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Showing 181 to 200 of 658 Records
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2008 (10) TMI 553 - CESTAT, NEW DELHI
Production capacity based duty - Demand, penalty and interest ... ... ... ... ..... rmination in the Department rsquo s appeal. The Hon rsquo ble Supreme Court taking into consideration of the decision of the Madras High Court in the case of Beauty Dyers (supra) held that there is a question of law involved in the appeal and therefore, set aside the decision of the Hon rsquo ble Gujarat High Court and remanded the matter back for its decision. It is seen that the Hon rsquo ble Supreme Court had not given any observation in the case. The submission of the learned DR that this issue was not taken before the lower authorities is not sustainable as the issue is related to question of law and can be taken before the Appellate authority. Respectfully following the decision of the Hon rsquo ble Madras High Court in the case of Beauty Dyers (supra), the impugned order is set aside and the appeal is allowed with consequential relief. It is made clear that this order is passed without going into the merits of the case. (Order dictated and pronounced in the open Court)
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2008 (10) TMI 552 - CESTAT, NEW DELHI
Appeal to Commissioner ... ... ... ... ..... n 2008 (221) E.L.T. 508 (P and H). Hon rsquo ble High Court after considering the decision of the Hon rsquo ble High Court of Gujarat in the case of CCE v. Medico Labs, reported in 2004 (173) E.L.T. 117 (Guj.) held that after the amendment of Section 128A of Customs Act, the Commissioner has no power to remand further. We find that Hon rsquo ble Supreme Court in the case of MIL India Ltd. v. CCE reported in 2007 (210) E.L.T. 188 (S.C.) also notice this fact that w.e.f. 11-5-01 under Finance Act, 2001, the power to remand by Commissioner (Appeals) has been withdrawn. In view of the above decision of the Hon rsquo ble Supreme Court and Hon rsquo ble High Court of Punjab and Haryana, we find merit in the contention of the revenue. The impugned order is set aside and the matter is remanded to Commissioner (Appeals) to decide the appeal on merit after affording an opportunity to the present respondent. The appeal is disposed of by way of remand. (Order dictated in the open Court.)
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2008 (10) TMI 551 - CESTAT, MUMBAI
Interest and penalty - Cenvat/Modvat ... ... ... ... ..... ot utilized at all, a fact not disputed by the revenue, interest cannot be charged and accordingly penalty cannot be imposed. Appellant has placed reliance on the decision of Punjab and Haryana High Court in case of Maruti Udyog Ltd. - 2007 (214) E.L.T. 173 (P and H) wherein it was held that credit which is not admissible is taken but not utilized, then assessee is not liable to pay interest as the credit was taken as an entry in the Modvat credit and was not in fact utilised. This decision has been upheld by the Supreme Court as reported in 2007 (214) E.L.T. A50 (S.C.). Attention has also been invited by the Tribunal decision in Ind-Swift Ltd., 2007 (208) E.L.T. 212 2007 (5) S.T.R. 14 wherein it has been held that penalty is not imposable where credit is taken on the inputs but not utilised. Following these two decisions, I am in respectful agreement with them and following the same, I set aside the interest and imposition of penalty and allow the appeal. (Dictated in Court)
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2008 (10) TMI 550 - ITAT, AHMEDABAD
Deduction u/s 80IB(10) – alleged that assessee was not the owner of the property and the permission was not granted in the assessee’s name – Held that:- In the appellant’s own case in the assessment year 2005-06 [2008 (11) TMI 436 - ITAT AHMEDABAD] has decided in favour of the appellant on both the issues i.e., allowing the claim of deduction u/s. 80IB(10) and not restricting the claim to utilized FSI of 9490 sq.ft. - Further following the decision in CIT v. Radhe Developers [2011 (12) TMI 248 - GUJARAT HIGH COURT], decided in favour of assessee
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2008 (10) TMI 549 - CESTAT, CHENNAI
Confiscation and penalty - Misdeclaration ... ... ... ... ..... JDR also. 4. emsp After considering the submissions, we have found a valid point in the submissions of the appellants and their consultant. The assessment was provisional pending correct classification of the goods by the Department. The goods were correctly classified by the Department and that classification was readily accepted by the assessee. Hence this cannot be a case of misdeclaration, classification and, for that matter, misclassification not being attributable to the assessee. It follows that Section 111(m) of the Act was misapplied to the facts of this case and consequently the goods were not liable for confiscation. As the penalty under Section 112 of the Act depended on confiscability of the goods, the penalty imposed by the Commissioner is also not sustainable. In the result, both fine and penalty are liable to be vacated and it is ordered accordingly. The appeal stands allowed. The stay application also gets disposed of. (Dictated and pronounced in open court)
