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Showing 221 to 240 of 654 Records
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2007 (11) TMI 489
Contempt of court - Civil contempt - Delay in compliance with Court’s direction - Held that:- In the instant case, it was not proper on the part of the authorities to have insisted on the petitioner approaching them with the draft of the amendment to the licence. Although, it was none of his duty, the petitioner approached them. However, it is unfortunate that they chose to treat the petitioner’s request in a casual manner.
In the result, contempt petition is dismissed but with strong deprecation of the conduct of the Joint Director of Foreign Trade and the other concerned Authorities. it is hoped that they do not repeat their acts in future and take a lesson from this case. Although the contempt petition is dismissed by accepting the explanation and holding that the delay was not intentional, it is directed that the respondent Nos. 1 to 3 and the condemnor to pay costs to the petitioner, quantified at ₹ 15,000/-. Costs to be paid within a period of three weeks from the date of receipt of this order.
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2007 (11) TMI 488
Penalty - Imposition of ... ... ... ... ..... conclusion that the respondent was not aware that the supplier of the goods had short paid the duty with intention to evade duty. The respondents having claimed credit on the subsidiary invoices issued by the supplier cannot be faulted. 3. emsp As such, I find that both the lower authorities have correctly held that the respondent was not having the knowledge or reasons for which the supplementary invoices were issued and hence, no penalty is imposable. I do not find any reason for interference with the impugned order, which is correct and legal. Accordingly, the appeal filed by the Revenue is rejected and orders of the lower authorities are upheld. (Dictated and pronounced in Court)
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2007 (11) TMI 487
Cenvat/Modvat credit - Capital goods - Reversal of credit - Held that: - the respondent cleared the capital goods under Rule 3(4) of CCR, 2002. Rule 3(4) of CCR, 2002 provides that when inputs or capital goods on which Cenvat credit has been taken are removed as such from the factory, the manufacturer of the final products shall pay an amount equal to the credit availed in respect of such inputs of capital goods and such removal shall be made under the cover of an invoice referred to in Rule 7 - there is no dispute that the capital goods were cleared in the month of May, 2003. Therefore, Cenvat Credit Rules, 2002 would be followed at the time of clearance of the said goods - appeal allowed - decided in favor of Revenue.
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2007 (11) TMI 486
Appeal to Appellate Tribunal ... ... ... ... ..... has not gone into the merits. Respectfully following the said judgment, at this stage as the impugned order, is not passed on merits, it is not possible for me to consider the issue on merits. As such, the impugned order is set aside and the matter is remanded to the Commissioner (Appeals), who shall hear the appeal and dispose of the same on merits, since the delay in filing of the appeal before the Commissioner (Appeals) is already condoned by the Hon rsquo ble High Court of Bombay. Since the issue involved in this case is of 1990, the Commissioner (Appeals) will hear the appeal and pass the order within three weeks from date on which this order is produced before him. 4. emsp Needless to say that the Commissioner (Appeals) would also grant a reasonable opportunity of personal hearing to the appellant before passing a fresh order. The appellant is also directed to co-operate with the lower authority. The appeal is allowed by way of remand. (Dictated and pronounced in Court)
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2007 (11) TMI 485
Ducts - Air-conditioning equipments - Parts thereof - Classification - Held that: - there is a Board Circular issued under 37(B) in Order No. 58/01/02/C.E., dated 15-11-02 which takes a view that the ducts are part and parcel of Refrigeration/Air Conditioning Plants - reliance placed in the appellant own case ETA ENGG. Versus COMMISSIONER OF CENTRAL EXCISE, BANGALORE [2005 (8) TMI 260 - CESTAT, BANGALORE], wherein it has been upheld that the ducts fabricated out of GI sheets are classifiable under heading 73.08 of the Central Excise Tariff as part and parcel of air-conditioning system - appeal dismissed - decided against Revenue.
