... ... ... ... ..... he applicant. Therefore, the ratio of judgment of the Hon rsquo ble Allahabad High Court in the case of ITAT (supra) referred above and the judgment of Hon rsquo ble High Court of Orissa in Fatechand Agarwal rsquo s case (supra) it is held that the notice of hearing was not properly served upon the assessee. Though there is no such Rule to recall order but as held by the jurisdictional High Court that there is inherent jurisdiction in the Tribunal to set aside an order of dismissal for default or an order passed on appeal heard ex parte when it is satisfied that there was, in fact, no service of notice or that there was sufficient cause which prevented the appellant or the respondent from appearing on the date fixed. As the notice was served on unauthorised person, i.e., wife of the assessee, we recall the order passed by this Bench on 22-5-2001. The Registry is directed to fix the case for hearing in due course. 9. In the result, Misc. Application of the assessee is allowed.
... ... ... ... ..... where a partner retires and some amount is paid to him towards his share in the assets, it should be treated as falling under clause (ii) of section 47 and accordingly, cannot be assessed as capital gains, following the decision in Mohanbhai Pamabhai rsquo s case (supra). In the subsequent decision in CIT v. R. Lingmallu Raghukumar 2001 247 ITR 801 (SC), their Lordships held that when a partner retires from a firm and the amount of his share in the partnership assets after deduction of liabilities and prior charges is determined on taking accounts in the manner prescribed by the partnership law, there is no element of transfer of interest in the partnership assets by the retired partner to the continu-ing partners and the amount received by the retiring partner is not capital gain under section 45 of the Income-tax Act, 1961. In this view of the matter, we do not find any substance in the appeal of the Revenue which we hereby reject. 7. In the result, the appeal is dismissed.
Stay/Dispensation of pre-deposit - Value of clearances - Clubbing of
... ... ... ... ..... nd raised in the show cause notice. 2. emsp On hearing both sides we are of the view that strong prima facie case for waiver has been made out as the Tribunal has held in several decisions that the value of clearances of goods manufactured for loan licensee are not required to be added to the value of clearances of goods manufactured on behalf of the assessee themselves for computing the clearance value in terms of Notification 170/86 or 1/93 and prima facie the applicants have established that they were manufacturing goods over and above on their own behalf, on loan licence basis. Therefore pre-deposit of duty is waived and recovery thereof stayed pending the appeal.
Value of clearances - Clubbing of - Demand and penalty
... ... ... ... ..... eld that except taking the technical assistance of the manager of one firm, there is no evidence to suggest that one unit is connected to the other in any manner. The impugned order passed by the Commissioner (Appeals) has been based on the evidence which has been fully discussed. In fact in Paragraph 25 of the impugned order, there is no proof of common funding. This has not been controverted to by the Department in the grounds of appeal. In Paragraph 26 of the impugned order, it has been specifically held that there was no evidence that the sale proceeds of one unit was going to another unit. The impugned order, in our view, has been based on the proper understanding of the evidence of the case. Hence, in our view, the grounds cannot be faulted with. Moreover, the Department is bound by the order of the Board referred to in Paragraph 17 of the impugned order and it cannot be argued against the same. Hence the appeals of the Department are devoid of merits and are dismissed.
Rectification of mistake - Error apparent on the face of the record
... ... ... ... ..... ime of arguing ROM application, we find in the grounds of appeal it is not specifically taken that point. Unless, this point is specifically raised in the Memorandum of Grounds the application for ROM has to be rejected. It is true that there is a specific reference to the case of Padmani Products v. CCE - 1989 (43) E.L.T. 195 at Paragraph 6.6 of the grounds of appeal and that does not speak of limitation point specifically but it only refers to words like intention to evade. Moreover we did not remember that at the time of hearing of the appeal no argument regarding applicability of the larger period was made by the Counsel. Having considered all aspects of the matter, we are of the view that in the present circumstances of the case we cannot exercise our power to rectify the mistake made in our order disposing of the appeal. Application No. E/ROM/2205/02 is dismissed. 7. emsp Application filed by the assessee is dismissed. The application filed by the department is allowed.
