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Showing 481 to 500 of 1040 Records
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2011 (1) TMI 1024
Undervaluation - short levy of duty - Held that:- Commissioner (Appeals) has correctly recorded the facts of the case saying that 'appellant company has transferred sub-assemblies, which are in nature of semi-processed goods to their another unit situated at Pune for certain job work and returned due to tight delivery schedule. These transfers were effected on payment of duty and the receiving the factory used to take Modvat Credit. The valuation was done by the appellant on the basis of cost of manufacture and profits i.e., cost of raw material plus 15% described as transfer cost and 15% margin on the total of two'.
As per Rule 57F, it is clarified that this sub-rule did not require the manufacturer to ascertain and declare the value of partly processed item and in this case the assessee has already paid the duty on the cost of inputs plus 32.25% of the cost of inputs as profits, which is definitely more than the duty required to be reversed. In this scenario, no infirmity with the impugned order, the same is upheld as appeal filed by the Revenue deserves no merits and the same is rejected.
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2011 (1) TMI 1023
Penalty under Rule 173Q (1) of Central Excise Act - appellant passed the MODVAT credit without actually selling the goods - Held that:- Shortage of inputs found at the premises of GEPL is not of the goods mentioned in the invoices in which the discrepancy was found. Moreover, the investigating authority has not recorded the statement of the person who was the owner of the vehicle mentioned in the invoices in which the discrepancy was found - No penalty can be levied on them for their bonafide act under such clause (bbb) of sub-rule 1 of Rule 173Q, without giving any finding, the adjudicating authority without specifying particular clause of Rule 173Q (1) has imposed the penalty. As decided in Amrit Foods (2005 (10) TMI 96 - SUPREME COURT OF INDIA) neither show-cause notice nor the order of Commissioner has specified which particular clause of Rule 173Q (1) or erstwhile Central Excise Rules, 1944 has been allegedly contravened by the appellant, assessee is to put on notice as to exact nature of contravention for which under provision of Rule 173Q, penalty is imposable - order imposing penalty, is set aside and the appeals are allowed.
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2011 (1) TMI 1022
Demand of duty - using the brand name by the other manufacturer for which the appellants are in entitled for SSI exemption - protective show-cause notice was issued to the appellants while the proceedings were pending before this Tribunal and the same was not brought in the knowledge of the Tribunal - Held that:- If there is any grievance of the department, they should have come before this Tribunal in the proceedings which were pending there. As department did not take any steps to contest the issue before this Tribunal and the same has attained finality which has been followed by the adjudicating authority in this case as judicial discipline, the show-cause notice was dropped. In the impugned order, the lower appellate authority has in going into this aspect at all and taken the submissions of the revenue and passed the order impugned which is not correct in the eyes of law. It is well settled law in the case of Kamakshi (1991 (9) TMI 72 - SUPREME COURT OF INDIA) judicial discipline is to be followed by lower courts. In this case the lower appellate authority has not followed the judicial disciple, hence, no other option to set aside the impugned order. Appeal allowed.
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2011 (1) TMI 1021
Condonation of delay - suspension of operation of the CHA licence - Held that:- As appellant submits that he was under the impression that a separate appeal against the Commissioner's order was not necessary inasmuch as an appeal had already been filed against the Commissioner's earlier order of suspension of operation of the licence. Conspicuously, this ground is missing in the 'condonation-of-delay' application and hence cannot be considered. Moreover, there is even no attempt on the part of the appellant to explain the delay of the appeal beyond the period of limitation prescribed under the statute. The appellant is said to have been suffering from 'depression'. From which date was he suffering from 'depression' is not forthcoming, nor any medical certificate has been produced in support of the plea. COD application dismissed.
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2011 (1) TMI 1020
Stay - whether it was open to the Commissioner (Appeals) to order for refund of fine and penalty to the importer? - Held that:- The only answer to this question would be in the negative. As rightly pointed out by the SDR, the Assistant Commissioner's order relating to confiscation, redemption fine and penalty was not challenged by the importer and hence the same was not liable to be interfered with by the Commissioner (Appeals) in an appeal filed by the Revenue - set aside the impugned order and allow the appeal.
