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Case Laws
Showing 221 to 240 of 773 Records
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2009 (12) TMI 841 - CESTAT NEW DELHI
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... ... ..... d was not properly accounted for. 4. Heard the learned DR and also perused the record. 5. Looking to para 4 of the order in appeal, it is noticed that the allegation was based on assumption and without any objective enquiry, no inference of clandestine clearance of cement can be made. Accordingly, the assessee is not liable to be dealt with determinately. Finding of the learned Commissioner does not appear to be baseless and there is scope for interference with the order appealed. Revenue rsquo s appeal is accordingly dismissed. 6. In view of disposal of the appeal, cross objection is also disposed of. (Order dictated and pronounced in the open Court).
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2009 (12) TMI 840 - CESTAT NEW DELHI
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... ... ..... y callous manner, deliberately misled the facts and failed to perform his duties as prescribed in CHALR rsquo 2004. As the findings are basically relating to omissions and commissions under CHALR rsquo 2004, we prima facie, do not find justification for imposition of penalties under Section 114 of the Customs Act. 2. In view of the above, we waive pre-deposit of penalties and stay recoveries thereof till disposal of the appeals. 3. These appeals are to be tagged on to connected Appeal Nos. C/234, 235, 236 and 237/2009.
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2009 (12) TMI 839 - CESTAT NEW DELHI
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... ... ..... to be that day rsquo s production and it appears from the records that no allowance of production on the date of visit was given by the investigating officers for the day rsquo s production till the time of arrival of the officers. The day rsquo s production requires to be entered by the end of the day only. The mere mention that ldquo in progress material has not been taken into account rdquo cannot convey that the finished gutka in packets have not been taken into account. There is no averment or evidence contradicting the factual finding that the seized goods were production on the date of visit. Thus, there are no grounds to interfere with the factual finding by the Commissioner (Appeals). Under these circumstances, the Commissioner accepting the defence submissions that it was day rsquo s production, and therefore, the goods are not liable for confiscation cannot be faulted. 6. I do not find any merits in the appeal by the Department. The appeal is, therefore, rejected.
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2009 (12) TMI 838 - CESTAT BANGALORE
Clandestine manufacture and removal - entire case of the Revenue is built on the statements furnished of Shri Hanumantha Rao by the assessee to the bank which had advanced credit to it - Held that:- During the cross-examination of Shri Hanumantha Rao, when questions were asked about excess granules of 88.76 MTs as indicated in the annexure to the show cause notice, he had wanted to see the monthly particulars. On perusing the statements furnished to bank, he submitted that during the material time he was not in the branch of the bank. In the circumstances, the assessee’s plea that the statements of Shri Hanumantha Rao could not have been relied on to find clandestine clearances by the assessee carries considerable force.
In a larger number of decisions passed by this Tribunal, it was held that clandestine clearance cannot be found without cogent and tangible evidence - In the instant case, Commissioner relied on bank statements, the correctness of particulars contained in which was disputed and not corroborated by any other evidence. The Commissioner has not been able to effectively rebut the claim of the assessee that it had not manufactured sacks in the absence of machinery, yet proceeded to confirm the demand finding that the assessee had been registered for manufacture of sacks - the authorities have not investigated the allegations against VPSL and gathered any evidence.
The allegations raised in the show cause notice were not backed by any reliable or positive evidence. The notice was issued without finding a proper prima facie case against VPSL - demand set aside - appeal allowed.
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2009 (12) TMI 837 - CESTAT CHENNAI
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... ... ..... nged the enhanced value, they do not press the challenge during the course of the arguments before us. The only submission raised before us is that the confiscation is not warranted, for the reason that even pipes other than reconditioned/refurbished pipes are freely importable without any licence as per para 2.17 of the Foreign Trade Policy. However, we do not agree with the submission, in the light of the clear language of the policy which states that ldquo Import of second hand capital goods, including refurbished/reconditioned spares shall be allowed freely rsquo , we therefore, uphold the confiscation. However, since the imported goods have been used by the assessees for drilling, the fine and penalty amounts warrant reduction. We, therefore, reduce the fine in lieu of confiscation to Rs. 1,20,000/- and penalty to Rs. 25,000/-, while upholding the enhanced value of the impugned goods. 4. The appeal is thus partly allowed. (Order dictated and pronounced in the open Court)
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2009 (12) TMI 836 - CESTAT KOLKATA
Penalty under 11 AC of the Central Excise Act read with Rule 25 of Central Excise Rules - no allegation of fraud, misstatement of facts with intent to evade payment of duty - demand of differential duty - Held that:- In the present case, even in the show cause notice there is no whisper of fraud, collusion or any willful misstatement or suppression of facts with intent to evade payment of duty.
