we direct the applicants before us today also to furnish personal bond covering the penalty imposed upon them within a period of one month and on their executing the bond, there shall be stay against recovery and waiver of pre-deposit of the penalty amount. The argument of the learned DR that the role ascribed to M/s. Air India is different from the role ascribed to M/s. Gulf Air by the adjudicating authority and, therefore, both should not stand on the same footing, is not prima facie acceptable and the difference, if any, in the role will be considered by the Bench at the time of final hearing of the appeal. 3. emsp The appeal is now listed for hearing on 21st November, 2003 along with appeal of M/s. Gulf Air, i.e. appeal C/17/96.
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2003 (10) TMI 574 - CESTAT, MUMBAI
Cenvat/Modvat ... ... ... ... ..... nly ground on which the order of the authorities below denying Modvat credit of Rs. 3,99,339.67 being the credit availed during the period November, 1992 to December, 1993, is challenged is that the bags in question were HDPE circular laminated bags and not bags made out of fabrics woven from strips or tapes of plastics. This ground is not tenable for the reason that the exclusion is not restricted only to bags or sacks made out of textile fabric and any woven material is also a fabric. Since the bags in question are made from a material woven out of plastics, strips and tapes, they are clearly covered by the exclusion clause. We, therefore, uphold the impugned order and reject the appeal.
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2003 (10) TMI 573 - CESTAT, MUMBAI
Appeal to Appellate Tribunal - Maintainability of ... ... ... ... ..... reversed in respect of goods exported against the VBALs was Rs. 5,24,829/- which had been reversed thus fulfilled the relevant condition of the notification. The Tribunal has accepted the explanation regarding reversal of credit of Rs. 5,24,829/- in respect of duty paid on inputs other than PTA, MEG and Titanium Dioxide. This initial finding in the final order on reversal of Modvat credit of the above-mentioned amount in respect of duty paid on inputs such as PTA, MEG and Titanium Dioxide having been found to be erroneous, was subsequently corrected vide the ROM order No. CI/547/WZB/2003, dated 28-2-2003 to hold that the reversal of the above credit was in respect of duty paid on inputs other than PTA, MEG and Titanium Dioxide. With the issue of this ROM order the entire foundation of the impugned order as contained in para 26 thereof falls to the ground. Therefore nothing survives in the case of the Department. Hence the impugned order is set aside and the appeal is allowed.
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2003 (10) TMI 572 - CESTAT, NEW DELHI
Appeal to Commissioner (Appeals) - Limitation - Delay in filing - Condonation of ... ... ... ... ..... the appellants was within time. 6. emsp Moreover, it is well settled that technicalities of law cannot be allowed to stand in the way of administration of justice and if pitted against the justice, the latter has to prevail. The appellants deserves to be heard on merits especially when they had already deposited the duty and penalty. It is not a case where it could be said that the assessee was avoiding the payment of duty and penalty and was only interested in prolonging the matter. Rather it is a case where the assessee-appellants had prayed for hearing on merits after depositing duty and penalty. Therefore, the interest of justice demands that they should be heard in the appeal filed by them on merits in the light of the facts and circumstances discussed above. 7. emsp Consequently, the impugned order of the Commissioner (Appeals) is set aside and the matter is sent back to the Commissioner (Appeals) for hearing the appeal on merits. The appeal is disposed of accordingly.
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2003 (10) TMI 571 - CESTAT, MUMBAI
Stay/Dispensation of pre-deposit ... ... ... ... ..... a strong prima facie case for waiver. The certificate issued by ARAI (The Automotive Research Association of India) states that the sitting capacity is 8 persons when the patient is not in lying condition and 3 persons when the patient is in lying condition. The vehicle is used as ambulance. Therefore, the certificate prima facie supports the stand of the department. The issue of classification is, therefore a contentious one and in these circumstances prima facie case for total waiver cannot be said to have been made out. Having regard to the totality of the facts and circumstances of the case, we direct pre-deposit of Rs. 4 lakhs (Rupees four lakhs) within a period of eight weeks from today and on such deposit, the pre-deposit of balance of duty shall stand waived and recovery thereof stayed pending the appeal. Failure to comply with this direction shall result in vacation of stay and dismissal of appeal without prior notice. 3. emsp Compliance to be reported on 16-12-2003.
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2003 (10) TMI 570 - CESTAT, NEW DELHI
Cenvat/Modvat - Imported inputs ... ... ... ... ..... ng the same. Even the adjudicating authority has not disputed this fact. The adjudicating authority while dismissing the claim has not disclosed the particular Rules which the appellants were required to follow, but failed to do so. Even in the impugned order, the Commissioner (Appeals) has not elaborated this view of the adjudicating authority. Therefore, in my view, the matter deserves to be re-examined at the hands of the adjudicating authority, keeping in view the defence put up by the appellants and the documents placed on record for claiming re-credit of the Modvat amount in question. The Board rsquo s Circular dated 30-12-1996 referred by the Counsel also deserves to be taken into account by the adjudicating authority while deciding the case afresh. 4. emsp In view of the discussion made above, the impugned order of the Commissioner (Appeals) is set aside and the case is sent back to the adjudicating authority for fresh decision. The appeal is allowed by way of remand.
