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Case Laws
Showing 61 to 80 of 363 Records
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2000 (6) TMI 650 - CEGAT, MUMBAI
Stay/Dispensation of pre-deposit - SSI Exemption ... ... ... ... ..... urt in the case of ESBI Transmissions Private Ltd. v. Collector of Central Excise, 1997 (91) E.L.T. 47 (Cal.). Shri K.M. Patwari the ld. DR adopts reasoning of the lower authority. 5. emsp We have considered the rival submissions. We are prima facie of the view that when paragraph 4 of the Notification, denies the exemption if the manufacturer uses the trade mark of another business. Here the manufacturer has used only ldquo LK rdquo which is assessee rsquo s own trade mark. The use of the mark of another person is mandatory for denial of exemption. Hence we are prima facie of the view that the applicant has made a strong case. Hence we grant unconditional waiver of stay of the recovery of the amounts demanded under the impugned order including fine. As far as the fine is concerned on the petitioner filing usual undertaking authorities namely not to transfer sale of the assets the adjudicating authority will allow the applicant use of the same for his normal business venture.
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2000 (6) TMI 649 - CEGAT, NEW DELHI
Modvat on inputs ... ... ... ... ..... with Tray is essential Packing Material for CD DISKS as in this case which can be imported. Therefore it is an eligible input under rule 57A. As regards its classification under 3924.90 as made in the subject BE, if the Department feels it is not correct, the course available was to approach the concerned Custom House and ask them to correct the classification and vary the duty, if applicable and only thereafter proceed under Rule 57E to vary the credit. The attempt to vary the credit by questioning the classification of the originating assessing officer by adopting the route of Rule 57T is not available to the jurisdictional officer of the Availer assessee. I cannot uphold the denial of credit under Rule 57-I as made by lower authorities. 4. emsp In view of my findings, I set aside the order with consequential relief and direct that the department is free to adopt the route of 57E to vary the credit if they opt to do so, they can follow it. 5. emsp Appeals allowed as above.
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2000 (6) TMI 644 - CEGAT, KOLKATA
Stay - Refund - Returned goods ... ... ... ... ..... the assessee is legally due and properly permitted by the Commissioner (Appeals) vide her order dated 15-10-1999. 4. emsp I have heard both the sides. I find that there is a lot of force in the arguments advanced by ld. consultant. If the department was in doubt with regard to the authenticity of the credit note they ought to have verified the same to get at the truth. As far as the use of the goods received under 173L is concerned, the expression lsquo same class of goods rsquo has a wider connotation and it cannot be restricted to lsquo the same variety of goods rsquo . Regarding the variation of the weight of the goods is concerned Commissioner (Appeals) has given prima facie a convincing reasoning having regard to continuous process involved in the manufacture of the paper and paper boards. On a careful perusal of the Order-in-Appeal, prima facie it is legal and proper in all respects. Hence, the Revenue rsquo s stay petition deserves to be rejected. Ordered accordingly.
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2000 (6) TMI 620 - CEGAT, MUMBAI
Appeal - Limitation - Condonation of delay - Stay/Dispensation of pre-deposit ... ... ... ... ..... n deciding the waiver application the Commissioner may not in most of the cases give a personal hearing vide judgment of the Supreme Court in the case of Jesus Sales Corporation - 1996 (83) E.L.T. 486. But it does not mean that the order directing the appellant to pay a sum of rupees should not discuss the merits of the case in a prima facie way. The Gujarat High Court in the case of Ricoh India Ltd. v. U.O.I. - 2000 (125) E.L.T. 469 (Guj.) 1999 (34) RLT 231 has held that even in respect of an application filed under Section 35F, after referring to Jesus Sales Corporation rsquo s case decided by the Supreme Court (supra), the authority should give a hearing. Therefore, following the same we are setting aside the impugned order passed by the Commissioner (Appeals) made on 8-3-1999 and remanding the matter back to the Commissioner (Appeals) to re-hear the application filed by the assessee under Section 35F for waiver of pre-deposit and decide the case after hearing the parties.
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2000 (6) TMI 619 - CEGAT, KOLKATA
Clandestine removal - Sale proceeds of - Demand - Recalculation - Confiscation and penalty ... ... ... ... ..... out payment of duty from the appellants factory premises. The appellants have contended that the entire goods were accounted for in the statutory records and no reason has been given by the adjudicating authority for their confiscation. We also note that there is no evidence showing that these goods were cleared without payment of duty. As such, we set aside their confiscation and imposition of personal penalty upon the appellants in respect of these goods. 15. emsp As regards the personal penalty of Rs. 10.00 lakh, we find that the same merits reduction inasmuch as the Cash confiscated by the Department has been held to be non-confiscable the duty amount has come down considerably confiscation has been set aside and the appellants had deposited the duty even before the issuance of the show cause notice. Taking all the factors into account, we reduce the personal penalty to a sum of Rs. 2.00 lakh (Rupees two lakh) only. The appeal is thus partially allowed in the above terms.
