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2009 (11) TMI 734
Issues involved: Determination of duty liability based on related person definition u/s 4 of Central Excise Act, 1944, applicability of Rule 9 of Central Excise Valuation Rules, 2000, and imposition of penalties u/s 11AC of Central Excise Act, 1944.
Duty liability based on related person definition:
The judgment pertains to a case where a show cause notice was issued to pay differential duty on P&P Medicaments sold through a related person, S.K. Pharmaceuticals, under Section 4 of Central Excise Act, 1944. The lower authorities confirmed duty demand and imposed penalties, citing S.K. Pharmaceuticals as a related person. However, the appellant argued that Rule 9 of valuation rules is not attracted as over 95% of goods were sold through other distributors. The Tribunal found that Rule 9 mandates adopting the related person's price only when goods are exclusively sold through them, which was not the case here. As the demand was solely based on S.K. Pharmaceuticals being a related person, the Tribunal ruled in favor of the appellant, setting aside the impugned order and allowing the appeals.
Applicability of Rule 9 of Central Excise Valuation Rules:
The Tribunal analyzed the contention regarding the application of Rule 9 of Central Excise Valuation Rules, emphasizing that the rule requires goods to be exclusively sold through a related person for their price to be considered for duty calculation. Despite allegations of price variations, the lower authorities did not address this aspect. Since less than 5% of goods were sold through S.K. Pharmaceuticals, Rule 9 was deemed inapplicable, strengthening the appellant's case. Consequently, the Tribunal waived the pre-deposit requirement, granted stay petitions, and allowed the appeals, highlighting the incorrect conclusions of the lower authorities.
Imposition of penalties u/s 11AC of Central Excise Act, 1944:
In addition to duty demand, penalties were imposed under Section 11AC of Central Excise Act, 1944, on the appellant and the Managing Director. The appellant contested the penalties, arguing against S.K. Pharmaceuticals being classified as a related person. The Tribunal's decision to set aside the order and allow the appeals also nullified the penalties, providing consequential relief to the appellants. This ruling was based on the strong case presented by the appellant, emphasizing the incorrectness of the lower authorities' conclusions regarding duty liability and related person classification.
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2009 (11) TMI 733
Whether the respondent is required to pay 10% of the transaction value in terms of Rule 6 of the CCR, 2004 on the by-product Spent Acid cleared by them without payment of duty by availing benefit of exemption N/N. 6/02-C.E., dated 1-3-2002?
Held that: - There is no dispute that the Spent Acid is a by-product arising in course of manufacture of detergent products. Further, this issue was considered by the Hon’ble High Court of Bombay in the case of Rallis India Ltd. v. Union of India [2008 (12) TMI 46 - HIGH COURT BOMBAY], where it was held that in case of common inputs used in dutiable and exempted goods, liability to pay 8/10% not arise for waste - appeal dismissed - decided against Revenue.
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2009 (11) TMI 732
Issues Involved:
1. Eligibility of Smoke Detectors, Communication Bridge (for Fire safety), and parts of telecommunication equipment (cables) for customs duty exemption under Notification No. 52/2003-Cus.
2. Liability of the goods for confiscation and the imposition of penalties.
3. Appropriateness of the adjudicating authority's decision to not impose penalties or confiscate the goods despite confirming the duty demand.
Detailed Analysis:
1. Eligibility for Customs Duty Exemption:
The primary issue is whether the items imported by the assessee, namely Smoke Detectors, Communication Bridge (for Fire safety), and parts of telecommunication equipment (cables), qualify for customs duty exemption under Notification No. 52/2003-Cus., dated 31-3-2003. The Revenue's contention is that these items do not fall under the category of capital goods as per the annexure to the said notification. However, the assessee argued that these items are essential for security systems, which are covered under the notification.
