|
Advanced Search Options
Case Laws
Showing 161 to 180 of 685 Records
-
2006 (2) TMI 566 - CESTAT, BANGALORE
Stay/Dispensation of pre-deposit ... ... ... ... ..... considered as marketable commodity as held by the Apex Court in the case of Moti Laminates P. Ltd. v. CCE 1995 (76) E.L.T. 241 (S.C.) . 4. emsp On a careful consideration of the matter, we notice that the Revenue has initiated contradictory proceedings on the very issue. The Revenue has not filed any appeal against the Orders-in-Original referred to above. We also note that the Apex Court in the case of Mehsana District Co-Operative Milk Producers Union Ltd. v. U.O.I. 2003 (154) E.L.T. 347 (S.C.) has held that the appellants are not required to pre-deposit any amount if the order is unsustainable and the issue is covered by the judgment of the higher forum. In this view of the matter, the stay application is allowed by granting full waiver of pre-deposit of the amount. As full waiver is granted, in terms of Section 35F of the Act, the appeal shall be disposed of within 180 days. The appeal to come up for hearing on 10th April 2006. (Pronounced and dictated in the open court)
-
2006 (2) TMI 565 - CESTAT, CHENNAI
Stay/Dispensation of pre-deposit - Valuation ... ... ... ... ..... ion 4A. It is pointed out that, though the civil appeal filed by the Department against this decision of the Tribunal was admitted by the Supreme Court 2005 (183) E.L.T. A161 (S.C.) , there is no stay of operation of the Tribunal rsquo s order. Ld. SDR seeks to justify the impugned order on the strength of provisions of the Standards of Weights and Measures Act and the Rules framed thereunder. It is submitted that the Tribunal rsquo s decision in Nestle India Ltd. v. Commissioner of Central Excise, Goa 2004 (163) E.L.T. 249 (Tri.) , supports the Revenue rsquo s case. We find that the case of Nestle India Ltd. (supra) was distinguished by the Tribunal in the case of G.S. Enterprises (supra). The ratio of the decision in G.S. Enterprises, prima facie, appears to support the present appellants. 3. emsp As the appellants have made out a prima facie case, we grant them waiver of pre-deposit and stay of recovery in respect of the duty amount. (Dictated and pronounced in open Court)
-
2006 (2) TMI 564 - CESTAT, NEW DELHI
Confiscation - Misdeclaration of description and value - Valuation ... ... ... ... ..... ed before the Commissioner (Appeals) that M/s Ghana Traders I had imported GD-9 phone Entry No. 129334 dated 7-8-2000 where the assessable value is 1 6618 per piece so that should be taken into consideration. However, the commissioner J (Appeals) has not accepted this, as he relied on the statement of Shri Ved Parkash I Wadhwani, we find that the goods imported by M/s Ghana Traders were of Chinese origin. It was also found that quantity imported M/s Ghana Traders and quantity imported by the j appellants is not comparable. The appellant also failed to establish country of origin certified by manufacturer. Value of M/s Ghana Traders cannot be considered as for comparable goods. There is no dispute that there is mis-declaration of the contents of parcel and the value of the goods. Therefore, the goods were correctly held liable for confiscation. The redemption fine is reasonable. We do not find any merit in the appeal. 6. emsp In view of the above both the appeals are rejected.
