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Case Laws
Showing 161 to 180 of 691 Records
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2008 (5) TMI 593
Stay/Dispensation of pre-deposit ... ... ... ... ..... search having been misplaced by the department and not supplied to the assessee for defence, no duty liability can be fixed upon the assessee. 3. emsp After carefully considering the submissions, we find that the fact that as to whether clearances were effected against two disputed ARE-1 or not, can be established from the statutory record maintained by the appellant in the ordinary course of their business. Admittedly, such records were seized by the department and copies thereof are not supplied to the appellant, in spite of making requests to that effect. The said documents are reported to be misplaced and as such not available. As such, misplacement having occurred at the end of Revenue, assessee cannot be blamed for the same and cannot be subjected with the duty liability. 4. emsp As such, we are of the view that the appellant has, prima facie, a case in its favour, so as to allow the stay petition unconditionally. We order accordingly. (Pronounced in Court on 30-5-2008)
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2008 (5) TMI 592
Stay/Dispensation of pre-deposit ... ... ... ... ..... yment of Special Additional Duty of Customs, which benefit was claimed by the appellant during the adjudication proceeding but stands rejected on the ground that it was not claimed initially at the time of import. The above reasoning adopted by the original adjudicating authority is not in accordance with the settled principles of law. The assessee is entitled to claim the benefit of Notification when the Revenue itself has reopened the assessment and the benefit is otherwise available in the light of any other Notification. We are of the view that appellant has prima facie a strong case in their favour so as to dispense with the condition of pre-deposit. We, accordingly, allow the stay petition. Inasmuch as the appeal does not stand decided by the Commissioner (Appeals), we remand the matter to him to decide the same on merits without insisting on any pre-deposit. The stay petition and the appeal get disposed of in the above terms. (Dictated and pronounced in the open Court)
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2008 (5) TMI 591
Remission of duty - Storage loss ... ... ... ... ..... mand on the ground that as per board rsquo s circular variation of 2 is allowed in respect of the molasses. In the present case, the variation is only 0.37 and there is no evidence that the quantity in question has been cleared without payment of duty. 4. emsp The Revenue submitted that as the procedure for seeking remission has not been followed, therefore, the request was rightly rejected. The contention is also that the appellant failed to prove the exact cause for such loss of the molasses. 5. emsp In this case, I find that consequential demand already set aside by the revisionary authority on the ground that there is a variation of stock to the extent of only 0.37 whereas as per Board rsquo s Circular No. 261/15/1982-CX.8 dated 18-7-83 a variation of 2 is allowed in respect of molasses. In view of the above circular and the order passed by the authority in revision application, the impugned order is set aside and appeal is allowed. (Dictated and pronounced in open Court)
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2008 (5) TMI 590
Stay/Dispensation of pre-deposit - Drawback - Fraudulent claim ... ... ... ... ..... who is not required to make pre-deposit during pendancy of his appeal, stay petitions of all other three appellants are rejected and they are directed as under (1) First Appellant Sri Kailash Khanna is required to pre-deposit entire amount of drawback availed by him as well as make pre-deposit of entire penalty imposed on him in terms of the impugned order within 4 (four) weeks from the date of hearing. (2) Second Appellant Sri Atanu Sarkhel is required to make pre-deposit of entire amount of penalty imposed on him by in terms of the impugned order within 4 (four) week from the date of hearing. (3) Fourth Appellant Smt. Bharati Sen is required to make pre-deposit of entire amount of penalty imposed on him by in terms of the impugned order within 4 (four) week from the date of hearing. 7. emsp All the above three Appellants are required to make compliance on 10-7-2008. (Operative part of the order and reasons of decision was already pronounced in the open court on 29-5-2008.)
