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Case Laws
Showing 81 to 100 of 553 Records
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2004 (6) TMI 563 - CESTAT, MUMBAI
Cenvat/Modvat - Capital goods ... ... ... ... ..... for producing or processing any goods for bringing about any change in any substance. On applying the said test, I note that the item M.S. Tank will not qualify for being considered as ldquo capital goods rdquo . In respect of timer the appellants did not press for the claim. 5. emsp In view of the discussion above, I hold that the credit in respect of Timer and M.S. Tank was correctly denied by the lower authorities. So far as the remaining items are concerned, the credit is permissible. Since the goods in question qualify to be the parts or accessory of the machinery, which are listed against each item viz Sr. Nos. 1 to 4. 6. emsp Consequently, the appeal is allowed partly in above terms. As the issue involved interpretation of the provision of the Modvat credit, and there being no deliberate attempt to take credit in a wrongful manner, I feel that there is no case for imposition of penalty. Hence I set aside the penalty. 7. emsp The appeal is partly allowed in above terms.
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2004 (6) TMI 562 - CESTAT, MUMBAI
Cenvat/Modvat ... ... ... ... ..... e same is required to be reversed. 5. emsp In the order-in-appeal, it is clearly stated that, the waste and scrap cleared on payment of duty cannot be treated as clearance of finished excisable goods and accordingly the credit taken in respect of the input quantity used in such scrap is to be disallowed. On these reasoning the order of adjudicating authority was upheld, with a modification in the penalty amount. 6. emsp Heard both sides. 6.1 emsp In this connection, I notice that the appellants have placed reliance on the circular issued by the Board dated 29-8-2000 from F. No. 345/2/2000-TRN dated 29-8-2000. In para 6 thereof it has been clarified that ldquo Waste and Scrap rdquo are final products within the definition (of final products) under Rule 57AA (C). Therefore, the impugned orders which ignore the above said clarification can not be sustained. 7. emsp Accordingly, the appeal succeeds and the same is allowed, with consequential relief, if any in accordance with law.
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2004 (6) TMI 561 - CESTAT, MUMBAI
Cenvat/Modvat - Deemed credit ... ... ... ... ..... his position is supported by the judgment of tribunal, in the case of Orissa Synthetics Limited reported in 1995 (77) E.L.T. 350. 5. emsp As far as the time-bar is concerned, the Commissioner (Appeals) held that, the relevant date for availing the claim for the present case, would be the date when the compounded levy scheme came under operation i.e. from 16-12-98. Prior to that date, there was no need for the appellants to claim cash refund of the accumulated deemed Modvat credit, because only on account of introduction of compounded levy scheme under Section 3A of the Central Excise Act, 1944, accumulated credit utilisation was not possible for payment of duty on processed fabrics either for home consumption or for exports. 6. emsp I have considered rival contentions and hold that, the analysis made by the Commissioner (Appeals) brings out the correct position of law. Hence the impugned order does not call for any interference. 7. emsp Revenue appeal is accordingly rejected.
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2004 (6) TMI 560 - CESTAT, MUMBAI
Cenvat/Modvat ... ... ... ... ..... . emsp I have carefully considered the rival submissions. It is noted that the Rule 57H starts with a non-obstante clause. It is obvious therefore that, the provisions of Rule 57G are excluded and would not be made applicable in the case of credit claimed under Rule 57H ibid. In this case, the duty paid nature of input is not in dispute. The respondents could not have taken credit of duty on the said material prior to 16-3-1995 for the reason that their eligibility for credit itself generated on 16-3-1995. Therefore, there was no case whatsoever in respect of inputs held in stock on 16-3-1995 for taking credit prior to that date by using the gate passes in question, and that too by the due date of 30-9-1994. Such compliance was impossible. I therefore hold that the Commissioner (Appeals) had made the correct interpretation of the non-obstante clause present in Rule 57H. 7. emsp Accordingly, I find no merit in the appeal filed by the revenue and the same is therefore rejected.
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2004 (6) TMI 559 - CESTAT, MUMBAI
Demand - Clandestine removal of goods - Records - Registers seized from assessee’s premises ... ... ... ... ..... ers confirmed that the figures entered therein reflected the production of MMF. 10. emsp In the light of these findings the Department rsquo s stand that the appellant removed 1809028 Lmts. of MMF without payment of AED amounting to Rs. 25,34,875/- during the period September, 1992 to September, 1993 has to be upheld. The above duty is leviable as AED under AED (GSI) Act, 1957. The demand for the same is confirmed. 11. emsp The Commissioner also confiscated the goods, illicitly sought to be removed and the ones found in excess of R.G. 1 quantity and imposed penalties on the company and its directors. This part of the Commissioner rsquo s order is not sustainable in view of the decision of the High Court of Delhi in the case of Pioneer Silk Mills v. UOI 1995 (80) E.L.T. 507 confirmed by the Supreme Court 2002 (145) E.L.T. A74 confiscation and penalties are set aside. 12. emsp Appeal of the company partly allowed. The appeals of the Directors of the company are allowed in full.