In order to attract the provisions of Section 11AC it must be alleged in the show cause notice that the duty had not been levied or paid by reason of fraud, collusion or willful misstatement or suppression of facts or by reason of contravention of any provision of Act or Rules with intent to evade payment of duty - In the present case the excess duty paid and adjustment of the same was reflected in the monthly returns.
Penalty not sustainable - appeal allowed - decided in favor of appellant.
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2009 (12) TMI 835 - CESTAT AHMEDABAD
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... ... ..... y both the sides. In view of the submission made by the learned advocate that appellants were submitting such applications in time earlier and during the relevant period there were some problems and they could not file the application in time and also in view of the reference to D.O. letter made by him wherein the Joint Secretary also had advised officers to take a liberal approach and also taking note of the fact that appellants would not benefit by submitting application late rather than would lose, I would consider it appropriate to condone the delay at this instance. While doing so I take note of the fact that the learned advocate had submitted that there was no delay earlier and subsequently also appellants have been making such applications without delay. 3. In view of the above discussion, the impugned order is set aside and appeal is allowed and the delay in filing the applications condone with consequential relief to the appellants. (Dictated and Pronounced in Court)
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2009 (12) TMI 834 - CESTAT MUMBAI
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... ... ..... Ltd. - 2006 (202) E.L.T. 398 (P and H) 2006 (4) S.T.R. 177 (P and H). On a perusal of the High Court rsquo s judgment, I find that the case was remanded to this Tribunal for fresh decision on the question whether Section 11AB and Section 11AC were applicable to the facts of the case. 3. On a perusal of the show-cause notice, I find that, though Section 11AC was invoked against the party, there was no allegation against them with reference to any of the ingredients mentioned in Section 11AC, such as fraud, collusion, suppression of facts etc. Section 11AC could be invoked only where it is alleged and proved that the assessee indulged in fraud, collusion, wilful misstatement of facts or suppression of facts or contravention of any law with intent to evade payment of duty. None of these was even alleged against the respondent in this case. In the circumstances, the decision of the lower authorities cannot be faulted. The Revenue rsquo s appeal is dismissed. (Pronounced in Court)
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2009 (12) TMI 833 - CESTAT MUMBAI
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... ... ..... penalty on an assessee who defaults payment of duty beyond 30 days from the due date. This sub-rule says that such a defaulter shall pay duty for each consignment at the time of removal without utilising CENVAT credit till the date on which he pays the outstanding amount of duty with interest. In the present case, the assessee paid duty partly from PLA and partly from CENVAT account prior to issuance of the show-cause notice. Interestingly, the show-cause notice proposes to appropriate both kinds of payment towards the demand of duty. Apparently, this proposal was upheld by the Commissioner. In this scenario, I observe that the provisions of sub-rule (3A) of Rule 8 were virtually waived by the adjudicating authority. If that be so, prima facie, there is no warrant for any penalty on the appellant in terms of sub-Rule (3A). 3. In the result, there will be waiver of pre-deposit and stay of recovery in respect of the penalty amount. It is ordered accordingly. (Dictated in Court)
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2009 (12) TMI 832 - CESTAT MUMBAI
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... ... ..... along with reconciliation statement. It appears, at this juncture, many of these documents in original are not available with the assessee. The question therefore is whether the procedural requirements under Regulation No. 7 can be held to have been substantially met by the assessee. The learned Consultant has, in this connection claimed support from the Tribunal rsquo s decision in the case of Polyplex Corporation Ltd., v. CCE, Mumbai (2007 (211) E.L.T. 548 (Tri.-Del.). In the cited case, this Tribunal took the view that if the assessee could establish that the substantive condition has been satisfied the benefit of project import should be granted to them while finalizing the provisional assessment of the goods imported under the scheme. In the totality of the facts and circumstances of this case coupled with the case law cited by the Consultant, we are inclined to grant waiver of pre-deposit and stay of recovery in this case. It is ordered accordingly. (Dictated in Court)
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2009 (12) TMI 831 - CESTAT NEW DELHI
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... ... ..... ppeals) to deal with all those points. However, the impugned order does not disclose any such exercise having been done by the Commissioner (Appeals). Undoubtedly as regards the matter pertaining to the Dharmada, as fairly submitted by the Advocate the same was rightly rejected. As regards other deductions namely average freight and transit insurance and advance payment discount, the Commissioner (Appeals) has failed to consider all the points which were sought to be raised. The Commissioner (Appeals) has also to take into consideration the order passed by the Tribunal in Ravi Fans Ltd. rsquo s matter as well as in the appellant rsquo s own case vide Final Order No. 539-542/09-Ex. 2010 (249) E.L.T. 226 (Tribunal) . 7. In the result thereof, the appeal succeeds on limited ground as stated above. The same is allowed in above terms with direction to Commissioner (Appeals) to dispose of the appeal as expeditiously as possible after hearing the parties by passing a reasoned order.
