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Showing 161 to 180 of 645 Records
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2007 (5) TMI 531 - DELHI HIGH COURT
Stay order - Compliance with ... ... ... ... ..... ull opportunity would be granted for making a written representation as well as of a personal hearing if they so desire and it is only thereafter that an appropriate order would be passed in accordance with law. 10. emsp Without commenting any further on the merits of the matter, in my view, this is a very fair statement made by the learned counsel for the respondent and it would serve the ends of justice if the provisions of Section 8 are followed both in letter and spirit. Accordingly, the impugned order is set aside. It would be open to the respondents to issue a fresh show cause notice, along with documents upon which they rely, giving the petitioner full opportunity of submitting a written representation as well as of being personally heard, if they so desire. The sum and substance of this order is that the respondents shall comply with the requirements of natural justice embodied in Section 8 of the said Act. With these directions, this writ petition stands disposed of.
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2007 (5) TMI 530 - PUNJAB & HARYANA HIGH COURT
Stay order - Compliance with ... ... ... ... ..... erits accordance with law. We are further of the view that the appellate authority should not have expressed any thing on merits and recorded a finding as is evident from the perusal of para 5 of the impugned order which has been reproduced in the preceding para of the judgment. Such a course was not available to the appellate Authority. Therefore, the order dated 22-1-2007 is liable to be set aside. 6. emsp In view of the above, the order dated 22-1-2007 (Annexure P.1) is set aside. The appeal is restored to its original number on the file of the appellate authority-cum-Additional Director General of Foreign Trade. The appellate authority shall hear the appeal on merits and decide the same by taking into account the arguments of the parties/their counsel. 7. emsp The parties shall appear before the appellate Authority either on the next date to be notified by it or a date thereafter. 8. emsp A copy of the order be sent to the appellate authority for further necessary action.
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2007 (5) TMI 529 - CESTAT, NEW DELHI
Stay/Dispensation of pre-deposit - Valuation ... ... ... ... ..... import. Therefore, having regard to the facts and circumstances of the case, this is not a fit case for waiving the pre-deposit of the total amount payable under the impugned order. Keeping in view the relevant aspects of the case, we direct that on the appellant rsquo s depositing Rs. 6 lacs within eight weeks from today, there shall be waiver of the pre-deposit of the remaining amount of duty as well as penalty payable under the impugned order by the importer. If the amount is not so deposited, the appeal shall stand dismissed. It is stated that the partner, who is the other appellant and has been imposed penalty of Rs. 2 lacs, is the sole surviving partner of the importer firm. Since he will be liable to deposit the amounts being a sole surviving partner of the importer firm, no order of pre-deposit is made against him. Both the applications are disposed of accordingly. Post the matter for reporting compliance on 31st July 2007. (Dictated and pronounced in the open Court)
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2007 (5) TMI 528 - CESTAT, MUMBAI
Penalty - Delayed payment of Duty - Compounded Levy Scheme ... ... ... ... ..... y clear, when the appellants failed to discharge their monthly duty liability. On perusal of the records I find that the appellants had discharged 60 to 75 of duty liability within time and the balance duty liability was also discharged by them, subsequently, with interest. In view of the facts and circumstances, the imposition of penalty to the equal amount of duty outstanding, is uncalled for in this case. The Tribunal has been taking consistent view that if that if delay is of shorter period, in discharging the duty liability, penalty of Rs. 5,000/- (Rupees five thousand only) would suffice to meet the ends of justice. 5. emsp Accordingly, in view of the facts and circumstances of the case, the impugned order is modified to the effect that the penalty imposed on the appellant is reduced to Rs. 5,000/- (Rupees five thousand only) from Rs. 46,369/- (Rupees forty-six thousand three hundred sixty-nine only). 6. emsp Appeal allowed partly as indicated above. (Dictated in Court)
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2007 (5) TMI 527 - CESTAT, BANGALORE
Refund - Limitation ... ... ... ... ..... ment of the amounts to the Government dues payable by the appellant under the provisions of Section 142(1)(a) of the Customs Act, 1962. He distinguishes the citations relied by the Counsel. 4. emsp I have considered the submissions and I have perused both the citations. The citations note the correspondence in those cases and had laid down that those letters cannot be considered as appealable orders. In the present case, the Commissioner (Appeals) has examined the OIO and has clearly given a finding that the OIO is not a correspondence but an order itself rejecting the claim. Therefore, the plea of the appellant to consider the letter dated 12-4-2005, clarifying that the OIO is an appealable order, as the date of limitation cannot be accepted. The citations are clearly distinguishable. The order passed by the Commissioner (Appeals) on limitation is correct order. There is no further ground to consider on merits. The appeal is dismissed. (Pronounced and dictated in open Court)
