|
Advanced Search Options
Case Laws
Showing 141 to 160 of 576 Records
-
2005 (10) TMI 472 - CESTAT, NEW DELHI
Smuggling - Confiscation ... ... ... ... ..... f the Customs Act. Before violation of Section 121 is established the following ingredients must be satisfied (i) there must be a sale. (ii) The sale must be of smuggled goods (iii) the sale must be by a person having knowledge or reason to believe that the goods were of smuggled origin (iv) the seller and purchaser and the quantity of gold must be established by the Custom authorities. 7. emsp Further, I find that provisions of Section 121 of Customs Act provides that where any smuggled goods are sold by a person having knowledge or reason to believe that the goods are smuggled goods, the sale proceeds thereof shall be liable to confiscation. In the present case there is no evidence regarding the sale of smuggled gold. Therefore, in view of the above decision of the Tribunal, the confiscation of the Indian currency recovered from the appellant is not sustainable and set aside. The appeal is disposed of as indicated above. (Dictated and pronounced in open Court on 26-10-2005)
-
2005 (10) TMI 471 - CESTAT, MUMBAI
Cenvat/Modvat ... ... ... ... ..... ot make any difference. 4. emsp It is also seen that Board vide its Circular No. 243/76/96-C.E., dated 3-9-96 has also clarified that in case of partially processed fabrics which are further received for processing the credit of actual duty paid on such fabrics will be available. This has been interpreted by the lower authorities as actual duty paid refers to duty paid out of PLA. However, we find that there is no warrant or justification for the above narrow interpretation. Deemed credit is available to the input manufacturer for payment of duty on the said product as such, duty paid on the said product using such credit renders the goods as duty paid and such duty is further available to receiver of the goods, as credit. Is such we do not find any reason to restrict the credit, in the present case, to only that amount which has been paid out of PLA. Accordingly, we set aside the impugned orders and allow the appeal with consequential relief. (Pronounced in Court 25-10-2005)
-
2005 (10) TMI 470 - CESTAT MUMBAI
Refund - Limitation ... ... ... ... ..... ot passed on the incidence of duty to the buyers. Both the lower authorities have clearly recorded in their orders that the appellant has failed to produce any documentary evidence to show that he has not passed on the incidence of duty to the buyers. In these circumstances, the legal presumption goes against the appellants. He also submits that on merits also the case is against the appellants. 3. emsp In these circumstances, I do not find any reasons to interfere with the orders of the lower authorities. The appeal filed by the appellant is therefore, dismissed. (Dictated in Court)
-
2005 (10) TMI 469 - CESTAT, MUMBAI
Classifiaction ... ... ... ... ..... applied is whether the goods are suitable for use solely or primarily with articles of Chapter Heading Nos. 87.01 to 87.05 if the answer is in the affirmative, the goods will be classifiable under Chapter Heading 87.08, but if the answer is in the negative, they would have to be classified under Chapter Heading No. 73.18. Having regard to the finding that the goods in question cannot but be regarded as parts of automobiles, it has to be held that they are suitable for use primarily with articles of Chapter Heading Nos. 87.01 to 87.05. It follows that the goods in question cannot be treated as falling under Chapter Heading No. 73.18 and that they can properly be classified under Chapter Heading No. 87.08 of the Central Excise Tariff Act, 1985. rdquo 3. emsp We find no merits in the Revenue rsquo s appeal to upset concurrent finding arrived at based on unchallenged facts in this case. 4. emsp Consequently Revenue rsquo s appeal is dismissed. (Pronounced in Court on 25-10-2006)
-
2005 (10) TMI 468 - CESTAT, MUMBAI
Refund claim ... ... ... ... ..... Several such instances have also come to their notice in which other parties (74 parties) had derived similar benefit in the past. A copy of Order-in-Appeal No. RG/261-334/SRT/2001, dated 28-9-2001 passed by Commissioner of Customs and Central Excise (Appeals), Surat was also produced to support their contention. According to the learned Consultant as the refund claim has been filed before the issue of the order, they did not consider it necessary to file an appeal against the said order which determined APC. 6. emsp The learned Joint CDR pointed out that the Supreme Court case referred to by him is squarely applicable in this case as well as they have not agitated against the Order-in-Original, fixing annual production capacity. 7. After hearing both the parties and taking into account the ratio adopted by the Apex Court (which is identical to the present issue) the contention of the appellant are not sustainable. Appeal is therefore, rejected. (Pronounced in the open Court)
-
2005 (10) TMI 467 - CESTAT, MUMBAI
Money credit ... ... ... ... ..... o rescind rsquo and lsquo withdrawn rsquo relate to the credit is not acceptable on the basis of grammatical construction of the notification rdquo . 4. emsp It was argued that these judgments have clearly held that credit accumulated and remaining unadjusted did not lapse but mode of adjustment stood extinguished. 5. emsp Learned Jt. CDR reiterated the contention of the order-in-appeal. Though, he admitted that two Orders-in-appeal produced by the appellant differ from each other, he was of the view that the case can be remanded for a fresh decision by the Commissioner (Appeals). However, we hold that this is a clear case where the case laws have been produced which are favourable to the appellants case and hence there was no need to refer the matter back to the Commissioner (Appeals). In view of this, I set aside the impugned order holding that the debit made by the appellants in RG-23B Part-II is proper and in discharge of their liabilities. (Pronounced in the open Court).
