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Case Laws
Showing 121 to 140 of 604 Records
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2005 (5) TMI 573 - CESTAT, MUMBAI
Confiscation - Non-accountal of goods - Redemption fine - Quantum of - Penalty ... ... ... ... ..... heir records. These thirteen invoices carried the same serial numbers which was found on the earlier ten invoices of previous dates under which the appellants had admittedly cleared the goods clandestinely. Non-entry of the grey fabrics as well as the processed fabrics in the statutory records and preparation of thirteen invoices covering the said goods under duplicate serial numbers reflects upon the appellant rsquo s intention to remove the goods without payment of duty. As such, I hold that the same has been rightly confiscated by the authorities below. The value of the goods is more than Rs. 8 lakhs. As such, I find that the redemption fine of Rs. 1.75 lakhs is reasonable and does not require any further reduction, the same is accordingly confirmed. 11. emsp In a nutshell, the amount of duty and redemption fine is confirmed and the penalties imposed upon both the appellants are set aside. Both the appeals are disposed off in above terms. (Pronounced in Court on 24-5-2005)
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2005 (5) TMI 572 - CESTAT, CHENNAI
... ...
... ... ..... preferred an appeal to the Commissioner (Appeals). But, by the time that appeal arose for consideration of the appellate authority, the assessee rsquo s appeal had already been disposed of resulting in reduction of penalty as above. Hence the Revenue rsquo s appeal happened to be dismissed on the ground of merger vide Order-in-Appeal No. 10/2004, dt. 2-4-2004, which is the order impugned in the present appeal of the Revenue. There can be no tenable ground against the impugned order. Further more, now that the department rsquo s Appeal No. E/184/2004 against the reduction of penalty to Rs. 5,000/- by the Commissioner (Appeals) stands partly allowed as per Final Order No. 502-508/05 dtd. 28-3-05 (wherein the quantum of penalty was enhanced from Rs. 5,000/- to Rs. 12,000/-), the present appeal of the Revenue asking for further enhancement of penalty is not maintainable. This is on account of merger of the impugned order with Final Order No. 502-508 ibid. The appeal is dismissed.
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2005 (5) TMI 571 - CESTAT, MUMBAI
Confiscation, fine and penalty - Clandestine removal ... ... ... ... ..... t the fabric is of that day rsquo s production. Statements of their authorized representatives made before the visiting officers deposing that the fabrics was made for clandestine removal was also not retracted at any point of time during the adjudication proceedings or thereafter. 7. emsp In these circumstances, I am of the view that the fabrics have been rightly confiscated. However, keeping in view that the value of such fabrics was to the extent of around Rs. 5 lakhs, I reduce the redemption fine from Rs. 1 lakh to Rs. 75,000/-. As regards the personal penalty of Rs. 50,000/- imposed upon the company under Rule 25 of the Central Excise Rules, 2002. I find that the same is already on the lower side and no further interference is called for Penalty of Rs. 50,000/- imposed on Shri V.K. Bajaj, however, is reduced to Rs. 25,000/-. But for the modification in the quantum of redemption fine and penalties as indicated above, the appeals are otherwise rejected. (Dictated in Court)
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2005 (5) TMI 570 - CESTAT, CHENNAI
Appeal - Dismissal of - Non-compliance with stay order ... ... ... ... ..... o . Any amount of duty, which is directed by the Tribunal to be deposited under Section 35F ibid. for the purpose of hearing the appeal on merits has got to be deposited willingly. Any deposit of such amount ldquo under protest rdquo cannot be accepted as due compliance with Section 35F. The appeal is dismissed for want of due compliance with Section 35F. It will however be open to the appellants to move the Tribunal, for restoration of their appeal after expunging the remarks ldquo under protest rdquo from the relevant document. (Dictated and pronounced in open Court.)
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2005 (5) TMI 569 - CESTAT, CHENNAI
Cenvat/Modvat - Capital goods ... ... ... ... ..... g 85.31 of the CETA Schedule. Again there is no dispute of the fact that, during the period of dispute, capital goods falling under 85.31 were not eligible for Modvat under Rule 57Q. During the said period, what was relevant for the purpose of availing capital goods credit under Rule 57Q was tariff entry which covered the capital goods in question. Whether the capital goods were used for manufacture of final product was immaterial. As, in the present case, capital goods falling under Heading 85.31 stood excluded from the capital goods specified for Modvat benefit under Rule 57Q(1), there is no reason to interfere with the decision of the authorities. In the result, the appeal is dismissed. (Dictated and pronounced in open Court)
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2005 (5) TMI 568 - CESTAT, NEW DELHI
... ...