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2007 (5) TMI 526 - CESTAT, AHMEDABAD
... ... ... ... ..... ent is a must to give effect to the provisions of Section 15. It is also to be appreciated that Section 2(2) of the Customs Act defines the term assessment as follows ldquo assessment includes provisional assessment, reassessment and any order of assessment in which the duty assessed is nil rdquo . Therefore, it will be reasonable to conclude that there is a need for reassessment in respect of warehoused goods when the same is cleared from the warehouse and such reassessment is also assessment in terms of Section 2(2) of the Customs Act. As in the present case, no challenge of the assessment has been made by the importer, his claim for refund is not admissible in the light of the ratio laid down by Hon rsquo ble Supreme Court in the case of Priya Blue Industries cited supra. 6. emsp Therefore, the findings and reasonings of the Commissioner (Appeals) is in order and it is not required to interfere with. 7. emsp Appeal is therefore dismissed. (Dictated and Pronounced in Court)
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2007 (5) TMI 525 - CESTAT, BANGALORE
Demand - Limitation ... ... ... ... ..... itself. Simultaneously in December 2000, the application for remission of duty had been filed. These facts have not been denied by both the authorities. Therefore it is difficult to belief that there is a suppression of facts. 3. emsp The learned DR submits that the date of rejection of application for remission of duty, i.e. on 23-5-2001 to be taken as the date of an offence case against the assessee. I am not in a position to accept this plea and the grounds for confirmation of demand. The fact of theft was intimated to the Department and the appellants had also filed an application for remission of duty on stolen fabrics. The Department should have immediately on receipt of the information of theft issued a show cause notice. All the facts were known to the Department. There is no suppression of facts in the matter. The demand is hit by time bar. The appeal is allowed by setting aside the demand, with consequential relief if any. (Pronounced and dictated in the open court)
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2007 (5) TMI 524 - CESTAT, BANGALORE
Refund - Unjust enrichment ... ... ... ... ..... eligible for the benefit of Notification. The facts disclose that the appellants have paid the duty under protest. They were not in a position to recover the amounts of duty as the duty price is treated as cum-duty. They had mentioned the duty in the invoice only for clarity purpose. They have discharged the burden that they have not collected the duty from the customers. Therefore, all the cited judgments would apply to the facts of the case. The learned Counsel relied on the Larger Bench judgment in the case of Ram Vision Limited v. CCE, Meerut - 2004 (170) E.L.T. 13 (Tri.-LB) to claim interest in the matter. The Larger Bench has held that interest is required to be paid from the date immediately after expiry of three months from the date of receipt of refund application till date of refund. In view of these judgments, the appellants are entitled for the claim of interest also. The appeal is allowed with consequential relief, if any. (Pronounced and dictated in open Court)
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2007 (5) TMI 523 - CESTAT, NEW DELHI
Stay/Dispensation of pre-deposit - Cenvat/Modvat ... ... ... ... ..... s only and the satisfied that order placed. It is clear from the record that there is no evidence whatsoever which indicates that the appellant assessee did not use the materials received by it for the purpose of production or that the production was from some other materials or that the materials in dispute were disposed of in any manner other than in the manufacture of excisable finished products. Thus, the dispute seems to be merely about discrepancy between the descriptions in the books of accounts of two companies. A mere nomenclatural difference cannot be basis for denying Modvat credit. Particularly, when credit is available irrespective of what variety of sheets is used in the production of final products. 6. emsp In view of what is stated above, the demand of revenue does not appear to be, prima facie sustainable. Stay applications are allowed and recovery in terms of the impugned order stayed, till disposal of the appeals. (Dictated and pronounced in the open Court)
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2007 (5) TMI 522 - CESTAT, MUMBAI