The Tribunal referred to the description of goods in the annexure to Notification No. 52/2003, specifically item 3, which includes "security system" among eligible items. The Tribunal noted that security systems encompass safety equipment, including fire safety devices, as interpreted in previous cases such as Accenture Services Pvt. Ltd. and GE India Tech Centre P. Ltd. The Tribunal concluded that the imported items fall within the scope of the notification and are therefore eligible for the exemption.
2. Liability for Confiscation and Imposition of Penalties:
The Revenue argued that the adjudicating authority erred by not confiscating the goods or imposing penalties despite confirming the duty demand. According to Section 111(o) of the Customs Act, 1962, goods imported by availing an ineligible exemption are liable for confiscation. Furthermore, under Section 112(a) of the Customs Act, penalties are mandatory for acts or omissions rendering goods liable to confiscation.
The Tribunal examined the adjudicating authority's decision, which acknowledged the ineligibility of the imported items for duty exemption but chose not to confiscate the goods or impose penalties, considering the voluntary payment of duty and interest by the assessee. The Tribunal found that the adjudicating authority's leniency was not justified, as the payment was made only after detection by the Department, not voluntarily.
3. Appropriateness of the Adjudicating Authority's Decision:
The Tribunal scrutinized the adjudicating authority's decision, which confirmed the duty demand but refrained from confiscating the goods or imposing penalties. The Revenue emphasized that the adjudicating authority should have followed the mandatory provisions of the Customs Act for confiscation and penalties. The Tribunal agreed with the Revenue's contention that the adjudicating authority's decision was inconsistent with legal requirements.
However, the Tribunal also noted that the eligibility of the imported items for duty exemption had been settled in favor of the assessee in previous cases. Consequently, the Tribunal held that the impugned order confirming the duty demand was liable to be set aside, and the goods were not liable for confiscation. Since there was no demand for duty, the question of penalties did not arise.
Conclusion:
The Tribunal allowed the assessee's cross-objection and rejected the Revenue's appeal, setting aside the impugned order confirming the duty demand and holding that the goods were not liable for confiscation. The Tribunal's decision was based on the interpretation of Notification No. 52/2003-Cus., previous case law, and the circumstances of the case.
Operative Portion:
The operative portion of the order was pronounced on the conclusion of the hearing, affirming the Tribunal's decision to allow the assessee's cross-objection and reject the Revenue's appeal.
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2009 (11) TMI 731
Issues Involved:
1. Undervaluation of goods
2. Cost of manufacture
3. Disposal of excess amount realized in cash
4. Documents showing clandestine removal of goods
5. Wrong availment of Cenvat credit on returned materials
6. Quantification
7. Contravention of rules
8. Voluntary payment
Detailed Analysis:
1. Undervaluation of Goods:
The Tribunal found that price lists recovered from Hi-Tech showed higher prices than those on sale invoices, indicating undervaluation. Customers confirmed in statements that actual sale prices were higher than invoice prices and the differential amounts were collected in cash. The Commissioner held that the assessee could not establish the granting of a 40% discount as claimed, and customers' statements indicated no discounts were allowed.
2. Cost of Manufacture:
Cost certificates recovered showed higher manufacturing costs than invoice prices. The Tribunal noted discrepancies between the cost of production and invoice prices. The cost certificates were prepared considering raw material and labor costs, but the actual cost was much higher than the invoice prices.
3. Disposal of Excess Amount Realized in Cash:
The Tribunal found that unaccounted sales receipts were used for meeting certain expenses not accounted for in the books. Muster Roll Statements and scribbling pads indicated that wages were paid in cash from unaccounted sale proceeds. The Tribunal noted that part of the expenditure was met through unaccounted sale proceeds.
4. Documents Showing Clandestine Removal of Goods:
Invoices showed that Hi-Tech sold finished goods under the invoices of M/s. Techno Industries. The Tribunal confirmed that goods were cleared under the invoices of M/s. Techno Industries to evade duty. Statements from employees corroborated this finding.
