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Showing 161 to 180 of 655 Records
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2005 (7) TMI 571 - ITAT MUMBAI
Depreciation, ... ... ... ... ..... for business purposes for a period of less than 180 days. The balance depreciation amounting to 50 per cent was claimed by the assessee during the present assessment year. From the above, it may be seen that the relevant transaction has been held to be genuine by the Assessing Officer and assessee rsquo s claim for depreciation has been duly considered and allowed in the preceding assessment year. That assessment, we are informed, has become final and no further action either under section 147 or under section 263 of the IT Act has been taken to disturb that assessment. In our view, allowing the balance 50 per cent depreciation this year is only corollary to the allowance of 50 per cent in the preceding assessment year. Therefore, we direct that the depreciation to the extent of Rs. 22,44,853 may be allowed to the assessee in respect of the assets which were put to use during the preceding assessment year. 12. In the result, the assessee rsquo s appeal stands partly allowed.
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2005 (7) TMI 570 - ITAT COCHIN
Unexplained investments ... ... ... ... ..... esentatives does not amount to the revenue authority having no jurisdiction, but the assessment was defective by reason of want of notice. It was also observed that when assessment proceeding does not cease to be proceeding under the Act merely by reason of want of notice . Hence, the decision relied on by ld. DR is not of any help to the revenue. 13. In the light of the above discussion, we are of the considered opinion that the addition made by Assessing Officer under section 69/69A and sustained by CIT(A) amounting to Rs. 21,98,000 as unexplained invest-ments by way of alleged deposits made by the deceased assessee, Shri M. Chellappan Chettiar in different banks on fictitious names is liable to be deleted. We delete this addition. For the same reasons, the addition in respect of the interest on bank deposits amounting to Rs. 34,440 is also liable to be deleted. We delete the same. 14. In the result, assessees appeal is Partly Allowed, as indicated above. Order accordingly.
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2005 (7) TMI 569 - CESTAT, KOLKATA
Classification ... ... ... ... ..... d both sides. I find that the Commissioner (Appeal II) has observed that the omission is merely technical in nature with no revenue implication. Six out of eight bills of entries were issued prior to Board rsquo s instruction dated 29-12-86 and in respect of other two bills of entries, the lapse had occurred as they were not aware of the instruction. All the bills of entries were issued between November, 86 and March, 87 i.e. not long after the introduction of Modvat in 1986 Budget. The appellants might not be aware of the requirement of the Certificate in the back of the Bill of Entry. There was no allegation regarding misuse of Modvat benefit. The omission was technical in nature and on such basis the substantive benefit of Modvat credit should not be denied. The impugned order is reasoned and proper. I do not find any infirmity in the impugned order. The appeal deserves to be dismissed. Consequently, I dismiss the appeal filed by the Revenue. (Pronounced in the open Court)
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2005 (7) TMI 568 - CESTAT, NEW DELHI
Demand and penalty ... ... ... ... ..... de which the procedure for the export of ready-made garments was simplified and under that simplified procedure they were only required to furnish, duly attested photocopy of the shipping bill, duly custom rsquo s attested copy of the bill of lading and foreign exchange remittance certificate. All these documents were submitted by the appellants and no fault had been found in the same. Therefore, no violation of the terms of notification No. 42/01 can be said to had been committed by them, while exporting ready-made garments, during the period of in dispute, for denying the benefit of Rule 19 of the Central Excise Rules, 2002 in respect of export of goods without payment of duty. In our view, impugned order confirming duty with penalty against the appellants cannot be sustained and is set aside. The stay application as well as the appeal of the appellants, stand disposed of with consequential relief, if any, as per law. (Pronounced and dictated in the open Court on 28-7-2005)
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2005 (7) TMI 567 - CESTAT, NEW DELHI