Demand of Limitation - Departmental circulars/instruction - SSI Exemption - Brand name
... ... ... ... ..... e not called upon to show cause as to why extended period under proviso to Section 11A of Central Excise Act, 1944 should not be invoked. Hence, there was no reason to challenge the same specially when the period of demand falls within the normal period of limitation during which Show Cause Notices were issued. rdquo We find no infirmity in this finding of the Commissioner (Appeals). It is not the case of the Appellants that the Show Cause Notice were not issued for the normal period of limitation specified in Section 11A of the Central Excise Act. Further, at the relevant time as per the provisions of Section 11A(1) proper officer which includes Superintendent is competent to issue the show cause notice. Board rsquo s Circular is only the administrative direction which does not cause any prejudice to the Appellants. We therefore, do not find any reason to refer the matter to the Larger Bench of the Tribunal also. Accordingly, we find no merit in the Appeal which is rejected.
... ... ... ... ..... imposition of redemption fine and penalty on the appellant. Shri S.V. Parelkar, ld. DR, appeared on behalf of the Revenue and he leaves it to the discretion of the Bench. 2. emsp After hearing both sides and perusal of the records, I do not find any justification for imposition of redemption fine and penalty. I, therefore, set aside the same with consequential relief, if any, to the appellants.
... ... ... ... ..... Reserve Bank of India. The Custodian is not clear as to what contract he is can celling and whether it is an independent contract or part of the entire contract of sale or purchase of security. In any case the entire contract has been performed and securities stand transferred. Section 4 of the Act does not confer power on the Custodian to cancel a completed transfer and is confined to cancellation of contracts or agreements. In view of the aforesaid facts and circumstances and the detailed discussion contained in the above paragraphs it is not necessary to go into the facts of each case separately as the petitions are liable to be allowed in view of the findings on the issues of law. In view of the discussion in the above paragraphs, the concerned issues are answered accordingly and the following order is passed 47 All the petitions succeed and are allowed. All the impugned orders passed by the Custodian in the above petitions are quashed and set aside. No order as to costs.
... ... ... ... ..... tion i.e. dresses are covered under the category 636 and are subject to restraint. But, no finding has been recorded by the adjudicating authority that the appellants had exceeded their quota for exporting the goods under the category 636. Under these circumstances, no mala fide could be attributed to the appellants to hold that the misdeclaration was deliberate and their plea that the declaration was made by them on the strength of the purchase order received by them from the foreign buyers, was unique. Therefore, keeping in view the facts and circumstances of the case, in my view, the redemption fine and the penalty imposed on the appellants are on the higher side and I accordingly reduce the redemption fine to Rs. 50,000/- (rupees fifty thousand only) and the penalty to Rs. 25,000/- (rupees twenty-five thousand only). Except for this modification, the impugned order of the adjudicating authority is maintained and the appeal of the appellants stands disposed of accordingly.
... ... ... ... ..... ter dated 31-5-1997 of the Assistant Commissioner of Central Excise and Customs, Bhavnagar, in reply to the appellant rsquo s letter, informed it that it could, if it, felt aggrieved by the assessment made by the Superintendent of Customs on the bill of entry, file an appeal against that order. In reply to the appellant rsquo s further letter, the department by its letter of 23-6-1997, informed it that the assessment on the bill of entry was complete. Hence the appeal was filed against this order. 3. emsp A copy of the bill of entry which had been filed shows that the assessment was done on 12-12-1996. The subsequent letters of the Assistant Commissioner are nothing more than an explanation to the appellant as to the fact that the bill of entry had been finalised. They do not themselves constitute grounds for action. In the light of this position, the conclusion of the Commissioner (Appeals) that the appeal was barred by limitation has to be applied. 4. emsp Appeal dismissed.