-
2005 (10) TMI 466 - CESTAT, CHENNAI
Appeal - Limitation - Condonation of delay ... ... ... ... ..... certificate states that one Mr. Sanjay aged 21 years, employed with M/s. Indus Steels and Alloys Ltd. (appellants) was under the doctor rsquo s treatment from 20-9-2003 to the end of July, 2004 and that, during this period, he was unable to attend to official work. The Executive Director rsquo s affidavit does not mention the name of the employee who was dealing with Central Excise matters and was involved in the accident. Hence the doctor rsquo s certificate is of no avail. It is surprising that a company engaged in manufacturing activity continuously during the material period did not have any substitute for its employee (said to be disabled due to accident) for dealing with Central Excise matters. Hence the story told by the Executive Director of the company in para 7 of his affidavit is unbelievable. The above delay cannot be condoned. 3. emsp The application is dismissed. Consequently the appeal also gets dismissed as time-barred. (Dictated and pronounced in open Court)
-
2005 (10) TMI 465 - CESTAT, CHENNAI
Production capacity based duty - Penalty ... ... ... ... ..... ourt rsquo s stay order. In the circumstances, it cannot be said that assessee chose not to comply with the Commissioner s provisional ACP order passed under Rule 5 of the ACD Rules. Yet another questionable finding of ld. Commissioner (Appeals) is that there was laxity on the part of the department in the matter of demanding duty from the assessee. It is borne on record that the department had been issuing demand notices from time to time even while the Writ Petitions were pending before the High Court. These demands were adjudicated upon by the Dy. Commissioner and it was the Revenue rsquo s appeal against the Deputy Commissioner rsquo s order that was considered by the Commissioner (Appeals). The penalty is ex facie based on the erroneous findings of the Commissioner (Appeals) and the same is vacated. The assessee rsquo s appeal stands allowed. Consequently, the Revenue rsquo s appeal asking for higher penalty stands dismissed. (Order dictated and pronounced in open Court)
-
2005 (10) TMI 464 - CESTAT, BANGALORE
Cables - Exemption - EHT cable ... ... ... ... ..... also perused the Notification and the particular entry seeks benefit for the parts of Potentiometers. In the course of hearing, we were shown the drawings of the equipment, indicating the cut EHT cable which will be soldered. We also find that the case laws cited are squarely applicable. We do not find any infirmity in the order of the Commissioner (Appeals). Our attention was invited to another entry 68 in the same Notification, wherein in respect of ldquo deflection guard rdquo the EHT cable in running length was specifically mentioned. The argument of the learned SDR is that such a specific mention is not there in the entry relating to Potentiometers. However, in view of the decisions cited by the learned Advocate, we feel that the EHT cable imported in running length for use in Potentiometers after being cut would be entitled for the benefit of exemption. Hence, there is no merit in the Revenue rsquo s appeal and we reject the same. (Pronounced and dictated in open Court)
-
2005 (10) TMI 463 - CESTAT, MUMBAI
Valuation - Captively consumed goods - Demand - Limitation - Misdeclaration of facts - Penalty
-
2005 (10) TMI 462 - CESTAT, MUMBAI
Annual capacity of production - Production capacity based duty ... ... ... ... ..... eon at the rate of eighteen per cent per annum calculated for the period from the 11th day of such month until, the date of actual payment of the outstanding amount. The notification also provides for imposition of penalty equal to amount of duty outstanding at the end of the month or five thousand rupees, whichever is greater. Since, admittedly, the assessees did not pay the whole of the amount of duty payable by the 10th of the month, they are liable to pay interest and are also liable to penalty. They had failed to pay the total duty payable by 30th April, 1998 (they deposited the differential amount of duty only in August, 1998), hence, they are also liable to penalty equal to the outstanding amount of duty which was Rs. 72,400/- as on 30th April, 1998. 4. emsp In the result, we hold that the direction to pay interest and imposition of penalty by the adjudicating authority was correct in law, set aside the impugned order of the Commissioner (Appeals) and allow the appeal.