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2008 (10) TMI 548 - CESTAT, MUMBAI
Stay/Dispensation of pre-deposit - Henna powder - Classification of ... ... ... ... ..... ing 33049040. Aggrieved by such an order, the applicant took up the matter to the Commissioner (Appeals) with a specific plea that in the order-in-original classified the products in another Chapter heading number, other than proposed. The Commissioner (Appeals) has not given any findings on this specific point, but upheld the order of the lower authorities. 5. emsp We find from the records that show cause notice seeks classification of product under said Chapter Heading No. 3301 and the adjudication order classifies the product under Chapter 3304. We find that both the lower authorities have erred in traversing beyond the show cause notice. As such we are of the considered view, that the applicant has made out a prima facie case for complete waiver of pre-deposit of amount of duty and penalty involved. Accordingly, we allow the application for waiver of pre-deposit of duty and penalty involved and stay the recovery thereof till the disposal of the appeal. (Dictated in Court)
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2008 (10) TMI 547 - CESTAT, MUMBAI
Appeal - Limitation - Condonation of delay - Stay/Dispensation of pre-deposit ... ... ... ... ..... a broker and the directors were continuously in touch with the Panorama Enterprises to make the payment in short. The payment for the consignment cleared under ARO was not received by the applicant. In the absence of any such evidence, we find that contentions of the ld. Counsel regarding the issue in question need not be gone into detail, which can be done only at the time of final hearing. Accordingly, we are of the considered view that the applicant had not made out a prima facie case for compete waiver of the amount. Hence, we direct the applicant to pre-deposit an amount of Rs. 5.00 lakhs (Rupees five lakhs only) within a period of eight weeks from today and report compliance on 2-1-2009. Subject to such compliance being reported, the condition of pre-deposit of balance amounts involved is waived and recovery thereof stayed till the disposal of the appeal. Non compliance of order of the pre-deposit will automatically result in dismissal of the appeal. (Dictated in Court)
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2008 (10) TMI 546 - CESTAT, BANGALORE
Valuation of the goods (spare parts) imported by the appellants - Related persons - Rejection of transaction value - difference in price levels between the appellant and also the third parties - appellant is a subsidiary of the German company - third parties are mainly the EOUs - EOUs do not pay any Customs Duty - price mentioned in the International Price List was taken as the basis and a discount of 35% was given to the appellants - CIT (A) upheld the decision.
HELD THAT:- Appellants have given the expenditure incurred by their office in India. From this, it is very clear that the effective discount enjoyed by the appellants is only 59% in view of this administrative cost incurred by them. This point has not been taken into consideration by the learned Joint CIT and also the CIT(A).
A similar case was the subject matter of the decision of the Tribunal in the case of CC, Chennai v. Hewlett Packard Ltd. [1998 (7) TMI 282 - CEGAT, MADRAS], wherein the valuation in respect of different classes of buyers have been elaborately dealt with. Related persons importing goods in bulk for stock and sale whereas individual consumers importing a small quantity of actual use, both constitute different classes of buyers especially when the relation between the buying company and the seller is not affecting the transaction. Here also, the transaction between the buyer and the seller is based on the Inter Company Price Agreement. It is not something very arbitrary.
The appellants carry out stock and sale. They also undertake after sales service. All these factors have been taken into account while giving a discount of merely 76% to the appellant from the International Price List. We should not take that 76% as abnormal and fix an arbitrary discount. It has also been held that activities of stock and sale undertaken by subsidiary company should not be considered as indirect payment to seller as it is beneficial both to the subsidiary company and the seller. Cost of such activities should not be added to the price actually paid or payable in determining the value of the imported goods. In fact, the Interpretative Notes to Rule (4)(3)(b) of the Customs Valuation Rules had already been referred to.
Therefore, we do not find any justification for rejecting the Transaction Value in this case. It is also to be borne in mind that the adjudicating authority has accepted the Transaction Value in respect of two items considering the quantum of imports made by the third parties and the appellants. The same logic should be applied in respect of the other two categories also. This has not been done. Hence, we do not find any justification for rejecting the Transaction Value. Thus the appeal is allowed with consequential relief.