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2009 (12) TMI 830 - CESTAT NEW DELHI
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... ... ..... quivocal terms held that principle of unjust enrichment would be applicable even when the goods, instead of being sold, are used for captive consumption and it is finished goods which are sold and that in such a case the person claiming the refund will have to show through costing details of the finished product that incidence of duty whose refund is being sought had not been passed on. Second plea of the appellants is that Denatured Spirit was being sold by uniform price fixed by the State Government and, therefore, there was no scope for passing on incidence of Education Cess. This plea is also not acceptable in view of the Supreme Court rsquo s judgment in the case of Allied Photographics (supra). In view of this, I do not find any infirmity in the impugned order of the Commissioner (Appeals) with regard to refund of Education Cess on molasses and as such the same is upheld. Accordingly, Appeal No. 3278 of 2006 is also dismissed. (Dictated and pronounced in the Open Court)
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2009 (12) TMI 829 - CESTAT NEW DELHI
Clandestine removal - excess unaccounted stock - Held that: - The excess stock found was 12,100 Kgs. of PVC Pipes and compared to the stock as per record, which was 56,805 Kgs. The belated explanation offered for excess stock is not acceptable. It is a clear case of improper maintenance of accounts - However, the charge of attempted clandestine removal cannot be upheld as there was no evidence about such attempt and that there was no evidence of clandestine removal in the past relied upon - while upholding confiscation, the quantum of redemption fine and penalty reduced - appeal allowed - decided partly in favor of assessee.
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2009 (12) TMI 828 - CESTAT CHENNAI
Liability of interest - case of Revenue is that the determination of duty has taken effect in January and February itself and therefore, due to delay in payment of duty the assessees are liable to pay interest - Held that: - The relevant date for commencement of time the interest would be from the date the duty is determined if not paid within three months. Once there be an order, setting aside the entire order of determination there is no ascertained duty payable.
In the instant case, therefore, though there was original order passed on 14th June, 1993 that was set aside on 14th July, 2000. The matter was before the A.O., for fresh determination on which an order came to be passed on 22nd March, 2002 and consequently the duty came to be ascertained on 22nd March, 2002. Duty was paid on 17th July, 2002. Once the duty was ascertained on 22nd March, 2002 no interest could have been demanded under sub-section (1) of Section 11AA in view of sub-section (2) as inserted in Section 11AA on 11th May, 2001.
The assesses are not liable to pay interest - appeal dismissed - decided against Revenue.
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2009 (12) TMI 827 - CESTAT CHENNAI
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... ... ..... ding that the value of goods covered by 7 out of the 10 Bills of Entry has been misdeclared and in respect of two Bills of Entry, there is an additional misdeclaration of the description of the goods mdash only Mother Boards have been declared while the consignment was found to contain Mother Boards as well as Daughter Boards. 4. In the light of the above, we uphold the impugned order of confiscation and re-determination of value and confirmation of differential duty demands and imposition of penalty on the importer-firm. However, having regard to the totality of facts and circumstances of the case, we reduce the penalty on Shri Kamal Kumar Jain to Rs. 1,000,000/- (Rupees One Lakh only) and Shri P. Yogesh to Rs. 50,000/- (Rupees Fifty Thousand only). 5. In the light of the above, Appeal No. C/249/2002 is dismissed, while Appeal Nos. C/250 and 251/2002 are partly allowed by way of reduction in penalty. (Operative portion of the order was pronounced in open court on 9-12-2009)
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2009 (12) TMI 826 - CESTAT BANGALORE
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... ... ..... 2004, passed by the Commissioner (Appeals). The Jt. Secretary, Ministry of Finance, vide Order No. 34/2007 dated 22-1-2007 confirmed the amount of drawback ineligibly claimed by the appellant and upheld the demand of interest. There is nothing to show that the appellant has challenged this order before higher forum. Consequent to such an order, the Assistant Commissioner, Kakinada calculated the interest and demanded same. Against such an order, the appellant filed an appeal before the Commissioner (Appeals) who dismissed the appeal. Hence this appeal. 5. On a careful consideration of the submissions made by the learned JDR and perusal of the appeal memo, we find that the issue is regarding interest payable on the amount of drawback which was wrongly claimed by the appellant. We find that we do not have any jurisdiction as the issue is connected with the drawback. Hence the appeal is dismissed as not maintainable. The stay petition and the appeal are disposed off accordingly.