5. Wrong Availment of Cenvat Credit on Returned Materials:
Hi-Tech did not reverse Rs. 70,868/- of Cenvat credit on rejected and returned inputs. The Tribunal found that the appellant was aware of the irregularity and debited the amount following detection.
6. Quantification:
The evasion was quantified based on recovered price lists. The duty due was calculated for the years 2000-2004 after allowing SSI exemption. The Tribunal noted that the quantification was based on price lists but did not factor in the claimed discounts.
7. Contravention of Rules:
The assessee contravened several Central Excise Rules by suppressing actual prices and realizing higher amounts while paying duty on lower values. The Tribunal found that the Managing Director and Director were liable for penalties under rules for their involvement in under-invoicing and clandestine removal of goods.
8. Voluntary Payment:
The assessee paid Rs. 10,74,868/- voluntarily on different dates in May 2003.
Tribunal's Final Observations:
The Tribunal found that the investigation lacked concrete evidence to prove the allegations of undervaluation and duty evasion. Statements from customers and employees were found to be obtained under coercion and were not reliable. The Tribunal set aside the demand of differential duty and other related liabilities due to lack of positive evidence. However, the demand and penalty related to the non-reversal of Cenvat credit were upheld. The Tribunal remanded the matter for fresh adjudication regarding penalties on the Managing Director and Director, allowing the appellants to produce evidence in support of their challenge to the penalties.
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2009 (11) TMI 730
Issues:
Challenge to order confirming duty demand, calculation based on Director's statement, lack of cogent evidence, process of manufacture not considered.
Analysis:
The appellants contested an order by the Commissioner confirming a duty demand of Rs. 2,30,39,602/-, interest, penalty, and additional penalty on the Company's Director. The demand was related to alleged excess production of zinc oxide based on a mathematical calculation from the Director's statement. The challenge was primarily on the grounds of insufficient evidence supporting the findings and solely relying on total production calculation.
The impugned order primarily relied on the statement of the Director regarding the production percentage of zinc oxide from zinc ingots of 99.95% purity. The calculation was based on this statement, raw material issued for production from 2002 to 2007, and a formula using 70% of zinc dross to determine 84% zinc oxide output. However, the order did not mention any other evidence considered, such as buyer statements or additional materials. The manufacturing process involves heating raw materials to separate impurities before obtaining the final product, which could result in some zinc oxide loss. The order seemingly overlooked these critical process aspects in the duty liability calculation.
Notably, the Director's statement specified the yield of zinc oxide from 99.95% pure zinc ingots. Without a thorough investigation into the total production post-impurity separation, it was deemed inappropriate to demand the duty amount specified in the order. Consequently, the appellants were granted a stay on the duty, interest, and penalty until the appeal's resolution, as a prima facie case was established in their favor. The duty amount demanded in the impugned order was waived pending appeal disposal.
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2009 (11) TMI 729
Issues involved: Confirmation of demand on tea clearances u/s Notification No. 41/99-C.E. and imposition of penalty.
Confirmation of demand on tea clearances: The demand of Rs. 48,778/- on tea clearances was confirmed due to the failure of the assessees to file the required undertaking as per Notification No. 41/99-C.E. The notification stipulates that the benefit of exemption from duty starts from the date of undertaking with the Assistant Commissioner/Deputy Commissioner of Central Excise. The Commissioner (Appeals) upheld a penalty of Rs. 5,000/-, albeit reducing the amount initially imposed by the adjudicating authority.
Imposition of penalty: The Tribunal referred to a previous decision in the case of Golden Dew Tea Factory & Ors. v. CCE, Coimbatore, where it was established that merely filing a classification list claiming the benefit of the notification is not sufficient to warrant the exemption. However, considering the circumstances of the case, the Tribunal found merit in the assessees' argument that no penalty should be imposed. The assessees had filed a declaration for the previous financial year and believed it would suffice for the subsequent year. They also submitted a classification list clearly indicating their intention to avail the benefits of Notification No. 41/99. Consequently, the penalty imposed on the assessees was set aside, while the demand was upheld.