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2003 (10) TMI 569 - CESTAT, CHENNAI
Stay/Dispensation of pre-deposit ... ... ... ... ..... r waiver of pre-deposit of the amounts as confirmed in the order. 3. emsp Heard ld. SDR who distinguished the judgment and sought for a direction to pre-deposit the amounts. 4. emsp On a careful consideration of the submissions, prima facie, the judgment of Jalan Refractories (P) Ltd. v. CCE, Jaipur (supra) which is of same issue applies to the facts of this case. The Commissioner was not justified in distinguishing the judgment of Srichakra Tyres. As regards the includibility of cost of secondary packing, there is contest raised by SDR that it was not a secondary packing. However, this point is required to be seen at the final stage. As the appellant is a PSU and the Committee of Secretaries have given permission to contest the appeal, we are of the considered opinion that pre-deposit amount can be waived and recovery stayed during pendency of appeal by allowing the stay application. As the amounts are very high, the appeal can be taken for out-of-turn hearing on 15-12-2003.
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2003 (10) TMI 568 - CESTAT, MUMBAI
Stay/Dispensation of pre-deposit - Valuation ... ... ... ... ..... him doesn rsquo t make sense since all the three products (two manufactured and one procured) carry the same rate of Central Excise duty. The transaction value ought not to have been rejected on the ground that the selling price is lower than the cost of production. He relied upon a catena of judicial pronouncements. The appellant argued that he has a strong prima facie in his favour. It would cause him undue hardship, if he is required to deposit the duty and penalty imposed on him lower authority and confirmed by the Commissioner (Appeals). 4. emsp We have heard both sides. The department rsquo s case is solely based on the fact that the selling price of the product in question is lower than the cost of production. No financial flow back from the buyers to that appellant is alleged. The appellants according to us, made a strong prima facie case in their favour. We therefore, waive the pre-deposit of duty and penalty and stay recovery thereof pending disposal of the appeal.
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2003 (10) TMI 567 - CESTAT, NEW DELHI
Cenvat/Modvat - Duty paying documents ... ... ... ... ..... ct of credit of Rs. 69,000/-, the contention of the appellants is that the duty paid capital goods were received in the factory. The contention of the Revenue is that with effect from 1-1-1996 the relevant Rule of Central Excise Rules was amended to the effect that the credit on capital goods shall be taken after installation of machines. The appellants relied upon the decision in the case of CCE, Meerut-I v. Modi Rubber limited, 2000 (44) RLT 812 where the intimation regarding installation of capital goods is not received by the department from the manufacturer. The Tribunal held that in case the manufacturer who had taken the credit before installation of capital goods, reverse the credit then after installation of capital goods, credit can be taken. In the circumstances, the denial of Modvat credit is not sustainable and hence is set aside. However, I find no reason to interfere with the amount of penalty imposed on this count. The appeal is disposed of as indicated above.
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2003 (10) TMI 566 - CESTAT, MUMBAI
Cenvat/Modvat - Additional duty of excise in respect of inputs ... ... ... ... ..... d in the impugned order. Therefore, they would not be eligible to take credit of additional duties (T and T) as the same cannot be utilized for payment of similar duties on their final products. rdquo Which presumes that yarn, the input in this case, would be and should be utilized only in the fabrication of textiles and could not be recovered as such i.e. yarn under the provisions of Rule 57F. If input were to be not utilized and removed as such, or not accounted, then the said credit of the Additional Duties (T and T) kept in separate account could have been utilized to meet demands of duty on yarn so removed or not accounted. Presumptions on part of the department and to deny this 57F movement of yarn, as input, cannot be upheld. The orders are required to be set aside and appeal allowed. 4. emsp In view of the findings arrived the order is set aside appeal allowed. The credit as claimed can be transferred and kept in a separate account. Appeal disposed off in above terms.
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2003 (10) TMI 565 - CESTAT, NEW DELHI
Stay/Dispensation of pre-deposit ... ... ... ... ..... he view that mere packing defect will not make plain reel hank into cross reel hank. We are, therefore, convinced that this is not a case where the appellant deserves total exemption from pre-deposit. 4. emsp Ld. Counsel for the appellant submitted that the company has shown a loss of about Rs. 16 crores as per balance sheet as on 31-3-2003 and they are in such a difficult position that they will not be able to make pre-deposit. He also contended that a major portion of the amount of demand will not be sustainable if the appellant rsquo s contention on the limitation is accepted. 5. emsp Taking into consideration the above submission made by the appellant as well as the facts of the case, we direct the appellant to deposit an amount of Rs. 50 lakhs towards the duty liability of Rs. 2.70 crores. The appellant will deposit the above amount within a period of two months from today. Balance amount of demand and penalty is stayed. To come up for reporting compliance on 15-12-2003.
