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Showing 501 to 520 of 1040 Records
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2011 (1) TMI 1004
Demand of duty, interest and penalty - extended time of limitation invoked - Duty liability on work in progress goods at the time of final de-bonding order - assessee paid @ 16.48% instead of 34.13% as required under Section 3 (1) (b) (ii) of the Central Excise Act, 1944 - Held that:- It is the duty of the officer, who give no dues certificate to verify the contents whether any dues liability is pending against the assessee or he has correctly declared the true facts for de-bonding of unit. When the concerned officer has de-bonded the unit along with no dues certificate, allegation of suppression cannot be alleged against the respondents in this case - no infirmity with the impugned order, wherein the lower appellate authority has held ‘that facts that how the extended period under Section 11A(1) is invocable in the above circumstances, the demand raised against the respondent is time barred’. order is upheld, the appeal filed by the Revenue is rejected
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2011 (1) TMI 1003
Maintainability of appeal - warehoused goods could not be cleared within the warehousing period - applied for extension rejected by the proper officer of customs - goods auctioned - It is submitted by the ld. SDR that no order of a Chief Commissioner is appealable to this Tribunal under Sec.129 A of the Customs Act, order is an administrative order rather than quasi-judicial and hence not appealable - Held that:- It is not in dispute that the application submitted by the applicant to the Asstt. Commissioner pursuant to the Hon’ble High Court’s order could be considered only by the Chief Commissioner of Customs under the proviso to sub-section (1) of Sec.61 of the Act. Again it is not in dispute that the Chief Commissioner passed the impugned order after following the principles of natural justice. Obviously, the party subjected themselves to the jurisdiction of the Chief Commissioner question whether the Chief Commissioner’s order is appealable to this Tribunal needs to be answered in the negative - dismiss the appeal as not maintainable.
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2011 (1) TMI 1002
Application for stay - assessing authority doubted the correctness of the importer's declaration of 'prime quality' - Chartered Engineer certified the goods to be prime quality of stainless steel of hot rolled coils grade 304 and ruled out secondary or defective or non-standard material - Held that:- Considering the fact that the inspection of the goods by an approved Chartered Engineer was held as permitted by the assessing authority but no representative of the department could witness the proceedings of the Chartered Engineer, thus the Chartered Engineer should conduct a reexamination of the goods in the presence of the respondent and representatives of the department and submit a report to the assessing authority.
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2011 (1) TMI 1000
Sale of scrap of old and use capital goods - demand of duty, interest and penalty - Ld. advocate for the appellants submits that the waste and scrap cleared by them is generated from the non-modvatable capital goods procured by them - Held that:- Matter is remanded back to original authority to examine whether waste and scrap cleared by the appellants is a waste and scrap of non-modvatable goods or not. The adjudicating authority, after satisfying by the documents produced by the appellants in support of their defence, shall pass a fresh order.
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2011 (1) TMI 999
Classification - show-cause notice issued by the Range Superintendent to recover differential duty on the products manufactured by the respondent denying the exemption under Notification 52/86 - Held that:- Classification has been approved by the Asst. Commissioner on 20.1.1987 by giving benefit of exemption Notification 52/86 at concessional rate of duty. The said order was not challenged by the department and same has attained finality during impugned period. Later on, the show-cause notice issued for the same period, by the Asst. Commissioner, demanding differential duty is not sustainable in the eyes of law, order confirming the demand for the impugned period for which classification issue has been settled in favour of respondent by giving the benefit under Notification no. 52/86 at concessional rate of duty which has attained finality, is not sustainable. In favour of assessee.
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2011 (1) TMI 998
Cost of drawings and designs - whether includable in the assessable value? - quantification of the cost - Held that:- From the records it is find that it is not coming out what is the cost of drawings and designs and how much is the goods manufactured by the appellants and that the issue was not dealt by the lower authorities in detail. Therefore, the matter needs re-examination for quantification of demand for how much is the value of drawings and designs that is includable in the assessable value - matter remanded back to the original adjudicating authority.
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2011 (1) TMI 997
Cost of moulds and dies used in the manufacturing of the impugned parts - whether not amortized in the assessable value of the parts on their clearances - invoking extended period of limitation alleging suppression - Held that:- It is well settled law that the cost of moulds and dies are to be amortized in the assessable value of the goods cleared by the respondents.
As the challans and invoices on which M/s.Bajaj Auto Ltd., had supplied the moulds and dies to the respondents in free of cost on loan basis was on record during the course of audit before the audit party & when the audit party has not taken any objection for non-inclusion of the amortized cost of moulds and dies in the assessable value by the respondents, allegation of suppression does not survive as held by the lower appellate authority - It is the duty of the audit party to audit the records and to point out the discrepancies found out during the course of audit - Decided in favor of the assessee.
