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Case Laws
Showing 201 to 220 of 654 Records
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2007 (11) TMI 511
Penalty - Imposition of - Documents ante-dated to evade duty ... ... ... ... ..... sion that prevailed in the textile industry in the wake of introduction of Central Excise levy was recognized by the department and the officers were advised to sympathetically deal with the lapses of the manufacturers. However, such leniency was to be shown where the assessees did not indulge in evasion of duty due. Therefore, the assessee M/s. Murugan Textile cannot be held to be not liable to penalty under Section 11AC. However, following the Apex Court rsquo s judgment in the case of Sony India Ltd. case (supra), I hold that the modified penalty imposed by the Commissioner (Appeals) on the appellants is fair and justified on an assessment of the over all circumstances in which the assessee committed the offence and the fact of their payment of the duty due and interest thereon before issue of the show cause notice. Accordingly, the impugned order is upheld and the appeals filed by M/s. Murugan Textiles and the Revenue are dismissed. (Dictated and pronounced in open Court)
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2007 (11) TMI 510
Refund - Unjust enrichment - Rate contracts supplies - Held that: - This undisputed fact clearly establishes that the certificate issued by the Indian Ordnance Factories, Deputy General Manager, that the appellants were paid only the amount which has been contracted. It is also undisputed that the appellant while arriving at the assessable value had wrongly claimed deduction of the excise duty, which has resulted in payment of excess duty. On perusal of the entire records I find that in this case the appellant had cleared goods on payment of excess excise duty which is not due to Government - It is also on record and seen from the certificate of Chartered Accountant, (on verification of the information and the books of records) he has come to the conclusion that the appellant had not received any amount over and above the contracted price - question of unjust enrichment in respect of the rate contracts supplies stands squarely settled in favour of appellant - appeal allowed.
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2007 (11) TMI 509
Clandestine removal - Penalty - Imposition of ... ... ... ... ..... p Regarding imposition of mandatory penalty under Section 11AC of the Central Excise Act, 1944, I find force in the submission of the learned Advocate. Penalty under Section 11AC of the Central Excise Act, 1944 would be imposed in the case of fraud, collusion or wilful mis-statement or suppression of facts or contravention of any of the provisions of this Act or of the Rules thereunder with intent to evade payment of duty. In the present case, the shortage was detected during the stock verification. No material is placed by the Revenue to invoke the ingredients of Section 11AC of the Act of the Central Excise Act, 1944. So, the imposition of penalty under Rule 25 of the Central Excise Act read with Section 11AC of the Central Excise Act, 1944 as imposed by the adjudicating authority is set-aside. Accordingly, the insofar as the demand of duty is upheld and the imposition of penalty is set-aside. The cross-objections are disposed of. (Dictated and pronounced in the open Court)
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2007 (11) TMI 508
Appeal - Limitation - Order - Maintainability of - Adjudication proceedings ... ... ... ... ..... finding portion about the charge made against the appellant. There is no order against the appellant at all except to hold that he is liable for penalty under Section 112(a) and (b) for abetting the smuggling of silver and imposing penalty of Rs. 50,000/-. The order is not maintainable in law. It is also seen that the Special Judge for Economic Offences at Hyderabad by its judgment dated 27-2-2001 in CC No. 178/1990, has acquitted the appellant. In terms of the Chennai Bench order, which is extracted supra, the said judgment of the Special court has precedential value. The appellant cannot be held responsible for the act of abetting of smuggling, as there is no evidence against him. Furthermore, the Commissioner has not discussed any evidence against the appellant. In view of these facts, the impugned order, imposing penalty of Rs. 50,000/- against the appellant, 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 507
Stay/Dispensation of pre-deposit ... ... ... ... ..... d the order passed by the Commissioner (Appeals). Further on going through the Sl. No. 5 of the relevant Notification, we find that 50 of the aggregate duty has to be apportioned only between duty leviable under Central Excise Act and the duty leviable under the Additional Duties of Excise (Goods of Special Importance), Act, 1957. This shows that by entry Sl. No. 5 of the said Notification AED (T and TA) has been completely exempted. Similarly the appellant has cited the exemption Notification in respect of the goods covered under Sl No. 2 from AED (GSI). Since the appellants have prima facie a strong case in their favour, we order complete waiver of the pre-deposit of the duty amount and penalties imposed till the disposal of the appeals. Therefore the recovery proceedings of the duty and penalty are also stayed till the disposal of the appeals. Thus these stay applications are allowed. Appeals to come up for hearing in its turn. (Pronounced in the open court on 12-11-2007.)