-
2006 (2) TMI 563 - CESTAT, CHENNAI
Demand - Limitation ... ... ... ... ..... rcumstances, the resistance offered by the Revenue against the assessees plea of time-bar is devoid of force. Ld. Counsel has placed on record a copy of Circular No. 13/90-CX. 6 dated 25-5-1990 of CBEC, which indicates that, as early as in 1990, the field formations of the Department were specifically directed by the Board that every provisional assessment be made under a specific order under Rule 9 B ibid. The view taken by the Board in this circular has the apex court rsquo s stamp of approval vide Metal Forgings (supra). 5. emsp The Revenue has failed to establish that the assessments were provisional and that the show cause notices were issued within the normal period of 6 months from the date of final assessment. In the result, the challenge against the assessees rsquo plea of limitation fails. The order of the lower appellate authority holding the demand of duty to be time-barred sustained. The Revenue rsquo s appeal is dismissed. (Dictated and pronounced in open Court)
-
2006 (2) TMI 562 - CESTAT, MUMBAI
Roxythromycin - Exemption under Notification Nos. 8/95-C.E. and 8/96-C.E. ... ... ... ... ..... Martindale. In the nature of the publication, we have no hesitation to hold that Martindale Extra Pharmacopoeia is an official pharmacopoeia of Great Britain. rdquo 2. emsp We find that the Bangalore Bench in the case of Reddy rsquo s Laboratories (cited supra) has held Martindale Pharmacopoeia to be an official pharmacopoeia of Great Britain. We also find from para 4 of the impugned order-in-original that the appellants have claimed the product Roxythromycin to be specified in Martindale, the Extra Pharmacopoeia, 39th Edition, 1993. In view of their earlier claim and the cited decision of the Tribunal in Reddy rsquo s Laboratories (cited supra), we hold that the appellants are entitled to the exemption for the impugned period September 1996 to December 1996. Hence, we set aside the impugned order in so far as it relates to the impugned product Roxythromycin and allow the appeal with consequential benefit to the appellants. 3. emsp Appeal is allowed. (Dictated in open Court.)
-
2006 (2) TMI 561 - CESTAT, CHENNAI
Production capacity based duty - Mandatory penalty - Imposition of ... ... ... ... ..... case involving, interpretation of a penal provision under the Central Excise Rules. 4. emsp We have consistently held that the ratio of the Apex Court rsquo s judgment (supra) is applicable to penalties under Rule 96ZO(3) and Rule 96ZP(3). It has been held that a certain amount of discretion is in-built in these penal provisions. Accordingly, it is open to a quasi-judicial authority to impose a lesser penalty than the maximum on a defaulting assessee under the compounded levy scheme. In the instant case, the penalty imposed by the lower authority is over Rs. 33 lakhs, which, according to our judgment, is too harsh to match the offence found against the party. Having regard to the facts and circumstances of the case, we reduce the quantum of penalty to Rs. 10 lakhs. 5. emsp The appeal does not raise any other issue. 6. emsp For the reasons already recorded, the appeal is dismissed, but with reduction of quantum of penalty as above. (Order dictated and pronounced in open Court)
-
2006 (2) TMI 560 - CESTAT, CHENNAI
Appeal to Tribunal - Limitation - Delay attributed to Consultant ... ... ... ... ..... treatment from 1-3-2004 to 30-4-2004 and that he was advised bed rest during the said period. It appears from the records that the impugned order was received by the party on 14-10-2003 and an appeal there against should have been filed before middle of January, 2004. The captioned appeal was filed on 4-6-2004. The Consultant, it is claimed, was under medical treatment during March and April, 2004. As regards the period of delay between mid January, 2004 and 1-3-2004, the Consultant rsquo s explanation is that he was pre-occupied with house construction, a plea not supported by any evidence. This apart, significantly, the party rsquo s affidavit does not even refer to the delay of his appeal, let alone explanation thereof. 3. emsp For the reasons aforesaid, after hearing both sides and considering their submissions, we dismiss this application. Consequently, the appeal along with the stay application also gets dismissed as time-barred. (Dictated and pronounced in open Court)
-
2006 (2) TMI 559 - CESTAT, MUMBAI