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2011 (1) TMI 996
Demand of differential duty and penalties - enhance the value of the goods - amount of duty was determined by the adjudicating authority by rejecting the declared value in two Bills of Entry and enhancing the value of the goods on the basis of Bank Advice - Commissioner further relied on Anil Modi's [indenting agent] statements to buttress his findings having admitted of receiving commission from ODC based on the higher price of the goods mentioned in the commission-related fax message - Dungarmal submitted that the transaction value was correctly declared by them and that no valid reason was stated by the Commissioner for rejecting the same & department should have given cogent reasons for rejection of the declared value - Held that:- Xerox copies of the alphabetically marked invoices were purported to have been issued by ODC as invoices covering a certain quantity of CRGO material sold to Dungarmal, it has not been established by the Revenue that the document was issued by ODC to Dungarmal as a supplementary invoice in respect of the goods already supplied under an original invoice. In fact, even the source of these alphabetically marked invoices was not disclosed to the appellants. Thus the Revenue could not produce the originals of these documents either. In the circumstances, the contention raised by assessee had to be accepted that the presumption under Sec.139 of the Customs Act is not available in respect of the xerox copies of what appeared to be alphabetically marked invoices issued by ODC to Dungarmal .
In any case, Dungarmal did not admit having received such invoices, nor did they admit that payment of any amount mentioned in any of such invoices was made to ODC either through banking channels or otherwise. The statements of Anil Modi, who was apparently confronted with these documents, would not be of any avail to the Revenue inasmuch as, undisputedly, the documents were not retrieved from his premises and also did not mention his name as indenting agent. Whatever was stated by Anil Modi in relation to the alphabetically marked documents will be of no relevance. For all these reasons, unable to accept the said alphabetically marked documents as evidence of undervaluation of goods by those who filed the relevant Bills of Entry. In the result, the value declared in the relevant Bills of Entry will have to be accepted, particularly in the absence of proof of contemporary imports of identical/similar goods at higher value.
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2011 (1) TMI 995
Assessable value - whether the freight charged by assessee from their buyers in respect of goods sold to the latter during the period from October 2001 to July 2002 is liable to be included in the assessable value of the said goods? - Held that:- The cost of transportation was shown in the invoices issued to the buyers and the same was recovered from them. Further, the duty was paid on the excess freight collected from buyers, which would mean that what was sought to be excluded from the assessable value was the freight shown separately in the invoices issued to the buyers to the extent actually incurred. Such deduction was allowed by this Tribunal in the assessee's own case and that decision stands accepted.
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2011 (1) TMI 994
Condonation of delay - Period of limitation - Held that:- From the records, it is clear that the appellants had filed the appeal before the Commissioner (Appeals) with a delay of 23 days i.e. well within the period of 90 days of the impugned order. In that view, the delay in filing the appeal before the Commissioner (Appeals) condoned and in the interest of justice, the matter is sent back to the lower appellate authority to pass an appropriate order on merits after hearing the appellants by giving them a reasonable opportunity to defend their case. As the appellants have already paid the duty and interest involved in this case, the waiver of penalty is granted.
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2011 (1) TMI 993
Stay application - waiver of pre-deposit - appellants have opted for provisional assessments - without hearing the appellants, the final assessments were made holding that the appellants have failed to produce the duly certified certificate of their assessable value by the Chartered Accountant - appeal was rejected holding that the appellants have failed to comply with the condition of Section 35F of the Central Excise Act, 1944 - Held that:- No notice was given to the appellants to produce the required documents to finalize the assessments and it is alleged that the appellants have failed to produce the Chartered Accountant's certificate, which has no merits, order set aside and matter remanded back to the original adjudicating authority to re-adjudicate the case after giving a reasonable opportunity to the appellants to produce the required documents, appeal is allowed by way of remand.
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2011 (1) TMI 992
Undervaluation of processed fabrics by suppressing the actual value of the grey fabrics with intention to reduce the assessable value of the fabrics processed and finished, thereby evading duty - Duty demand, interest and penalty of equivalent amount - Held that:- In the case of Lajya Dyeing & Bleaching Works (2008 (2) TMI 41 - SUPREME COURT) held that for the misdeclaration of the merchant manufacturers extended period is not invocable in the absence of allegation or finding that assessee job worker knew or deliberately failed to declare the correct cost of grey fabrics and there is no legal requirement for the processors to verify the correctness of the declaration furnished by the owners, in the absence of evidence showing misdeclaration of value by the respondent processor in connivance with the supplier, the job worker/processor cannot be saddled with the demand on the ground that the value declared by them was low. The ratio of these judgements squarely apply to the facts of the present case, order of the lower appellate authority set aside and allow the appeal of assessee.