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2007 (11) TMI 506
Stay/Dispensation of pre-deposit ... ... ... ... ..... , Bangalore, (2007 (216) E.L.T. 417 (Tri-Bang) wherein demands confirmed on the usage of common premises have been set aside and stay application allowed. 4. emsp We have carefully considered the submissions. We find that the appellant had written to the Development Commissioner seeking permission to utilize the premises. They have already paid duty on the imported capital goods and raw materials. The only issue is with regard to the common usage of the facilities. In view of the fact that the Development Commissioner has given permission for common usage of the premises, we find no justification for confirmation of demand. Hence, waiver has been granted in the matter. In view of the matter being covered, the stay application is allowed granting waiver of pre-deposit and staying its recovery. The appeal is listed for Final hearing on 18th December, 2007. Counsel to file the Final Order rendered by this bench in the case of Emphasis Ltd. (Pronounced and dictated in open Court)
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2007 (11) TMI 505
Cenvat/Modvat - Reversal of credit ... ... ... ... ..... Cenvat credit shall not be allowed on such quantity of input used in the manufacture of exempted goods except in the circumstances mentioned in sub-rule (2) of the said rules. The appellant rsquo s case is not covered by sub-rule (2) of Rule 6 of the Cenvat Credit Rules. Therefore, the appellants are not entitled to avail the credit on inputs used in the manufacture of exempted final product. It is seen that the appellants are reversing the credit on molasses used in the manufacture of exempted final product. Therefore, they are liable to reverse the credit on molasses on the exempted final product as lost. In the instant case, the appellants are not entitled to take credit on the inputs used in the manufacture of the exempted goods and therefore, they are liable to reverse the credit on the inputs used in the manufacture of the final product as lost. Accordingly, I do not find any merit in the appeal and the same is rejected. (Order dictated and pronounced in the open Court)
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2007 (11) TMI 504
Exemption - Cenvat/Modvat ... ... ... ... ..... o availed input credit for the inputs which has gone into manufacture of such dutiable products. 6.3 emsp The Original Authority after holding that they have not fulfilled the conditions of the Notification No. 5/98 denied the Modvat credit for the period from 1-9-1999 to 29-2-2000. If the credit is denied, then naturally the duty demandable has to be 8 as provided for under Notification for clearances beyond Rs. 1 crore. However, he has chosen to confirm 24 , which in itself is a contradiction. 7. emsp Therefore, we do not find that Notification No. 5/98 envisages that it should be availed for the entire period of the financial year. During the period from 1-9-1999 to 29-2-2000, the assessee has paid the normal duty. As already mentioned, no dispute has been raised for the period where they have clearances up to Rs. 1 crore at lsquo nil rsquo rate. Therefore, we do not find merits in the appeals by the Department. 8. emsp Appeals are therefore rejected. (Pronounced in Court)
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2007 (11) TMI 503
Interest - Cenvat/Modvat - Penalty ... ... ... ... ..... e 57U(4) and (5), that if an assessee discharged duty liability on the capital goods within three months from receipt of demand, the question of penalty doses not arise. It is undisputed in this case, that as soon as it was pointed out by range officers the appellant discharged entire duty liability before the issuance of the show cause notice. As such, to my mind imposition of penalty under Rule 57U(6) does not arise because the provisions of Rule 57U(6) would arise only when there is element of fraud, wilful mis-statement, collusion or suppression of facts or contravention of any of the provisions of Act or the Rules made thereunder with an intent to evade payment of duty. As such, the penalty imposed on the appellant under Rule 57U(6) is liable to be set aside, I do so. 8. emsp Accordingly, I find that the impugned order to the extent it upholds imposition of penalty and the charging of interest is liable to be set aside, and I do so. The appeal is allowed, in above terms.