Stay/Dispensation of pre-deposit - Cenvat/Modvat credit denial ... ... ... ... ..... . emsp After hearing both the sides, we find that there is no dispute that appellant was a registered unit with the Central Excise Department and was paying duty on their final product after availing the benefit of Modvat credit. The duty was paid by them by utilizing such credit and is more than the credit availed by them. The impugned order is silent on the duty paid by the appellant. If the credit denied to the appellant is neutralized against the duty paid by them, the entire situation would be revenue neutral. The ratio of the Hon rsquo ble Supreme Court decision in the case of Commissioner of Central Excise and Customs (Appeals), Ahmedabad v. Narayan Polyplast 2005 (179) E.L.T. 20 (S.C.) would prima facie apply. As such, we are of the view that the appellant has been able to make out a prima facie case in its favour so as to allow the stay petition unconditionally. We order accordingly and fix the main appeal itself for final disposal on 27-3-2006. (Pronounced in Court)
-
2006 (2) TMI 558 - CESTAT, BANGALORE
Animal feed supplements vis-a-vis veterinary medicaments ... ... ... ... ..... veterinary medicaments under Chapter 3003.39. The appellants have produced enormous evidence to show that the item is not a medicament but only an animal food supplement. The board circular also is relied including the citations referred to by the appellants. We are of the considered opinion that the matter has to be examined in the light of the literature, evidence produced by the assessee who wish to substantiate their claim that the item is not medicament but only animal food supplement. The ratio of the judgments also is required to be re-examined in the light of the evidence produced and earlier classification adopted by the department. The aspect pertaining to the time bar is also required to be re-examined. In that view of the matter, we set side the matter and remand the case for de novo consideration in the light of the evidence produced by the assessee and the citations referred. (Operative portion of this Order was pronounced in open court on conclusion of hearing)
-
2006 (2) TMI 557 - CESTAT, MUMBAI
Demand - Valuation - Order - Valuation matters - Review ... ... ... ... ..... t have dropped the demand raised on the basis of enhancement of prices, on this ground, when the assessee had not challenged the earlier approval dated 23-9-1986, under which prices of laminated sheets of Grade I, II and III were enhanced from Rs. 100/-, Rs. 85/- and Rs. 70/- per sheet respectively to Rs. 130/-, Rs. 110/- and Rs. 90/- per sheet respectively. Since the enhancement of prices had attained finality, the demand was rightly raised in the show cause notices in question. The plea raised by the assessee before the Commissioner (Appeals) that the Assistant Commissioner rsquo s order on valuation could not be reviewed, in view of the sub-section (5) of Section 35E, has no merit as this particular sub-section has not yet come into force on the statute book. In the light of the above discussion, we hold that there is no infirmity in the impugned order of the Commissioner (Appeals) and accordingly uphold the same and reject the appeal of the assessee. (Pronounced in Court)
-
2006 (2) TMI 556 - CESTAT, CHENNAI
Stay/Dispensation of pre-deposit - Default in duty payment ... ... ... ... ..... rovisions) Act, 1985. (ii) Audited Statement of Profit and Loss Account for the year ended 31-3-2005 accompanied by the relevant Balance Sheet. It is noticed that, during the period 2004-05, the company incurred loss of over Rs. 2.7 crores and that the accumulated loss as on 31-3-2005 was to the tune of over Rs. 12.7 crores. We are of the view that the financial status of the company is very much reflected by the above documents. However, we note that their Consultant has urged us to follow the precedent of stay order No. 126/2005 ibid. In the stay order cited by the Consultant, the party was directed to predeposit the penalty amount. In the circumstances, we direct the appellants to predeposit the amount of penalty (Rupees One lakh only) imposed on them, for the purpose of Section 35F of the Central Excise Act, which shall be done within 6 weeks from the date of receipt of a certified copy of this order. Report compliance on 17-4-2006. (Dictated and pronounced in open Court)
-
2006 (2) TMI 555 - CESTAT, BANGALORE