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2009 (11) TMI 728
Issues involved: Challenge to order disallowing Cenvat credit and recovery of amount, interpretation of Rule 2(a)(B) and Rule 2(k) of Cenvat Credit Rules, 2004, determination of provider of output service, waiver of interest and penalty, direction for deposit of duty amount.
In this case, the applicants challenged an order disallowing Cenvat credit and ordering recovery of amounts, which was upheld by the Commissioner (Appeals). The dispute centered around the interpretation of Rule 2(a)(B) and Rule 2(k) of the Cenvat Credit Rules, 2004. The applicants argued that they were not providers of output service as they had purchased a vehicle for transportation of inputs, not for providing taxable services. Rule 2(a)(B) defines 'capital goods' as a motor vehicle registered in the name of the provider of output service for specific taxable services. Rule 2(k) defines 'inputs' excluding vehicles used for providing output services. The Tribunal found the applicants' argument lacking merit as the vehicles used for transportation of inputs were not exempt under Rule 2(k). The Tribunal held that no prima facie case was made for a total waiver of the demanded amount but directed the deposit of the duty amount while waiving interest and penalty until the appeal's disposal. The duty amount of Rs. 1,33,101 was to be deposited within eight weeks, and recovery of penalty and interest was stayed pending appeal.
The Tribunal emphasized the importance of complying with the deposit requirement to avail of the waiver of interest and penalty during the appeal process. The case was scheduled for compliance reporting on 8th February, 2010. The judgment provided a detailed analysis of the provisions of Rule 2(a)(B) and Rule 2(k) concerning Cenvat credit eligibility and the definition of inputs and capital goods. The decision clarified the distinction between vehicles used for output services and those used for transportation of inputs, emphasizing the specific criteria outlined in the rules. The judgment balanced the interests of the parties by allowing the deposit of the duty amount while temporarily halting the recovery of penalty and interest, pending the appeal's outcome.
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2009 (11) TMI 727
Benefit of N/N. 13/97-Cus. and N/N. 25/99-Cus - the exemption in terms of the notifications is sought to be denied on the sole ground that in respect of the impugned goods there was failure on the part of the importer to follow the 1996 Rules and thereby not fulfilling the condition of the notification for the goods to qualify for the exemption - Held that: - the only failure of the importer was that it did not use the imported inputs in the factory registered with the jurisdictional Asstt. Commissioner in terms of Rules 3 and 4 of the 1996 Rules, but used the same for the intended purpose in another of its factories with the approval of the department. In such circumstances, we find that the assessee cannot be denied a substantial benefit for its failure to follow a procedural condition condoned by the department - appeal dismissed - decided against Revenue.
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2009 (11) TMI 726
Confiscation - mis-declaration of value - violation of Import Export Policy - Held that: - In this case the Commissioner (Appeals) set aside the adjudication order whereby the value of imported goods were enhanced and were held to be liable for confiscation being prohibited goods. The Commissioner (Appeals) has not remanded the matter to the adjudicating Authority. The present impugned order is in favor of the Appellants. Hence the Appellants cannot be held to be aggrieved person - appeal dismissed - decided against appellant.
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2009 (11) TMI 725
Issues:
Imposition of penalty under Rule 173Q of the Central Excise Rules, 1944 without prior notice to the appellant.
Analysis:
The appeal involved a case where the appellants availed Modvat credit on inputs from a supplier, and upon verification, it was found that some of the input gate passes were fictitious. The Superintendent issued a demand notice to reverse the credit, which was complied with. Subsequently, a show cause notice was issued for imposing a penalty. The appellant contested the penalty imposition, arguing that they were not given prior notice before confirming the credit. The Adjudicating Authority imposed a penalty under Rule 173Q for not exercising caution while availing Cenvat credit. The appellant claimed that since they were not given notice, the amount should be refunded, and the penalty set aside.