Stay/Dispensation of pre-deposit - Penalty ... ... ... ... ..... pointed out that the findings in the impugned order in para 19 itself is to this effect. 3. emsp We have heard the learned SDR and perused the record. It is clear from para 19 that failure to make exports is the result of business failure and Shri S.D. Kapoor was in no way guilty of tax evasion. Rules of business are the same for export units and others. Some succeed. Some fail. There is no violation of law involved in this. We are of the opinion that penalty in this case is unjustified. Requirement for pre-deposit is waived. This appeal should also be posted with connected appeal, if any, of the manufacturing unit. (Dictated and pronounced in open Court)
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2005 (7) TMI 566 - CESTAT, KOLKATA
Appeal to Commissioner (Appeals) ... ... ... ... ..... lants on the point of limitation after observing that the period to file the appeals was curtailed down to 60 days and the appellant has filed the appeals after 86 days. The appellant in their application for condonation of delay before the Commissioner (Appeals) has explained that the preamble to the order passed by the Assistant Commissioner of Central Excise, Kolkata-E Division was to the effect that the period of three months is available for filing appeals and as such they were misled by such information given in the order. Therefore, they made a prayer for condonation of delay. This was not considered by the Commissioner (Appeals). The explanation given by the appellants is satisfactory. They were misled by the preamble and the party should not be penalized for the wrong of the authority. I, therefore, set aside the impugned order and condone the delay and remand the matter to the Commissioner (Appeals) for disposal in accordance with law. (Pronounced in the open Court)
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2005 (7) TMI 565 - CESTAT, MUMBAI
Confiscation of goods - Misdeclaration - Valuation ... ... ... ... ..... eclared value and held that the transaction value US 885 PMT CIF is required to be accepted and we set aside the confiscation under Section 111(m) for misdeclaration of value. We reduce the penalty upon the importer to Rs. 10,000/- as the charge of misdeclaration of value has been set aside by us and we are only upholding the charge of ITC violation. 4. emsp The ld. Counsel for the appellants relies upon the Tribunal rsquo s order No. A-178/WZB/2005/C-III dated 7-1-05 wherein in the case of import of similar goods by the same appellant the Tribunal set aside the confiscation and penalty. However we find that since we are satisfied on the basis of the definition of different grades given in the Technical Information of the Bombay Metal Exchange Ltd. that the goods in question confirm to the definition of brass scrap Lady/lace grade, under Section 111(d) for ITC violation is clearly sustainable. 5. emsp The appeal is partly allowed as above. (Operative part pronounced in Court)
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2005 (7) TMI 564 - CESTAT, CHENNAI
Cess - Tea in blended and packed form - Double incidence ... ... ... ... ..... ts at garden stage. They are not liable to pay Cess again on tea in packed form inasmuch as the packed tea is not different from tea at garden stage by virtue of the ruling of the Andhra Pradesh High Court. Even otherwise, the Board has clarified the position in Circular No. 777/10/2004-CX. dated 3-3-2004, wherein it was clarified as under ldquo In order to clear any ambiguity regarding double incidence of cess, and to streamline the procedure, Ministry of Commerce and Industry had issued an amendment Notification No. 1086(E) dated 11-11-99 thereby exempting all teas from the payment of cess on which cess had already been paid at an earlier stage. rdquo The Board clarified that collection of Cess should be regulated keeping in mind the above amendment. 2 emsp In view of the above, we set aside the demand of Cess on tea blended and packed from the appellants. In the result, the impugned orders get set aside and these appeals are allowed. (Dictated and pronounced in open Court)
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2005 (7) TMI 563 - CESTAT, MUMBAI
Show cause notice - Scope of - Duty liability ... ... ... ... ..... is also no challenge from the Revenue on the finding of the Commissioner that M/s. ATEL are not the manufacturers. 3. emsp We have heard both sides, in so far as the contention of the Revenue that the Commissioner ought not to have demanded duty from the 14 noticees who have not been asked to show cause as to why duty should not be demanded, we agree that the Commissioner has gone beyond the scope of the show cause notice. We also observe that the persons from whom duty is demanded have succeeded in appeal before the Tribunal in their contention that they are not required to pay duty. The Tribunal in its order No. 2306-30/97/WZB dated 6-5-1997 has allowed the appeals of these persons. It is evident that the Commissioner has gone beyond the scope of the notice and therefore, the impugned order needs to be set aside. We also hold that the consequence of order being set aside does not entitle the department to demand duty from M/s. ATEL. The appeal is allowed in the above terms.