-
2005 (10) TMI 461 - CESTAT, MUMBAI
Stay of operation of impugned order ... ... ... ... ..... s, Shri V. Sridharan, learned advocate cites the decision of the Tribunal in the case of Collector of Central Excise, Guntur v. Ferro Alloys Corporation Limited, 1986 (26) E.L.T. 750 (Tribunal) and states that this is not a fit case for granting stay of the Tribunal order. He also states that the impugned amount was deposited by the respondent as per the direction of the Hon rsquo ble Supreme Court and after the final order by the Tribunal, the respondents are entitled to refund of the amount. 4. emsp After considering submissions from both sides and case records including various orders passed in this case by the Hon rsquo ble High Court of Bombay and the Hon rsquo ble Supreme Court, we are of the view that the balance of convenience lies in granting interim stay of the operation of the Bench Order dated 9-6-2003 till disposal of the reference application against the same by the Hon rsquo ble Bombay High Court. Hence, we order accordingly. (Pronounced in Court on 18-10-2005)
-
2005 (10) TMI 460 - CESTAT, CHENNAI
Stay/Dispensation of pre-deposit - Penalty ... ... ... ... ..... cers of Customs was notified under Section 123 of the Customs Act and, therefore, it was the Department rsquo s burden to prove that the appellant had illicitly acquired possession of the goods. The lower authorities, however put the burden on the appellant to show that he had legally imported the goods. Obviously, the lower authorities were proceeding on a legally wrong premise. The appellant has made out a strong prima facie case against the penalty imposed on him. Accordingly, there will be waiver of pre-deposit and stay of recovery as prayed for. (Dictated and pronounced in open Court)
-
2005 (10) TMI 459 - CESTAT, NEW DELHI
Confiscation and penalty ... ... ... ... ..... ts in his records. In the absence of any such evidence that the seller and the purchaser have not recorded the sale in the records the lawful possession of the three gold biscuits by the appellant stands amply proved. 7. emsp The proof of the legal acquisition of the seized Gold biscuits by the appellant deserves to be accepted, especially when the gold was freely importable at that time and available in the market for sale and purchase and no evidence has been brought on record to prove that the seized gold was smuggled gold and that it was never sold by the firms named above to the appellant. Therefore the findings of the authorities below regarding the smuggled nature of the gold based on no tangible and acceptable evidence deserves to be set aside. 8. emsp In view of the discussion made above, the impugned order of the Commissioner (Appeals) cannot be sustained and the same is set aside. The appeals are allowed with consequential relief, if any, permissible under the law.
-
2005 (10) TMI 458 - CESTAT, MUMBAI
Classifiaction ... ... ... ... ..... tion are finished products ldquo Other alloy steel, rdquo they would fall under Heading 7224.00. However, we find that the goods are other forgings, which get covered by Heading 7326. The Hon rsquo ble Supreme Court in the case of Collector of Central Excise v. Jaypee Forges 2003 (158) E.L.T. 560 (S.C.) 2003 (59) RLT 501 (S.C.) has held that forgings of alloy steel would get covered under Heading 7326. As such we find no infirmity in the view taken by the Commissioner of Central Excise (Appeals), and reject the appeal filed by the Revenue. (Pronounced in Court.)