The judge observed that the appellant did not contest the verification report seriously and had not sought a speaking order from the lower authorities. The judge noted that the appellant should have contested the demand note under protest to reserve the right for claiming a refund. The appellant's lack of caution in availing credit on fictitious gate passes was highlighted, and it was found that they contravened Rule 173Q(1)(bb) by not ensuring appropriate duty payment on inputs. Despite reversing the credit as directed, the appellant was found to have violated the rule.
The judge upheld the imposition of the penalty under Rule 173Q but reduced it from Rs. 12,000 to Rs. 5,000. It was emphasized that the penalty imposition should have been sympathetically considered given the circumstances. The appeal was disposed of with the modified penalty amount, affirming the imposition under the Central Excise Rules, 1944.
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2009 (11) TMI 724
Conversion of shipping bills - DEPB/DEEC shipping bills into cum-drawback scheme - right of amendment u/s 149 of the CA, 1962 - Held that: - importer/exporter cannot claim amendment as a matter of right. The words used namely, “proper officer may”, “in his discretion, authorise any document” to be amended indicate that the power to be exercised is only discretionary power - the order of the Commissioner in not acceding to the request for amendment of shipping bills in terms of Section 149 cannot be held to be arbitrary - appeal rejected - decided against Appellant.
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2009 (11) TMI 723
Issues involved: Interpretation of Import and Export Policy, 1988-91 regarding clearance of Populated Printed Circuit Boards (PCBs) under OGL item Entry no. 821(15), Appendix 6, List 8, Part I; Dispute over classification of Populated PCBs under Appendix 2, Part B; Applicability of Tribunal's decision in Atari (India) Electronics case.
Summary:
1. The appellant sought clearance of Populated Printed Circuit Boards (PCBs) under OGL item Entry no. 821(15), Appendix 6, List 8, Part I of the Import and Export Policy, 1988-91. Customs authorities classified Populated PCBs under Appendix 2, Part B, as a restricted item requiring a specific import license, leading to a dispute. The Collector of Customs held the goods liable to confiscation under Section 111(d) of the Customs Act due to lack of a specific import license, imposing a redemption fine in lieu of confiscation.
2. The Tribunal found the case similar to Atari (India) Electronics case, where Loaded PCBs (Populated PCBs) were held importable under OGL. The Collector, however, independently interpreted the policy provisions, disregarding the Tribunal's precedent. The Collector's refusal to follow the Tribunal's decision was criticized for lacking judicial discipline and ignoring the binding effect of Tribunal decisions in the absence of contrary High Court or Supreme Court rulings.
3. The Collector's misunderstanding of judicial discipline was highlighted, emphasizing the binding nature of Tribunal decisions on questions of law in the absence of higher court rulings. The Collector's failure to distinguish the facts of the present case from the precedent further weakened his position. The dismissal of the department's reference application against the Tribunal's decision in Atari (India) Electronics case solidified the binding nature of that decision.
4. The judgment set aside the Collector's order, emphasizing the importance of upholding judicial discipline to prevent chaos in the administration of law and justice. The decision underscored the necessity for adjudicating and appellate authorities to respect binding precedents to maintain the rule of law effectively.
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2009 (11) TMI 722
Whether a statute made under Section 36 of the Bihar Agricultural Universities Act, 1987 providing for a benefit to the teaching staff, for which assent has been given by the Chancellor can be enforced in the absence of publication in the official Gazette - Held that:- High Court committed an error in holding that the teachers became entitled to the benefit of the statute relating to time-bound promotion scheme, when the said statute made by the Board of Management was assented to by the Chancellor even though it was not published in the Gazette. The High Court also committed an error in observing that the non-publication was unreasonable and arbitrary, as it ignored the valid reasons assigned by the Chancellor for withdrawing his assent to the incomplete statute, in his order dated 19-3-1996.
Allow these appeals, set aside the order of the High Court and dismissed the writ petitions filed by the respondents before the High Court.