Cenvat/Modvat - Duty paying documents ... ... ... ... ..... in the memorandum of appeal. Further, they rely upon decision of the Tribunal in the case of Vardhaman Acrylics Ltd. v. Commissioner of Central Excise and Customs, Surat-II - 2006 (204) E.L.T. 321 (Tri.-Mumbai) 2006 (4) S.T.R. 489 (Tribunal). The aforesaid decision squarely covers the issue on hand in favour of the assessee. The ld. Commissioner is of the view that a notarized certified copy of bill of entry issued by courier agents does not fall within the category of clauses (a) to (m). The Commissioner has erred in observing in the aforesaid manner. A notarized certified copy of bill of entry can be treated in the category of bill of entry on the analogy laid down in the aforesaid decision. Therefore, I am of the view that this is a fit case where Cenvat credit cannot be denied inasmuch as receipts of the inputs in the factory premises and their user in or in relation to the manufacture of final product is not in dispute. Hence appeal is allowed. (Pronounced on 18-5-2007)
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2007 (5) TMI 521 - CESTAT, MUMBAI
Stay/Dispensation of pre-deposit - Penalty ... ... ... ... ..... ncis Stanly Stalin v. Intelligence Officer, Narcotic Control Bureau, Thiruvananthapuram, 2007 ALL SCR 675. Whereas, the ld. DR relied upon the judgment of Hon rsquo ble Supreme Court in the case of Surjeet Singh Chhabra v. Union of India 1997 (89) E.L.T. 646 (S.C.), Commissioner of Central Excise, Madras v. Systems and Components Pvt. Ltd. 2004 (165) E.L.T. 136 (S.C.) and decision of the Tribunal in the case of Akai Impex Ltd. v. Commissioner of Customs, Mumbai, 2003 (156) E.L.T. 700 (Tri. - Mumbai). Ld. DR contends that in the light of the above judgments retracted statement can also be considered by the Customs Officer since he is not a police officer. 3. emsp On considering the facts and circumstances, there appears to be some prima facie case in favour of the appellant as such it warrants to waive the pre-deposit of the penalty amount and grant stay thereof pending disposal of the appeal. Accordingly application is allowed. List the appeal in its turn. (Dictated in Court)
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2007 (5) TMI 520 - CESTAT, KOLKATA
Valuation - SEZ Unit - Held that: - since the appellants have made a declaration well in advance on the strength of a letter received from the supplier regarding the mistaken supply, their request for re-export of the CFL supplies to them is reasonable and deserves to be considered.
As regards the alleged under valuation of the impugned batteries, the same is of an academic interest as imports by the SEZ unit is not required to pay duty and ultimately, the appellants are seeking export of the same.
Appeal allowed.
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2007 (5) TMI 519 - CESTAT, BANGALORE
Cenvat/Modvat - Reversal of credit - rejected goods - Rule 16(2) of CER - Held that: - when the rejected goods are cleared as scrap, Rule 16(2) comes into play. When the rejected goods are cleared as scrap, then the process to which the rejected goods are subjected does not amount to manufacture and in terms of Rule 16(2) in such a case, the manufacturer shall pay an amount equal to Cenvat credit taken under sub-rule (1) - In the present case, the Cenvat credit taken under sub-rule (1) is ₹ 1,14,351/-. This amount has to be paid to the Revenue in terms of Rule 16(2). Therefore the orders of the lower authorities are legal and proper - appeal dismissed - decided against appellant-assessee.
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2007 (5) TMI 518 - CESTAT, MUMBAI
Confiscation and penalty - Import - Undervaluation ... ... ... ... ..... has been enhanced on the basis of an unsigned invoice of the manufacturer, M/s. Design Plus Industries. There is no other evidence on record in the form of contemporaneous import etc. to justify the loading. Although the supplier of the goods is an American firm, whose owner Shri Mukesh Shah is also one of the promoter directors of the importing firm (appellants), this is not sufficient to sustain the enhancement on the basis of unsigned invoice. The submission of the learned SDR that undervaluation was admitted by Shri Jeetendra Shah, Director of the importing firm, is not factually correct, as Shri Shah has only accepted that there were differences in the prices declared by the importers and those shown in the price list of the manufacturer. 3. emsp In the light of the above, we hold that the department has not discharged the burden cast upon it to show that the goods were undervalued, and accordingly set aside the impugned order and allow the appeal. (Pronounced in Court)
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2007 (5) TMI 517 - CESTAT, CHENNAI
Confiscation, penalty and redemption fine ... ... ... ... ..... rders, Section 125 of the Customs Act, which provides for option for redemption of goods confiscated under Section 124, against payment of fine, does not discriminate between gold and other goods. In other words, it is not mandatory that gold items, found to be liable for confiscation under Section 111 of the Customs Act, should be absolutely confiscated. The final orders cited by learned counsel have also taken note of relaxed gold control regime. We, therefore, while upholding confiscation of gold and imposition of penalty, holds that the appellant should be given option for redemption against payment of fine. The original authority shall determine a reasonable redemption fine to be paid by the party for redeeming the said goods, after giving him a reasonable opportunity of being heard. In the result, the impugned order is set aside to the extent the above relief was not given to the party, and this appeal is allowed by way of remand. (Dictated and pronounced in open Court)