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2000 (6) TMI 616 - CEGAT, KOLKATA
Judicial discipline ... ... ... ... ..... T vide their order Nos. A-1262-1263/Cal/97 dated 16-9-1997 have also held that CRS is entitled for benefit of exemption from whole of the duty of excise leviable on this products under Notification No. 182/87-C.E. The above order of the CEGAT has been accepted by the department also. In view of the above fact order dated 16-9-1997 of the CEGAT is binding on me also. Accordingly I hold that CRS is entitled for benefit of exemption from whole of the duty of excise leviable on their product under Notification. No. 63/95-C.E., dated 16-3-1995 also. rdquo As is evident from the foregoing, the Commissioner has himself held the appellant is entitled to the Notification No. 63/95 which is similarly worded to Notification No. 182/87. We are informed that the above order of the Commissioner has not been appealed against. Accordingly, following the ratio of the earlier order of the Tribunal we set aside the impugned order and allow the appeal with consequential relief to the appellants.
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2000 (6) TMI 615 - CEGAT, NEW DELHI
SSI Exemption - Penalty ... ... ... ... ..... k taking. We do not find any ground to interfere with the shortage in stock found by the authorities. Since we find that appellant is entitled to the benefit of Notification No. 1/93, the liability of duty on the shortage found has to he recomputed. For the said purpose the matter will go back to the concerned Commissioner. In view of what has been stated above, except the liability of the appellant to pay duty on the shortage of stock found by the authority, which is to be refixed with notice to the appellant, the impugned order is quashed. At the time of filing the appeal, the appellant was directed to deposit Rs. 4 lakhs in terms of provisions contained in Section 35F of the Act. Appellant has in fact deposited that amount as well. (T.R.6 Challan No. 104 dated 28-2-1997 shows that the appellant deposed Rs. 4 lakhs). Since impugned order has been quashed, was direct the Department to return the amount to the appellant expeditiously. Appeal is disposed of in the above terms.
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2000 (6) TMI 613 - CEGAT, CHENNAI
Appeal by Department - Limitation ... ... ... ... ..... that the time for filing of appeal was expiring and they were required to have filed an appeal within the time. Even thereafter no steps were taken to hurry up the matter and the Commissioner has not taken any steps to peruse the file to grant authorisation. In a similar circumstances, the Hon rsquo ble Apex Court held that such laches are not condonable. One of the orders of the Hon rsquo ble Apex Court in the case of Tata Yodogawa Ltd. as reported in 1988 (38) E.L.T. 739 (S.C.). On similar reason for not considering the COD application, the Larger Bench of the Tribunal in the case of C.C.E. v. Carborandum Universal as reported in 1990 (47) E.L.T. 61 held that inter-departmental correspondence and movement of file is not a cause for condoning the delay. In view of these judgments, the Bench is not in a position to accept the reasons given and applying the ratio of the above noted judgments, the application for COD is rejected and as a consequence the appeal is also rejected.
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2000 (6) TMI 612 - CEGAT, KOLKATA
Drawback - Adjudication - Evidence ... ... ... ... ..... claim to be proper in all respects. 5.5. emsp We also take note of the Hon rsquo ble Supreme Court s judgment in the case of Sun Industries referred supra, that as soon as ship carrying export goods crosses territorial waters of India, export is complete as title of goods passes on to the purchasers. It was held that once the export was complete, Duty Drawback becomes admissible in terms of Section 75 of the Customs Act, 1962. As in the instant case, the export has admittedly taken place, we are of the view that M/s. T.O.L. are entitled to the benefit of Duty Drawback claim. Accordingly, we allow the appeals of M/s. T.O.L. with direction to the authorities below to sanction Duty Drawback claim to the said party. 5.6. emsp As no relief is being claimed by the two companies, namely M/s. Aruna Impex and M/s. Dugar Impex who have filed the appeals only to support the claim of M/s. T.O.L., no Orders are required to be passed on the same. Their appeals are disposed of accordingly.
