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Showing 201 to 220 of 658 Records
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2008 (10) TMI 532 - CESTAT, BANGALORE
Demand and penalty - Time Limitation - stock transfer to sister unit - Held that: - the appellants have been filing the returns regularly and furnishing all the information to the department, however, the department has not acted in time. In any case, after the lapse was pointed out to the appellants, they had paid the differential duty. In these circumstances, the penalty is not called for because the whole exercise is revenue neutral. Whatever duty is paid by the appellant is taken as Cenvat credit by the sister unit - longer period could not have been invoked - appeal allowed - decided in favor of appellant.
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2008 (10) TMI 531 - CESTAT, NEW DELHI
Clandestine production - Yarn, cotton yarn - Evidence - Statement, retracted statement - whether the Appellant’s factory during the period from 1996 to 2001 had produced only cross reel hank yarn or produced plain reel hank yarn? - Held that: - while it can be said that the Appellant have produced cross reel hank yarn on some occasions, it would be totally wrong to conclude that throughout during the period from 1996 to 2001 the Appellant company produced only cross reel hank yarn. Therefore while, the stock of yarn found in the factory premises at the time of the officer’s visit to the factory on 27-9-01 and the stock of yarn found in the premises of M/s. Komal Synthetics which on test by the CRCL was found to be cross reel hank yarn, can be treated as cross reel hank yarn, the findings of these tests cannot be applied to the other clearances.
The duty can be charged only in respect of those goods, which on tests were found to be cross reel hank - matter remanded to the Commissioner for re-determination of the Appellant’s duty liability based on the above finding and re-quantification of the penalty to be imposed on the Appellants - appeal allowed by way of remand.
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2008 (10) TMI 530 - CESTAT, NEW DELHI
... ... ... ... ..... at VBCL have agreement with AMAS making it mandatory for AMAS to incur certain quantum of expenditure on advertisement and sale promotion of the goods manufactured by VBCL or that there is other evidence indicating that AMAS are incurring advertisement expenses and recovering the same from the dealers, on instructions of VBCL. If AMAS, with the dealer rsquo s consent incur certain expenses for sales promotion and advertisement of the goods, which will benefit AMAS as well as the dealers and AMAS share the advertisement expenses with the dealers, such advertisement expenses cannot be added to the assessable value of the goods manufactured by VBCL. We, therefore, hold that the advertisement charges being recovered by AMAS from dealers at the rate of Rs. 11.50 per crate are not includible in the assessable value. 6. emsp In view of our above findings, the impugned order is not sustainable and the same is set aside. The appeals are allowed. (Pronounced in open court on 3-10-2008)
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2008 (10) TMI 529 - CESTAT, AHMEDABAD
Demand - Limitation - Extended period - Suppression - Held that: - such adoption of lower value was not with intention to evade payment of duty, especially when such duty is available as credit to their own unit - When the goods were being cleared to their sister unit, who were availing credit of duty paid at the same time, it is difficult to hold that there was any intention on the part of the assessee to pay less duty, specifically when there is no other evidence on record to reflect upon such intention - appeal dismissed - decided against Revenue.
