|
Advanced Search Options
Case Laws
Showing 81 to 100 of 490 Records
-
2006 (6) TMI 452 - CESTAT, MUMBAI
Excisability - Marketability ... ... ... ... ..... of appeal. It is contended further that it is a settled law that for the purpose of charging excise on goods in terms of the Central Excise Act, 1944, the criterion of lsquo excisability rsquo as well as lsquo marketability rsquo are to be satisfied. 4. emsp After going through the submissions made in this regard and the grounds mentioned in the appeal, I am of the view that goods in question were fabricated by the appellants in their own site for erection of electricity line for carrying electricity. The fabricated items were not intended for sale in the market and it is not a commodity known in the market for the purpose of trading. Therefore, the goods in question are not satisfying the conditions as laid down in catena of decisions cited in the memorandum of appeal. Therefore, they do not attract any duty liability. The amount deposited under protest is liable to be refunded to the appellants. Accordingly appeal is allowed with consequential relief. (Pronounced in court)
-
2006 (6) TMI 451 - CESTAT, CHENNAI
Stay/Dispensation of pre-deposit - Cenvat/Modvat credit ... ... ... ... ..... ms of Rule 11(2) of Cenvat Credit Rules, 2004. 2. emsp After hearing both sides and considering their submissions, we find that it is not in dispute that, from 9-7-04 the assessee cannot utilise Cenvat credit of AED on account of the above exemption. However, in the event of the exemption being lifted some time in future, they will become eligible. Apparently, the appellant is looking forward to that fortune. In the present appeal, they seem to be claiming that the above credit cannot lapse. Ld. Counsel has submitted that, as the assessee is not a SSI unit, the analogy drawn by ld. Commissioner between the above credit and a credit on input in stock on the date of SSI exemption is erroneous. Apart from the dispute in this case, we find that the credit in question can remain in the relevant account of the assessce without prejudice to the Revenue during the pendency of the appeal. Hence there will be stay of recovery as prayed for. (Order dictated and pronounced in open Court)
-
2006 (6) TMI 450 - CESTAT, BANGALORE
Warehousing - Extension of period ... ... ... ... ..... sed goods. Further reliance is placed on Pradeep Ullal v. CC - 2001 (133) E.L.T. 428. In terms of these orders, he submits that the appellant have still an opportunity to file an application to complete the formality of seeking extension of the warehousing period. 3. emsp The learned JCDR submits that the appellant ought to have filed an application for seeking extension of the warehousing period. As they have defaulted, the Commissioner was justified in confirming the demands. 4. emsp On a careful consideration, we notice that the appellants are still working under the bonded warehouse scheme. The warehousing license in the present case has been extended, which is not in dispute. In view of this position of the warehousing license having been extended, the question of demanding duty does not arise. The impugned order is not legal and proper in the light of the cited judgments and the appeal is allowed with consequential relief, if any. (Pronounced and dictated in open Court)
-
2006 (6) TMI 449 - CESTAT, MUMBAI
Cenvat/Modvat - Transfer of unutilised credit on shifting of unit - no stock of inputs - whether there existed provision under Rule 8 of the Cenvat Credit Rules, 2001 for transfer of credit without transfer of inputs related to the credit - HELD THAT:- While sending a cryptic communication to the appellant, stating that the Commissioner did not consider the appellant’s request as there were no provisions for transfer of credit without transfer of inputs, there was no indication as to whether the Commissioner had applied his mind for reaching the satisfaction as contemplated under sub-rule (21) of Rule 57F, which corresponds to Rule 8(2) of Cenvat Rules. It is apparent that, no hearing was given to the appellant by the Commissioner before the making of the said order. No speaking order of the Commissioner has been placed on record.