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2005 (7) TMI 562 - CESTAT, MUMBAI
... ...
... ... ..... overed by the above decision. 7. emsp The learned DR for the department however contended that the appellant can claim only that deduction in the form of interest on receivables which is known to have been charged. Since the appellant rsquo s invoices do not show the element of interest on delayed payments, the deduction claimed on this account has been rightly rejected by the Commissioner (Appeals). 8. emsp We observe that the issue involved is covered by the decision of this Tribunal in the case of Reliance Industries Ltd. cited supra. The principle laid down by the Apex Court in MRF is that interest on receivables being a post clearance charge is deductible from the assessable value of the goods. The Commissioner (Appeals) rsquo s attempt to distinguish the Supreme Court rsquo s decision on the same issue cannot be supported. We hold that interest on receivables is a permissible deduction. 9. emsp The appeal succeeds with consequential relief if any in accordance with law.
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2005 (7) TMI 561 - CESTAT, MUMBAI
Penalty - Exemption - Natural justice ... ... ... ... ..... uspension of the World Bank payments did not amount to cessation of the loan and World Bank on 21-4-1997, after such suspension, has clearly intimated the eligibility of IBRD financing. As to how such an arrangement was not covered by the notification, has not been arrived by the Ld. Commissioner. In any case, the Government of Maharashtra, M.S.E.B and other authorities were making efforts to get the Project going. The interpretation placed, by a subordinate employee of the MSEB will therefore not call for a penal consequence of intent to evade on part of MSEB. The penalty as arrived therefore cannot be upheld. (b) for a penal consequence under Rule 209A knowing concert is required of having dealt with goods liable to confiscation. No such liability to confiscation of any goods has been proposed and or found. Penalty under Rule 209A therefore cannot be upheld. 3.1 emsp In view of findings arrived, the penalty is set aside and appeal allowed. (Pronounced in Court on 22-9-2005)
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2005 (7) TMI 560 - CESTAT, MUMBAI
Demand - Refund - Unjust enrichment ... ... ... ... ..... t the issue of unjust enrichment was not required to be considered in view of finality of an order of Commissioner of Central Excise (Appeals) dated 5-9-1997. 3. emsp Since these proceedings were under Section 11A(1), the principle of unjust enrichment grafted in Section 11B cannot be invoked and recovery determined applying the ratio of 2002 (149) E.L.T. 1361 (Tri.) 1999 (85) E.C.R. 680 in CCE v. Nayan Tobacco Products and Doothat Tea Estate v. CCE - 2001 (135) E.L.T. 386 (Tri.) 2000 (40) R.L.T. 52 and nothing contrary shown. The appeal is to be allowed after setting aside the order of the Commissioner of Central Excise (Appeals) directing the assessee to forthwith pay the refund given to them pursuant to an order of the Assistant Commissioner made and arrived by the Assistant Commissioner and confirmed by Commissioner of Central Excise (Appeals) and now impugned before us cannot be upheld. 4. emsp Appeal allowed, after setting aside the impugned order. (Pronounced in Court)
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2005 (7) TMI 559 - CESTAT, NEW DELHI
Cenvat/Modvat ... ... ... ... ..... eate any legal impediment, for disallowing the Modvat credit to the appellants. The crown corks are never returned by dealers to the appellants, as these are thrown away by the consumers at the time of opening of the bottles, for drinking of the aerated water. Similarly, charging of container hire charges by the appellants from the dealers on account of retention of the bottles for certain period, could not be a legal ground for disallowing the Modvat credit. The case of the appellants stands in fact fully covered by the ratio of law laid down by the Tribunal in an identical case-CCE, Jalandhar v. M/s. Dhillon Kool Drinks and Beverages Ltd. (Final Order No. 129/05-B, dated 14-1-2005) wherein under similar circumstances the credit on the empty bottles had been allowed to the assessee. 4. emsp In the light of the discussion made above, the impugned order is set aside and appeal of the appellants is allowed with consequential relief as per law. (Order dictated in the open Court)