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2008 (10) TMI 528 - CESTAT, AHMEDABAD
Valuation - Cash discount ... ... ... ... ..... old Section 4 (prior to amendment made on 1-7-2000) will be applicable in this case. It is fairly well-settled law that trade discounts (by whatever name) are admissible deductions subject to the condition that the same is known prior to clearance of the goods and are passed to the buyer of the goods. In the present case even though the discounts have been claimed, the same have been recovered by the appellant through commercial invoices, as detected by the department. This makes these discounts/commissions includible in the assessable value. I am unable to subscribe to the view of the appellant that these are post manufacturing expenses and hence not includible, when the settled legal position is clear. The decision cited by them also does not cover the case. Consequently the duty demand is justified. rdquo We don rsquo t find any reason for setting aside the order of the Commissioner (Appeals) and accordingly appeal is rejected. (Pronounced in the open Court on 10-10-2008)
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2008 (10) TMI 527 - CESTAT, MUMBAI
Valuation (Customs) - Enhancement of value ... ... ... ... ..... Customs Act, 1962 will show that the lsquo discount rsquo is not mentioned anywhere in the said provisions for disallowance from the price. A discount is a commercially acceptable measure, which may be resorted to by a seller for a variety of reasons. Sub-rule (2) of Rule 4 of the Customs Valuation Rules, 1988 provides the restrictions, when the transaction value shall not be acceptable. The department has not adduced any evidence to prove that any of the restrictions contained in the said sub-rule (2) at the material time are applicable to the facts of the present case except alleging that the discount was a special discount. In view of the above, we hold that the transaction value between the appellants and German seller is the correct value for the assessment of the goods in question. 4. emsp The impugned order passed by the Commissioner (Appeals) is not sustainable. The same is set aside and the appeal is allowed with consequential relief as per law. (Pronounced in Court)
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2008 (10) TMI 526 - CESTAT, NEW DELHI
Customs House Agent’s licence - Renewal of licence ... ... ... ... ..... a) observed that renewal can be refused only on one of the grounds as stipulated in Clause (a) and (b) of Regulation 11(2). Where neither of the grounds exists, renewal of licence liable to be allowed. On the other hand, Delhi Bench in the case of G.P. Jaiswal observed that if there is no appeal provisions under Regulation 11 that will follow the remedy under Regulation 9. As there is a contrary views of two Division Benches of the Tribunal, I refer this matter to the Larger I Bench on the following questions - ldquo (a) Whether the appeal against the order of Commissioner of Customs in respect of rejection of application for renewal of licence under Regulation (11) of CHA 2004 would lie before the Tribunal. (b) Whether CHA may avail the remedy against the order of rejection of application for renewal of licence under sub-regulation (5) of Regulation (9) of the said Regulation. Registry is directed to place before the Hon rsquo ble President for constituting the Larger Bench.
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2008 (10) TMI 525 - CESTAT, NEW DELHI
Stay/Dispensation of pre-deposit - Clandestine removal ... ... ... ... ..... le to the appellant. rdquo 7. emsp We are thus of the considered view that the appellant does not have any prima facie case and, therefore, not entitled to full waiver. The fact that the appellant unit has been declared as sick industry and the matter is pending with the BIFR per se is no ground to dispense with the pre-deposit. In support of the plea of financial hardship, the appellant produced balance sheet. In our opinion, in a case of clandestine removal, the balance sheet cannot be accepted as a true index of one rsquo s financial position. 8. emsp However, taking into account the entire facts and circumstances, we direct the appellant to deposit 50 (fifty per cent) of the duty demand within eight weeks and report compliance of the order on 30-12-2008. On such deposit, the pre-deposit of the balance amount of duty and penalties shall stand waived and recovery stayed till disposal of the appeal. (Dictated and pronounced in the open Court on the 24th day of October, 2008)
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2008 (10) TMI 524 - CESTAT, MUMBAI
Penalty - Abetment in attempt to illegally export Traveller’s cheque - Held that:- As regards the appellants, there is no evidence to show that they were aware that the foreign exchange released by them would form part of an attempt of unauthorized export - However, lack of care and diligence by the appellants is not sufficient to pin them with the charge of abetment of the attempt of illegal export of Traveller cheques.
Penalties not sustainable - appeal allowed - decided in favor of appellant.