It is evident that the question of transferring stock of inputs could arise only if it exists in cases where capital goods on which credit has been availed have been duly accounted for. In other words, where the stock did not exist and the capital goods, on which the credit was availed, were duly accounted for, transfer of Cenvat credit lying unutilised, should not be refused. For statistical purposes, where in such cases there is no stock of inputs, the transfer entry would show transfer of “Nil” stock.
The impugned communication dated 20-7-2001 and the order of the Commissioner referred to therein is set aside - matter remanded to the Commissioner for a fresh consideration and decision in accordance with the law after hearing the parties - appeal allowed by way of remand.
-
2006 (6) TMI 448 - CESTAT, BANGALORE
Confiscation, fine and penalty ... ... ... ... ..... 111(o) as there was no wilful non-compliance of the Notification. The appellant rsquo s unit has also become sick and the BIFR proceedings have been initiated. In these circumstances, we set aside the order of confiscation and imposition of redemption fine. There is also no justification for imposing any penalty as the appellant had not willfully violated the conditions of the Notification. There is also no provision at that time in the said notification for demanding interest. Hence we set aside the demand of interest. In view of the above findings, we remand the matter to the Adjudicating authority for re-quantification of duty liability by taking into account the export obligation as already fulfilled and also the effective rate of Customs duty. Thus the appeal is allowed by way of remand. Therefore we also set aside the penalty on Shri Abdul Wahid, Managing Director of the Company. (Operative portion of the order has been pronounced in the court on completion of hearing)
-
2006 (6) TMI 447 - CESTAT, BANGALORE
Valuation - Bought out items ... ... ... ... ..... n 2005 (192) E.L.T. 620 wherein also it has been held that brought out items required to make goods functional is to be considered as accessories only and the accessories supplied at the option of the buyers is not includable in the assessable value. 3. emsp On a careful consideration of the submissions and the case laws, we are agreeable with the learned Chartered Accountant that the issue is covered in the assessee rsquo s favour in terms of the judgments cited supra. This Bench has also decided the issue in all the similar cases in assessee rsquo s favour by applying the ratio of the above rulings. The Commissioner has considered all the factors and found that the brought out items were supplied as optional items and they were duty paid and its value is not required to be added in the value of the connectors. There is no infirmity in the impugned order and hence, the appeal is rejected. (Operative portion of this Order was pronounced in open Court on conclusion of hearing)
-
2006 (6) TMI 446 - CESTAT, NEW DELHI
Compounded Levy Scheme - Penalty - Delay in payment of duty ... ... ... ... ..... In respect of the penalty, the respondent is not disputing that the duty was paid after the due dates. The Hon rsquo ble Allahabad High Court in the case of Pee Aar Steels (P) Ltd. v. CCE reported in 2004 (170) E.L.T. 406 held that the penalty mentioned under proviso to Rule 96ZP(3) is not the maximum penalty but the only penalty, and hence such penalty has to be levied whenever there is failure to pay the duty by the 10th of the month. The Hon ble High Court held that CEGAT has been lenient by reducing the penalty which strictly speaking it could not do because the proviso to Rule 96ZP(3) does not say that the maximum penalty can be up to the amount of the duty outstanding. In view of the above decision, I find merit in the contention of the appellant and the impugned order whereby penalty was reduced to Rs. 25,000/- is set aside and order-in-original in this regard is restored. The appeal is disposed of as indicated above. (Dictated and pronounced in open Court on 16-6-06)
-
2006 (6) TMI 445 - CESTAT, NEW DELHI
Appeal to Appellate Tribunal - Cenvat/Modvat - Capital goods ... ... ... ... ..... t in the cement factory as part of wagon loading machine, rotary wagon machine and drum motors. I find that the Tribunal in the appellant rsquo s own case as reported at 1998 (102) E.L.T. 89 (Tri.) has held as under - ldquo Modvat - Capital goods - Wagon loader and its parts entitled to credit - Notification No. 14/96-C.E.(N.T.), dated 23-7-1996 having retrospective effect - Rule 57Q of Central Excise Rules, 1944 - Heading No. 84.28 of Central Excise Tariff Act, 1985. rdquo Learned D.R. was not able to confirm whether any appeal is filed against this order of the Tribunal. Following the ratio of the above decision of the Tribunal, I do not find any reason to deny the Modvat credit on the parts used in wagon loading machine as well as straight idlers with brackets. 3. emsp In view of the facts and circumstances as mentioned above the impugned orders denying the Modvat credit to the appellant is set aside and the appeals are allowed. (Dictated and pronounced in the Open Court.)
