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Showing 161 to 180 of 577 Records
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2001 (3) TMI 841
Exemption notification - Demand - Withdrawal of benefit ... ... ... ... ..... e conditions of the notification is that Modvat credit should not have been availed of and the burden of proving that the conditions, subject to which the notification would be available, falls on the person who claims the benefit of the exemption. In the present case, the benefit of the notification had been granted. If, thereafter, if the department was of the view that the exemption was not available and that the extended period of limitation could be invoked, it was up to it to show why it was not available, and by what act or omission of the importer, any of the factors in the proviso under Section 28(1) would apply. It was not open to it at this stage to withdraw the exemption which had been granted only on the ground that the eligibility to exemption was not proved. There is, therefore, no basis in the notice for invoking the extended period. The notice issued is therefore barred by limitation. 6. emsp The appeal is accordingly allowed and the impugned order set aside.
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2001 (3) TMI 840
Demand - Limitation - Special Purpose Motor Vehicles ... ... ... ... ..... tification No. 162/86-C.E. was not fulfilled as no duty was paid on the equipments used in the manufacture of such motor vehicles. Thus it is apparant that the Department was fully in the knowledge that no duty was paid on the equipments used by the Appellants in the manufacture of fire fighting vehicles. The Department thus cannot claim that the fact of non payment of duty on equipments was not known to them. The Audit Party has clearly mentioned that the matter should be re-examined for levying of duty either on the equipments or the Motor Vehicle. In view of this it cannot be alleged that there was any suppression of fact and the Department was not aware about non payment of duty on equipments by the Appellants. Accordingly proviso to Section 11A of the Central Excise Act is not invokable and the entire demand is hit by time limit specified in Section 11A. Accordingly we set aside the Order and allow the appeal on time limit aspect without considering the matter on merits.
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2001 (3) TMI 839
Classification - Isoborneol/Pach-Karpooram ... ... ... ... ..... erage of Tariff Heading 33.07. 7.6 emsp It is also pertinent to note that the descriptions under TSH 2914.20 and TSH 2906.90 are more specific than that under TSH 3307.41 and therefore, by virtue of Rule 3(a) of the Rules of Interpretation, the classification under the former must be preferred as rightly observed by the Assistant Collector. 8. emsp In view of our findings recorded hereinbefore, we uphold the decision of the lower authorities on classification. The appellants rsquo products viz. Camphor (Technical Grade) and Karpooram should be classified as Camphor under TSH 2914.20 and their products viz. Isoborneol and Pach-Karpooram should fall under TSH 2906.90 as cyclic alcohol other than Menthol. We note that the entire demand of duty involved in Appeal No. E/1089/94 had arisen out of approval of classification as above by the Assistant Collector. Therefore, there being no case of time bar against the demand, we uphold the demand of duty also. The appeals are dismissed.
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2001 (3) TMI 838
Modvat/Cenvat ... ... ... ... ..... sp The issue is whether the appellants were entitled to avail Modvat credit under Rule 57A of the Central Excise Rules on explosives which were used for mining their raw materials from the mines located away from the factory. This issue stands squarely covered against the assessees by the decision of the Larger Bench in the case of Jaypee Rewa Cement v. CCE, Raipur 2000 (119) E.L.T. 552 (T) . 4. emsp In view of the above position, the impugned order is upheld and this appeal is rejected.
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2001 (3) TMI 817
Assessment - Additions to income ... ... ... ... ..... turnover of the assessee. Assessing Officer had allowed expenses under this head to the tune of Rs. 40,000 and added back balance sum of Rs. 15,133. On appeal, CIT(A) has upheld the action of Assessing Officer. 4.1 Before us, ld. counsel has submitted that the assessee required labour for manufacturing ice-cones, sales effected during the assessment year was at Rs. 4,91,921, therefore, estimate made by Assessing Officer in respect of wages and salary at Rs. 40,000 is unreasonable. We find some force in the said submission of ld. counsel. On facts and circumstances of the case, we estimate the wages and salary paid to labourers at Rs. 50,000. Accordingly, we restrict the disallowance at Rs. 5,133. 5. Ground Nos. 4 and 5 relating to disallowance of Rs. 3,000 out of travelling expenses and Rs. 5,000 out of telephone expenses have not been pressed by ld. counsel before us. Accordingly, these two grounds are rejected as not pressed. 6. In the result, the appeal is allowed in part.
