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Showing 181 to 200 of 654 Records
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2007 (11) TMI 532
Adjudication - issuance of Show cause notice - Refund - Held that: - The Original Authority having sanctioned refund in pursuance of Commissioner (Appeals)’s order cannot issue show cause notice to recover the refunded amount. This will amount to exercise of review powers by the original authority - appeal dismissed - decided against Revenue.
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2007 (11) TMI 531
Issues involved: The dispute relates to Modvat credit available to the textile w.e.f. 1-4-03, in respect of stock lying as on 31-3-03. The main issue is the denial of Modvat credit by the authorities below based on the filing of multiple declarations by the appellant.
Modvat Credit Dispute: The appellant filed a declaration on 7-4-03 regarding the stock available as on 31-3-03, which was later revised twice on 16-4-03 and 22-4-03. The authorities denied Modvat credit due to the multiple revisions of the declaration. However, the Tribunal found no justification in this reasoning. The purpose of filing the declaration was to inform the Revenue about the stock position and enable verification. The Tribunal noted that the initial filing period was changed to June 2003, allowing for revisions if there was a reasonable cause. Instead of outright rejection, the authorities should have verified the stock position as on 31-3-03. Therefore, the Tribunal set aside the impugned order and remanded the matter for a detailed examination of the appellant's claim for Modvat credit concerning the stock available on the specified date.
Decision and Conclusion: In conclusion, the Tribunal allowed the appeal by way of remand, indicating that the stay petition was also disposed of. The matter was remanded to the Assistant Commissioner for a thorough examination of the appellant's claim for Modvat credit in relation to the stock available as on 31-3-03. The Tribunal emphasized the importance of verifying the stock position rather than rejecting the claim based solely on the number of declaration revisions.
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2007 (11) TMI 530
Issues involved: The judgment involves appeals by three different companies against the orders of the Commissioner (Appeals) related to the sale of ships and the determination of assessable value under the Customs Act, 1962.
Issue 1: Common Issue in Appeals The three appeals involve a common issue related to the sale of ships and the determination of assessable value under the Customs Act, 1962.
Issue 2: Assessable Value Determination The original memorandum of agreement for the sale of ships was on an "as is where is basis" with an option for arbitration in case of disputes. There was no discrepancy in the items agreed upon and those actually imported. The reduction in prices through an addendum after import did not have a justifiable reason. The memorandum of agreement did not contain a price variation clause to justify such reductions.
Issue 3: Precedent from Larger Bench The Larger Bench in the case of M/s. Lucky Steel Industries held that any reduction in price agreed upon before the date of import is relevant for determining assessable value. However, post-import price variations are not relevant unless there are serious breaches of contract or if the goods are not as contracted for.
Decision: The Tribunal found no justifiable reason for the lower price adopted through the addendum after the import of vessels. The appellants' issue was deemed covered by the Larger Bench decision. Consequently, there were no grounds to interfere with the Commissioner (Appeals) orders, leading to the rejection of the appeals and disposal of the cross-objections.
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2007 (11) TMI 529
Issues involved: Appeal against order setting aside findings of clandestine removal based on recovery of Kachcha slips without corroborative evidence.
Issue 1: Clandestine removal findings based on recovery of Kachcha slips
The respondent, engaged in manufacturing texturised yarn, was subject to proceedings following the recovery of two Kachcha slips during a search at their factory. The slips indicated excess production sold in the market without proper accounting or duty payment. The original authority confirmed demand and imposed penalty based on this evidence. However, the Commissioner (Appeals) set aside the findings, stating that Kachcha slips alone were insufficient to prove clandestine removal without corroborative evidence. The Commissioner noted that the respondent had explained the details on the slips and retracted the statement made under duress. With no additional evidence supporting the allegations, the Commissioner extended the benefit of doubt to the respondent, leading to the rejection of the Revenue's appeal.
Conclusion:
The Appellate Tribunal upheld the Commissioner (Appeals)'s decision to set aside the findings of clandestine removal based solely on the recovery of Kachcha slips, emphasizing the lack of corroborative evidence to substantiate the allegations. The Tribunal found no merit in the Revenue's appeal and rejected the same.