-
2006 (6) TMI 444 - CESTAT, KOLKATA
Smuggled goods ... ... ... ... ..... her, states that this fact has been noted in the earlier Tribunal Order in the case of Giridhari Dubey v. C.C.(Prev.), Kolkata reported in 2002 (149) E.L.T. - 427 (Tri. - Kolkata). 3. emsp Considering the fact that the gold seized and the gold covered by the documents are both of 999 purity, and in view of the earlier decision of the Tribunal in the cited case, I am of the view that benefit of doubt can be extended to the appellants in these cases in support of their claim that the seized gold is covered by the sale documents produced by them. Hence, the impugned Order is set aside with consequential benefit to the appellants. (Pronounced in the Court on 9-6-2006)
-
2006 (6) TMI 443 - CESTAT, CHENNAI
Stay/Dispensation of pre-deposit - Demand - Limitation ... ... ... ... ..... ent of the Apex Court in the case of CCE v. Bhalla Enterprises 2004 (173) E.L.T. 225 (S.C.) . The ld. SDR reiterates the findings of the Commissioner (Appeals). 3. emsp After considering the submissions made by both sides, we are of the view that the appellants have made out prima facie case on the ground of limitation inasmuch as the only reason stated in the show-cause notice for invoking the larger period of limitation for demanding duty from the assessee is that they did not get registered with the department. It appears from the records that the assessee rsquo s aggregate value of clearances for each financial year comprised in the period of dispute was below the prescribed limit and, therefore, it was not incumbent on them to apply for registration. This aspect seems to be relevant to the context of considering the time-bar issue. We grant waiver of pre-deposit and stay of recovery in respect of the duty and penalty amounts. (Order dictated and pronounced in open Court)
-
2006 (6) TMI 442 - CESTAT, KOLKATA
Refund - Unjust enrichment - Application of ... ... ... ... ..... reover, the facts of these cases are similar to the case of Universal Cylinders (cited supra), where the Honourable Supreme Court has dismissed the Civil Appeal filed by the Department. Following the Tribunal rsquo s Order in that case, against which the appeal has been dismissed, the impugned Orders passed by the Commissioner (Appeals) in favour of the respondents in these appeals, cannot be faulted with, in view of the fact that, these cases also involve a price variation clause and on finalisation of the price, the customers have deducted the difference from the payments to be made to the respondents. Since there is evidence to show that the respondents have borne the excess duty amounts and have not passed on the extra duty burden to the customers, they are entitled to the refunds, which have been allowed by the lower appellate authority in these cases. Hence, I find no merits in the appeals filed by the Department and the same are rejected. (Pronounced in the open Court)
-
2006 (6) TMI 441 - CESTAT, MUMBAI
Interest on demand - Upward revision of price with retrospective effect ... ... ... ... ..... known to the appellants as to whether the price will be revised or not as such they cannot ask for provisional assessment under Rule 7 of Central Excise Rules, 2002 rdquo . It can be noticed from the above reproduced findings that the ld. Commissioner (Appeals) has correctly interpreted the provisions of Section 11AB and it is also a fact in this case that the appellant was not aware, at the time of first clearance of the goods, that the value will be enhanced by the purchasers. Further I note that an identical issue has been decided by the Tribunal in the case of Commissioner of Central Excise, Aurangabad v. Rucha Enginering Pvt. Ltd. as reported at 2006 (206) E.L.T. 278 (Tri.-Mumbai) which covers the issue squarely in favour of the respondents. 6. emsp Accordingly, in the facts and circumstances of this case, the impugned order of the ld. Commissioner (Appeals) is correct and does not require any interference. The appeal filed by the Revenue is rejected. (Dictated in Court)
-
2006 (6) TMI 440 - CESTAT, CHENNAI