Scrap - Penalty and redemption fine - Quantum ... ... ... ... ..... in the absence of technical opinion. However the fact remains that the goods are in unshredded form and they should have been cleared only through Nhava Sheva where it was imported. But, there is no mala fide on the part of the appellants. It is also seen that the appellants did not have previous experience of the import of similar goods and were ignorant of the import policy. Moreover all their declarations are based on the documents supplied by the exporter. In these circumstances, even though imposition of penalty under Section 112(a) is justified in view of the confiscation of the offending goods, the quantum should be decided keeping in view the fact that there is no malafide. Therefore, we feel that the penalty on the importer should be limited to Rs. 20,000/- only. Taking into account the facts and circumstances of the case, the redemption fine under Section 125 of the Customs Act, 1962 is reduced to Rs. 2 lakhs from Rs. 8 lakhs. (Pronounced in open Court on 16-2-2006)
-
2006 (2) TMI 554 - CESTAT, KOLKATA
Redemption fine, quantum of - EXIM ... ... ... ... ..... rification as regards the licensing angle. The Assistant Commissioner of Customs vide its letter dated 4-4-94, intimated the appellant company that the Undenatured Ethyl Alcohol was freely importable without coverage of any ITC Licence, provided that the said Alcohol was not meant for direct human consumption. It is not disputed that the goods were not meant for direct human consumption being concentrate. In view of the above clarification, the appellant company was justified in importing the goods without any licence. As such, we are of the view that the imposition of heavy redemption fine is not called for. The importation of the goods in question without a licence, in the present circumstances, has to be considered as a technical offence. Accordingly, in the peculiar facts and circumstances, we reduce the redemption fine to a token amount of Rs. 5.00 lakh (Rupees five lakh). But for the above modification in the quantum of redemption fine, the appeal is otherwise rejected.
-
2006 (2) TMI 553 - CESTAT, BANGALORE
Cenvat/Modvat Credit - Transitional provisions ... ... ... ... ..... ered in the case of CCE, Vadodara v. Dhiren Chemical Industries - 2002 (139) E.L.T. 3 (S.C.) and, therefore, the Commissioner (Appeals) has rightly followed the Board rsquo s Circular. He contends that the inputs had been received before the date mentioned in the Circular and they were eligible to take the credit. 6. emsp On a careful consideration and on perusal of the impugned order, we find the same to be legal and proper. The Commissioner is bound by the Board rsquo s Circular as the same is binding on her in terms of the Apex Court judgment cited by the learned Counsel. The SDR relied on the judgment in the case of Steel City Beverages Ltd. (supra). The Tribunal has not considered the Board rsquo s Circular which has binding effect on the lower authorities. The order passed by the Commissioner (Appeals) is legal and proper and there is no merit in this appeal and the same is rejected. (Operative portion of this Order was pronounced in open Court on conclusion of hearing)
-
2006 (2) TMI 552 - CESTAT, BANGALORE
Refund claim - Limitation ... ... ... ... ..... its. 2. emsp The learned SDR fairly concedes the matter. 3. emsp On a careful consideration, it is seen that the refund application was filed within time and within six months from the date of the payment of duty. The defects were rectified and the refund application was re-filed on 8-3-2002. The Tribunal in the case of Goodyear India Limited (supra) has held in an identical situation that the date for limitation should be reckoned from the original date of filing of the Bill of Entry. In view of this judgment, we have to hold that the application for refund was filed within time and the same is not barred by limitation. The matter is remanded to the Original Authority to decide the case on merits by giving an opportunity of hearing to the appellant and the matter should be decided within four months from the receipt of this order. The appeal is allowed by remand to the Original Authority. (Operative portion of this Order was pronounced in open court on conclusion of hearing)
-
2006 (2) TMI 551 - CESTAT, MUMBAI