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2007 (11) TMI 502
Issues involved: Delay in filing appeal before the Commissioner (Appeals) and the power to condone the delay.
Summary:
The judgment by the Appellate Tribunal CESTAT, Bangalore addressed three stay applications and appeals that raised a common question of law and facts. The appellant had filed the appeal before the Commissioner (Appeals) with a delay of two days, which the Commissioner did not condone and dismissed the appeal solely based on the delay. The appellants cited a Supreme Court judgment deprecating the practice of dismissing appeals for minor delays. The Tribunal found the Commissioner unjustified in dismissing the appeal for a delay of two days, especially since the appeal was filed on a Monday following two public holidays. Referring to Section 10 of the General Clauses Act, the Tribunal highlighted that Saturdays and Sundays are excluded when computing the delay in filing appeals. Consequently, the Tribunal set aside the Commissioner's orders, remanded all three appeals for a decision on merit after granting a hearing to the appellants, and directed the cases to be disposed of within three months from the receipt of the order.
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2007 (11) TMI 500
Issues Involved:
The appeal involves the question of unjust enrichment concerning the refund claim of duty paid on physician samples manufactured by the appellant, both on their own and as a job worker basis. The adjudicating authority rejected the refund claim on the grounds of unjust enrichment, leading to this appeal.
Physician Samples Manufactured by Appellant:
The appellant cleared physician samples manufactured by them on their own, as well as those manufactured on a loan license basis, on payment of duty. The valuation of physician samples was disputed, but the appellant's claim was resolved in their favor. The refund claim of Rs. 5,29,687/- for duty paid on physician samples was sought to be rejected due to the doctrine of unjust enrichment. The authorities held that the appellant had recovered the duty paid on physician samples from their principal, leading to the rejection of the refund claim. However, the appellant argued that the duty payment for physician samples manufactured by them should not be considered unjust enrichment as the duty liability rested with the principal manufacturer. The Tribunal found in favor of the appellant, stating that the refund claim for duty paid on physician samples of their own product should be granted as the duty was paid in excess due to incorrect valuation, and the doctrine of unjust enrichment did not apply in cases of free distribution of physician samples.
Physician Samples Cleared as Job Worker:
Regarding the refund claim of Rs. 3,82,745/- for duty paid on physician samples cleared by the appellant as a job worker, it was found that the appellant had claimed and received the duty amount from the principal manufacturer. As the principal manufacturer had not filed a refund claim, the appellant's claim for refund of excess duty paid did not stand. The Tribunal upheld the rejection of the refund claim for duty paid on physician samples cleared as a loan licensee.
Penalty Imposition:
The adjudicating authority imposed a penalty on the appellant for claiming an erroneous refund. However, the Tribunal noted that the refund claim was sanctioned based on higher judicial forum findings and not due to mala fide intentions. Therefore, the penalty was set aside as there was no contumacious behavior or total disregard of the law by the appellant.
In conclusion, the Tribunal modified the impugned order, allowing the appeal in part by granting the refund claim for duty paid on physician samples manufactured by the appellant but upholding the rejection of the refund claim for duty paid on physician samples cleared as a job worker. The penalty imposed on the appellant for the erroneous refund claim was also set aside.