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2007 (11) TMI 528
Re-adjudication - New plea ... ... ... ... ..... of clearances by both the units. We also note that the said order of the Tribunal was passed on an appeal filed by the Revenue against the order of the Commissioner, dropping the demand against the assessee. As such, there could be no occasion for the assessee to raise the issue of time bar before Tribunal inasmuch as the earlier order was in their favour. We note from the said order of the Tribunal that there is no de-barring the assessee from raising any additional legal plea as such time-bar. As such, the Commissioner was duty bound to deal with the aspect of demand being barred by limitation. On this short issue, we set aside the impugned order to decide the limitation aspect. We make it clear that we have not gone through the merits of the case and the appellants are at liberty to put forth any plea before the original authority during the process of adjudication. 5. emsp The stay petitions and appeals are disposed off in above manner. (Dictated and pronounced in Court)
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2007 (11) TMI 527
Demand - Cenvat/Modvat - Capital goods ... ... ... ... ..... ) E.L.T. 510 (Tri.-Bang.), laying down that waste and scrap arising out of cenvatable capital goods does not attract duty prior to introduction of notification No. 27/05, w.e.f. 16-5-05. To the similar effect is Tribunal rsquo s decision in case of CEAT Ltd. v. CCE, Nasik - 2005 (192) E.L.T. 380 (Tri.-Mumbai), laying down that in as much as Rule 57-S(2) was not in existence during the relevant period and new set of rule not having identical provision requiring assessee to pay the duty on capital goods, at the time of their clearance from the factory, as waste and scrap, demand is unsustainable. In as much as in the present case also the period is prior to 2005, and there was no provision of law requiring such reversal, as also admitted by the Commissioner (Appeals), we are of the view that the demand of duty against the appellant is not sustainable. 3. emsp The same is, accordingly, set aside and appeal allowed with consequential relief to the appellant. (Pronounced in Court)
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2007 (11) TMI 526
Demand - Limitation - Clandestine removal ... ... ... ... ..... i.-Bang.) - Demand - Limitation - SCN issued after a lapse of 3 years - Department gathered all information on their visit to factory on 5-11-99 and records seized and statements recorded same day - SCN issued on 25-7-02, barred by limitation - Section 11A of Central Excise Act, 1944. (iv) Kirloskar Ferrous Indus. Ltd. v. CCE, Belgaum - 2005 (189) E.L.T. 474 (Tri.-Bang.) - Demand - Limitation - Notice issued after 3 years after visit of revenue officers - Demand set aside and matter remanded for re-examination - Section 11A of Central Excise Act, 1944. rdquo 6. emsp Inasmuch as admittedly the show cause notice was issued after a period of 6 months from the date of visit of the officers and the completion of the investigation, the notice has to be held as barred by limitation, in the light of the decision referred supra. 7. emsp Accordingly, I set aside the impugned order and allow all the appeals with consequential relief to the appellants. (Pronounced in Court on 14-11-2007)
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2007 (11) TMI 525
Issues involved: Whether appellant entitled to avail Modvat credit on the basis of credit notes issued by them.
The judgment by the Appellate Tribunal CESTAT, AHMEDABAD dealt with the issue of availing Modvat credit based on credit notes. The lower authorities had confirmed a duty amount and imposed a personal penalty on the appellant for availing credit notes as the basis for Modvat credit. The impugned order stated that credit notes are not prescribed documents for availing Cenvat credit under Rule 7 of Cenvat Credit Rules. The tribunal agreed with the adjudicating authority's findings and held that taking Modvat credit on credit notes is irregular and against the law. The equivalent penalty imposed was deemed just and proper. The appellants did not contest that credit notes were not prescribed documents for Modvat credit but argued that assessments were not finalized before denial of credit. The tribunal noted that the appellants did not await final assessment before availing credit on credit notes. Despite reducing the personal penalty to 25% of the duty amount due to lack of mala fide intention, the appeal was rejected.
In summary, the judgment emphasized that credit notes are not valid documents for availing Modvat credit as per the Cenvat Credit Rules. The tribunal upheld the lower authorities' decision to confirm the duty demand and impose a penalty on the appellant for irregularly availing credit based on credit notes. The appellant's argument that assessments were not finalized before denial of credit was not accepted as they did not await final assessment before claiming credit. Despite reducing the penalty due to lack of mala fide intention, the tribunal rejected the appeal.