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2008 (10) TMI 523 - CESTAT, MUMBAI
Valuation - Contemporaneous imports ... ... ... ... ..... bills of entry filed in May and July, 2002 which are more than 5 to 6 months prior to the appellants import in December, 2002. Further the imports are not on the same commercial level as can be seen from the fact that very large quantities - approximately 3 lakh pieces of the 28mm rough blanks had been imported by the appellants while the NIDB data relied upon for loading shows imports of much lesser quantity. The appellants have also imported very large quantities of the first item as compared to the quantity of such items shown in the NIDB data. It is well settled that contemporaneous imports must be at the same commercial level before they are relied upon. Since the imports as shown in the NIDB data cannot be said to be at the same commercial level as the imports by the appellants, the enhancement of value cannot be sustained. 3. emsp We, therefore, set aside the loading and accept the declared value, set aside the impugned order and allow the appeal. (Pronounced in Court)
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2008 (10) TMI 522 - CESTAT, NEW DELHI
Stay/Dispensation of pre-deposit ... ... ... ... ..... n of Rule 7(5) of the Central Excise Rules, 2002. The amount in question pertains to the pre-deposit made by the appellant in terms of Section 35F of the Central Excise Act. We are prima facie of the view that while making refund of the pre-deposit the provisions of Rule 7(5) cannot be applied. The order of the Commissioner (Appeals) is accordingly stayed. (Dictated and pronounced in the open Court)
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2008 (10) TMI 521 - CESTAT, NEW DELHI
Penalty - Quantum of ... ... ... ... ..... g 28,000 Euros). The foreign currency was confiscated and penalty was imposed on the appellant. The only contention is that the foreign currency was handed over by somebody unknown to him to be handed over to Sonu at Dubai. The appellant prayed for lenient view. We find that in this case the appellant attempted to smuggle foreign currency within India by concealing and the appellant had not disclosed the name of the person who had handed over the foreign currency. The recovery of currency is not in dispute. In these circumstances, keeping in view the facts and circumstances of the case, we find no ground to interfere with the quantum of penalty as imposed. The appeal is dismissed. (Order dictated in the open Court)
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2008 (10) TMI 520 - CESTAT, CHENNAI
Confiscation, redemption fine and penalty - Misdeclaration ... ... ... ... ..... claim of the importer that the excess quantity had been supplied without his knowledge has not been disproved by the revenue with any evidence. There appears to be no motive for the importer to misdeclare the quantity of fabrics imported. In the circumstances, wilful misdeclaration is not proved. 4.2 emsp We find that the Commissioner rsquo s finding that this is a case of wilful misdeclaration of quantity and value of the imported goods is without any evidence. The confiscation of the impugned goods under Section 111(m) is sustainable as the quantity declared in the relevant Bill of Entry is less than what was imported. However, the hefty fine of Rs. Nine lakhs and penalty of Rs. One lakh, we find, are excessive and disproportionate to the gravity of the offence, which we find, is technical. We accordingly modify the fine and penalty to respectively Rs. 1.5 lakhs and Rs. 10,000/-. The appeal is disposed of. (Operative part of the order pronounced in open court on 22-10-2008)
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2008 (10) TMI 519 - CESTAT, AHMEDABAD
Stay/Dispensation of pre-deposit - Clandestine removal, proof ... ... ... ... ..... ocate that raising demand of duty for the past period based upon the test report of the sample from a particular lot is not in accordance with the settled proposition of law that the test report of one particular lot can be made applicable to that lot only and not to the previous clearances. We also find favour with the appellant rsquo s contention that observations made by the Commissioner are in the nature of facit approval of the appellant rsquo s plea that there is variance in consumption of supari in each lot and negligible variation in content shown in the test report and as declared by the appellant cannot ipso-facto leads to the inevitable conclusion that same quantum of supari used in the sample drawn in January 2005 would apply for the period 2002 to 2004. 5. emsp As such, we are of the view that the appellants have been able to make prima facie case in its favour so as to allow stay petitions unconditionally. We order accordingly. (Pronounced in Court on 8-10-2008)
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2008 (10) TMI 518 - CESTAT, NEW DELHI
Condonation of delay in filing appeal - Appeal to Appellate Tribunal - Time Limitation - Held that: - there is an arguable case on behalf of the Revenue and, therefore, we are of the view that it would be in the interest of justice to condone the delay - Being satisfied that the delay caused on the part of the Department was not deliberate, we condone the delay and thus allow the COD application - decided in favor of Revenue.