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2008 (10) TMI 545 - CESTAT, MUMBAI
Appeal to Commissioner - Refund - Unjust enrichment ... ... ... ... ..... sides. It is undisputed that the assessee produced Cost Accountant rsquo s certificate, for the first time before the appellate authority. As per Rule 5 of Central Excise (Appeals) Rules, 2001, any evidence that was not produced before the adjudicating authority, cannot be produced before appellate authority. It is an admitted fact that Cost Accountant rsquo s certificate was produced before appellate authority only. Since the entire issue revolves over the question of unjust enrichment, we are of the considered view that adjudicating authority should be given a chance to consider this evidence to come to a conclusion on the question of unjust enrichment. 6. emsp Accordingly, without expressing any opinion on the merits of the case, we set aside the impugned order and remand the matter back to the adjudicating authority to reconsider the issue afresh, following the principles of natural justice. Appeals allowed by way of remand to adjudicating authority. (Pronounced in Court)
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2008 (10) TMI 544 - CESTAT, CHENNAI
Sugar syrup - Intermediate product - marketability/excisability - Demand - Extended period of limitation -
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2008 (10) TMI 543 - CESTAT, NEW DELHI
Appeal to Appellate Tribunal - Restoration of appeal ... ... ... ... ..... the applicant own case the Hon rsquo ble Allahabad High Court dismissed the appeal filed by the Revenue as reported in 2005 (183) E.L.T. 16 (Allahabad). 2. emsp After hearing both the sides and on perusal of the records, I find that the appeal was dismissed by ex parte order due to failure to appear by the ld. Advocate. It is also noted that identical issue was decided by the Hon rsquo ble High Court in favour of the applicant, which was not before the Tribunal while passing the order. In view of that Final Order dated 12-12-2007 is recalled and the appeal is restored in its original number. Appeal hearing is fixed on 23-12-2008. (Dictated and pronounced in the open court)
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2008 (10) TMI 542 - CESTAT, NEW DELHI
Clandestine removal - Proof - Valuation ... ... ... ... ..... ubmission has been made that the valuation has been adopted on a higher side at the rate of Rs. 30,000/- MT as against the lower approved prices prevailing during the relevant time but no price list was enclosed in support of this claim, and admittedly has not been raised in the proceedings before the lower authorities. We are not inclined to entertain this plea at this stage. 6.8 emsp The decision of the Hon rsquo ble High Court of Kerala in the case of George Verghese v. CCE reported in 1992 (60) E.L.T. 361 and the decision of the Tribunal in the case of V.K. Thampy v. CCE, Kochi 1994 (69) E.L.T. 300 (Tri.) relates to cases where demands of duty on tread rubber were held unsustainable as the same were merely based on shortage of one of the raw materials. The facts of this case being different, these decisions are not applicable. 7. emsp Under these circumstances, appeal is liable to be rejected. Accordingly, we reject the appeal. (Pronounced in the open Court on 21-10-2008)
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2008 (10) TMI 541 - CESTAT, BANGALORE
Stay/Dispensation of pre-deposit - SSI exemption ... ... ... ... ..... o s Circular No. 759/75/2003-CX. from file No. 357/6/2003 TRU dated 30-10-2003 and the illustrations under clause A(f), if the job worker has crossed the exemption limit of Rs. 25 lakhs, the duty has to be paid by the said trader. In terms of the said illustrations, the appellants are liable to pay duty on the clearances of that job worker who had crossed the limit of Rs. 25 lakhs. In this case, the allegation is that M/s Dinesh Weaving Mills had exceeded their turnover of more than Rs. 57 lakhs. Therefore the appellants are directed to pre-deposit an amount of Rs. 5,70,000/- (Rupees Five lakhs seventy thousand only) within a period of three months from today and on such deposit, the pre-deposit of balance duty amount stands waived and recovery stayed till the disposal of the appeal, even after the expiry of 180 days. Failure to comply this order will entail dismissal of the appeal. Call on to report compliance on 29th January 2009. (Pronounced and dictated in the open court)
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2008 (10) TMI 540 - CESTAT, AHMEDABAD
Stay/Dispensation of pre-deposit ... ... ... ... ..... tification No. 53/97 as applicable to 100 EOUs, the appellants being one. As required under the EOU scheme, the appellants were also registered as a private bonded warehouse. According to the lower authorities, the appellants are required to pay interest on the aforesaid duty on the inputs for the period of lsquo overstay rsquo of these goods in the warehouse, which period stands determined to be 3 months. We put forth a question to the ld. JDR as to which provision of the Customs Act or any rules made thereunder or which provision of the EXIM Policy warranted levy of interest as above. He has cited none. The provision cited by him viz. clause (ii) of sub-section 2 of Section 61 of the Customs Act is apparently not applicable to this case. According to the ld. Counsel, the above demand is illegal. 2. emsp In the result, there will be waiver of pre-deposit and stay of recovery in respect of the amount of interest demanded from the appellants. (Dictated and Pronounced in Court)
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2008 (10) TMI 539 - CESTAT, NEW DELHI