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2007 (11) TMI 524
Confiscation - Rule 25 of Central Excise Rules, 2002 - Held that: - Rule 25 of Central Excise Rules, 2002 are applicable to the final product and cannot be extended to the raw material - appeal dismissed.
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2007 (11) TMI 523
Issues involved: Whether the appellant is required to reverse the entire amount of Modvat credit availed in respect of capital goods cleared from the factory after use for 2-3 years.
Issue 1: Reversal of Modvat credit for capital goods removed from the factory:
The appellate authority held in favor of the assessee, stating that the capital goods were not removed "as such" by the appellants as per Rule 3(4) of the Cenvat Credit Rules, 2002. The authority referred to a Board Circular clarifying that duty payment for capital goods should consider depreciation. The appellants correctly paid duty for the capital goods removed after use in their factory. The authority also noted that for capital goods not physically removed but transferred due to change of ownership, no duty is payable, citing relevant case laws.
Issue 2: Duty on inputs removed after use:
The inputs purchased in 2000 were partially used in manufacturing final products, with a part quantity removed after 3.5 years. The quality of the removed inputs had deteriorated, affecting their market value. The authority found that the duty paid by the appellants for these inputs was correct, considering the circumstances of use and removal.
Conclusion:
The Revenue contended that the assessee should reverse the entire credit availed as per Rule 3(4) of the Cenvat Credit Rules. However, the Tribunal's decisions and the appellate authority's ruling supported the appellants' position, leading to the rejection of the Revenue's appeal due to lack of merit.
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2007 (11) TMI 522
Cenvat/Modvat credit - Molasses - The appellant takes CENVAT credit on the Molasses used in the manufacture of Rectified Spirit/Denatured Spirit - contention of the Revenue that w.e.f. 1-3-2005, Rectified Spirit has become non-excisable and, therefore, no Cenvat Credit could have been availed by the appellant - Held that: - it cannot be said that Molasses is used only in the manufacture of Rectified Spirit. In other words, Molasses is used as a common input in the manufacture of exempted Rectified Spirit as well as dutiable Carbon Di-Oxide and Denatured Spirit. Hence, in terms of Rule 6 of CENVAT Credit Rules, if the credit on Molasses used in or in relation to the manufacture of the said Rectified Spirit is reversed, there is no violation of any provisions of law and the credit taken on Molasses cannot be denied.
CENVAT credit - furnace oil used to generate steam - Held that: - The steam is partly used for generation of electricity and partly for processing the molasses in the distillery resulting in the production of Carbon Di-Oxide and Rectified Spirit/Denatured Spirit. Therefore, it cannot be said that the furnace oil is used only in the manufacture of Rectified Spirit. It is actually a common input used in the manufacture of exempted Rectified Spirit/dutiable Denatured Spirit and Carbon Di-Oxide - there is no need for reversal of credit on any portion of furnace oil attributable to Rectified Spirit.
There is no justification for imposition of any penalty or demand of interest under Section 11AB.
Appeal allowed - decided in favor of appellant.
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2007 (11) TMI 521
Demand - Limitation, extended period - Cenvat/Modvat ... ... ... ... ..... his plea that they have properly followed the procedure and there is no irregular availment of credit. (i) Supreme Industries Ltd. v. CCE, Chandigarh - 2005 (189) E.L.T. 453 (Tri.-Mumbai) (ii) Nikvik Electronics (P) Ltd. v. CCE, Mumbai - 2006 (203) E.L.T. 276 (Tri.-Mumbai) (iii) BAPL Industries Ltd. v. CCE, Coimbatore - 2006 (198) E.L.T. 587 (Tri.-Chennai) (iv) CCE, Noida v. Kinetic Motors Co. Ltd. - 2005 (183) E.L.T. 300 (Tri.-Delhi). 6.1 emsp I have considered these rulings and find that the support taken by the appellant on the ratio of these judgments is sustainable and requires to be accepted. The impugned order is not legal and proper for the reasons stated that (a) the demands are time barred (b) that there is no irregular availment of Cenvat Credit and (c) that the ratio of the cited judgments would also apply to the facts of this case. The impugned order is set aside and the appeal is allowed with consequential relief, if any. (Pronounced and dictated in open Court)
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2007 (11) TMI 520
Issues involved: The issues involved in the judgment are whether samples removed for testing to laboratories are liable for duty, the applicability of statutory provisions on testing, and the duty liability on samples drawn for testing purpose within the factory.