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2008 (10) TMI 517 - CESTAT, AHMEDABAD
Valuation - includibility - notional profit - Rule 8 of Cenvat Credit Valuation Rules, 2002 - Held that: - It is not a case where the goods are being sold by one assessee to another. It is basically taking out money from one pocket and putting the same in other pocket of same trouser. The other unit at Nadiar was appellant’s own unit and it was only for the procedural and technical purposes that the duty was required to be paid at the time of clearance from the assessee’s unit. Tribunal, in number of cases, has held that where the duty paid in one unit is available as credit to other unit of the same assessee, the entire issue is Revenue neutral and the demand should not be confirmed on the said count.
The entire demand being available as credit to their own unit, confirmation of the same was not justified - appeal allowed - decided in favor of appellant.
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2008 (10) TMI 516 - CESTAT, AHMEDABAD
Valuation - Installation charges - Held that: - Tribunal in case of M/s. Rhino Machines (P) Ltd. v. CCE, Vadodara, [2004 (12) TMI 139 - CESTAT, MUMBAI], has held that the goods to be assessed in the form in which cleared from the factory and subsequent activities of fabrication, erection and technical supervision charges at site will not form a part of the assessable value of the goods cleared from the factory - The installation charges being a separate activity, we find no reason to hold that the same was a part of the transaction so as to include the charges collected on value of such activity in the assessable value - appeal allowed - decided in favor of appellant.
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2008 (10) TMI 515 - CESTAT, CHENNAI
Refund claim - Maintainability of ... ... ... ... ..... g had claimed the benefit of the above notification. Even if it be assumed that the Udamalpet Unit cleared processed yarn without payment of duty in terms of the above notification, it was not open to the Department to proceed against the Chennai Unit. The Department could, in such an eventuality, proceed for recovery of duty from the Udamalpet Unit. At the end of the Chennai Unit, the clearance of yam under Rule 96E without payment of duty was perfectly in order inasmuch as the Commissioner (Appeals) has found that the above clearance of yarn under Rule 96E was in accordance with the procedure prescribed by law. 4. emsp The refund claim is therefore liable to be allowed on merits. The original authority shall have to refund the amount to the claimant subject to unjust enrichment. For this limited purpose, after setting aside the orders of the lower authorities, I remand the case to the original authority. The appeal is disposed of. (Dictated and pronounced in the open court)
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2008 (10) TMI 514 - CESTAT, CHENNAI
Rectification of mistake ... ... ... ... ..... dispensers with reference to technological features. On the whole, by all standards, it could be said that the issue before us was largely interpretative in nature. It was in an identical situation that we vacated a similar penalty in the case of Pallipalayam Spinners Ltd. (supra). We therefore, are of the view that it would be unreasonable to sustain the penalties imposed on the assessee by the Commissioner. On this basis, the last para of our final order needs an amendment. The following sentence shall be inserted between the first and second sentences of para 11 of the final order - ldquo Having regard to the highly interpretative nature of the issue agitated before the Bench, we take the view that it would not be reasonable or fair to sustain the penalties on the assessee. Accordingly, penalties are vacated rdquo . 4. emsp The present applications are allowed to the above extent only. The final order shall be read as amended herein. (Dictated and pronounced in open Court)
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2008 (10) TMI 513 - CESTAT, NEW DELHI
Payment of duty on monthly basis - Delay in payment ... ... ... ... ..... on of the Hon rsquo ble Gujarat High Court reported in 2002 (52) RLT 755. 2. emsp After hearing both the sides and on perusal of the records, I find that the main contention of the learned Joint CDR that the provisions of forfeiture facility under Rule 8 is mandatory. After going through the decision of the Hon rsquo ble Gujarat High Court and the Tribunal in the above cases, I find that the forfeiture facility of two months under Rule 8 of the Rules is maximum limit. Therefore, the contention of the learned CDR has no merit. I find that the Respondent is a SSI unit and due to financial crisis, there was a delay in payment of duty, which was paid with interest. 3. emsp After going through the facts and circumstances of the case, the Commissioner (Appeals) reduced the period of forfeiture. Therefore, I do not find any reason to interfere the order of the Commissioner (Appeals). Accordingly, the appeal filed by the Revenue is rejected. Dictated and pronounced in the open Court
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