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2009 (11) TMI 721
Issues:
1. Determination of duty amounts and penalties pursuant to remand by the Tribunal.
2. Methodology adopted for valuation of goods removed clandestinely without payment of duty.
3. Imposition of penalties on proprietary concerns and proprietors.
4. Imposition of penalty under Section 11AC of the Central Excise Act, 1994, and other provisions of law.
Analysis:
Issue 1: Determination of duty amounts and penalties pursuant to remand by the Tribunal
The appeals arose from an order passed by the Commissioner, Central Excise, Delhi-II, following a remand by the Tribunal in previous appeals. The Tribunal had directed the Original Authority to determine duty amounts and penalties afresh. The Tribunal's observation indicated that the assessable value adopted for duty paid goods could constitute the assessable value for clandestinely removed goods as well. The Commissioner, in the impugned order, calculated duty liability based on this valuation method.
Issue 2: Methodology for valuation of goods removed clandestinely
The advocate for the appellants raised concerns about the methodology adopted for valuing goods removed clandestinely without duty payment. However, the Tribunal clarified that the scope of adjudication before the Adjudicating Authority was limited to the remand order's directives. The Commissioner's order reflected the adoption of a similar valuation method for clandestinely removed goods as for duty-paid goods, leading to the calculation of duty liability.
Issue 3: Imposition of penalties on proprietary concerns and proprietors
The advocate argued that penalties imposed on proprietary concerns and proprietors separately were not justified. It was established that in the case of proprietary concerns, penalties should not be imposed on both the firm and the proprietor separately. Consequently, penalties imposed on proprietary concerns M/s. MIL, M/s. Minocha Brothers, and M/s. RKTC were deemed excessive and were quashed.
Issue 4: Imposition of penalty under Section 11AC and other provisions
The Commissioner had imposed penalties under Section 11AC of the Central Excise Act, 1994, and other provisions of law. The penalties under Section 11AC were found to be equivalent to the duty amount and were deemed justified. However, penalties imposed under various other provisions of law were considered unsustainable as no justification was provided. Therefore, penalties imposed under other provisions of law were quashed, leading to modifications in the penalties imposed on M/s. MMPL, M/s. MAI, and M/s. Minocha Brothers.
In conclusion, apart from the modifications discussed above, no further interference was warranted in the impugned order, and the appeals were disposed of accordingly.
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2009 (11) TMI 720
Issues:
1. Transfer of Cenvat credit during factory relocation
2. Imposition of penalties under Rule 25 of Central Excise Rules
Transfer of Cenvat credit during factory relocation:
The appellant, a manufacturer of excisable goods, shifted their factory to a new location within the same Central Excise Range. Before the relocation, they informed the jurisdictional Asstt. Commissioner as required. Upon shifting, they transferred the balance of Cenvat credit to the new location and availed fresh Cenvat credit for inputs. The Department issued a show-cause notice for recovery of Cenvat credit and penalties for alleged violations. The Asstt. Commissioner confirmed the demand and imposed penalties under Rule 25 of Central Excise Rules and Rule 13(2) of Cenvat Credit Rules. The Commissioner (Appeals) set aside the Cenvat credit demand, noting no irregular or fraudulent availment, but upheld penalties. The appellant appealed challenging the penalty imposition.
Imposition of penalties under Rule 25 of Central Excise Rules:
The appellant argued that no penalty should be imposed as there was no irregular utilization of Cenvat credit and no violation of Rule 9(1) or 9(3). The appellant contended that the relocation within the same range did not require an amendment to the registration certificate. The Department defended the penalties, citing violations of Rule 9 conditions and Notification No. 35/2001-C.E. (N.T.). The Tribunal considered the submissions and records, noting that the locations were within the same range, and the appellant had informed the authorities before relocation. The Commissioner (Appeals) dropped the Cenvat credit demand but upheld the penalty under Rule 25, citing contravention of Rule 9 provisions. The Tribunal analyzed Rule 9 requirements and the Board's notification, finding no contravention by the appellant. It held that the penalty under Rule 25 was unsustainable, as the appellant did not contravene provisions with an intention to evade duty, especially when the Cenvat credit demand was set aside. Consequently, the penalty under Rule 25 was set aside, and the appeal was allowed.