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2007 (11) TMI 499
Customs House Agents Licence - Revocation of suspension ... ... ... ... ..... fied under Regulation 8 of the CHALR, 2004 (Regulation 9 of CHALR, 1984), which fact was noted by the Commissioner himself. Hence it was not open to the licensing authority to stipulate that the CHA should comply with the requirements of Regulation 8 of CHALR, 2004. The challenge against stipulation of such a condition is valid. 4. emsp In the impugned order, the Commissioner appears to have followed an order passed by the Chief Commissioner as appellate authority under the CHALR but the facts of the case handled by the Chief Commissioner have not been disclosed in the Commissioner rsquo s order and, therefore, it is not possible to ascertain as to whether the Chief Commissioner rsquo s decision was a binding precedent for the Commissioner in the case considered by the latter. 5. emsp In the result, the Commissioner rsquo s order is sustained sans the impugned condition, and the appeal is allowed. (Operative portion of the order was pronounced in the open Court on 16-11-2007)
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2007 (11) TMI 498
Demand - Limitation ... ... ... ... ..... n all fairness, when the impugned period was February, 1998 to July, 1999 and investigation was conducted on 4-6-98, Department should not have commenced proceeding belatedly by SCN dated 11-9-2000 which itself is very bad in law. This also follows passing of the order of adjudication on 15-2-06 which is six years after issuance of SCN. Such careless proceeding does not get support of law or sustainable. Therefore, Revenue rsquo s appeal should fail on the ground of latches itself and cross-objection be allowed. 3. emsp Heard both sides and perused the case record. The ld. Counsel rsquo s submission is based on factual matrix of the case as a good proceeding should have been initiated by a forthwith notice much before 11-9-2000. There is no merit in the case of the Revenue to entertain the Appeal arising out of belated proceeding for which the same is dismissed. Cross-Objection without any different ground being argued is dismissed. (Dictated and pronounced in the open Court)
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2007 (11) TMI 497
Appeal to Appellate Tribunal - Restoration of - Cenvat/Modvat - Capital goods ... ... ... ... ..... llation would be just and proper. 4.3 emsp Perusal of record reveals that the credit was availed on 9-4-1999 and that was used for discharging the duty liability to the extent of credit so availed. Therefore, to meet the end of justice to the extent of the credit so availed for discharge of liability, the appellant is required to compensate to Revenue by way of interest. Calculation of interest may be made from the date of wrong availment of credit till the date of installation of capital goods. The rate of interest shall be as applicable to the situation of default of payment of duty as per law. 4.4 emsp In the fitness of circumstances, so far as the wrong availment of duty is concerned, it would be proper if the appellant is directed to deposit the penalty already directed by the learned Adjudicating Authority to be realized as a corrective measure. 4.5 emsp Appeal is allowed in the aforesaid term setting aside the impugned order. (Dictated and pronounced in the Open Court)
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2007 (11) TMI 496
Demurrage charges - Liability to pay - Held that:- There is no specific allegation of mala fide against the Customs Department. The learned Single Judge has considered the said aspect as to whether or not the Customs Department had acted mala fidely and having considered the facts of the case and upon going through the records it has been held that there was no mala fide on the part of the Customs Department. It was held that whatever action was taken by the Customs Department was an action taken in good faith and that it did not amount to abuse or misuse of their power. We, therefore, find no reason to interfere with the findings recorded by the learned Single Judge. We find no merit in the appeal which is dismissed.