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2009 (12) TMI 825 - CESTAT NEW DELHI
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... ... ..... gularly availed and utilised, interest also will be recoverable. 7. As regards the penalty imposed, the original authority has imposed a penalty of Rs. 2 lakhs on the respondent-company while confirming a total demand of Rs. 10,23,626/- Rs. 33,655/-. No rationale has been given to impose Rs. 2 lakhs as penalty. The prayer of the Department is to enhance the penalty to Rs. 2 lakhs from Rs. 1,37,277/-. Under the facts and circumstances of the case, the reduction of penalty by the Commissioner (Appeals) to Rs. 1,37,277/- may not be required to be interfered with. Order of the original authority does not specifically indicate any omission or commission on the part of the Director and authorised signatory of the respondent-company. Therefore, the order of the Commissioner (Appeals) in setting aside the penalties on Shri Vijay Kant Aggarwal and Shri Hardeep Singh also does not call for any interference. 8. The appeals are disposed of as above. Cross-Objections are also disposed of.
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2009 (12) TMI 824 - CESTAT AHMEDABAD
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... ... ..... eated amendments in the Cenvat Credit Rules, huge litigation in the country stands generated. In the circumstances, we are of the view that penalty is not leviable on the appellant/assessee, particularly when in large number of other cases, on account of conflict of views expressed by various Tribunals/High Court, the assessees have also succeeded. Hence, although Maruti Suzuki Ltd. (appellant) has failed in their civil appeals, the Department will not impose penalty. rdquo As regards application of extended period also, taking note of the fact that there were decisions in favour of the parties in respect of power wheeled out to other units, we consider it appropriate that extended period is not invoked in this case. 5. In view of the above, the demand of duty of Rs. 5,35,197/- towards Cenvat credit on the input used in electricity which was in turn used in residential colony, is disallowed and in respect of other demands, appeal is allowed. (Dictated and pronounced in Court)
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2009 (12) TMI 823 - CESTAT NEW DELHI
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... ... ..... uo , within the meaning of this term, as defined in Section 4(3)(b) of the Central Excise Act, 1944. Only a bland allegation has been made that the Appellant were selling bicycles on behalf of KSM and on this basis, in respect of the bicycle manufactured by KSM and cleared to the Appellant, the duty is sought to be charged on the price at which the bicycles were sold by the Appellant and that too from the Appellant, not from the KSM, who being manufacture, would be liable to pay the differential duty, if the same is held as chargeable. This duty demand from KSM, a unit located in Ludhiana, confirmed by Assistant Commissioner, Central Excise, Division III, Ghaziabad is also beyond jurisdiction. Hence the duty demand against the Appellant in respect of the bicycles obtained from KSM is also not sustainable. 5. In view of our above discussion, the impugned order-in-appeal is not sustainable and the same is set aside. The appeal is allowed. (Pronounced in open court on 7-12-2009)
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2009 (12) TMI 822 - CESTAT NEW DELHI
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... ... ..... with the order relating to pre-deposit results in dismissal of the appeal itself, unless reasons for not doing so are disclosed. In the case in hand, no such reasons are disclosed. The question of Tribunal granting stay to its order regarding pre-deposit and that too in spite of giving number of opportunities to file compliance report does not arise at all. In the facts and circumstances of the case, no purpose will be served by keeping the appeal pending, ignoring the mandate of Section 35F of the Central Excise Act, 1944 and the fact that the High Court has not granted any stay in the matter, even though the appeal is admitted. As the law mandates dismissal of appeal in the facts of the case and as it would not affect, the proceedings in High Court in any manner, while dismissing these applications, we are constrained to dismiss the appeals themselves for the reasons stated above. Accordingly, the applications are dismissed along with Excise Appeal Nos. 844 and 845 of 2009.
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