... ... ..... pellants. On account of reduction in the price agreed between the parties, the appellants have lodged the refund claim for the refund of the duty paid in excess. But in my view the refund claim of the appellants has rightly been rejected by the authorities below, by following the law laid down in the case of MRF v. CCE reported in 1997 (92) E.L.T. 309 (S.C.) wherein it has been observed that reduction in price subsequent to the clearance of goods and payment of duty, is not to effect liability to excise duty and no refund is admissible under the law to the assessee. Therefore, the impugned order passed by the Commissioner (Appeals) is upheld and the appeal of the appellants is dismissed. (Order dictated in the open Court.)
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2005 (5) TMI 567 - CESTAT, BANGALORE
Penalty - Bona fide belief ... ... ... ... ..... tely before issuance of SCN and penalty is not imposable as held by the Tribunal in Rashtriya Ispat Nigam Ltd. v. CCE - 2003 (161) E.L.T. 285 (Tri.-Bang.) which has since been approved by the Apex Court. The Karnataka High Court also in the case of Sri Krishna Pipes has held that penalty is not leviable when duty has been immediately paid before issuance of SCN. The Tribunal in the case of CCE v. Sterlite (India) Ltd. - 2003 (157) E.L.T. 678 (Tri.-Chennai) following the ratio of decision rendered in Collector v. HMM Ltd. - 1995 (76) E.L.T. 497 (S.C.), DCW Ltd. v. AC (supra), Hindustan Steel Ltd v. State of Orissa - 1978 (2) E.L.T. (J 159) (S.C.) has confirmed the Commissioner (Appeals) order by setting aside penalty. 4. emsp In view of these judgments, the order passed by the Commissioner (Appeals) is just and proper and there is no need to interfere with the same. The appeal is dismissed. (Operative portion of this Order was pronounced in open Court on conclusion of hearing)
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2005 (5) TMI 566 - CESTAT, NEW DELHI
Cenvat/Modvat - Deemed credit under Notification No. 58/97-C.E. ... ... ... ... ..... on in the invoices that appropriate duty has been paid. 5. emsp We find that this issue is decided by the Hon rsquo ble Punjab and Haryana High Court in the case of Vikas Pipes v. Central Excise Reported in 2003 (158) E.L.T. 680. The Hon rsquo ble High Court held that deemed credit claimed in the terms of Notification No. 58/97-C.E. can not be denied where the supplier of inputs certify that inputs suffered Central Excise duty and there is no requirement under the Notification that assessee has to lay the evidence to show that the supplier of inputs has discharged duty liability. In view of the above decision of the Hon rsquo ble High Court, the Appellants are entitled for deemed credit on the strength of invoices, where declaration is made that duty has been discharged and in case where no such declaration is given, the Appellants are not entitled for the benefit of deemed credit. The Appeal filed by the Appellants is disposed of as indicated above. (Pronounced in the Court)
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2005 (5) TMI 565 - CESTAT, MUMBAI
Demand - Clandestine removal, proof - Penalty ... ... ... ... ..... id goods is justified. 7. emsp As regards the personal penalty, it is held that the appellants are liable to penalty. However, it is the appellant rsquo s contention that an amount of Rs. 1,25,000/- was paid by them before the issuance of the show cause notice and, as such, in view of the Larger Bench rsquo s decision in the case of Machine Montell (I) Ltd. 2004 (168) E.L.T. 466 (Tribunal-LB) , penalty under the provisions of Section 11AC to the extent of duty paid prior to the show cause notice is not warranted. 8. emsp In view of the above, I reduce the personal penalty from Rs. 2,19,944/- imposed under Section 11AC to Rs. 75,000/-. But for the above modification in the quantum of penalty, the appeal of M/s. Industrial Adhesive Tapes Industries, is otherwise rejected. Penalty of Rs. 10,000/- imposed under Rule 209A of Central Excise Rules on Shri Jagdishchandra K. Agarwal, is also set aside. Both the appeals are disposed of in above terms. (Pronounced in Court on 19-5-2005)
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2005 (5) TMI 564 - ITAT DELHI
Capital gains ... ... ... ... ..... held it cannot be said that they were held as stock in trade of the business of dealing in shares. Such holdings are generally held to have a controlling interest over the companies whose shares are held by the assessee. One very vital circumstance viz., retaining the shares even when the shares were quoted at a very high price in the Stock Exchange also throws light on the intention of the assessee to hold these shares with a view to have controlling interest in the company JPIL. All these circumstances taken together in our view clearly shows the intention of the assessee to hold these shares as an investment and not as a stock in trade of any business. The capital gain on sale of these shares was therefore rightly directed to be assessed under the head lsquo Capital gains rsquo . We do not see any justification to interfere with the order of the CIT(A). Consequently both these appeals by the Revenue are dismissed. 11. In the result the appeals by the Revenue are dismissed.