Issue 1: Samples removed for testing to laboratories are liable for duty The Commissioner (Appeals) confirmed demands and penalties on the ground that samples removed for testing are liable for duty. The appellant contended that testing was mandatory under Drugs and Cosmetics Rules, 1945, and relied on various judgments. However, the plea was not accepted based on a Tribunal ruling in the case of M/s. Vera Laboratories Limited. The Tribunal, in a separate case, distinguished the judgment of M/s. Vera Laboratories Ltd. and held that samples removed for mandatory testing are part of the manufacturing process and not liable for duty.
Issue 2: Applicability of statutory provisions on testing The Tribunal considered the mandatory nature of testing under statutory provisions and held that duty is not liable on samples drawn for testing purpose within the factory if testing is done in terms of statute. The Tribunal cited several decisions supporting this view and allowed the appeals based on the same.
Issue 3: Duty liability on samples drawn for testing within the factory The case involved manufacturers of Bulk Drugs and Drug Intermediates who stopped paying duty on samples drawn for testing within the factory. The Revenue contended that duty should be collected on samples before their removal for test purposes unless exempted by notification. The Tribunal, after considering the mandatory nature of testing under the Drugs and Cosmetics Act, 1945, and various Tribunal rulings, held that no duty can be demanded on samples drawn for mandatory testing or retained in the factory. The impugned order of the Commissioner (Appeals) was upheld based on Tribunal decisions and statutory provisions.
In conclusion, the Tribunal dismissed the Revenue's appeal, emphasizing that duty is not demandable on samples drawn for mandatory testing and those retained in the factory, in line with statutory provisions and Tribunal rulings.
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2007 (11) TMI 519
Interest - Delayed payment of duty on supplementary ... ... ... ... ..... is the case wherein the Assessee upon learning that the rates of the goods cleared were revised/escalated and therefore, they are liable to pay more duty than already paid at the time of clearance of the goods, has voluntarily paid the duty. Thus, there is no delay. This is, therefore, not a case where duty of excise has not been paid or short-paid. We are, therefore, inclined to concur with the view taken by the Commissioner (Appeals) and the CESTAT, which calls for no interference rdquo . It can be seen from the above reproduced portion of the judgment of the Hon rsquo ble High Court of Bombay that the issue is squarely covered in favour of the respondent. 3. emsp As such, respectfully following the judgment and order of the Hon rsquo ble High Court of Bombay in the case of M/s. Rucha Engineering Pvt. Ltd. (supra), the appeals filed by the Revenue are dismissed and the cross-objection filed by the respondents, being in support of the order-in-appeal, are also disposed off.
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2007 (11) TMI 517
Quantum of Redemption fine and penalty - validity of revision of the declared value - Held that: - confiscation had been ordered solely on the plea of non-obtaining import licence in terms of Foreign Trade Policy. The Tribunal has gone into a great detail with regard to such import and fixed redemption fine and penalty at 10% and 5% respectively of the value of the goods - Respectfully following ratio of the judgment rendered in the case of Rex Printing Press v. CC, Kolkata [2004 (12) TMI 229 - CESTAT, BANGALORE] the redemption fine and penalty in these appeals are reduced to 10% and 5% respectively of the value of the goods which has already been fixed in all these three cases - appeal allowed in part.
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2007 (11) TMI 516
Appeal to Appellate Tribunal - Connected issues ... ... ... ... ..... he present appeal relates to the question whether the Appellants should have been registered for providing service under Clearing and Forwarding Agent service or under Business Auxiliary Service. We are of the view that once the issue for classification of service is decided by the Appropriate Authority, the Registration Certificate if necessary can be suitably amended. Hence, there is no merit in this separate appeal and we dispose the same with the above directions. (Dictated and Pronounced in the open Court.)