Redemption fine and penalty ... ... ... ... ..... d irrevocable letter of credit was issued on 29-9-1984 according to him. The licensing authority suspended the licences on 3-10-1984 and the same was cancelled on 12-12-1984 on the ground that the licence holders fraudulently secured the impugned licences. The appellants came to know of the suspension on 13-10-1984 and according to the learned Advocate they took up with the supplier for cancelling the deal which the supplier declined to do. Under the circumstances, the imports were made on 9-11-1984 against the suspended licences. 2. emsp In view of the fact that imports cannot be validly permitted against the suspended licences, the order passed by the adjudicating Commissioner cannot be faulted. However, considering the circumstances of the case, I reduce the fine to Rs. 2 Lakhs and penalty to Rs. 1 Lakh and order that the amount of Rs. 2 Lakhs earlier paid pursuant to the interim order of the Honourable High Court of Bombay be adjusted against the same. (Dictated in Court)
-
2006 (2) TMI 550 - CESTAT, NEW DELHI
Compounded Levy Scheme ... ... ... ... ..... eemed credit under Notification No. 58/97 is available to the recipients of inputs from units, working under compounded levy scheme and since it is not in dispute that supplier manufacturers were discharging duty under compounded levy scheme, these appeals have no merits. 4. emsp I am in full agreement with the contention of the assessees. Deemed credit is available to the buyers of materials manufactured in units working under compounded levy scheme under Notification No. 58/97. In the present appeals, revenue has no case that any of the manufacturer suppliers was not working under compounded levy scheme. It is also well settled that the buyers of the inputs did not have to lead evidence proving that correct duty was being paid by the manufacturer of the input under compounded levy scheme. Since the revenue is not disputing payment of duty under compounded levy scheme, there is no substance in these appeals. They fail and are rejected. (Dictated and pronounced in open Court)
-
2006 (2) TMI 549 - CESTAT, NEW DELHI
... ...
... ... ..... sed before the Supreme Court in the case of Allied Photographics India Ltd. (supra) and the Hon rsquo ble Supreme Court rejected the arguments on the ground that uniformity in price before and after the assessment does not lead to the inevitable conclusion that incidence of duty has not been passed on to the buyer as such uniformity may be due to various factors. No other evidence is produced in the appeal in support of the claim by the appellant. In these circumstances and in view of the above decisions of Hon rsquo ble Supreme Court we find no infirmity in the impugned order the appeal is dismissed. rdquo 6. emsp In view of the fact that identical issue of unjust enrichment in the case of imported capital goods used captively having been settled by the Larger Bench against the assessee, I do not find any merit in the appeal of the appellants as their case is covered by the decision of Larger Bench. Accordingly appeal is dismissed. (Dictated and pronounced in the Open Court)
-
2006 (2) TMI 548 - CESTAT, MUMBAI
Appeal to Appellate Tribunal - Maintainability of ... ... ... ... ..... reason that it was not shown to him that said vessel was either prohibited or restricted. I also find that while rejecting the departmental appeal, the lower appellate authority has allowed the department to take action under any other sub-section of Section 111 of the Customs Act, 1962. I am, therefore, of the view that instead of taking appropriate action under Section 111(f) of the Act, filing of this appeal before the Tribunal is entirely misconceived. Hence, the same is dismissed. (Dictated in Court)
-
2006 (2) TMI 547 - CESTAT, NEW DELHI
Confiscation - RG-1 stage - Expert opinion ... ... ... ... ..... missioner has considered the appellants rsquo explanation at length and come to the conclusion that the goods in question were finished goods. He would also submit that at the time of seizure, goods are shown as finished goods and not goods in process. 6. emsp The expert opinion filed by the appellant brings out that maturing is essential for the goods after polymerization. It is seen that at the time of seizure, the goods in question were in open vessels. They have not been packed and not ready for sale. The production accounting can be done only after the process of production is complete. In these circumstances, the charge against the appellant that it had as not entered manufacture in RG 1 register does not seem to be well-founded. The confiscation and the imposition of penalty were, therefore, not justified. 7. emsp In the result, the confiscation and imposition of penalty are set aside and the appeal is allowed to this extent. (Dictated and pronounced in the open Court)
............
|