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2004 (6) TMI 558 - CESTAT, NEW DELHI
Demand - Production capacity based duty ... ... ... ... ..... of ingots was consumed by them from the quantity of ingots transferred from their furnace division and ingots purchased from the market. When neither side is in a position to ascertain the different quantities of ingots consumed by the respondents during the month of August, 1997, the principle of proportionate consumption adopted by the Commissioner (Appeals) seems to be most appropriate one. We, therefore, find no reason to interfere with the impugned Order. Accordingly, we reject the appeal filed by the Revenue. The respondents have also no case for submitting that no demand of duty should be made from them, merely because in the show cause notice, the quantity of ingots purchased from the market was not mentioned. In fact, in their letter dated 6-8-2001, addressed to the Adjudicating Authority, the respondents themselves have pleaded that the consumption of ingots has to be worked out on pro rata basis. We, therefore, reject the cross-objection, filed by the respondents.
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2004 (6) TMI 557 - CESTAT, NEW DELHI
Demand - Limitation - Extended period ... ... ... ... ..... ul suppression by them. The Supreme Court in the case of Denson Pultretaknik (supra) has held that extended time limit for demand of duty is not invocable for merely claiming classification under different Tariff Heading as it does not amount to wilful misstatement or suppression of fact. The Tribunal has also held in the case of Television and Components that having approved the classification lists it would not be proper for the Department to turn around and put the blame on the Assessee for mentioning the goods incorrectly. Accordingly the extended period of limitation is not invocable in the present matter. The show cause notice has been issued on 20-3-91 for demanding the duty for the period from 19-1-86 to 19-3-1990 and as such the entire period is beyond the normal period of 6 months specified in Section 11A(1) of the Central Excise Act. We, therefore, set aside the demand as being time barred without going into the merits of the case. Therefore, the appeal is allowed.
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2004 (6) TMI 556 - CESTAT, MUMBAI
Refund - Limitation ... ... ... ... ..... bed in this condition 29(b) extracted hereinabove. 3. emsp A plain reading of this condition 29(b) would indicate that a certificate of registration as an ambulance within three months of clearance from the factory. The certificate produced the next day before the Assistant Commissioner of Central Excise would be valid to meet the requirement of this condition. The interpretation being placed by the Revenue that such a registration certificate should be produced within three months, is an interpretation, which would reduce the period of registration permissible under the said condition. Such an interpretation cannot be upheld. We would find that if the registration has been made, as ambulances, within three months to the clearance and a certificate to that effect is thereafter produced, the conditions of the notification will be met. 4. emsp In view of the findings hereinabove, the orders of the lower authority are set aside and the appeal allowed with consequential benefits.
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2004 (6) TMI 555 - CESTAT, NEW DELHI
Order - Appellate order - Speaking order ... ... ... ... ..... een circumstances. It appears that no speaking order has been passed by the Commissioner (Appeals) on the abatement of duty petition of the appellants as no copy of the same has been supplied to them. This communication by the Superintendent to the appellants that Commissioner had rejected their claim, does not carry any legal value and the same has been ignored under the law. 2. emsp Consequently, the appeal of the appellants is accepted. The Commissioner is directed to decide the abatement claim of the appellants afresh in accordance with law after hearing them and by passing a speaking, appealable order, as per law.
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2004 (6) TMI 554 - CESTAT, NEW DELHI
Cenvat/Modvat - Capital goods - Penalty ... ... ... ... ..... d which were cleared through the invoice under Rule 52A on payment of duty. But such is not the position in the present case. For having availed the credit wrongly, the respondents are liable to pay the penalty under the law. The imposition of penalty in a case of wrongful availment of credit by an assessee, in my view, is must unless the circumstances otherwise warrants. But the instant case is not a case of bona fide working of the respondents. They had tried to take the Modvat credit on the same capital goods twice without justification. Therefore, they are burdened with the penalty of an amount equal to the credit amount disallowed to them i.e. Rs. 1,43,737/-. 7. emsp In view of the discussion made above, the impugned order of the Commissioner (Appeals) is set aside and the order-in-original of the adjudicating authority, with the above said modifications in the credit amount as well as penalty, is restored. The appeal of the Revenue stands disposed of in the above terms.