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2011 (1) TMI 1019
Stay application - Valuation - whether the royalty paid was liable to be included in the assessable value of the imported goods under Rule 10(1)(c) of the Customs Valuation Rules - Chartered Accountant's certificate dated 25.11.2010 showing particulars of the royalty paid on sale proceeds of goods manufactured and sold locally is available on record. The Chartered Account has certified the royalty and payment for technical know-how fees payable to Seco Tools AB, Sweden, accounted for by the appellant-company in its books of accounts - Held that:- Having found that a document with the semblance of the break-up offered by the appellant before the lower appellate authority is now available on record, the matter has to be sent back to the said authority for fresh decision. It is open to the Commissioner (Appeals) to call upon the assessee to prove the veracity of the Chartered Accountant's certificate by producing their audited accounts and 'relevant records, appeal is allowed by way of remand.
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2011 (1) TMI 1018
Duty confirmed - maintainability of appeal - Commissioner of Central Excise has directed the Dy. Commissioner of Central Excise, Belapur to file an appeal before the Commissioner (Appeals) against the order passed by the Additional Commissioner - Held that:- Silver Streak Welding Products (2007 (9) TMI 222 - HIGH COURT BOMBAY) held that 'the authority on whom the power was confirmed is in the adjudicating authority, appeal filed by the Deputy Commissioner before the Commissioner (Appeals) in the case in which the impugned order is before us in challenge was not maintainable before the Commissioner (Appeals), Appeal is allowed with consequential relief, if any.
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2011 (1) TMI 1017
Goods cleared without payment of duty - raw material and the finished goods lying in the factory unaccounted were detained under the reasonable belief that the same were to be removed for clandestine removal - demand raised along with penalty - Held that:- The appellant have conceded the confiscation of 150 barrels seized from the vehicle. Therefore, there is no infirmity in the adjudicating authority's order insofar as confiscation of these goods are concerned.
As regards the good seized from the factory premises on 15/04/2006 valued at ₹ 14,61,498/- is concerned the department could not prove that there was any attempt on the part of the appellant to remove the goods clandestinely. Therefore, the seizure and confiscation of these goods is not sustainable in law.
As regards penalty on Shri Haresh Dharmani, Director of the assessee, the department failed to produce any evidence that he was in any way involved in the transportation / removal, etc. in respect of the goods in question - unable to produce any evidence regarding any direct involvement of the Director of the company. Therefore, penalty on the Director is not sustainable in law.
So far as penalty under Section 11AC is concerned, no option was given to the appellant at the time of passing of the adjudication order. Therefore, option should be given to the appellant for payment of 25% of penalty in view judgment in the case of K.P. Pouches (P) Ltd. vs. Union of India (2008 (1) TMI 296 - HIGH COURT OF DELHI). Assessee also contended that so far as 178 barrels are concerned they were not given the documents seized by the department which because of which they could not establish before the department that these goods were cleared on payment of duty. Therefore, this aspect requires to be reconsidered - case remanded to the adjudicating authority for deciding the penalty amount and interest in respect of 150 barrels. Redemption fine in respect of these goods should be re-determined considering the value of the goods and the duty amount involved.
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2011 (1) TMI 1016
Duty demand with interest - calculation of interest - CENVAT credit reversed but they did not pay interest - Held that:- As there is no dispute that the respondents were not entitled for the credit on the items in question. The interest is leviable on wrongly utilised credit is also not in dispute. Thus agreeing with the respondent's contention that the interest liability would arise from the date of wrong utilisation of credit in view of the judgment of Commissioner of Central Excise, Delhi vs. Maruti Udyog Ltd. (2006 (10) TMI 63 - HIGH COURT,PUNJAB & HARYANA). In the instant case, interest has been calculated from the date of credit taken. Therefore, the quantum of interest has to be calculated from the date of wrong utilisation of the credit - case is remanded to the adjudicating authority for the limited purpose of re-quantifying the interest.
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2011 (1) TMI 1015
Duty demand, interest and penalty of equal amount - the appellant was engaged in the manufacture of dutiable as well as exempted products out of common inputs and was availing CENVAT credit for the entire inputs used in the manufacture of both the products without following the procedure as laid down under Rule 6(2) of CENVAT Credit Rules, 2004 as appellant did not pay an amount equal to 10% of the total price excluding sales tax and other taxes paid on such goods as prescribed under Rule 6(3)(b) - Held that:- Provisions of Rule 6 of CENVAT Credit Rules has been amended and retrospective effect has been given to the amendment. This amendment was not before the adjudicating authority. Therefore, the case is remanded to the adjudicating authority to decide the issue afresh, after considering the amendment carried out to Rule 6 of CENVAT Credit Rules, 2004, appeal is disposed of by way of remand.