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2008 (5) TMI 589
Appeal - Restoration of appeal dismissed for non-appearance by assessee ... ... ... ... ..... ribunal on the dates fixed for hearing and on which dates the appeals were dismissed for non-prosecution, as due to non-receipt of hearing notice. They also submit that they did not receive the dismissal orders until February, 2008 and that they have filed the present applications immediately thereafter. We find that this is a mis-representation for the reason that notice of hearing and copy of Tribunal rsquo s final orders were issued to the applicants at the address for service shown in the appeal memorandum. The applicants did not furnish any fresh address for service although the learned Counsel states that they had shifted from their earlier premises. The applicants have not taken any steps, which should have been taken by a prudent man to intimate the Tribunal regarding change of address so that notice of hearing could have been sent to the fresh address. 4. emsp No ground for restoration has been made out. The applications are accordingly dismissed. (Dictated in Court)
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2008 (5) TMI 588
Stay/Dispensation of pre-deposit - Milk, flavoured milk - Classification of ... ... ... ... ..... ave carefully considered the submissions, it is an undisputed fact that the appellants were adding flavours to the milk and the Commissioner (A) after seeing the ingredients has considered the item to be beverage containing milk falling under Chapter 22 as against classification under Chapter 4 ndash lsquo Milk and Milk Products rsquo . The item cannot be used as milk per se in view of the addition of flavour added to it and it has to be considered as a beverage. This is our prima facie finding. All the other aspect pertaining to classification has to be seen at latter stage. Taking the financial hardship pleaded by the appellants, we direct them to pre-deposit Rs. 1,00,000/- (Rupees One Lakh Only) within a period of two months. On such deposits the balance of duty and penalty stands waived and recovery stayed. On such compliance, there shall be no recovery even after expiry of 180 days. Call on to report compliance on 6th August, 2008. (Pronounced and dictated in open Court)
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2008 (5) TMI 587
Stay/Dispensation of pre-deposit - SSI exemption ... ... ... ... ..... graph 4 are not required to be taken into consideration. Inasmuch as the branded goods manufactured by the appellant were admittedly not ineligible for the grant of exemption in terms of para-4, on account of the fact that the same were manufactured in a factory situated in rural area, they are required to be taken into consideration for computing the eligibility criteria. As such, we are of the view that the appellant at this stage has not been able to make out prima-facie case in its favour so as to allow stay petition unconditionally. The issue is arguable and we would like to put the appellant to some terms of deposit. No financial hardship has been pleaded in the stay petition. We accordingly direct the appellant to deposit 50 of the duty amount within eight weeks from today and report compliance on 29-7-2008, subject to which, pre-deposit of balance amount of duty and entire amount of penalty shall stand waived and its recovery stayed. (Dictated and Pronounced in Court)
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2008 (5) TMI 586
Stay/Dispensation of pre-deposit - Penalty ... ... ... ... ..... lakhs were absolutely confiscated which were seized from the premises of the applicant, in these circumstances, the pre-deposit of amount of penalties are waived. Stay petition is allowed. In view of the value of the goods under confiscation, we direct the Registry to list this appeal on 7-7-2008. (Dictated and pronounced in open Court)
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2008 (5) TMI 585
Order of Commissioner (Appeals) - Speaking order ... ... ... ... ..... the appellant company and other noticees and redemption fine vide their appeal No. E/183/08. 5. emsp I have considered the submissions made by both sides and perused the records. I find that the Commissioner (Appeals) has not dealt with any of submission made by the appellants and simply stated that the same has been fully discussed by the original authority and clearly brought out in the Panchnama and show cause notice etc. This cannot be considered as speaking order and Commissioner (Appeals) should have dealt with the submissions made by the appellants. The matter is, therefore, remanded back to the Commissioner (Appeals) with the direction that he should take into account the submissions made by the appellant and after providing sufficient opportunity of hearing to the appellants to pass a speaking order. All issues are kept open. The Revenue rsquo s appeal is also likewise remanded. 6. emsp The appeals are allowed by way of remand. (Dictated and pronounced in open court)