Cenvat/Modvat - Precedent and Practices - Judicial discipline
... ... ... ... ..... ment - in itself an objectionable phrase - and is the subject-matter of an appeal can furnish no ground for not following it unless its operation has been suspended by a competent Court. If this healthy rule is not followed, the result will only be undue harassment to assessees and chaos in administration of tax laws. rdquo 18. emsp The above principle must apply with greater force in the present case as a judgment of the Hon rsquo ble Supreme Court has been ignored as against a different view taken by the Tribunal much before the advent of the Hon rsquo ble Supreme Court judgment. What has resulted in the present case is nothing but gross injustice and harassment to the appellant. Consistency and discipline are of greater importance than winning or losing of a case. This is brought to the notice of Commissioner of Central Excise, Chennai II Commissionerate for appropriate action as deemed fit. 19. emsp In view of the above, the impugned order is set aside and appeal allowed.
Demand - Interest - Exemption - Ball and roller bearings
... ... ... ... ..... view cannot now be taken. The departmental representative has really no answer. He however says that the trade notice might have been withdrawn in the meantime to suggest that the matter may be remanded to the original authority to consider this aspect since it is not raised. We do not think that this is justified. It is now settled law that the department cannot take a stand contrary to a trade notice that it issued which is beneficial to the assessee. Therefore, whatever the correctness of the contents of this trade notice, the provisions of that be given effect insofar as Notification 217/85 is concerned. It would follow from this that the demand for duty and for interest would be restricted to the parts that were utilised in the manufacture of bearings that were related to the other two notifications. The matter is remanded to determine the quantum of duty and interest. For this purpose alone, the appeal is allowed and the matter is remanded to the Assistant Commissioner.
Cenvat/Modvat - Strictures against adjudicating authority
... ... ... ... ..... he following two decisions of CEGAT, CCE v. American Auto Service case 1996 (81) E.L.T. 71 , CCE v. Asian Brown Boveri 2000 (120) E.L.T. 228 (Tri. - LB . 4. emsp Board Circular No. 643/34/2002-CX., dated 1-7-2002 also clarifies the issue. 5. emsp Order-in-Appeal No. 138/2002 (M III), dated 7-11-2002 relating to M/s. TVS Motor case allowed by my learned predecessor was made available to the lower Authority. 6. emsp In spite of availability of Tribunal orders/Board rsquo s Circulars and CCE (A) order mentioned supra, the lower Adjudicator has proceeded to pass the impugned orders utterly disregarding and disrespecting all norms of judicial discipline. Such brazen defiance of the law cannot be tolerated and condoned. This misfeasance is brought to the direct notice of Commissioner of Central Excise, Chennai-III Commissionerate for initiating appropriate action as deemed fit. 7. emsp Appeal allowed respectfully following Hon rsquo ble Tribunal rsquo s decisions referred to supra.
... ... ... ... ..... pecified goods bearing the brand name or trade name whether registered or not of any other person. As the appellants are using the brand name of another person they are not eligible to avail of benefit of SSI Exemption Notification. We also agree with the learned Senior Departmental Representative that extended period of time for demanding the duty is invocable as they had misdeclared in their declaration declaring the brand name as ldquo Aries SUPERGRIP rdquo and not ldquo Aries rdquo . They have suppressed the fact of using the brand name of another person from the department. Accordingly, the demand of duty as confirmed by the Commissioner in the impugned order, is upheld. However, we are of the view that this is not a case warranting imposition of penalty equivalent to the amount of duty involved. Interest of justice will be satisfied, if the appellants are directed to pay the penalty of Rs. 5 lakhs only. We order accordingly. The appeal is disposed of in the above terms.
... ... ... ... ..... tioned that the container was received with seal intact and submitted that their liability as a carrier seizes with the delivery of the sealed container and they cannot be held liable for the contents inside the container of which he did not have any knowledge. 4. emsp From the impugned orders I find that a bill of lading was produced by the charterer with the same seal number which was found on the container. It is only the change in the contents of the container which has created doubt against the charterer or against the carrier. The original adjudicating authority has nowhere discussed as to how the shipping agents are responsible for the disappearance of the silk yarn and its replacement with the cut pieces when it is on record that originally the container with the seal intact having the same number was handed over by the agent i.e. the appellant in the present case. As such I set aside the impugned order and allow the appeal with consequential relief to the appellants.