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2011 (1) TMI 1014
Valuation of the vehicles - assessee had purchased the vehicles in connection with transfer of their residence to India - invoices issued by those dealers were obviously local sale invoices, but these invoices did not show the address of the buyers - Held that:- If it was the intention of the assesse to purchase brand new cars for the purpose of importation into India in connection with transfer of their residence, they should ordinarily have obtained the invoices with all the relevant particulars mentioned thereon - instructions contained in the relevant circulars of CBEC were also followed by the original authority in determining the assessable value of the vehicles. The original authority also examined whether any depreciation of value could be allowed, and found valid reason not to allow such depreciation, on the facts of the case. authority further allowed 20% discount on the assessable value determined by the lower authority. As a matter of fact, Commissioner (Appeals) has been fair enough to grant reasonable relief to the assessees by taking into account relevant factors like demurrages, adverse weather conditions etc, even after the above discount, the assessable value of the subject-cars remains far above the declared value, there can be no grievance for the Revenue, appeals stand dismissed.
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2011 (1) TMI 1013
Import of raw material under the Advance Licences transferred to them by the original licensee as permitted by the licensing authority (DGFT) - Demand of duty, interest and penalty - Held that:-Provision of the policy was to the effect that an advance licence could be freely transferred after export obligation had been fulfilled, export proceeds realized and the Bank Guarantee/LUT redeemed. It was further provided that the facility of transferability would not be available in cases where the modvat/proforma-credit facility under Rule 191B of the Central Excise Rules of 1944 had been availed of - This aspect was not considered by the ld. Commissioner - Commissioner, however, did not also considered the plea of limitation raised by the party - order set aside and allow the appeal by way of remand with a request to the jurisdictional Commissioner of Customs to re-adjudicate the case - appeal allowed by way of remand
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2011 (1) TMI 1012
Refund - unjust enrichment - duty paid subsequent to the clearance of the goods - Held that:- In the absence of Section 28D presumption, it was the burden of the department to establishment that incidence of duty had been passed on to the buyer. From the records as find that the department has not discharged this burden. So far as the decision of Sahakari Khand Udyog Mandal Ltd. (2005 (3) TMI 116 - SUPREME COURT OF INDIA) Commissioner (Appeals) has given categorical finding that the department had not found or arrived at any conclusion regarding passing on of the incidence of duty in order to discharge this burden on it. The appellant could not produce anything new or contrary to the above. Therefore no infirmity with the concurrent finding of the lower authorities.
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2011 (1) TMI 1011
Shortages of inputs and finished goods - SCN issued alleging that the shortages occurred are due to the fact that the noticee failed to adopt the prescribed procedure in such manner, as he is required to do and also failed to offer any plausible explanation for the discrepancies noticed by the officers proposing the demand of duty and on shortages of raw material and finished goods - Demand, interest and penalties - Held that:- In the absence of proper explanation and without corroborative evidence of removal of the goods from the factory premises of the appellants, the demand is not sustainable. Moreover, the show-cause notice also alleged that the appellants are not maintaining the statutory records in the manner prescribed under the law. In that event, the clandestine removal cannot be alleged. As it is an admitted fact that the appellants are not maintaining their records as prescribed under the law, they are liable to be penalized under Rule 27 of the Central Excise Rules, 2002 confirmed to the tune of Rs.5,000/-, otherwise the appeals of the appellants are allowed as discussed here-in-above.
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2011 (1) TMI 1010
Entitlement to avail credit on capital goods without filing the declaration under Rule 57T of Central Excise Rules, 1944 - Held that:- This issue has been answered in the case of ITC Ltd., (2007 (11) TMI 188 - HIGH COURT MADRAS) in favour of the appellant wherein held that Modvat credit should not be disallowed for procedural lapses - order set aside and allow the appeal of the appellant with consequential relief.