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2008 (5) TMI 584
Cenvat/Modvat - Job work for SEZ unit ... ... ... ... ..... inding of the fact and legal position are being assailed by the appellants, who submit that amendment to the Notification No. 18/04 (N.T.) dated 6th Sept., 2004 amending the Rule 17 debarred SEZ unit to avail credit only in respect of DTA clearances and not for the goods meant for export. Inasmuch as, Commissioner (Appeals) has gone on the basis as if both the sides have agreed that HLL was not entitled to credit and has not considered the various submissions made by the appellants, we set aside the impugned order and remand the matter to the Commissioner (Appeals) for fresh decision after taking into account the above plea of the appellants and other submissions made by them in their cross-objection filed before him. The plea that the revenue rsquo s appeal travelled beyond the show cause notice is also to be considered by him in de novo proceeding. The appeal is, thus, allowed by way of remand. Stay petition also gets disposed of. (Dictated and pronounced in the open Court)
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2008 (5) TMI 583
Stay/Dispensation of pre-deposit - Modification of stay order - Recovery of dues - Limited company - Held that: - The appellant is a limited company and therefore liability of the Directors and the shareholders is limited to their shareholding and as rightly pointed out by the ld. Advocate, other than properties in the name of the company, it would not be possible for any one to recover additional dues since the liability of the company will be limited to the assets available. The assets available have virtually been disposed of in the sense that one property has been disposed by IFCI Ltd. and the second property remains attached by the Central Excise Department - the requirement of pre-deposit of duty and penalties waived.
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2008 (5) TMI 582
SEZ unit - Confiscation - Misdeclaration of value by SEZ unit - Held that: - inasmuch as the importer was located in Special Economic Zone (SEZ), there was no duty implication in respect of the said consignments, there could not be any motive or intention on the part of the assessee to mis-declare the goods in question - appeal dismissed - decided against Revenue.
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2008 (5) TMI 581
Appeal to Commissioner ... ... ... ... ..... evidence and therefore, he is not inclined to consider the same. Accordingly, he rejected the appeals. 3. emsp I am not in agreement with the reasoning of the learned Commissioner (Appeals). The grounds raised by the assessee are in the nature of a challenge to the findings of the original adjudicating authority and cannot be considered as fresh grounds on the simple reason that the appellants did not file any reply raising the same defence before the original adjudicating authority. Inasmuch as admittedly, the defence could not be placed before the Assistant Commissioner, I set aside the impugned order and remand all the appeals to the original adjudicating authority for fresh decision. Needless to say that the appellants would file their reply within a period of 2 months from the date of receipt of this order and would attend the personal hearing without asking for unnecessary adjournment. 4. emsp All the appeals are allowed by way of remand. (Pronounced in the open Court)
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2008 (5) TMI 580
Adjudication - EOU, 100% EOU ... ... ... ... ..... ly account for the capital goods. Immediately after completing the job work, they should have taken back the capital goods given on loan basis to the job worker. Having failed to do so, they are liable to pay the duty. 4. emsp After hearing both the sides, we find that though the appellant has raised a number of pleas before us, but after taking note of the Tribunal rsquo s decision in the case of M/s. ABN Granites Ltd. v. CCE, Cochin 2001 (133) E.L.T. 483 (Tri. Bang.) laying down that the matter against 100 EOU to be adjudicated only after referring to the Development Commissioner, we set aside the impugned order and remand the matter to the Adjudicating Authority to follow the due procedure and pass an order in accordance with the law. It is made clear that no opinion is being expressed on the merits of the case and the Adjudicating Authority is free to deal with the same in accordance with the law. Appeal is thus allowed by way of remand. (Pronounced in Court on 27-5-2008)
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2008 (5) TMI 579