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2005 (5) TMI 563 - CESTAT, MUMBAI
Confiscation of export goods - Redemption fine - Quantum of - Penalty ... ... ... ... ..... e presented for export examination. The market value of each garment was found to be Rs. 34/- while the Drawback claimed was Rs. 47/- to Rs. 51/- per piece. 2.3 No profit margin has been alleged, in the grounds taken, to relate with and find whether the quantum of redemption fine as per Section 125 of the Customs Act, 1962 is adequate or otherwise. The appeal fails on the ground of inadequate fine. 2.4 As regards penalty, the section provides for a maximum penalty equivalent to the Drawback claimed and minimum of Rs. Five thousand. The Commissioner has imposed a penalty to totalling Rs. 3 Lakhs which is about Sixty times the minimum which can be imposed and more than the redemption fine arrived. We find therefore no reason to find the Commissioner rsquo s order to be an incorrect excessive of discretion. The appeal fails on this ground also. 3.1 In view of the following, the appeal does not succeed in upsetting the order of Commissioner. Appeal rejected. (Pronounced in Court)
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2005 (5) TMI 562 - CESTAT, MUMBAI
Customs House Agent’s Licence - Suspension of ... ... ... ... ..... he bills of entry. The impugned order does not bring out the knowledge on the part of the CHA, whose licence has been suspended, about the action of their employee. Further, since the CHA, immediately on coming to note that the action of their employee, made good short fall in duty, we cannot accept the findings that the continuance of the CHA in transacting business in Customs stations pending enquiry under Regulations 23 is a grave risk and is prejudicial to the inquiry, since the documents relied upon by the revenue to hold that forgery was committed by the CHA employee are with the revenue and there has been no prior misconduct noticed by the Custom authorities on the part of the CHA during their fifteen years as CHA. We, therefore, hold that the suspension cannot be continued and accordingly set aside the same and allow the appeal. The department is at liberty to proceed in terms of the Regulation 23 of Customs House Agent Licensing Regulations, 1984. (Dictated in Court)
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2005 (5) TMI 561 - CESTAT, CHENNAI
Stay/Dispensation of pre-deposit - Demand - SSI Exemption - Res judicata ... ... ... ... ..... of the product manufactured by the subsidiary company was comparable with that of the product of the holding company, namely, Grasim Industries Ltd. and giving quality assurance of the product. This would be sufficient connection between the product and the name of the company which is used on the bags. We do not find any valid reason to distinguish the present case from the earlier decision of the Supreme Court in the applicant rsquo s own case given in the context of the earlier show cause notice. The applicant has not made out any prima facie case for waiver of pre-deposit. Both the applications are therefore rejected. However, if the applicant deposits the amount payable under the impugned orders within 8 weeks from today, the matter can be heard for final in due course. If the amounts payable under the impugned orders are not so deposited, the appeals shall stand dismissed. Post the matter for reporting compliance on 10-8-06. (Order dictated and pronounced in open Court)
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2005 (5) TMI 560 - CESTAT, MUMBAI
Demand - Manufacture ... ... ... ... ..... d. Commissioner has completely exonerated M/s. Voltas Ltd. We find no material to uphold the charges as made out in the notice and determine on suspicion. (vii) We find that the demand of duty is not sustainable as M/s. Neha Refrigeration only as found cleared repaired coils. Repairing does not call for a levy under the Central Excise law. This Tribunal in the case of Shriram Refrigeration Industries Ltd. v. CCE, Hyderabad, 1986 (26) E.L.T. 353 (Tri.) has held that repairing does not amount to manufacture, these decisions confirmed by the Hon rsquo ble Supreme Court in their judgment reported in 1999 (113) E.L.T A121 (S.C.) being bound and following this position in law, no penalty on the appellants, M/s. Sapna Engineering and others i.e., Shri S.P. Sharma, Manager, Sapna Engineering is not called for and is to be set aside. 5. emsp Accordingly the impugned order is set aside and the two appeals are allowed with consequential relief, if any. (Pronounced in Court on 27-5-2005)
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2005 (5) TMI 559 - CESTAT, MUMBAI
Classifiaction ... ... ... ... ..... nsuccessful. Hence this appeal. 2. emsp We have heard both sides. As per CBE and C Circular cited supra issued on the basis of the opinion of the World Customs Organisation at Brussels, only that fuel and oil, which is contained in the vessel s machinery and engines can be regarded as forming integral part of vessels and, hence, classifiable under CETA Heading 89.08 and remaining fuel and oil other than the above, are classifiable separately thereon appropriate heading. Therefore, the classification is dependent upon the location of the fuel and oil. In this case there is no dispute that fuel and lubricating oil was contained in a tank kept in the engine room. Therefore, it cannot be considered as being contained in the vessel rsquo s machinery and engine. Hence, the lower authorities have correctly classified the goods in question on merits in their respective headings. 3. emsp In the light of the above, we upheld the impugned order and reject the appeal. (Dictated in Court)