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2011 (1) TMI 1009
Valuation - job work - Demand of duty, penalty and interest - assessee discharged the duty liability on the MRP less abatement granted as per provisions - whether a pack of three soaps having individual MRP printed on them, which are secured by a wrapper indicating that three soaps are for sale for MRP of ₹ 24/- are to be assessed accordingly or on MRP of ₹ 12/- indicated on individual pack or not/- Held that:- The case laws cited by the assessee are of no help to him as in the case of CCE, Mumbai Vs. Godrej Soaps Ltd. [2005 (11) TMI 141 - CESTAT, MUMBAI] the issue was not of multiple pack. In the case of Henkal Spic India Ltd. [2009 (11) TMI 574 - CESTAT, CHENNAI] there is a clear finding that the maximum price of individual cake was not visible at the time of clearance of the goods as the same has been deleted from the wrapper. The decision in the case of Godrej Industries Ltd., Vs. CCE, Mumbai (2005 (10) TMI 298 - CESTAT, MUMBAI) is also of no help as in that case also the wrapper of each soap in addition had a MRP clearly struck out with a declaration individual cake not intended for retail sale branded thereto and each wrapper also indicated that the scheme Buy 2, Get 1 Free followed by a pack of 3 (3x75 Gms) MRP ₹ 27/- (inclusive of all taxes).
Thus factual findings of the adjudicating authority in this case, it is find find that the assessee has failed to make out any case. Accordingly the order of adjudicating authority that the assessee has to discharge the duty @ ₹ 36/- for a pack of three soaps less admissible abatement is confirmed. As no allegation of fraud, collusion, willful mis-statement, suppression of facts or contravention of the provisions of law with an intent to evade duty are made out, no penalty is imposable in this case - appeal filed by the Revenue is partly allowed.
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2011 (1) TMI 1008
Cenvat credit - Penalty under section 11C - respondent had issued debit notes to their supplier of inputs on account of rejection of inputs against which they have availed CENVAT credit - Held that:- As the appellant have not challenged the confirmation of demand on the basis of suppression of facts. Therefore, the mandatory penalty under Section 11AC is imposable. As regards the cross-objection filed by the respondent is concerned, the same has not been filed within the time limit prescribed, therefore, the same has to be rejected as such. The Commissioner (Appeals)' order setting aside the penalty under Section 11AC is not sustainable and hence, set aside to the extent.
As regards the contention of the respondent that since they have already paid the entire amount of duty involved in the case before the issuance of the show-cause notice they are liable to pay only 25% of the duty amount as penalty in view of the judgment of the Hon'ble Delhi High Court in the case of K.P. Pouches (P) Ltd. vs. Union of India (2008 (1) TMI 296 - HIGH COURT OF DELHI) - As this judgment of the Hon'ble Delhi High Court and to give option to the respondent was not before the lower authorities case is remanded to the lower adjudicating authority for the limited extent to decide the quantum of penalty under Section 11AC.
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2011 (1) TMI 1007
Refund claim rejected - Classification - appeal of the respondent on the ground that the classification was due to an error of CHA, who classified the goods in the Bill of Entry under CTH 8414 5120 and that error could have been rectified under Section 154 - Held that:- From the records it is abundantly clear that the present case is not a case of clerical mistake. It is a claim of classification under different heading and consequently benefit of a notification. The respondent has not challenged the classification of the goods at any stage nor they have filed any appeal against the classification.
Commissioner (Appeals) has failed to appreciate that the case is covered by the judgment Priya Blue Industries Ltd. (2004 (9) TMI 105 - SUPREME COURT OF INDIA). Commissioner (Appeals) has erred in holding it as a rectifiable clerical error under Section 154. Therefore, this case is not covered under Section 154 of the Act. The Commissioner (Appeals) has not passed any order relating to the three Bills of Entry (out of the total 10 Bills of Entry) covered under Order-in-Original No. 1995/08 dated 16/12/2008 and admittedly the respondent has not challenged that aspect of the order-in-original. There the adjudicating authority's order would prevail to that extent.
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2011 (1) TMI 1006
Interest and penalty - short payment of duty on the clearance made by the respondent without following the Rule 8 of Central Excise Rules, 1944 - liability to pay interest - Held that:- Force in the contention of assessee that the provisions of Section 11AB of the Act came into force with effect from 11.5.2001. Hence, no interest for the period prior to 11.5.2001 is payable by the respondent.