-
2005 (10) TMI 457 - CESTAT, MUMBAI
Appeal to Appellate Tribunal ... ... ... ... ..... of Section 129E of the Customs Act, 1962. Having recorded non-compliance with the pre-deposit provisions under Section 129E, it was not open to the lower appellate authority to hear and decide the appeal on merit. Hence, rejecting the appeal on merit cannot be held to be legal. 2. emsp We find that subsequent to passing of the impugned order, the appellants have already paid the duty demanded. In view of such pre-deposit made, the stay application has become infructuous and the same is dismissed. The impugned order is also set aside and the appeal is allowed by way of remand to the lower appellate authority for decision on merit. Considering the fact that this is an old case, the lower appellate authority is directed to decide the matter within a period of three months after affording a reasonable opportunity of hearing to the appellants. The appellants are also directed to co-operate and not seek adjournment. 3. emsp Appeal is allowed by way of remand. (Pronounced in Court)
-
2005 (10) TMI 456 - CESTAT, MUMBAI
Appeal - Restoration of appeal ... ... ... ... ..... on 12-8-2005 after more than 3 frac12 years. We find that the provisions of Rule 22 of the CESTAT (Procedure) Rules, 1982 required the present applicant to file an application within a period of 60 days for such restoration. The applicant has not been able to satisfactorily explain the reason for filing the present application after such a long delay beyond the prescribed limit. As such, the ROA application is rejected on the ground of unexplained delay. (Pronounced in Court)
-
2005 (10) TMI 455 - CESTAT, MUMBAI
Demand - Limitation ... ... ... ... ..... filing classification lists and classification declarations throughout the period in dispute, describing the products correctly and claiming them to be bulk drugs entitled to concessional rate of duty under Notification No. 31/88. We have perused the classification lists and find that all the 3 products in dispute were described as of technical grade. The classification lists were approved from time to time. In this view of the matter, the appellants cannot be held guilty of any suppression or mis-declaration of facts with intent to evade payment of duty, as they had given full description of the disputed products in the classification lists/classification declarations. We, therefore, agree with the appellants that the entire demand is barred by limitation as the ingredients of the proviso to Sec. 11A(1) are not attracted against them. We accordingly, set aside the duty demand and penalty. 4. emsp In the result, the impugned order is set aside and the appeal allowed as above.
-
2005 (10) TMI 454 - CESTAT, NEW DELHI
Stay/Dispensation of pre-deposit - Penalty ... ... ... ... ..... he delay and that too when the unit was disposed of. Hence the proceedings are not sustainable in view of this inordinate delay. He pleaded that on this ground, the Tribunal has allowed the appeal. He, therefore, pleads that in the present case the penalty may be stayed. 2. emsp Shri S. Das, learned SDR, for the Revenue, pleads that there is no time limit prescribed for imposition of penalty. Therefore, even though the Show Cause Notice was issued in July, 2004, the penalty has been correctly imposed for all the defaults. 3. emsp We have considered the submissions made by both sides. We find that the Division Bench of this Tribunal has already taken a view in their Final Order No. 614/05-Ex., dated 27-7-2005 wherein in an identical situation, penalty was set aside. Therefore, following the ratio of this decision, we stay the recovery of penalty for the purpose of hearing of the appeal. The appeal be posted for hearing in due course. (Dictated and pronounced in the open Court)
-
2005 (10) TMI 453 - CESTAT, BANGALORE
Refund - Limitation ... ... ... ... ..... nnai Customs has received the claim on 11-8-98. Hence, the Commissioner (Appeals) has given a finding that the requirement of Section 27(1)(ii)(b) is satisfied. Further it is stated that the public notice based on Board rsquo s Circular dated 22-1-85 as well as 6-11-97 do not address the key question raised in the instant dispute namely to which custom house (Jurisdiction not being defined for filing such refund claim), the decision of the Tribunal in the case of Hyderabad Industries Ltd. v. CCE, New Delhi 2003 (162) E.L.T. 258 is inapplicable to the instant case and is distinguishable. In view of the above, the Commissioner (Appeals) has given a finding that the refund claim is hit by time bar. In the circumstances of this case, we are of the opinion that there is no infirmity in the Commissioner rsquo s order. The appeal of the revenue is devoid of merit. Hence we reject the same. (Operative Portion of the Order already pronounced in Open Court on conclusion of the hearing)
............
|