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2001 (3) TMI 816
Unexplained investments ... ... ... ... ..... on the orders of the AO/CIT(A). 3. After hearing the parties to the dispute, I find that the issue in dispute is covered by the decision of the Hon rsquo ble Supreme Court in the case of CIT v. Steller Investment Ltd. (supra) wherein the court has held as under Even if the subscribers to the increased share capital of assessee-company were not genuine, the amount could not be regarded as undisclosed income of the assessee-company. The Tribunal having cancelled CIT rsquo s order under section 263 whereby the assessment was set aside on the ground that Assessing Officer had accepted the genuineness of share capital without making enquiries, no question of law arises. Respectfully following the aforesaid decision of the Supreme Court and also the fact that these persons have paid the call money due on the specified dates, it can not be said that the amounts invested in the names of these persons can be undisclosed income of the assessee. 4. In the result, the appeal is allowed.
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2001 (3) TMI 814
... ...
... ... ..... 0RR was allowable on the entire amount brought into India by the assessee in convertible foreign exchange. He also relied on the decision of the ITAT, Mumbai Bench (SB) in the case of Petroleum India International v. Dy. CIT 1999 71 ITD 31 (241 ITR (AT) page 43 , though it pertains to section 80-O. 6. We have considered the rival submissions and the facts and circum-stances of the case. We find that matter stands covered by the order of the Tribunal dated 28-5-1998 in ITA No. 5588/Bom./1991 passed in assessee rsquo s case for assessment year 1987-88. It may be noted that even in this year the assessee has not incurred any expenditure and only net income was received in foreign exchange. Therefore, consistent with the view taken by the ITAT in the preceding year, the claim of the assessee deserves to be accepted. We, therefore, hold that there is no merit in the appeal of the Revenue and the same is dismissed. 7. In the result, the appeal filed by the Revenue stands dismissed.
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2001 (3) TMI 803
X-ray film processors - Natural justice ... ... ... ... ..... ave considered the submissions and find that for this purpose alone the order can be set aside on the grounds of denial of natural justice. 4. emsp In this view of the matter and our findings herein above, we set aside the Order-in-Original No. 70/95 and remand the same to the learned Commissioner for de novo adjudication with directions that cross-examination as requested should be granted and there after the matter decided. As regards the orders of the Commissioner (Appeals) the same are also required to be set aside as he has not come to a finding as to how the product is a separate independent apparatus, after finding the same only thereafter it could be decided whether Chapter No. 2 or HSN exclusion clause would be applicable. For this purpose the Order-in-Appeal of Commissioner (Appeals) is also set aside with directions that the matter should be redetermined after following the principles of natural justice. The appeals are allowed as remanded for de novo adjudication.
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2001 (3) TMI 796
Recovery of money seized ... ... ... ... ..... in 1994, had not chosen to deposit that money in any of the bank accounts, that when she was on casual visit to look up the mother of Dyaneswaran that she having suddenly found foreign currency in her bag, chose to entrust the same to his mother as she was to travel on that day. It is open to her to narrater her explanation before the adjudicating authority when she is examined as a witness by respondents 4 and 5. 5. emsp In this proceedings the seizure of currency effected from respondents 4 and 5 cannot be set aside, nor can there be any direction to return that amount to the petitioner. If ultimately, the money is confiscated after the result of the adjudication and if the petitioner is still able to establish vis- agrave -vis respondents 4 and 5 that they had caused loss to her, it is open to her to proceed against them for recovery of the amounts which she claims to be due to her from them. 6. emsp I do not see any merit in the writ petitions and the same are dismissed.
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2001 (3) TMI 788
Modvat - Lapse of credit unutilised as on 16-3-1995 ... ... ... ... ..... this appeal. 2. emsp I have heard both the sides in this matter and my findings are as follows 3. emsp Additional duty in respect of goods received prior to 16-3-1995 were paid on 4-11-1996 and the credit taken on 16-12-1996. In terms of Rule 57F(4A), unutilised credit of duty as on 16-3-1995 gets lapsed. The goods had been received prior to that date on which additional duty paid had lapsed. There was demand for the differential duty at the hands of the supplier on this date. The amount had been paid by the supplier and the documents were received after 16-3-1995. Credit had been taken subsequent to that date. Therefore, duty paid cannot be correlated to the duty payment remaining unutilised prior to 16-3-1995. In this view of the matter the Commissioner rsquo s finding that credit availed subsequent to 3/95 cannot be utilised is not a correct finding in terms of the provisions of Rule 57E. In this view of this matter, the impugned order is set aside and the appeal allowed.