The respondent is liable to pay interest for the period from 11th May 2001 to June, 2001 as per the show-cause notice. As there is no quantification of interest for the impugned period as per the impugned order, the matter is sent back to the adjudicating authority for the purpose of quantification of interest on short payment of duty paid by the respondent during the period 11th May, 2001 to June 01, after following the principle of natural justice.
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2011 (1) TMI 1005
Import of certain raw materials under six advance licences - clearance of the same duty-free under Notification No. 159/90-Cus dated 30.3. 90 - duty-free import of some of the above raw materials under Notification No. 204/92-Cus dated 19.5.1992 during the tenure of Exim Policy, 1992-97 - SCN issued stating that Glycerine imported by assessee was not liable to be exempted from payment of duty under any of the above notifications inasmuch as the input used in the export product was a different commodity, namely Sorbitol - importer availed MODVAT credit on indigenous inputs (Glycerine, Sorbitol and SLS) used in the manufacture of the export product and, therefore, the inputs subsequently imported as replenishment by them and sold in local market were not eligible for the benefit of Notification No. 204/92-Cus on account of breach of Condition No. (vi) thereof - demand of duty and also proposed to impose a penalty on the importer, apart from a proposal for confiscation of the imported goods - whether the benefit of Notification No. 159/90-Cus and No. 204/92-Cus is liable to be granted to M/s Fresh Laboratories in respect of the raw materials imported by them under the six advance licences during the material period.
Held that:- The show-cause notice has succinctly brought out the chemical, physical and other differences between Glycerine and Sorbitol. These differences were not disputed by the importer in their reply to the show-cause notice, nor even in the memorandum of appeal before us. If tinplates of thickness of 0.19 mm could be recognized as a commodity different from tinplates of 0.22 mm, in the case of Zenith Tin Works [1994 (4) TMI 183 - CEGAT, NEW DELHI] no hesitation to hold that Glycerine can come nowhere near Sorbitol in material characteristics/specifications. The contention raised by the learned counsel that, as both these materials were covered by the advance licences, duty-free import of any of them should be allowed where the other one was found to have been used in the manufacture of the resultant product, is not supported by any judicial authority and hence cannot be accepted.
In relation to Notification No. 204/92-Cus also a firm case for the Revenue. In the instant case, the importer has submitted that demand of duty on five raw materials imported by them cannot be sustained inasmuch as no MODVAT credit had been taken on the corresponding inputs used in the exported product. These are items mentioned at clauses (c) Irish Moss, (d) (SMFP), (e) Flavouring Compound, (h) Stearic Acid (i) Aromatic Chemicals, of para (ii) of the operative part of the Commissioner’s order. In the case of other raw materials imported by M/s Fresh Laboratories, the learned counsel has submitted that whatever MODVAT credit had been taken on the corresponding inputs contained in the exported final product was reversed with interest and, therefore, the benefit of Amnesty Scheme should be granted. We have not found any valid ground to accept these contentions either. First of all, the claim that no credit was availed on duty-paid inputs contained in the exported product, against which the aforesaid five materials were imported as replenishment, has not been substantiated. Secondly, the plea for Amnesty Scheme cannot be considered against breach of conditions of notifications 159/90-Cus and 204/92-Cus. Thus demand of duty raised on M/s Fresh Laboratories has to be sustained.
All the goods imported by them were admittedly covered by advance licences and none of those goods were in the prohibited category so as to attract this provision of law. Considering the fact that M/s Fresh Laboratories reversed MODVAT credit to the extent of Rs 18.8 lakhs and paid interest thereon subsequently, and also considering the inapplicability of Section 111 (d) to this case, we are of the view that the penalty of Rs 4 crores imposed on them is harsh thus be reduced to Rs 50 (fifty) lakhs. Where a penalty stands imposed on the partnership firm, there is no reason why there should be separate penalty on a partner under the same provision of law. Therefore, the penalty on Shri Bhupendra J. Shah is vacated.
The records indicate that 60 MT of Glycerine imported by M/s Fresh Laboratories were sold to Mahavir Export and Import Company, of which Mr. Yogesh Korani was the proprietor. There cannot be separate penalties on M/s Mahavir Export & Import Co and its proprietor. In the result, we set aside the penalty imposed on Mr. Yogesh Korani and reduce the quantum of penalty on M/s Mahavir Export and Import Co to Rs one lakh.
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