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2005 (5) TMI 558 - CESTAT, MUMBAI
Cenvat/Modvat - Capital goods ... ... ... ... ..... that the appellate authority has misread and misinterpreted the depreciation figures in the revised income tax returns. Revenue is in appeal against that appellant of Commissioner rsquo s order vide which the benefit was given on the ground that appellate authority has not verified as to whether the depreciation claimed earlier was withdrawn subsequently or not by the appellant in their Income Tax returns. 3. emsp In as much as both the sides are disputing the figures of depreciation claimed in the revised returns, I find it a fit case to remand the matter to the original adjudicating authority for fresh decision after taking into consideration the revised returns of income tax filed by the appellant. The appellants are at a liberty to place on records the facts of acceptance of such returns by the income tax authority. Revenue is also at a liberty to undertake any verification from the income tax department. Both the appeals are allowed by way of remand. (Dictated in Court)
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2005 (5) TMI 557 - ITAT DELHI
Business expenditure ... ... ... ... ..... d Nos. 3 and 4 which relate to the adjustments made by the Assessing Officer while computing income under section 115JA with respect to interest on income-tax of Rs. 12,74,354 by treating the same to be lsquo income-tax rsquo and wealth-tax of Rs. 1,01,866 respectively. On all three issues, we are of the opinion that the Assessing Officer shall revisit the claim of the assessee in the light of the decision of the Apex Court in the case of Apollo Tyres Ltd. v. CIT 2002 255 ITR 273 and also take into consideration the decision of the Bombay High Court in the case of CIT v. Veekaylal Investment Co. (P.) Ltd. 2001 249 ITR 597 . Accordingly, ground Nos. 2, 3 and 4 of the assessee are disposed of. 22. Ground No. 5 taken by the assessee is with regard to charging interest under section 234B of the Act which, in our view, is consequential in nature. 23. In the result, the appeals of the revenue are treated as dismissed and those of the assessee are treated as partly allowed as above.
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2005 (5) TMI 556 - ITAT, MUMBAI
Income from house property - Annual value ... ... ... ... ..... he Paper Book. According to this Notification, the liability of this party has been suspended and not enforceable. The recovery proceedings also stopped by the Government regarding discounting charges from M/s. Vitara Chemicals Ltd. It is the case of the assessee that the assessee filed a complaint under section 138 of the Negotiable Instrument Act before the Magistrate but the High Court stayed all the proceedings against the company as the company was passing through winding up process. 25. The learned DR supported the orders of the revenue authorities. 26. Considering the above facts and on the basis of the material placed in the Paper Book at Page 111 being the Notification dated 4-4-2002 and also the order of the Hon rsquo ble Bombay High Court in the matter of M/s. Vitara Chemicals Ltd., we are of the view that there is no justification in making the addition. The appeal by the assessee on this ground is allowed. 27. In the result, appeal of the assessee stands allowed.
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2005 (5) TMI 555 - ITAT MUMBAI
Depreciation, Business expenditure ... ... ... ... ..... of Rs. 7,00,315 which are eligible for deduction for year under reference. Taking into account the fact that the expenses in dispute have been incurred in respect of lsquo share issue rsquo as was the position in assessment year 1992-93, I hold that the assessee rsquo s claim for deduction under section 35D is not in order and accordingly upheld. 21. In assessment year 1992-93, the CIT(A) allowed the claim of the assessee with the observation that share issue expenses are eligible for deduction under section 35D(2)(c)( iv). It seems that there is some mistake in para 3.2 of the appellate order for the assessment year 1993-94. The CIT(A) will look into this aspect and decide the issue afresh in view of his finding for assessment year 1992-93. The ground of the assessee is allowed for statistical purpose only. 22. In the result, the appeal for the assessment year 1992-93 is dismissed and the appeal for the assessment year 1993-94 is partly allowed for statistical purpose only.
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2005 (5) TMI 554 - ITAT DELHI
Business expenditure ... ... ... ... ..... would amount to commencement of business. A copy of the licence granted by the Director, Town and Planning to the assessee and its associated concerns also goes to show that necessary licence had been given by the authorities subject to fulfilment of certain conditions. It is also seen that the assessees have also entered into agreement for development of plots with the prospective buyers and have received advances from them. In the light of the aforesaid evidence available on record and the facts of the present case, we are of the view that assessees have commenced their business and the claim for deduction towards administrative expenses are fully be allowed. The ld. counsel for the assessee also puts forward alternative arguments with regard to the allowability of those expenses which arguments are not considered in view of our conclusion that the assessees have commenced their business. 6. For the reasons stated above, the appeals filed by both the assessees are allowed.
............
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