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2004 (6) TMI 553 - CESTAT, NEW DELHI
Confiscation of goods - Seizure of 30 foreign marked gold biscuits - Penalty ... ... ... ... ..... pibhai is reasonable and as such is upheld. However, the penalty on Shri Malaram is on the higher side which is reduced to Rs. 50,000/-. As far as penalty on both Vaja Ram and Varda Ram is concerned, nothing much has been brought on record to show that they were transporting or dealing in any manner in the smuggled gold. Even as per their submission they were used to deliver the gold as per direction of their employer. Shri Varda Ram has only stated in his statement that his employer used to purchase gold and silver from smugglers of Gujarat. Similarly Vaja Ram has stated in his statement that Jeep was used for transporting the smuggled gold and silver from one place to another. These submissions are not sufficient to impose penalty under Section 112A of the Customs Act on these two persons. We, therefore, set aside the penalties imposed on Varda Ram and Vaja Ram. Consequently, we also vacate confiscation of shoes and socks. All the appeals are disposed of in the above terms.
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2004 (6) TMI 552 - CESTAT, NEW DELHI
Valuation - Related person ... ... ... ... ..... efore the SVB Mumbai were wrong and that there are additional materials in the possession of SVB Delhi which can be utilized to show that the view taken by SVB Mumbai is incorrect. Therefore, the admitted position is that a reasoned order passed in favour of the assessee by SVB Mumbai is not challenged by the Revenue. Whether such an order could be preferred to the order dated 7-1-2000 which does not contain any reasoning at all to load the value by 20 . We are of the view that the Commissioner (Appeals) should have accepted the view taken by SVB Mumbai especially in the light of the directions given by the Board in circular dated 1-1-98. The subsequent circular dated 23-2-2001 also contains identical provisions. We, therefore, set aside the order impugned and direct the Deputy Commissioner, SVB Delhi, the original adjudicating authority to finalize the assessment by following the decision of Deputy Commissioner, SVB Mumbai dated 11-8-2000. The appeal stands allowed as above.
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2004 (6) TMI 551 - CESTAT, MUMBAI
Rectification of mistake - Cenvat/Modvat ... ... ... ... ..... dry when the legal issue was settled the penalties imposed on the assessees were set aside. In the same token, fine and penalties in these cases are also unsustainable. We accordingly set aside the same. 3. emsp Regarding the second plea raised by the applicants, we see no merit therein, in view of the fact that the bench has already recorded a finding on the very same argument, namely, the allegation that deemed credit is not available after a unit crosses the limit of duty free clearance value as prescribed under SSI Notification 1/93, by holding that the benefit in the deemed credit order was for assessees availing the benefit of Notification 1/93 and whatever interpretation was put on the said notification, would affect the availment of the benefit thereof. Therefore the claim that this point was not specifically raised in the show cause notice issued to the applicant has no force. 4. emsp In the result the ROMs are partly allowed by setting aside the fines and penalties.
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2004 (6) TMI 550 - CESTAT, NEW DELHI
Demand - Clandestine removal ... ... ... ... ..... the same value and the original invoice numbers dt. 26-8-96. 4. emsp We have perused the records and heard ld. DR also. All the documents under seizure go to show that the consignment in question had been cleared on payment of duty by the assessee M/s. Pace Marketing Specialities Ltd. Revenue has no evidence on record to show that the consignment under seizure was different. The consignment was cleared by the first appellant under its invoices dt. 26-8-96 on payment of duty. The second duty demand made under the impugned orders is, therefore, not maintainable. In the absence of duty demand, penalties and redemption fines are not sustainable. In these circumstances, both the appeals are allowed after setting aside the impugned order in so far as it relates to the appellants. It is further directed that the pre-deposits made by the appellants in terms of the interim order of this Tribunal or in terms of the orders of the lower authorities shall be returned to them immediately.
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2004 (6) TMI 549 - CESTAT, MUMBAI
Demand and penalty ... ... ... ... ..... therefore the appellants are liable to pay duty, in addition to the duty demand the penalty of Rs. 40, 000/- has been imposed. 2. emsp None appears for the appellants in spite of notice hence we heard the ld. SDR and perused the records. We find that the ld. SDR is correct in his submission that the condition stipulated as against at Serial No. 24 of the Table to Notification No. 171/70 has not been fulfilled by the appellants. Therefore the duty demand has been rightly confirmed and accordingly we uphold the same. However we reduce the penalty to Rs. 10,000/- which is the amount that the Tribunal had directed the appellants to deposit in terms of Section 35F of the Central Excise Act. 3. emsp The appeal is thus partly allowed.