Stay/Dispensation of pre-deposit - Interpretation of statutes ... ... ... ... ..... are not to be read into sub-section 3 of Section 18 of the Customs Act. Section 28AB as referred to in sub-section 3 of Section 18 has a limited purpose, that is, any interest leviable under the latter provision would be at such rate as notified by the Central Government under the former provision. The appellants have made out a strong prima facie case against the levy of interest ordered by the lower authorities. Accordingly there will be waiver of predeposit and stay of recovery in respect of interest demanded by the authorities from the appellants. Contextually it is submitted by ld. Counsel that there is no quantification of interest in the impugned order and that the appellants themselves have quantified the same to be over Rs. 12 crores, which indicates a heavy stake for the Revenue. Having regard to this position, we would dispose of the appeals as early as possible. Accordingly the appeals are directed to be posted to 25-9-2007. (Dictated and pronounced in open Court)
-
2006 (6) TMI 439 - CESTAT, NEW DELHI
Clandestine removal - Proof of - Demand - Shortage of goods ... ... ... ... ..... r that the consignment in the truck had been taken out to the weighment machine as evidenced by the weighment slip. The statement of the driver of the truck was also to the effect that ldquo he had got the goods weighed at machine on Computer Kanda and he had been asked to wait for bill etc. for the goods. rdquo Thus, the defence of the assessee is fully in terms of documentary evidence as well as the statement of the driver. There is merit in the explanation in relation to excess stock also and the explanation is required to be accepted as the goods could not have been actually weighed. In any case, this issue is not particularly important since the appellant is not disputing in the stock entered in the statutory record and would be liable for clearing them after payment of duty. 7. emsp In view of what is stated above, there is no error or illegality in the order of the Commissioner. Appeal of the revenue has no merit. It is rejected. (Dictated and pronounced in open Court)
-
2006 (6) TMI 438 - CENTRAL ADMINISTRATIVE TRIBUNAL, MUMBAI
CESTAT Member - Selection and appointment of - Natural justice - Hearing ... ... ... ... ..... is not mandatory on the part of the Government to accept the recommendations of the Committee. Thus the annulment of the applicant rsquo s name after taking into consideration of the fact relating to his name being on the Agreed List cannot be objected to. 27. emsp We are therefore of the considered opinion that decision taken by the ACC in its second meeting for annulment of the approval accorded earlier to the appointment of applicant as Member (Technical) CESTAT is based on sound reasoning. Also there is no violation of the principles of natural justice in not giving opportunity to the applicant for giving his say on the issue relating to his name being on the Agreed List. Moreover, the applicant has no vested legal right of appointment on the post of Member, CESTAT. We, therefore, do no find any legal infirmity in the procedure adopted by the respondents and see no reason for interference in judicial review. Thus, the OA lacks merit and is dismissed accordingly. No costs.
-
2006 (6) TMI 436 - SETTLEMENT COMMISSION, CUSTOMS AND CENTRAL EXCISE,
Settlement of case - Immunity from penalty, interest, fine and prosecution ... ... ... ... ..... t company is given immunity from interest in excess of 10 towards the duty liability settled. The Revenue will calculate the interest and communicate the same to the applicant within 15 days of receipt of this order. The applicant thereafter, will pay the same within 15 days of receipt of the communication from the Revenue and report compliance. (iii) Immunity from penalty, fine and prosecution is granted to the main applicant. (iv) In view of the fact that the main applicant is given immunity from penalty and prosecution, the co-applicant Shri Ramakrishna, MD of the applicant company is also granted immunity from penalty and prosecution. 8. emsp The aforesaid settlement shall be void if it is subsequently found by Settlement Commission that it has been obtained by fraud or misrepresentation of facts. The immunities are granted under Section 127H(1) of the Customs Act, 1962. Attention is also drawn to the provisions of sub-sections 2 and 3 of Section 127H ibid in this regard.