... ... ... ... ..... ces. In the instant case, admittedly, the invoice on the strength of which the subject credit had been taken by the appellants was issued by the consignment agents of input manufacturer on 20-6-1994. The Board Circular squarely covers the subject-matter of this case. Apparently, the original authority has overlooked the Board Circular while disallowing the Modvat credit to the appellants. The order of that authority has been upheld by the Commissioner (Appeals), again having no regard to the Board Circular. It is trite law that such circulars are binding on the Departmental authorities. The Assistant Commissioner has to readjudicate the case in the light of the Board rsquo s Circular. Accordingly, the orders passed by both the authorities are set aside and the present appeal is allowed by way of remand. The adjudicating authority is directed to readjudicate the matter in terms of the aforesaid circular, after affording a reasonable opportunity of being heard, to the assessee.
Modvat/Cenvat - Duty paying document - Appeal - Appealable order - Precedent - Effect of
... ... ... ... ..... aiprakash Industries Ltd. v. CCE, 2002 (146) E.L.T. 481 in support of the appellant rsquo s case. In my view, the said judgment cannot be applicable to the facts of this case because in that case there was an existence of divergent views of the High Courts. Here I am only dealing with the judgment of the constitution bench in the case of Dhiren Chemical Industries. Credit can be taken only if somebody earns it. Without payment of duty, nobody can earn Modvat credit and it will amount to unjust enrichment. It is also to be observed here if credit of duty is claimed on final product without payment of duty on inputs, it will amount to the assessee making a wrongful gain himself and inflicting wrongful loss to the Government. 9. emsp In the impugned order, a penalty of equal amount has been imposed. In the facts and circumstances of the case, a token penalty will suffice and therefore I reduce it to Rs. 1,000/-. 10. emsp With this modification, the appeal is otherwise dismissed.
Cenvat/Modvat - Modvat credit - Time limit for taking credit
... ... ... ... ..... essee rsquo s plea is not correct and is not in terms of Board rsquo s circular and the citation referred to. Therefore, the party rsquo s appeal is allowed. 7. emsp In so far as the Revenue rsquo s appeal is concerned, it is seen that Commissioner has examined all the aspects of the matter including the rules which provided for grant of credit within six months from the date of invoice. He has noted that there has been substantive compliance of law under Modvat rules and that it is covered by Rule 57G(2A) as it stood during the period. In this case also, the party has made the entry in RG 23A, Part-I within four months in terms of facts stated in the show cause notice. In that view of the matter, there is not error in the Commissioner rsquo s order in granting Modvat credit. Therefore, I do not see any reason to interfere with the impugned order on this aspect of the matter and hence the Revenue rsquo s appeal is rejected. Both the appeals are disposed of in the above terms.
EXIM - Import of second-hand horizontal boring machine - Actual user condition
... ... ... ... ..... is largely technical. It is clear that there was no legal barrier to the import by Perfect of the machine in question, since it qualifies to be an actual use. The conduct of the importer in diverting the machine to the premises of another actual user therefore has not resulted in any significant contravention of the policy and it has not resulted in loss of revenue to the Government which it otherwise could have been or either of the parties obtaining undue benefit. In the light of these facts, we think that a substantial reduction in the penalties and fine are called for. After taking into account the fact that it is settled by the larger number of decision that penalty cannot be simultaneously imposed on a partnership firm and any one or more of its partners. 4. emsp Accordingly, appeal C/7/03 of Gurmeet Singh is allowed. Fine for redemption of the machine is reduced from Rs. 4 lakhs to Rs. 1 lakh, penalties imposed on the importer and Perfect reduced to Rs. 10,000/- each.