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2001 (3) TMI 787
Cigarettes - Cut tobacco ... ... ... ... ..... ormal difference which was pleaded before the Commissioner which was fatal to the proceedings should have been dealt with by the Commissioner. Failure to do the same does not cause presumption to shift on the appellants, to discharge the onerous charge of clandestine removal. Since this has not been done, either by the investigator or the Commissioner, we find that the SCN only is based on assumptions and presumptions or at the most secondary evidence. There is no direct evidence and or material to come to any conclusion regarding alleged clandestine removal. We cannot uphold such an order. (f) When we find that a major portion of the demand is for the period before the introduction of mandatory penalty clause and also that a demand on assumptions and presumptions cannot be made, we cannot find any reason to sustain any penalty in the facts of this case. 4. emsp In view of our findings above, the orders demanding duties and penalty as imposed are set aside and appeal allowed.
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2001 (3) TMI 786
Interest on warehoused goods - Appeal - Interest - Refund ... ... ... ... ..... sion of the Supreme Court in the case of Pratibha Processors (supra) we have no hesitation in deciding that no interest is required to be paid by the appellants in these 42 cases before us today. (e) We find substance in the argument of the ld. Counsel for the appellants that the ld. Commissioner has travelled beyond the issues framed and which were decided and determined by the original authority. His reliance on the decision in the case of Kesoram Rayons, 1996 (86) E.L.T. 464 (S.C.) is not relevant to decide the matters in this case. (f) We have considered the ld. JDR rsquo s submissions that in any case the amounts would be hit by the bar of unjust enrichment. We find that this amount in this case are not refund of duty, but a claim for refund of interest. Therefore, we do not find the same to be hit by the doctrine of unjust enrichment. 3. emsp In view of our findings, we set aside the impugned order and allow these appeals with consequential benefit. Ordered accordingly.
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2001 (3) TMI 785
Appeal to Appellate Tribunal - Limitation ... ... ... ... ..... the effect that the appeal papers alleged to have been filed in December, 1994 are not seen to have been received in the Central Registry and the Bank Drafts alleged to have been submitted along with those appeal papers have not been received in the Cash Section. This report of the Registry is only indicative of the irresponsible way the Registry works. The applicants have established beyond any iota of doubt that they had filed proper appeal in accordance with the procedure of this Tribunal in December, 1994 within the stipulated period of limitation. Those papers are missing in the Registry. Now that the applicants have filed fresh appeal accompanied by the required fee in accordance with the procedure, the delay involved in such filing, however long it may be, requires to be condoned. I, therefore, condone the delay involved in the filing of Appeal No. E/3082/2000-NB(SM). Since there is no requirement of pre-deposit, the appeal will arise for regular hearing on 19-6-2001.
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2001 (3) TMI 784
Adjudication - Demand ... ... ... ... ..... bunal as infructuous. 3. emsp Shri Gururaj, Advocate submitted that it was a bounden duty of the adjudicating authority to quantify the duty amount. In the instance case, he has delegated the power to Range Superintendent to quantify the amount which is contrary to the law. He submitted that the Tribunal has been constantly taking the view that the duty amount is required to be quantified by the adjudicating authority who passed the order. In support of this contention he referred to the decision of the Tribunal in the case of Sunil and Co. v. Collector of Central Excise, Bombay - 1995 (80) E.L.T. 653 (Tribunal) wherein it was observed that quantification of duty cannot be left to the Investigating Officer. Concurring with this plea, we are remanding all these appeals to the original adjudicating authority to quantify the duty amount and to pass an order accordingly on providing opportunity to the party. Thus, these 8 appeals are allowed by way of remand. Ordered accordingly.