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2007 (11) TMI 515
Classification ... ... ... ... ..... d order passed by the Commissioner (Appeals). We find that an identical issue was considered by the Tribunal in case of Milton Polyplas (I) Pvt. Ltd. v. CCE, Thane - 2006 (193) E.L.T. 467 (Tri.-Mumbai), holding that the insulated tiffin carriers are properly classifiable under heading 39.23 as article for packing or conveying of food-stuffs and would not qualify for their classification under heading 39.24 as table-ware or kitchen ware. The said decision of the Tribunal stands approved by Hon rsquo ble Supreme Court when the appeal filed by the Commissioner was dismissed as reported in 2006 (199) E.L.T. A71 (S.C.). 3. emsp By adopting the said ratio of Tribunal rsquo s decision, as affirmed by the Hon rsquo ble Supreme Court, all the articles in the present case have to be held as falling under heading 39.23 as held by Court. 4. emsp Revenue rsquo s appeals are, accordingly, rejected. All Cross Objections connected to these appeals are also disposed off. (Pronounced in Court)
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2007 (11) TMI 514
Issues involved: Appeal against confirmation of demands u/s 11A(1) of Central Excise Act, imposition of penalty u/s 11AC, seizure and release of goods, challenge to confiscation and penalties confirmed by Commissioner (Appeals).
Confirmation of Demands u/s 11A(1) of Central Excise Act: The appeal arose from the confirmation of demands of Rs. 13,51,828/- u/s 11A(1) of Central Excise Act, 1944 read with Rule 12 and 9 of CE Rules. The appellants, manufacturers of pipe fitting and forging, availed SSI exemption but failed to reverse/pay the amount equivalent to Cenvat credit on inputs in stock. The seized goods were released on redemption fine. The Original Authority confirmed the demands and imposed a penalty u/s 11AC of Central Excise Act. The Commissioner (Appeals) also confirmed the penalties imposed. The appellants contended that they were eligible for time-bar benefit as there was no suppression of facts, and details were recorded in the RT 12 returns.
Imposition of Penalty u/s 11AC: The counsel argued that as there was no suppression of facts, the penalty u/s 11AC should not apply. He further contended that confiscation was not necessary as there was no violation of Central Excise Rules. The appellants raised legal grounds challenging the penalty under Section 11AC, stating that the contravention pertained to Cenvat Credit Rules, not Rule 25 of the CE Rules. The appellants submitted additional documents, extracts of RT 12, to support their case for remand to the Original Authority for further examination.
Seizure and Release of Goods: The appellants relied on statutory documents, RT 12 returns, regularly submitted to the department. The grounds raised were deemed legal, leading to the allowance of the miscellaneous application. The question of whether the appellants were justified in availing Cenvat credit for inputs in stock was raised. The duty amount demanded was confirmed due to irregular availment of Cenvat credit. However, the issue of wrong confiscation of goods and non-levy of penalty required further examination by the Original Authority based on the new grounds raised by the appellants.
Challenge to Confiscation and Penalties: The matter was remanded to the Original Authority to examine the plea that penalty was not leviable u/s 11AC due to no suppression of facts and that the goods were not confiscable as argued. The Original Authority was directed to hear the appellants and pass an appropriate speaking order within four months. The confirmation of penalty and confiscation of goods was set aside, and the matter was remanded for de novo consideration in the interest of justice.
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2007 (11) TMI 513
Penalty on Customs House Agent - Misdeclaration - Stay order - Non-compliance of ... ... ... ... ..... by the importer. The ld. Commissioner also found that there was uncontrovertable evidence to make the CHA charge free. The misdeclaration being patent and evident, it was not practically possible on the part of the ld. Adjudicating Authority to exonerate the CHA from charges. Therefore, the ld. Commissioner came to the conclusion that it was not possible on her part to hold that the CHA was entirely unaware of the misdeclaration and the extent of such declaration. 3. emsp Although the Tribunal provided reasonable opportunity of hearing to the Appellant, the Appellant rsquo s silence has compelled to hold that the present appeal was filed to abuse the process of law. With no vigilant attitude of the litigant or consciousness to pursue remedy, the appeal should not remain pending in the folder of the Tribunal except calling for dismissal with the aforesaid observations and finding. 4. emsp In the result, appeal is dismissed on merit. (Dictated and Pronounced in the open court)
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2007 (11) TMI 512
Appeal to Commissioner (Appeals) - Representation of Department - Evidence - Forged documents - Smuggling - Non-notified goods
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