Cenvat/Modvat - Inputs ... ... ... ... ..... kg. and also some quantity of raw materials Rs. 37.50 per kg./Rs. 38.25 per kg. In addition, some quantum of goods processed while manufacturing were taken as second grade due to quality considerations. They have not indicated the same in the RG-I register gradewise, as there was no such legal requirement. Further, the Department has not proved that what was sold as grade lsquo C rsquo or grade lsquo B rsquo was of higher grade and that they realized amounts higher than what was mentioned in the invoices. No statement was also taken from any officers of the firm. 5. emsp The submissions of the learned authorized representative merits acceptance. In the absence of any legal requirement to mention gradewise the manufactured goods, the presumption by the department that what was cleared as grade lsquo C rsquo , grade lsquo B rsquo was of higher grade cannot be upheld. 6. emsp Therefore, the appeal is allowed with consequential relief. (Dictated and pronounced in the open Court)
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2008 (10) TMI 538 - CESTAT, NEW DELHI
Stay/Dispensation of pre-deposit - Cenvat/Modvat ... ... ... ... ..... ting procurement of goods for use in the manufacture, mining, processing etc. and the same, in our prima facie view cannot be applicable to the facts of the present case. Further to treat the dumper (which is treated as capital goods by the assessee themselves) as an input may do violence to the general Cenvat scheme. Therefore, we are not able to, prima facie, agree with the learned Advocate that the said dumper is input. Therefore, we hold that there is no case for total waiver of dues as per the impugned order. No financial hardship is pleaded before us. 6. emsp Taking the entire facts and circumstances into account, we direct the applicant to deposit a sum of Rs. 1 crore (rupees one crore) within eight weeks from today and to report compliance on 23-12-2008. Subject to the deposit of the above amount, the pre-deposit of the balance amount of duty and penalty is waived and recovery thereof, stayed till the disposal of the appeal. (Dictated and pronounced in the open Court)
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2008 (10) TMI 537 - CESTAT, NEW DELHI
Valuation - Misdeclaration ... ... ... ... ..... jection. 6. emsp Thus in this case, on the basis of the evidence on record against the Appellant, we do not find any justification for exercising reasonable doubt about the declared transaction values and rejecting the same by invoking Rule 10A of the Valuation Rules. The impugned order does not discuss any evidence to prove that the declared transaction values do not satisfy the criteria for acceptance of the transaction value as laid down in Rule 4(2) of the Valuation Rules. 7. emsp In view of the above, the rejection of declared transaction value in respect of imports of various qualities of silk fabrics, made by the Appellant company at Chennai and Kolkata, confirmation of duty demand under Section 28(1) of the Customs Act, 1962 and confiscation of the goods under Section 111(d) and 111(m) of the Act, are without any basis. 8. emsp The impugned order is, therefore, not sustainable and the same is set aside. The appeals are allowed. (Pronounced in open court on 17-10-2008)
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2008 (10) TMI 535 - CESTAT, KOLKATA
Adjudication - Evidence - Appreciation of - Penalty and redemption fine - Imposition ... ... ... ... ..... finding on such pleading is necessary when the allegation related to 449 drums and 278 bags in the show cause notice, which we have detailed in Para 2 and Para 5.1 and 5.2 of this order. If thorough scrutiny of each and every quantity of drums/bags questioned is made for which the Appellants were show-caused, granting reasonable opportunity of rebuttal, the re-adjudication shall meet the end of justice. Accordingly, we set aside the impugned order and remand all the four appeals to the ld. Adjudicating Authority to redo the assessment for the impugned goods, affording reasonable opportunity of hearing to the Appellants. The Appellants are at liberty to make all their submissions before that Authority who shall consider the same in accordance with law and pass a speaking and reasoned order. It is needless to say that the Appellants shall not seek unnecessary adjournments and readjudication shall be completed with utmost expedition. (Pronounced in the open Court on 15-10-2008)
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2008 (10) TMI 534 - CESTAT, BANGALORE
Cenvat/Modvat - DEPB scheme ... ... ... ... ..... ch an interpretation is taken, it would definitely upset all the earlier assessments, which we do not want to do. The change in the Notification and the Policy is only with prospective effect. For some reason or other, the Government did not want to give the benefit of availment of Cenvat of CVD duty debited through DEPB. Hence, this is very clear from para 4.3.5 of the Policy. Later only, that crucial sentence had been deleted. So, in our view, the Policy change cannot have retrospective effect. We find that all the orders are legal and proper. As the matter is one of interpretation and since the appellants were having some favourable order in the Polyhose India Pvt. Ltd. Case (cited supra), penalty is not warranted. Hence, the penalty imposed in the Order-in-Original is set aside. However, the duty confirmation is upheld. Thus, we allow partially the appeal No. E/569/2005 and we reject the other two appeals namely E/233 and 234/2006. (Pronounced in open Court on 15-10-2008)
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2008 (10) TMI 533 - CESTAT, BANGALORE
Valuation - Customs - import of Second-hand photocopier machines - prohibited goods - Rule 8 of the Customs Valuation Rules - confiscation - penalty
............
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