Stay/Dispensation of pre-deposit ... ... ... ... ..... which the definition of motor spirit has been given as ldquo Motor spirit rdquo means any hydrocarbon oil (excluding crude mineral oil), which has a minimum RON 88 (Research Octane Number), which either by itself or in admixture with any other substance is suitable for use as lsquo fuel rsquo in spark ignition engines, is not sufficient to hold that the product satisfies the second test laid down for classification under Heading 2710. 10. emsp The applicants also relied upon Stay Order No. S/219 to 220/08/C-l/DB dated 7-4-2008 2008 (228) E.L.T. 591 (Tribunal) in the case of M/s. Aditya Petrochemicals Pvt. Ltd wherein complete waiver of the pre-deposit of duty and penalty was granted in similar situation. Therefore, a strong prima facie case for total waiver has been made out by the applicants herein. We, therefore, grant unconditional waiver of the pre-deposit of duty and penalty and stay recovery thereof in this case also pending disposal of the appeal. (Pronounced in court)
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2008 (5) TMI 578
Refund - Unjust enrichment - Cess paid on export goods ... ... ... ... ..... enrichment. 4. emsp It is seen that the refund claims pertains to export shipment and that the burden of the cess claimed as refund could not have been transferred on to the ultimate buyer as the goods themselves were not exported or were short-shipped. The case is, therefore, outside the purview of presumption under Section 28D of the Customs Act, 1962. The refund amount, which has already been sanctioned, is due to the appellant-exporter and may be granted accordingly. rdquo 2. emsp Revenue, in their memo of appeal, has reiterated their stand that provisions of unjust enrichment are applicable to all types of refund. However, I find that when the goods have not been, exported, the duty so paid by the assessee required to be taken as deposit. There cannot be any question of unjust enrichment inasmuch as there is no second party involved. I do not find any infirmity in the view of Commissioner (Appeals) and reject the Revenue rsquo s appeal. (Dictated and pronounced in Court)
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2008 (5) TMI 577
Payment of duty - Fortnightly payment facility, withdrawal of ... ... ... ... ..... hat the facility and payment of duty on fortnightly basis should be forfeited only after affording opportunity of hearing to the petitioners. Moreover, the Original Authority has issued a corrigendum enhancing the penalty without giving any reasoning. A corrigendum cannot substantially alter the original order. Further, the Commissioner (Appeals) had not noticed the corrigendum. It is also seen that the appellant had discharged the duty liability by debiting in the Cenvat account. In any case, in view of the violations of principles of natural justice and also issue of corrigendum without giving any reasoning, the Order-in-Original cannot be sustained. Therefore, the impugned order upholding the original order is also liable to be set aside. In any case payment by Cenvat credit is also duty payment in terms of the Central Excise Act. In these circumstances, we set aside the impugned order and allow the appeals with consequential relief. (Pronounced in open Court on 29-5-2008)
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2008 (5) TMI 576
Stay/Dispensation of pre-deposit - Registration of factory/unit - Appeal to Appellate Tribunal - Maintainability of
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2008 (5) TMI 575
Valuation of imported goods - Honed Finished (Colored, Polished) Marble Slabs - Contemporaneous imports - Held that: - the lower authority has decided the value on the basis of imports at Mumbai. The appellants had not been given any documentary evidence in support of the value adopted by the Revenue. It is also not very clear as to whether the items imported in Mumbai Port are identical to those imported by the appellants. Moreover, the reasons for rejecting the transaction value in terms of Rule 4(2) have not been specified. The Valuation Rules have not been sequentially followed - transaction value declared has to be accepted - appeal allowed - decided in favor of appellant.
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2008 (5) TMI 573
Rectification of mistake - Binding decision not cited/considered ... ... ... ... ..... horities. The Tribunal in the case of Kennametal Widia India Ltd. (supra) held that fact of short shipment after clearance from customs port and Range Superintendent issued a certificate of short receipt of goods, grant of refund on the basis of documentary evidence, legal and proper under Section 27 of the Customs Act, 1962. I find that the Tribunal referred the earlier decision in the case of Guindy Machine Tools Ltd. (supra) as cited by the learned DR. I find that the Revenue had not disputed shortage of goods in their Appeal before the Commissioner (Appeals). So, the Appellants are entitled for refund of duty on the goods which are short landed. 6. emsp In view of the above discussion, I find that the order of the Commissioner (Appeals) is not sustainable. Accordingly, the order of the Commissioner (Appeals) is set aside and the order of the Adjudicating Authority is restored. The appeal filed by the Appellants is allowed. (Order dictated and pronounced in the open Court)
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