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2007 (11) TMI 484
Demand - Confirmation of ... ... ... ... ..... the assessable value. 4. emsp The Ld. Consultant for the appellants strenuously argued before us that the impugned demand had been made without an enabling proposal in the show cause notice. Therefore, the impugned order was liable to be set aside. 5. emsp The Ld. SDR reiterates the reasoning contained in the impugned order. He does not controvert the claim of the consultant that the demand challenged was not backed by a proper proposal in the show cause notice. 6. emsp We have carefully considered the rival submissions and studied the case records. On adjudication of the show cause notice, the original authority had dropped the proposal to demand differential duty after revising the assessable value of the yarn cleared in terms of Rule 9 of CEVR. The show cause notice did not contain a proposal to demand duty on any other ground. In the circumstances, we set aside the impugned order and allow this appeal. (Operative part of the order pronounced in the open Court on 13-11-07)
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2007 (11) TMI 483
Remission of duty - Storage loss of molasses ... ... ... ... ..... therefore, the remission may kindly be granted. The appellants also relied upon the Board circular dated 18-7-1983 in support of their contention. 2. emsp The revenue relied upon the finding of the lower authorities and submitted that the applicant had not complied with the conditions of the Trade notice. 3. emsp I find that the Commissioner in the impugned order, held that the appellants did not mention the cause of loss at any stage. As the loss is not satisfactorily explained, the remission application was rejected. I find that the Board circular dated 18-7-1983 is in respect of the contention of loss noticed in the storage up to 2 in respect of molasses stored in the kuchha pits or steel tanks. The Board has clarified that the loss up to 2 is condonable. In view of the Board circular, I find merit in the contention of appellant as the storage loss is less than 2 . The impugned order is set aside and the appeal is allowed. (Order dictated and pronounced in the open Court)
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2007 (11) TMI 482
Confiscation - Imported capital goods ... ... ... ... ..... . rdquo It is very clear that in terms of the above definition, both the Medical equipments imported can be considered as capital goods. They have been in use only for less than 10 years. They can be imported without producing licence. Further the Commissioner rsquo s reliance on Para 9.52 is misplaced because Para 9.52 states that services include all tradable services covered under General Agreement on Trading Services and earning free foreign exchange. The above inclusive definition does not imply that the services necessarily should earn foreign exchange. In our view, the imported goods are definitely capital goods and the denial of the facility of import without licence on the ground that they are not capital goods. Hence we do not hold that the impugned goods are liable for confiscation. The impugned orders have no merit and hence we set aside the same and allow the appeals with consequential relief. (Operative portion of the order has been pronounced in the open Court)
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2007 (11) TMI 481
Demand and penalty - Brand Name - Order - Superficial order ... ... ... ... ..... unt of penalty has been imposed apart from charging interest. As argued by the Dr. Samir Chakraborty, id. Advocate appearing for the Appellants, the Appellants are manufacturing food products under the brand name ldquo National rsquo s rdquo which is approved by the FPO since 1980. The Show Cause Notice issued to the Appellants alleges that M/s. National SemiConductor of Bangalore is also manufacturing goods under the same brand name as has been used by the Appellants. However, we do not find any evidence to substantiate this allegation either in the Show Cause Notice or in the short and superficial order passed by the Adjudicating Authority. There is no evidence also to substantiate the remark made by the Adjudicating Authority that the Appellants are using the word lsquo National rsquo in some of their advertisements. Under the circumstances, the impugned order cannot be sustained, the same is set aside and the appeal is allowed. (Dictated and Pronounced in the open Court.)