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2000 (6) TMI 609 - CEGAT, MUMBAI
Penalty - SSI Exemption ... ... ... ... ..... lso expressed the opinion that non filing of the declaration would not deny the benefit of the exemption notification. However, he justified the retention of part of the penalty. 4. emsp The real issue in this case is the defiance of the orders of the Asstt. Commissioner by the assessee when directed to file the B-13 bond in terms of Rule 9B. In the absence of such a bond, the only alternative was for the assessee to clear the goods on payment of duty attracted without the benefit of notification. Each clearance made by the assessee was unauthorised and was capable of being open to separate penalty. On the finding of the Commissioner that in the absence of the SSI registration certificate also the assessee is qualified for the benefit, the demand for duty was correctly set aside. In spite of the reduction, we find that for their deliberate defiance of the duty pursuant to the Asstt. Commissioner rsquo s order, the quantum of retained penalty is justified. Appeal is dismissed.
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2000 (6) TMI 608 - CEGAT, KOLKATA
Valuation - Job work ... ... ... ... ..... .00 per MT incurred by M/s. TISCO as distribution charges and recovered by M/s. TISCO from its customers, cannot form a part of the assessable value of the goods manufactured and cleared from the job workers premises. As such, we hold that the said 600 rupees will not make a part of the assessable value of the goods. However, as regards the addition of Rs. 60.00 per MT of the job workers, which has been incurred by M/s. TISCO as freight for transportation of the raw materials to the job workers rsquo factory, is required to be added to the assessable value of the final product inasmuch as the same contributes to the landed cost of the raw materials in the job workers factory. Accordingly, we allow the appeals subject to the addition of Rs. 60.00 per MT in the assessable value of the final product. The demand of duty be re-calculated by the authorities below on the basis of the above order. However, we set aside the confiscation and imposition of penalty on all the appellants.
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2000 (6) TMI 604 - CEGAT, MUMBAI
Refund - Limitation - Protest ... ... ... ... ..... the Asstt. Commissioner rsquo s Order. Hence the present appeal. 2. emsp The evidence indicates that even when the assessment was provisional, the assessee had given their letter of protest. The refund claim was filed in December, 1983 and was in fact premature. In fact, the claim would be deemed to be made on the date of classification list was finalised. Strictly speaking, in terms of Rule 9B, there was no requirement for a refund claim to be made at all, but that the Asstt. Commissioner should have proceeded to grant suo motu, refund in terms of the Rule. 3. emsp The requirement of filing the protest would be to show that the claim would not be barred by limitation. In the case where the refund claim was properly filed or in the case where the refund should be paid suo motu, the question of protest otherwise would not be relevant . 4. emsp We find no merit in the logic of the Commissioner (Appeals). His order does not sustain. We set aside the same. The appeal is allowed.
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2000 (6) TMI 602 - CEGAT, CHENNAI
Import - Vitamin Pre-mix Feed ... ... ... ... ..... ted on record. We find that this entire exercise would be profitably be adopted by the original authority who should then also consider the various citations noted above. In view of these technical terminology as well as technical opinions not having been considered by the original authority, which were not available before him earlier, therefore, we are of the considered view that the matter needs to be remanded to the original authority for fresh consideration of the entire issue in the light of these technical evidences. Therefore, the order impugned is set aside and the matter remanded to the original authority for de novo consideration of all these technical evidences noted above as well as the citations noted above. The learned original authority shall give effective hearing to the appellants and also consider any other technical evidence that they may like to place before him before proceeding to pass a clear speaking order. The appeal is allowed by remand accordingly.
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2000 (6) TMI 600 - CEGAT, MUMBAI
Stay/Dispensation of pre-deposit - Natural justice ... ... ... ... ..... ions on that basis. We had directed the Commissioner to file written submissions in respect of applicability of the order of the High Court to the present case. It is true that Registry has despatched the order on 23-5-2000. It is a principle to be followed in all the cases that action of the court cannot injure anybody. It is to be noted that the order has been dictated in the presence of the DR. It is presumed by me that DR had written a letter to the Commissioner. I do not know what instructions were given to the DR by the Commissioner and if necessary he could send further instructions in this matter. Perhaps if this action could have been taken promptly the Commissioner could have filed his written submissions or Commissioner could have given instruction about the applicability of the High Court rsquo s order. I would like to invite these observations for the benefit of better conduct of the litigation by the Government. I agree with the order proposed by my ld. brother.
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2000 (6) TMI 597 - CEGAT, MUMBAI
Valuation - Import of car by diplomat ... ... ... ... ..... ount of the deduction in value caused by use of the car, and not only because the car as not available to the appellant for use. Depreciation would be available to a person who purchased a car and used it sparingly or not at all for long period from the date on which he purchased it till it is no longer available to him to use. Such depreciation would not be available if the car was in a show room unsold, although by the fact of its not being sold for that period the car might have lost some value. There is a presumption that during the period when the car is in the possession of its owner it is put to use. This presumption is neither illogical nor unreasonable. It would however, be illogical or unreasonable to extend that presumption to a period during which the car clearly could not be used. We therefore do not find any merit in this claim. 7. emsp The appeal is partly allowed. The value of the car and the duty payable on it therefore may be recalculated as indicated above.