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2007 (11) TMI 495
Duty liability - Exemption to seller, denial of ... ... ... ... ..... venue has showed that the parts supplied by the manufacturers are not entitled for the benefit of the exemption Notification. There is not much dispute on this point. However, the liability is clearly on the manufacturer and not on the person who receives the goods. Hence, Revenue should proceed only with the suppliers of all these parts and not on the Respondent. We also notice that Revenue had already proceeded against the suppliers and recovered sums due from them. In such a circumstance, duty cannot be recovered from the Respondent also. Duty can be recovered only from the manufacturer and not from the recipients and duty also cannot be recovered twice on the same goods. In such circumstances, the order of the Commissioner is legal and proper. He has followed the various decisions of the judicial For a. In these circumstances, Revenue rsquo s appeal has no merits. Hence, we dismiss the same and uphold the order of the Commissioner. (Pronounced in open Court on 12-11-2007)
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2007 (11) TMI 494
Remand - Powers of Commissioner ... ... ... ... ..... rs of assessment. Under Section 35-B any person aggrieved by the order of the Commissioner as an adjudicating authority is entitled to move the Tribunal in appeal. Section 35-B indicates that the decision of order passed by the Commissioner (Appeals) shall be treated as an order of an adjudicating authority. In the circumstances the High Court had erred in holding that the assessee was not entitled to agitate the question of dutiability in appeal before the Tribunal. rdquo 6. emsp Further we find that the Hon rsquo ble Punjab and Haryana High Court under whose jurisdiction the respondents are situated, in the case of Enkay India Rubber Co. (supra) held that after amendment to Section 35A, the Commissioner has no power to remand. In these circumstances, the impugned orders are set aside and the Commissioner (Appeals) is directed to decide the appeals on merits in accordance with law. The appeals are allowed as indicated above. (Order dictated and pronounced in the open Court).
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2007 (11) TMI 493
Stay/Dispensation of pre-deposit - Valuation ... ... ... ... ..... ant submits that the issue is no longer res integra and it is covered by the WZB Order of the Tribunal rendered in M/s. Metro Shoes Pvt. Ltd. v. CCE, Mumbai-I - 2007 (8) S.T.R. 502 (Tri.) 2007 - TIOL-1138-CESTAT-MUM. He further submits that the Commissioner is not justified in holding that the sales promotion activity is required to be done within the premises of factory, which is impossible. Sales have to be done outside the factory only and there is no denial of the fact that the commission received was in connection with the Input Services only. Therefore, they have a very strong case on merits. 3. emsp The learned DR defended the order. 4. emsp Prima facie, the appellants are eligible for the benefit of Input Services with regard to the commission received for sales promotion. Hence, the stay application is allowed granting waiver of pre-deposit and staying the recovery till the disposal of the appeal. Appeal to come up in its turn. (Pronounced and dictated in open Court)
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2007 (11) TMI 491
Stay/Dispensation of pre-deposit - Cenvat/Modvat - Input ... ... ... ... ..... it of specified duty shall be allowed in respect of inputs which are used for generation of electricity or steam used for manufacture of final products or for any other purpose, within factory of production rdquo 2. emsp We find that, under Rule 57B for the period from 1-3-97 also, Modvat credit was admissible in respect of inputs which were used for generation of electricity used for manufacture of final products. This legal position has been accepted by the lower appellate authority and the department has not chosen to file any appeal against such decision of the appellate authority. If that be so, prima facie, we must hold that the Revenue cannot deny the benefit of the above proviso to the assessee for the period prior to 1-3-97. We have taken this view after hearing both sides and considering their submissions. 3. emsp For the aforesaid reasons, there will be waiver of pre-deposit and stay of recovery in respect of the duty amount. (Dictated and pronounced in open court)
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2007 (11) TMI 490
Rectification of mistake ... ... ... ... ..... from the record. We repeat that no specific ground for grant of interest on Cenvat credit was raised in the memo of appeal and that no specific prayer for such relief was made therein. We are also unable to persuade ourselves to accept the argument that the claim of interest under Section 11BB of the Central Excise Act on the Cenvat credit amount ordered to be transferred under Rule 10 of the Cenvat Credit Rules, 2004 is a relief consequential to the latter viz. transfer of unutilised Cenvat credit. The appeal was for the specific relief of transfer of unutilised credit. When it was allowed, the appellants are entitled to such relief as consequential relief. 3. emsp In the result, this application is allowed only to the extent of deleting the fourth sentence in Para (4) of the final order and modifying the third sentence as follows ldquo But we have not found any such claim having been raised in the memorandum of appeal before us. rdquo (Dictated and pronounced in open court)
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9911796707