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2001 (3) TMI 779
Modvat on capital goods ... ... ... ... ..... from the mains, for being supplied to D.C. Motors has to be controlled with the help of the control panels. He submitted that without the help of control panels, it will not be possible to operate the rolling mill effectively. Ld. Counsel, therefore, submits that ld. Commissioner has rightly rejected the appeal of the Department and prayed that appeal now filed before the Tribunal may also be rejected. 5. emsp I have heard the pleas put forth by both sides. I note in the instant case that control panels are the subject matter of dispute. In the instant case control panels are used for watching the current coming from DC motors, thus DC motors and control panels become a part of the plant. These control panels are used for producing the goods inasmuch as without these control panels, the DC motors power supply cannot be regulated. Hence I hold that Modvat credit will be admissible on control panels. In the circumstances, the impugned order is upheld and the appeal is rejected.
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2001 (3) TMI 777
Valuation - Garments ... ... ... ... ..... that appellants have also contended in their reply to the show cause notice that on earlier occasion, market enquiry was conducted by the Department and the value of the shirt was found to be reasonable and the full DEPB claim was allowed. The Commissioner discarded this argument by saying that no comparison can be made as the present case is entirely independent of the previous one. In view of the facts that the details of market enquiry has neither been disclosed to the Appellants nor been disclosed in the impugned order, it suffers from violation of principles of natural justice. We, therefore, set aside the impugned order and allow the appeal by remanding the matter to the Adjudicating Authority with the direction to decide the matter afresh disclosing the report of market enquiry to the Appellants and after affording a reasonable opportunity of making representation by them and after following the principle of natural justice. The appeal is thus allowed by way of remand.
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2001 (3) TMI 776
Classification - Natural justice - Adjudication ... ... ... ... ..... cloth - even though unaccounted for - was used to manufacture the coated cotton fabrics measuring 2,62,691.5 mts. and the same was removed without payment of duty. There is no tangible ground to subject these goods to the rate of Rs. 4.85 per meter which is also objected to by the Revenue in their appeal. In view of these facts, we are of the view that the order of the Collector is non-speaking on this count and is passed without considering all the points raised by the appellants. We, therefore, set it aside and remand the matter to him for passing a fresh speaking order taking into account all the submissions made by the noticee party. The Commissioner shall afford a reasonable opportunity of hearing to the appellants. Further, since the matter is pending since long, the Commissioner should pass the de novo order within four months from the date of receipt of this order. 12. emsp The appeals of the party and that of the Revenue are disposed of by remand in the above terms.
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2001 (3) TMI 773
... ...
... ... ..... price was available, it is that price that should apply to both the sales at the factory gate and the goods sold from the depots for sale therefrom. 2. emsp The challenge to this conclusion is on the ground that the purchasers of the goods from the depots of the respondents are a different class of buyer. Apart from the fact that the notice to show cause does not allege this ground, we do not see how this claim is relevant. By the judgment of the Supreme Court in Indian Oxygen Ltd. v. C.C.E., the ratio which has been reaffirmed in paragraphs 18 and 21 of its judgment in G.O.I. v. MRF - 1995 (77) E.L.T. 433, where there are sales both from the factory gate and from the depot, it is the factory gate price that should be applied to determine the value both of goods sold at the factory gate, and of goods transferred to the depot for sale there. That, as we have noted, is what the Commissioner (Appeals) has done. We, therefore, see no reason to interfere. 3. emsp Appeal dismissed.
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2001 (3) TMI 770
Benefit of exemption Notification No. 160/86-C.E.
... ... ... ... ..... aforesaid notification is the issue to be considered herein. We find that the very issue has already been considered by us as per our earlier Order Nos. 435 to 438/2001, dated 15-3-2001 holding that the parts are eligible in terms of exemption Notification. Following the ratio of the above said decision, these appeals filed by the Department are hereby dismissed.
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2001 (3) TMI 769
... ...
... ... ..... ase of the same appellant in Appeal E/674/97 and others (Order Nos. C-I/1380-82/2000, dated 11-4-2000, which has been followed by two other Benches, the Tribunal has held that these mirrors were inputs used in the manufacture of the motor vehicles which have been cleared on payment of duty and the duty paid on these mirrors was hence available to the appellant as Modvat credit. 2. emsp The appeal is accordingly allowed and the impugned order set aside.
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9911796707