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2007 (5) TMI 516 - CESTAT, MUMBAI
Stay/Dispensation of pre-deposit - Dutiability of sugar syrup ... ... ... ... ..... ef Chemist rsquo s opinion that synthetic syrup may be prepared with or without the addition of citric acid, (in this case Revenue finds that citric acid was added to the sugar syrup, which is contested by the applicants) provided that syrup should not have solid contents less than 65 by weight and the circular has been relied upon by the Commissioner in the case of Commissioner of Central Excise, Indore v. Venkatesh Beverages 2001 (128) E.L.T. 75 (Tri. - Del.) . In the light of the above, we find prima facie force in the submission that the item on which demand has been confirmed is prima facie not excisable, that the benefit of Notification No. 67/95 is available for part of the period and that the benefit of exemption in terms of Notification No. 10/96 is available to the applicants for the remaining period post 23-7-96, we therefore hold that a strong prima facie case for waiver on merits has been made out and stay recovery thereof pending this appeal. (Dictated in Court)
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2007 (5) TMI 515 - CESTAT, NEW DELHI
Stay/Dispensation of pre-deposit - Penalty on commission agent ... ... ... ... ..... receiving orders and assuring the supply and also assuring the payment regarding goods supplied by the principle supplier. 3. emsp The contention of the revenue is that the record regarding delivery of goods and receipt of payment etc. recovered from the residence of the applicant. 4. emsp We find in the impugned order the finding is that the applicant is only a Commission Agent and some records were recovered from his premises showing the clearance of goods without payment of duty by the manufacturer. There is no finding that applicant was party to the evasion of duty. In these circumstances, pre-deposit of whole amount of penalty is waived. Stay petition is allowed. (Dictated and pronounced in open Court).
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2007 (5) TMI 514 - CESTAT, NEW DELHI
Stay/Dispensation of pre-deposit - Demand and penalty ... ... ... ... ..... led for the benefit of Notification No. 108/95-C.E. and the benefit was denied on the ground that the requisite certificates were produced after the clearance of the goods. We find that in Para 195 of the order, the adjudicating authority held that major part of demand pertains to supplies made to Kerala Govt. and T.N. Govt. The applicant had submitted necessary certificates after clearing of the goods. In these circumstances as the applicants supplied goods to the State Govt. for the welfare scheme, therefore, pre-deposit of remaining amount of duty and penalties are waived. Stay petitions are allowed. Registry is directed to list the appeals in the second week of July rsquo 07. (Dictated and pronounced in open Court)
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2007 (5) TMI 513 - CESTAT, NEW DELHI
Penalty - Compounded levy scheme ... ... ... ... ..... p It is being pointed out that in cases relating to closure of unit, prior payment of duty is not required and therefore penalty is not attracted to such cases for the reason of delay in payment of duty. Reliance in this connection is being placed on the decisions of the Tribunal in the cases of Vishesh Dhatu Industries v. CCE, Surat as reported in 2003 (161) E.L.T. 745 (Tri. - Mumbai) and Karmyogi Dyeing Pvt. Ltd. v. CCE, Mumbai-VI as reported in 2001 (136) E.L.T. 639 (Tri. -Mumbai). 5. emsp In the facts of the present case, the appellant rsquo s claim for abatement was kept pending for a long time. The delay in making the payment of duty is attributable to the delay in disposing of the application. The Commissioner was, therefore, right in holding that penalty was not attracted. The basic issue remains decided in favour of the respondent assessee by the aforesaid judgments of this Tribunal. The appeal has no merit. It is rejected. (Dictated and pronounced in the open Court)
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2007 (5) TMI 512 - CESTAT, CHENNAI
Rectification of mistake - Miscellaneous order ... ... ... ... ..... ding those of the applicants. After hearing learned Counsel for the applicants and learned SDR for the respondents, we find that this application cannot be maintained under Section 35C(2) of the Central Excise Act, which does not provide for rectification of mistakes in miscellaneous orders. Accordingly, this application is dismissed. If the applicants have any grievance with regard to framing of any of the issues for reference to the Larger Bench they are at liberty to raise it before that Bench. (Dictated and pronounced in open Court)
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