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2000 (6) TMI 595 - CEGAT, KOLKATA
Redemption fine - Calculation thereof - Penalty - Quantum of ... ... ... ... ..... nged the quantum of redemption fine and penalty imposed upon the respondents. It is not aggitated that no calculation showing the margin of profit etc. have been taken into account. It is well settled that margin of profit is only a guiding factor in fixing redemption fine and cannot be made the basis for exact arithmetical calculation for fixing the redemption fine. As such, we also note that the Revenue has not placed any evidence on record to show the higher margin of profit justifying enhancement in the quantum of redemption fine. Accordingly, no merits are found in these contentions of the Revenue also. Similarly, the quantum of penalty is also dependent upon the facts and circumstances each and every case and no hard and fast rule can be applied for deciding the quantum of penalty. The Revenue has not given any justifiable ground for enhancement of the penalty. 4. emsp In view of the foregoing, we do not find any merits in the Revenue rsquo s appeal and reject the same.
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2000 (6) TMI 593 - CEGAT, MUMBAI
Appeal to the Appellate Tribunal - Refund - Unjust enrichment ... ... ... ... ..... therefore they cannot usurp jurisdiction de hors provisions of law. We are therefore of the view that the interest which the respondent is claiming, is entitled to the same because in the appeal before the Commissioner this was not agitated by the department. But because they are agitating before the Tribunal that they wanted to retain their right to claim the interest and they do not want to forgo because they have already complied with the condition. We are therefore of the view that the respondent is entitled to claim interest. 17. emsp The appeal is dismissed and the cross-objection is allowed. We direct the department to pay Rs. 1,25,34,988.97 with 12 interest from the date of the withdrawal of the amount by the department from October 1993 in terms of the Bombay High Court rsquo s order dated 28-9-1993 in the Writ Petition No. 1776/93. This issue has been pending since 1974 onwards. We hope the department will not delay further. Miscellaneous application stands allowed.
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2000 (6) TMI 591 - CEGAT, CHENNAI
... ...
... ... ..... sallowed the refund claim on grounds of unjust enrichment. 5. emsp I have carefully considered the rival submissions and records of the case and I find substantial force in the submission of ld. DR. In the absence of there being any evidence to show that the duty incidence which was passed on along with the consignment by the buyer to the purchaser of this molasses, has been again reverted back to the manufacturer in the form of a credit note, etc., mere reversal of Modvat credit taken by the buyer would not satisfy the condition that duty incidence was not passed on by the manufacturer. The effect of the present situation would be that though duty incident was passed on by the manufacturer to the buyer, the buyer has voluntarily not chosen to avail Modvat credit thereon. But that would not amount to not passing of the incidence of duty to him. Therefore, it is clear that there is no infirmity in the order impugned and the appeal has no merits and hence the same is dismissed.
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2000 (6) TMI 590 - CEGAT, MUMBAI
Appeal by Department - Limitation ... ... ... ... ..... he similar case wherein appeal was filed by the respondent i.e. M/s. Choksi Brothers, Mumbai against the order-in-appeal No. 507/96 dated 31-7-96 passed by the Commissioner of Customs (Appeals) wherein Commissioner of Customs (Appeals) had upheld the stand taken by the department on the same issue and same item. The same appeal is still pending before the Hon rsquo ble Tribunal. ldquo 3. emsp We are surprised at this ground. Ordinarily, at the present state of pendency before the Tribunal, it is unlikely that any appeal would be decided within 5 years from the filing thereof. We do not find this reason valid. We dismiss the application, thereby the appeal also stands dismissed. 4. emsp The stay application also stands disposed of.
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2000 (6) TMI 589 - CEGAT, MUMBAI
Appeal by Department - Limitation ... ... ... ... ..... considering the filing of the appeal only after refund application has been filed. If the plea of Shri Deepak Kumar has to be accepted which may appear to be bona fide, the Department ought to have taken serious consideration of the refund or otherwise of the impugned order the moment the Collectorate received the same. This aspect of the matter is silent in paragraph 2. What are the efforts made to trace the relevant file are not reflected. Normally in Government offices the movement of files is recorded in the registers as provided in the manual of office procedure. The Government of India circulars as contained in the manual of office procedure is equally applicable to Collectorate of Customs which is part of Government of India department. It is therefore felt that the prayer in condonation of delay that too for five months cannot be acceded to in the facts and circumstances of the case. Hence the application is dismissed. In view thereof the appeal also stands dismissed.
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