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2004 (6) TMI 548 - CESTAT, BANGALORE
Footwear - Parts of footwear - Demand - Limitation ... ... ... ... ..... the order of the Commissioner. We find that penalty on Shri N.K. Chakraborthy has been imposed on the ground that he was the Manager in-Charge of Accounts and was looking after the Central Excise work of the appellants rsquo Company since January 1995 as is evidence from the statement dated 21-3-2000. He was fully aware that the parts of footwear which were being cleared to outside manufacturers without payment of duty are liable for confiscation. Therefore, penalty imposed on him under Rule 209A of the Central Excise Act, 1944 is correct in law. We do not find any reason to interfere it. 13. emsp In view of the above, the Commissioner is directed to give the appellants an opportunity to submit their claim for Modvat credit and if the same is found in order as per provisions of law, then he may allow the Modvat credit on the inputs used in the manufacture of dutiable footwear parts. 14. emsp Both the appeals are rejected except the modification as mentioned in Para 13 above.
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2004 (6) TMI 547 - CESTAT, NEW DELHI
Cenvat/Modvat - Demand - Limitation - Penalty ... ... ... ... ..... on their part had disclosed all the material facts to the Department. Accordingly, it cannot be alleged by Revenue that there was any suppression of facts with an intent to evade payment of duty. The decision of the Supreme Court in the case of Pushpam Pharmaceuticals Co. Ltd. v. C.C.E. - 1995 (78) E.L.T. 401 (S.C.) is squarely applicable in the present matter wherein it has been held by the Apex Court that the act must be deliberate and suppression of facts does not mean any omission. We, therefore, hold that the extended period of limitation cannot be invoked in the present matter. Accordingly, the matter is remanded to the Jurisdictional Adjudicating Authority to recompute the demand. As the issue involved is the interpretation of provisions of Rule 57AD and the Cenvat credit was availed of after making declaration, no penalty is imposable in the present matter. Accordingly, we set aside the penalty imposed on the Appellants. The appeal is disposed of in the above manner.
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2004 (6) TMI 546 - CESTAT, NEW DELHI
Penalty - Imposition of - Production capacity based duty ... ... ... ... ..... arted discharging the duty liability at the said rate without waiting for the determination of their capacity as required under Rule 96ZQ(1). The revenue has placed reliance on sub-rule (2) of Rule 96ZO which provides in clear terms that ldquo the amount of duty payable under sub-rule (1) shall be debited by the independent processor in the account currency maintained by him under sub-rule (1) of Rule 173G of the Central Excise Rules, 1944. rdquo It is thus apparent that the liability to pay duty under sub-rule (2) arises after the determination of duty under sub-rule (1). As observed by us earlier the duty under sub-rule (1) of Rule 96ZQ was determined only in the month of February 2001, by which time the appellants had already discharged their duty liability. Accordingly, we find no reason in the present matter for imposing any penalty on the appellants. We, therefore, set aside the penalties imposed on the appellants. We, therefore, set aside the penalties imposed on them.
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2004 (6) TMI 545 - CESTAT, MUMBAI
Exemption to goods imported for insole making ... ... ... ... ..... raised by the appellants in the reply of October, 2000 and January, 2001 but neither the adjudicating authority nor the lower appellate authority specifically given any finding on the basic submission regarding whether the goods imported are the ones on which CLRI has given its opinion. Unless this issue is first determined the question of further deciding whether the benefit under the notification has to be extended or not obviously cannot arise. We therefore set aside the impugned orders and remand the cases to the original adjudicating authority for fresh decision on all aspects. He shall first pronounce upon the plea that the goods covered by the CLRI report are different from the goods imported by the appellants herein, thereafter give his decision whether the benefit of the notification is available to the importers or not. Fresh orders shall be passed after extending a reasonable opportunity of hearing to the appellants. 3. emsp The appeals are thus allowed by remand.
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2004 (6) TMI 544 - CESTAT, MUMBAI
Refund - Duty paid on imported goods exempted under Notification No. 276/92-Cus. ... ... ... ... ..... . Finance Adviser to the Ministry of Chemicals and Fertilizers. Deputy Financial Adviser is of the rank of a Dy. Secretary as clarified by the Ministry rsquo s letter dated 23-12-94 addressed to the Commissioner of Customs, Bombay. Thus the first condition as enumerated above is satisfied inasmuch as techno-economic clearance has been given by the Ministry of Chemicals and Fertilizers for the project and the list of goods required for such renovation has been certified by Dy. Finance Adviser of the Ministry who is of the rank of a Dy. Secretary to the Government of India. 5. emsp Thus the appellants have satisfied all the conditions of the above said notification. They are entitled for duty free clearance of the said goods. Since they did not avail of the benefit of notification when the goods were cleared they are entitled for the refund of duty paid by them at the time of clearance. The order of Commissioner (A) is set aside with consequential relief in accordance with law.
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