-
2006 (6) TMI 435 - SETTLEMENT COMMISSION, CUSTOMS AND CENTRAL EXCISE,
Settlement of case - Duty liability quantification of ... ... ... ... ..... of simple interest of 10 per annum is granted. Since the applicant has already paid Rs. 1,50,00,000/- the interest amount can be adjusted and the balance, if any, is ordered to be refunded. (iii) Immunity is granted from penalty and prosecution under the provisions of the Central Excise Act, 1944, and the Rules framed thereunder, to the main applicant, as well as co-applicants, namely 1. Shri Suresh Kumar Bhuwalka 2. Shri Ajay Bhuwalka 3. Shri Ankit Bhuwalka 4. Shri K.M. Lakshman 5. Shri M. Vasudev 6. Shri R.R. Hiremath 7. Shri Nimain Ray 10. emsp The above immunities are granted in terms of sub-section (1) of Section 32K of the Central Excise Act, 1944. The immunities granted above are liable to be withdrawn, if at any time it comes to the notice of the Bench that in obtaining this order of settlement any material particulars have been withheld or any false evidence has been given. The attention of the applicants is also drawn to sub-sections (2) and (3) of Section 32K ibid.
-
2006 (6) TMI 434 - CESTAT, CHENNAI
Stay/Dispensation of pre-deposit - Demand ... ... ... ... ..... in Sri Ayyappan Silicate and Chemicals Products (P) Ltd. v. CCE, Trichy 2004 (165) E.L.T. 425 (Tri.-Chen.) , wherein it was held that conversion of solid Sodium Silicate to liquid Sodium Silicate did not amount to manufacture. Admittedly, in the present case, the activity undertaken by the assessee was conversion of Sodium Silicate solid to Sodium Silicate liquid. In the cited case, invokation of larger period of limitation was also set aside on the basis of bona fide belief entertained by the party. The appellants have a prima facie case against the demand of duty. Accordingly there will be waiver of pre-deposit and stay of recovery in respect of the duty and penalty amounts. (Order dictated and pronounced in open Court)
-
2006 (6) TMI 433 - CESTAT, KOLKATA
Cenvat/Modvat - Inputs, misdeclaration ... ... ... ... ..... olyomides rdquo . 2. emsp The appellants have clarified that the input received by them falls within the category of the product declared by them in the declaration. The contention of the appellants appears to be reasonable apart from the fact that the impugned inputs have been received in the appellants rsquo factory and used by them and there is no allegation that the inputs are non-duty-paid. 3. emsp I am of the view that the appellants are eligible for the Credit on the inputs received and used by them. Accordingly, the impugned order is set aside and the appeal is allowed with consequential benefit to the appellants. (Pronounced in the open Court)
-
2006 (6) TMI 432 - CESTAT, KOLKATA
Cenvat/Modvat - Duty paying document ... ... ... ... ..... s of the despatch advices which bore the dates of 3-3-96 and 12-3-96. 3. emsp Considering the fact that there is no dispute regarding subsequent receipt of the goods and that they are used in the prescribed manner, I am of the opinion that a lenient view is called for in this case and that the mistake does not warrant for denial of the credit. As such, the impugned orders are modified holding that the credit be allowed to the appellants in respect of the impugned consignments. However, the small penalty of Rs. 5,000.00 (Rupees Five Thousand only) imposed on the appellants for infraction of the rules is justified and the same is upheld. The appeal is thus partly allowed. (Dictated and pronounced in the open court.)
........
|