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2005 (7) TMI 558 - CESTAT, KOLKATA
Refund - ‘Unjust enrichment’ - Applicability of ... ... ... ... ..... f not passing the incidence of duty under claim to the buyers of the goods in terms of Section 28D of the Customs Act, 1962. By perusal of report it is clear that the appellant could not able to discharge the burden that incidence of duty has not been passed on the buyers. The doctrine of lsquo unjust enrichment rsquo is applicable on capital goods or the goods which are consumed captively as held in the following cases of Union of India v. Solar Pesticide Pvt. Ltd. reported in 2000 (116) E.L.T. 401 (S.C.) Commr. of Customs(Import), Mumbai v. Godrej and Boyce Mfg. Co. reported in 2001 (135) E.L.T. 878 ( Tri.- Mumbai) SRF Ltd. v. Commr. of Customs, Chennai reported in 2002 (144) E.L.T. 563 (Tri.-Chennai) In present case the appellant could not prove that the incidence of duty has not been passed on to the buyers. I do not find any infirmity in the orders of the authorities below. The appeal deserves to be dismissed. Consequently we dismiss the appeal. (Pronounced on 14-7-2005)
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2005 (7) TMI 557 - CESTAT, MUMBAI
... ...
... ... ..... of each other, nor were Common Director to be causing it vide full bench decision in case of Alembic Glass Industries Ltd. 2002 (143) E.L.T. 244 (S.C.) being bound by this settled position in law, we find no merits for arriving on the issue of related person. In facts of this case, to be upheld or were so. When we find force in the reliance placed by the ld. Advocate on the lsquo Related person rsquo concept laid down in case of Damnet Chemicals Pvt. Ltd. 2005 (182) E.L.T. 225 . (c) In any case, the proposal as made to raise demands based on M.R.P. (Maximum Retail Price) cannot be approved for the reasons as urged. Surely, it is for the department to obtain the sale price, the assessee cannot, they do not have the power of enquiry given in the Central Excise Law which can be exercised. Helplessness is not a reason to approve valuation under MRP as urged by Revenue. 3. emsp In view of the findings, we find no merit in this appeal. The same is dismissed. (Pronounced in Court.)
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2005 (7) TMI 556 - CESTAT, BANGALORE
Stay/Dispensation of pre-deposit - Theft - Clandestine removal ... ... ... ... ..... alleged as clandestine removal by the assessee with an intention to evade payment of duty. 2. emsp On a careful consideration of the matter, we notice that the police had intercepted the van which was carrying the property i.e. cigarettes. Prima face, the learned Counsel rsquo s contention is accepted, because the lsquo theft rsquo cannot be equated with clandestine removal with an intention to evade payment of duty. Therefore the stay application is allowed by granting waiver of pre-deposit of duty amount and staying its recovery till the disposal of the appeal. The appeal to come up for hearing before the Single Member Bench in its turn. (Pronounced and dictated in the open Court)
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2005 (7) TMI 555 - CESTAT, MUMBAI
Duty Demand - confiscation - Penalty - Misdeclaration of the final product due to misstatement with intent to evade payment of duty. - printing of PVC films/sheets - HELD THAT:- After considering the applications made it is to be held that for the period of demand viz 1994 to June 1996 vide Show Cause Notice dated 31-5-1999, the penalty u/s 11AC cannot be upheld, nor demands of interest u/s 11AB can be made. The orders as regards penalty u/s 11AC and interest u/s11AB are therefore required to be set aside. This Tribunal, in a catena of decisions, has also held that a joint penalty under Rule 173Q (1) read with Section 11AC of the Act per se cannot be upheld. We would therefore set aside the penalties and interest demands as arrived at.