Conclusion:
The Tribunal ruled in favor of the appellant, setting aside the penalty imposed under Rule 25 of Central Excise Rules, as the appellant did not contravene any provisions with an intention to evade duty, especially when the Cenvat credit demand was dropped. The decision highlighted the importance of compliance with Rule 9 conditions during factory relocations within the same range under the Central Excise Rules.
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2009 (11) TMI 719
Issues:
1. Consultation with Central Vigilance Commission (CVC) regarding disclosure of vigilance related files.
2. Consultation with third party, Ms. Jyoti Balasundaram, under Section 11(1) of the RTI Act.
3. Objection by Ms. Jyoti Balasundaram regarding potential misuse of information.
4. Decision on allowing inspection of specific files to the appellant, subject to RTI Act provisions.
5. Absence of provision in the RTI Act for imposing conditions on information usage.
6. Necessity of hearing for the appellant after allowing inspection of relevant files.
Analysis:
1. The Central Information Commission (CIC) held a hearing regarding an RTI application filed by Shri R.K. Jain, directing consultation with the Central Vigilance Commission (CVC) for disclosure of vigilance related files. CIC emphasized the importance of fully examining the implications before making a decision on disclosure.
2. Following CIC's direction, both the CVC and the concerned third party, Ms. Jyoti Balasundaram, were consulted. Ms. Balasundaram expressed concerns about potential harassment and defamation, leaving the decision to the authorities while requesting safeguards against malicious use of information.
3. The CVC conveyed no objection to disclose specific documents related to a complaint against Ms. Jyoti Balasundaram, leading to the allowance of inspection of certain files to the appellant, subject to RTI Act provisions and directions from CIC.
4. In response to Ms. Balasundaram's request for an undertaking against defamation, it was noted that the RTI Act does not provide for imposing such conditions. Any misuse of information by the appellant would necessitate legal action by Ms. Balasundaram.
5. Considering the approval for file inspection, the necessity of a hearing for the appellant was deemed unnecessary in light of the allowed access to relevant files. The appeal was consequently disposed of, concluding the matter based on the decisions reached through consultations and compliance with RTI Act provisions.
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2009 (11) TMI 718
Right to Information - whether the information sought for cannot be granted since the reasons adduced were not convincing and the representation related to private litigation cases between the petitioner and the retired pensioner Ramachandra Rao and it did not come under the purview of a Public Interest Litigations?
Held that:- A pensioner does not cease to become totally out of control from the Government. On the contrary, his conduct and character are continuously monitored by the Central Government. In that context, the whereabouts of such pensioner is also very much relevant and it cannot be a private information. The authorities are bound to help in execution of Court orders.
Instances are many and news is coming from many parts of India that pension claims are made even in the name of dead persons. Therefore, such information cannot be shut out when a query is made regarding the real address of a Government pensioner.
In the light of the above, the impugned orders stands set aside. The writ petition will stand allowed. The respondents are directed to furnish the correct address of K. Ramachandra Rao to the petitioner within thirty days from the date of receipt of copy of this order.
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2009 (11) TMI 717
Issues involved: Challenge to assessment orders, education cess, interest on warehoused goods, concessional rate of duty, preference of Port Health Officer's report over Chemical Examiner's report, finalization of provisional assessment without notice to assessee.
Summary:
1. The appeal was filed against the Commissioner (Appeals) order upholding the finalization of provisional assessment of Bills of Entry. Appellants contested the ex parte assessment orders, education cess, and interest on warehoused goods. They argued for a concessional rate of duty for palm oil imported under the Bills of Entry.