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2007 (11) TMI 480
Founts for kerosene wick lamps and glass chimneys for lanterns - Rate of duty ... ... ... ... ..... Only for the impugned period 1-4-2003 to 31-3-2004, the Department has asked for end use certificates for these items and denied the nil rate of duty. He shows some of the sample pieces and states that these are for kerosene lamps and kerosene lanterns and have no other use. He further states that the Department has no evidence whatsoever regarding any other use of these glass items. 4. emsp Heard Shri Jha , id. SDR who supports the impugned order. 5. emsp After hearing both sides we find that the Department has taken arbitrary action after allowing the nil duty assessment to the impugned goods all along and that the tariff itself does not require any end use certificate. The Department has also no evidence whatsoever to show that these items are used otherwise than for kerosene lamps and lanterns. As such, the impugned order cannot be sustained. We set aside the same after waiving the requirement of predeposit and allow the appeal. (Dictated and pronounced in the open Court)
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2007 (11) TMI 479
Valuation - MRP based assessment - Footwear ... ... ... ... ..... rer in retail directly to the consumer. Rule 23(2) of SWM - PC Rules prescribes that no retail dealer or other person including a manufacturer shall sell packaged commodity at a price above the retail price. This provision also shows that excisable goods attracting MRP based assessments can be sold by the manufacturer directly to the customer. We do not think that marking the retail price on the product itself instead of on the package will disqualify the impugned goods for assessment in terms of Section 4A. This requirement is obviously to prevent a retailer from charging a higher price than that fixed by the manufacturer. Not affixing a label showing the MRP on the package and affixing the price fixed on the shoes indelibly the assessee has substantively complied with this requirement. Accordingly, we vacate the impugned order as not sustainable and allow the appeals filed by M/s. Pond rsquo s Exports Ltd. (Operative part of the order pronounced in open Court on 20-11-2007)
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2007 (11) TMI 478
Penalty - Cenvat/Modvat - Appeal - Cross appeals ... ... ... ... ..... the two appeal were filed against the same order of the original authority one by the party and the other by the department. The appeal by the party arising out of the same order-in-original has become in fructuous due to order of settlement. We feel that in as much as the dispute has been settled by the designated authority under KVSS, the same could not be re-opened by the subsequent order of the Commissioner (Appeals) on the appeal filed by the department. 5.2 emsp This is a case where the consignment rejected by the buyers instead of being received back in the factory and re-sold has been received in the branch office of the assessee which itself was a dealer registered under Central Excise. 5.3 emsp While the credit has been held to have been wrongly passed on, we have not been shown that any follow-up action has been initiated at the end of persons who have availed and utilized such credit. 6. emsp In the light of the above, the appeal is allowed. (Pronounced in Court)
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2007 (11) TMI 477
Cenvat/Modvat - Capital goods ... ... ... ... ..... haft is used as part of mill, therefore, denial of credit is not sustainable. 6. emsp The plates, shapers are used as raw material for fabrication of component and specified goods which are used in the manufacture of excisable goods. The Commissioner (Appeals) in the impugned order, gave a finding of fact that these items are used as raw material for capital goods. As per definition of inputs, credit in respect of raw material used for fabrication of manufacture of capital goods, which are further, manufactured of excisable goods, is admissible. In these circumstances, denial of credit in respect of raw material of capital goods is also not sustainable hence set aside. 7. emsp In respect of penalty on account of denial of credit on welding electrodes, I find as the Larger Bench now settles the issue, hence it is not a case of imposition of penalty. The penalty is set aside. 8. emsp The appeal is disposed of as indicated above. (Order dictated and pronounced in the open Court)
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2007 (11) TMI 476
Stay/Dispensation of pre-deposit - Valuation ... ... ... ... ..... nd Agency) and receive the sale proceeds for supply effected by them for the respective Government Hospital and agencies at the contracted price agreed between the applicant company and the Government agency. There is nothing in the letter to indicate that the goods would be sold to the dealers for supply to Government agencies at a price other than the price contracted. Prima facie, therefore, no case has been made out on the submission that the demand is barred by limitation. 5. emsp In the light of the above and having regard to the totality of facts and circumstances, we direct pre-deposit of Rs. 15 Lakhs towards duty within 8 weeks from today and on such deposit, pre-deposit of balance duty and penalty shall stand dispensed with and recovery thereof stayed, pending the appeals. 6. emsp Failure to comply with this direction shall result in vacation of stay and dismissal of appeals without prior notice. 7. emsp Compliance is to be reported on 21-1-2008. (Dictated in Court)