We find merits in the plea made by Mr Pradhan, before us, that the fact of cum-duty price has to be granted, if the goods are being considered to be dutiable and also that Modvat credit of the duty paid on the PVC sheets/films brought in for printing as the printed sheets/films are being held to be dutiable. We also find the ld. D.R.’s submission that the admitted position is that goods are going to sister concerns and there is no sale that is also required to be re-looked into, to find out if there was any cum-duty sales price existing for the period in question. Modvat credit would also be eligible, as per the catena of decisions on the subject.
We would therefore set aside this order and remit the matter back to the ld. Commissioner to redetermine the duty liability, if any, credit eligibility and thereafter determine the liability under Rule 173Q(2) and redemption fine thereof. The penalty clauses as invoked and determined not being upheld.
The appeal is therefore allowed in above terms for de novo adjudication.
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2005 (7) TMI 554 - CESTAT, NEW DELHI
Confiscation and penalty - Non-notified goods - Appeal - Limitation ... ... ... ... ..... al v. CC, 1990 (50) E.L.T. 265, referred to by the learned SDR, is also not attracted to the case in hand. In that case, the assessee was carrying photostat machine which he knew had been illegally imported and for that reason, imposition of penalty under Section 112 of the Customs Act was upheld. But such is not the position in the case in hand. The case of the appellants stands covered by the ratio of the law laid down in the case of CC (Prev.) Shillong v. Sangpuia, 2005 (189) E.L.T. 321 (Tri.) 2005 (68) RLT 791 and Kulbhushan Jain v. CC, Delhi, 1999 (111) E.L.T. 906, wherein it has been observed that in a case of non-notified goods freely tradable, the burden will be on the Revenue to prove the smuggled character of the same. 6. emsp In view of the discussion made above, the impugned order cannot be sustained and the same is set aside against both the appellants. Both the appeals are allowed with consequential relief, as per law. (Dictated and pronounced in the open Court)
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2005 (7) TMI 553 - CESTAT, BANGALORE
Cenvat/Modvat - Duty paying document ... ... ... ... ..... llant sought for reassessment. The reassessment was done only on 8-3-99. The differential duty was paid on 15-3-99. In our view, the relevant date for reckoning the date of payment of duty should be only 8-3-99 and not 1-7-97 which is the original date of filing of the BE. The BE itself is a duty paying document. Therefore, there is no need for any separate certificate from the customs authorities under Rule 57E of the Central Excise Act. In other words, Rule 57E will not be applicable in this case, as the appellants themselves take Modvat credit. The present case is not one of supplier of inputs and receiver of inputs as contemplated in Rule 57E. In the above view of the matter, the appellants are entitled for the full Modvat credit. There is no need to insist on any certificate from the customs authorities. The BE is sufficient. Hence we allow the appeal with consequential relief. (Operative portion of the Order already pronounced in open Court on conclusion of the hearing)
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2005 (7) TMI 552 - CESTAT, MUMBAI
Penalty - Clandestine removal ... ... ... ... ..... the statement of Shri Ramesh Kumar Surana of M/s. Rahul Enterprises, which shows that they got the polyester fabrics processed from M/s. AFL on job work basis at the rate of Rs. 3/- per metre, which was paid in cash to processing Manager, Shri Balibhai Agrawal of M/s. AFL, and that the goods were received under delivery challan and no excise invoices are received from M/s. AFL 6. emsp After going through the record, it is found that in the Show Cause Notice issued to the appellants, no specific activity is attributed to them. There is not even an allegation that they had any reason to believe or any knowledge that the goods were liable to confiscation. Prima facie, penalty under Rule 173Q(1)(a) and (d) of the Central Excise Rules, 1944 on the supplier of raw material cannot be upheld. The Rule is applicable only to the assessee and dealers, but not traders and buyers. Therefore, the impugned order is not sustainable. In the result, the appeal is allowed. (Pronounced in court)
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