2. The Commissioner (Appeals) granted relief on education cess and interest under Section 61 of the Customs Act but rejected the plea for a lower duty rate of 65% ad valorem instead of 75% ad valorem.
3. The appeal before the Tribunal highlighted that the Port Health Officer certified the consignments as palm oil (edible grade). The Commissioner (Appeals) upheld the higher duty rate, contrary to previous Tribunal decisions favoring the PHO's report over the Chemical Examiner's report.
4. The appellants argued that the provisional assessment was finalized without proper notice and without providing the Chemical Examiner's report. They contended that the goods met PFA Act standards and should be subject to a concessional duty rate.
5. The Respondent submitted that the goods did not meet the criteria for a lower duty rate and should be classified under a higher duty rate. They supported the assessments made on the Bills of Entry.
6. The Tribunal reviewed the case records and submissions. It found that the consignments were assessed at 75% ad valorem. While the PHO's report was preferred in some cases, in this instance, the Chemical Examiner's timely report was considered valid. The Tribunal acknowledged the appellants' right to be heard before finalization of assessment and remanded the matter for a fresh adjudication, emphasizing compliance with natural justice principles. The appeal was allowed by way of remand.
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2009 (11) TMI 716
Classification of goods - ‘Ready-to-Eat’ edible preparations - eligibility of benefit of N/N. 6/2002-C.E., dated 91-3-2002 - Although the products manufactured by the assessee are classifiable under Chapter sub heading 2108.99 (presently 21069099) of the CETA, 1985, they did not appear to be covered within the scope of the above Notification - Held that: - all the items are identical and they are only extension of product line, for example, the rice varieties which were in dispute earlier was restricted to ‘bisibele bath’ and ‘pongal while in the current case new varieties like ‘tomato rice’, lemon rice’, ‘sambar rice’ etc., are in dispute - As regards the other items also, we find that they are only an extension of the items which were initially manufactured/prepared in the year 2001.
It is seen in the facts of this case that the items which are produced/manufactured by the appellants may fall under the category of ready for consumption/use. On a plain reading of the notification, that all edible preparations ready for consumption are exempt, does not flow from the words which are used in the said notification i.e. sweet meats, bhujia, mixture, chabena etc.
Appeal allowed - decided in favor of appellant.
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2009 (11) TMI 715
Issues: Eligibility of appellants to clear by-product to DTA under Notification No. 2/95-C.E. availing concessional rate of duty.
Analysis:
1. Facts: The appellants are engaged in manufacturing goods falling under Chapter 28, 32 & 39 of CETA, 1985. They produce Copper Phthalocynine Blue Crude (CPC Blue), which results in a by-product called Ammonium Carbonated Solution (APS). The appellants claimed exemption under Notification No. 2/95-C.E. for APS cleared in DTA, despite not exporting the main product.
2. Legal Provisions: The Board's instructions under Notification No. 31/2001-Cus, dated 24-5-01, allow by-products to be cleared for sale in DTA on payment of concessional duty subject to fulfilling NFE requirement. Notification No. 2/95-C.E. was amended to implement this provision.
3. Department's Stand: The department contended that the appellants were not eligible for the concessional duty rate under Notification No. 2/95. Duty amounting to Rs. 18,57,805/- with interest and a penalty of Rs. 5,76,120/- were imposed.
4. Judgment: The Tribunal found that the appellants had not exceeded the limit of 50% of total export value for clearances to DTA, as per the foreign trade policy. It was established that the NFE requirement had been fulfilled. The appellants provided proof from the Development Commissioner confirming NFE achievement. Consequently, the appeal was allowed, and relief granted to the appellants.
5. Conclusion: The Tribunal ruled in favor of the appellants, emphasizing compliance with foreign trade policy requirements and the eligibility to clear the by-product to DTA under Notification No. 2/95-C.E. with the concessional duty rate. The judgment highlighted the importance of fulfilling NFE conditions and providing necessary documentation to support the claim.
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