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2003 (10) TMI 564 - CESTAT, MUMBAI
SSI Exemption ... ... ... ... ..... at normal rate on their products. In terms of Para 4 proviso of Notification No. 1/93, dated 1-3-1993, appellants could not avail concessional rates of duty after exercising such option. 2. emsp After examining the said proviso we do not find any infirmity in the order of the lower authority. The said proviso clearly applies since once an assessee has opted for payment of duty at the normal rate, he cannot revert to concessional rates thereafter, during the same financial year. 3. emsp Accordingly we do not find any merits in the appeal and reject the case.
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2003 (10) TMI 563 - CESTAT, MUMBAI
Stay/Dispensation of pre-deposit - Demand - Limitation ... ... ... ... ..... squo submission that the method of packing is relevant only in the case of unmixed products suitable for prophylactic and therapeutic uses and is not relevant for products comprising two or more constituents which has been mixed together for such use and once the Commissioner has mainly relied upon the Tribunal rsquo s order in the case of CCE, Calcutta v. Melroark Private Limited cited supra for classification under Chapter 39, no suppression, prima facie, can be attributed to the applicants as the Tribunal rsquo s decision has been rendered well after the period in dispute in the present cases. Therefore in the absence of any knowledge on the part of the applicants that their product was not medicaments falling under Chapter 30 but silicone in primary form under Chapter Heading 39.10, we hold that the demands in both cases are prima facie barred by limitation and on this ground we waive the pre-deposit of duties and penalties and stay recovery thereof pending these appeals.
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2003 (10) TMI 562 - CESTAT, NEW DELHI
Cenvat/Modvat - Duty paying documents ... ... ... ... ..... alised. However, for that reason the debit entry does not lose its legal sanctity of being duty payment. Even if, the appellants were to follow the procedure laid down and shift the input either enblock or on piece meal basis, it would have resulted into generation of invoice and a corresponding debit entry in the RG 23A Part-II. The invoice could have been issued only on self basis because, these glass shells were not going to any customer, but were to be shifted to a location outside the factory. Therefore, non-generation of invoice is the only deficiency in the whole transaction. This does not erase the duty-paid character of the glass shells which were received from outside the factory. Once this position is arrived at, on re-entry of these glass shells in the factory for use in the manufacture of final product has to be held as entry of duty paid inputs and the credit cannot be disallowed as attempted by the authorities below. The appeal succeeds and the same is allowed.
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2003 (10) TMI 561 - CESTAT, NEW DELHI
Stay/Dispensation of pre-deposit - Deemed Modvat credit ... ... ... ... ..... Learned D.R. opposes the prayer by stating that at the point of receipt of inputs and at the point of taking deemed credit, there was short payment and, therefore, the appellants were ineligible to obtain deemed credit. 3. emsp Heard both sides. 4. emsp As the things stand today, the appellants have made strong prima facie case that the impugned demand is not sustainable on merit. Therefore, there is a case for total waiver of pre-deposit of duty and penalty, detailed above. Hence, the stay application is allowed. Pre-deposit of duty of Rs. 4,73,469/- and penalty of Rs. 50,000/- is waived and there shall be stay on its recovery during the pendency of the appeal. The matter is posted for regular hearing on 27-11-2003.
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2003 (10) TMI 560 - CESTAT, KOLKATA
Confiscation and penalty - Export consignment - Shortages in quantity ... ... ... ... ..... value of the goods at all. The above issue is being determined only for the purposes of confiscation and imposition of penalty and not for the purposes of claim of drawback, inasmuch as no claim of drawback survives in the absence of export consignment. We also take note of the fact that the appellants have been put to unintended difficulties to export the goods in question, inasmuch as their export order stands cancelled on account of seizure of the goods and their request to export the goods provisionally or to export the same subsequently to a different buyer, which the appellants were able to find out, was rejected. 19.6 emsp In view of the foregoing, we are of the view that confiscation of the consignment or imposition of personal penalty upon the appellants is not justified. For the same reason, the imposition of penalty upon the C.H.A. is also not warranted. Accordingly, we set aside the impugned order and allow the appeal with consequential relief, to the appellants.
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2003 (10) TMI 559 - CESTAT, CHENNAI
Cenvat/Modvat - Declaration ... ... ... ... ..... rder passed by the Commissioner in the assessee rsquo s appeal is required to be confirmed and the order passed in Revenue rsquo s appeal is required to be set aside. 8. emsp On a careful consideration of the submissions, I notice from the records filed by the assessees that they have declared the item lead and tin and have also mentioned that lead alloy will also be utilized therein, thereby a link between tin alloy along with lead and alloy has been established. Therefore, the Commissioner (Appeals) in Revenue rsquo s appeal has clearly analysed the issue and applied the ratio of the Tribunal judgment noted in his order. From that point of view there is no merit in the Revenue rsquo s Appeal and assessee rsquo s contention that lead alloy is a declared item as there was a mention about its utilization in the declaration is required to be accepted. Therefore, the Revenue rsquo s appeal is rejected and party rsquo s appeal is allowed. The stay application is also disposed of.
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