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2007 (11) TMI 475
Rectification of mistake ... ... ... ... ..... ppeal. After hearing both sides and perusing the final order, we acknowledge the mistake. Accordingly, as prayed for by the appellants, it is ordered that the Tariff Heading 3307 41 00 shall be substituted for ldquo 3707 41 00 rdquo wherever the latter figures in the final order. The application stands allowed. (Dictated and pronounced in open court)
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2007 (11) TMI 474
Rectification of mistake ... ... ... ... ..... interest. 2. emsp According to the Revenue, an error apparent arises in granting interest on refund of pre-deposit of penalty for the reason that there is no provision in law for grant of interest on such refund. 3. emsp We have heard both sides. 4. emsp The law provides for filing of a rectification of mistake application against final orders passed by the Tribunal. The order against which the present ROM application has been filed is an independent miscellaneous order on an independent miscellaneous application filed for implementation of the final order already passed. 5. emsp Therefore, the ROM application is not maintainable and is accordingly dismissed as infructuous. (Pronounced in Court)
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2007 (11) TMI 473
CENVAT credit - inputs, which were written off by the respondent as being unusable due to the reason that such spares were obsolete - Held that: - the Revenue has not produced any evidence that the said inputs/capital goods are not in the factory and nor there is any evidence to show that the said goods will not be used in future - credit need not be reversed - appeal dismissed - decided against Revenue.
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2007 (11) TMI 472
Issues involved: Appeal against Order-in-Appeal No. P-I/344/2006 dated 23-11-2006.
Issue 1: Unjust Enrichment in Refund Cases
The appeal was taken up in the absence of the respondent. The department argued that the question of unjust enrichment arises in refund cases. The Commissioner (Appeals) allowed the appeal of the respondent, stating that the amount deposited during the investigation was in the nature of a pre-deposit and not payment of duty. The Commissioner held that as long as there is no unjust enrichment, the appellants are eligible for a refund. Citing relevant case laws, it was concluded that the doctrine of unjust enrichment does not apply to such deposits. The excess amount deposited during the investigation, which was more than the duty liability determined later, should be refunded to the appellants instead of being credited to the Consumer Welfare Fund.
Decision:
The Tribunal upheld the Commissioner (Appeals) order, stating that the law as laid down by higher judicial forums was correctly followed. The appeal filed by the Revenue was rejected.
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2007 (11) TMI 471
Cenvat/Modvat - Penalty - Clandestine removal of samples ... ... ... ... ..... e by the respondent on delivery challan and these samples were for the approval of the Customers and were also in small quantities. It is also held by the adjudicating authority that the said samples were of no commercial value, the respondent having paid the entire amount of duty along with interest before the issuance of the show cause notice no penalty is imposable. To my mind the finding of the lower authorities on non-imposition of penalty is correct and covered the judgment of the Hon rsquo ble High Court of Bombay in the case of Commissioner of Central Excise v. Gaurav Mercantiles Ltd. as reported at 2005 (190) E.L.T. 11 (Bom.) . As such, I do not find any reasons for interference in the order passed by the ld. Commissioner (Appeals), and I hold the said impugned order is correct and does not require any interference. The appeal filed by the Revenue is rejected. 4. emsp Cross-objections filed by the respondent being in support of the impugned order is also disposed of.
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2007 (11) TMI 470
Project import - project for bringing water from the source to the treatment plant and distribution of the treated water
Held that: - the Registry may place the file to the Hon’ble President for constituting a Larger Bench to decide the following issue : Whether the Project Import benefit under the Project Import Regulations, 1986 under SL. No. 26 - ‘Drinking Water Supply projects for supply of water for human or animal consumption’ is to be restricted only to equipments heeded for water treatment plant and not for projects for bringing water from the source to the treatment plant and distribution of the treated water?
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