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2011 (1) TMI 991
Clubbing of factory - SCN issued alleging that the units I & II of Malu Paper Mills Ltd., should be treated as one manufacturing unit and clearances of paper of both the units should be taken into consideration for calculating the total quantity exemption of 3500 MT under Notification No.3/2001 and demanding Central Excise duty and also proposing to impose penalty and also demanding interest on the duty payable - Held that:- As decided in Rollatainers Ltd. [2004 (7) TMI 92 - SUPREME COURT OF INDIA] two factories in the same premises owned by the same owner with common balance sheet would be eligible for exemption under Notification No.6/2000-CE separately as they are registered separately with the Central Excise department. The said exemption which was the predecessor to notification No.3/2001 pertained to paper and paper board if the aggregate clearance from a factory in a financial year did not exceed 3500 MT, which is also the position in the case before us. Also see Amaravathi S V Paper Mills Ltd. [2010 (7) TMI 172 - SUPREME COURT].
Thus Unit No.I & II of Malu Paper Mills Ltd., are separate factories and each one of them is entitled for separate exemption under Notification No.3/2001-CE dated 01/03/2001. In favour of assessee.
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2011 (1) TMI 990
Classification - AD/DC drives - show-cause notice was issued to classify the product under Chapter Heading 85.37 and 85.43 attracting duty @ 20% and 25% respectively as against Chapter Heading 85.04 attracting Central Excise duty @ 5% as per assessee - maintainability of appeal filed by the Revenue before the Commissioner (Appeals) - Held that:- As in this case, the Asst. Commissioner was not the adjudicating authority, who has filed the appeal before the Commissioner (Appeals) and the Commissioner (Appeals) has not dealt the same in accordance to law. Hence, the appeal filed by the Revenue before the Commissioner (Appeals) is not maintainable, following the decision of Maza Cosmetics (2006 (8) TMI 65 - HIGH COURT , DELHI) and Silver Streak Welding Products India Pvt Ltd., (2007 (9) TMI 222 - HIGH COURT BOMBAY).
Regarding denial of refund claim - the refund claim has been denied on the presumption that the buyer might have taken credit - Held that:- In this case the credit is not available to the buyers on capital goods and if any of the buyer has taken credit of this capital goods, then the liability to recover the amount wrongly availed credit is of the buyers and not of the supplier - in this case, the verification has not been done by the adjudicating authority properly and they have done only on random basis - Decided in favor of the assessee by way of remand
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2011 (1) TMI 989
Remand proceedings - contentions of the department that the Commissioner (Appeals) had not considered the documents relied upon by the department as well as 9 decisions in support of clandestine removal - Held that:- The Commissioner (Appeals) has discussed in detail each document and came to the conclusion that demand is sustainable only in some cases whereas demand is not sustainable in other cases. He has also discussed each case law referred to by the department. Therefore no infirmity in the order passed by the Commissioner (Appeals) with regard to confirmation of demand of duty amount.
Since the Commissioner (Appeals) has upheld duty demand on account of clandestine removal equal amount of penalty is also leviable under Section 11AC of the Central Excise Act and interest also payable under Section 11AB of the Act. The appeal is partly allowed.
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2011 (1) TMI 988
Pre-deposit - Commissioner (Appeals) has directed the appellants to make pre-deposit of 100% of duty demand without going into the merits of the case - Held that:- As no reason has been given in the order for directing the appellants to make pre-deposit of 100% of the duty demand, order set aside and stay entire demand and remand the matter back to the Commissioner (Appeals) to decide the issue afresh on merits after giving a reasonable opportunity of hearing to the appellants without insisting on the pre-deposit. Stay applications are also disposed of in the above manner.
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2011 (1) TMI 987
Waiver of pre-deposit - Reversal of cenvat credit - not maintaining separate account of inputs / input service which have gone to manufacture of dutiable as well as non-dutiable final products - Held that:- Considering amendment inserted through Section 73 of the Finance Act, 2010 the CENVAT Credit Rules, 2004 appellants are required to reverse only the amount of inputs / input service availed by them which has gone in manufacturing of the exempted goods. It would be in the interest of justice to remand the matters back to the original adjudicating authority to requantify the demand accordingly, and to give the benefit of the amendment made in the Finance Act, 2010 to the appellants, Appeals are allowed by way of remand and the stay applications are disposed of in the above manner.
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2011 (1) TMI 980
Abatement in respect of sales tax payable in the state of West Bengal - Commissioner allowed the claim - contention of Revenue is that the abatement is in respect of actually paid sales tax - Held that:- Liability of goods to sale tax is not being doubted. The state allowed sales tax collected to be retained by the manufacturer as incentive. This does not change the character of amount collected. There is a West Bengal incentive scheme which allows the sales tax collected is to be retained by the manufacturer. In view of this, no infirmity in the impugned order. The appeal is dismissed
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2011 (1) TMI 979
Classification - steel tables - Show Cause Notice was issued by invoking extended period demanding duty after classifying the steel tables under chapter 73 of the Tariff and subsequently when it was found that the appropriate classification under chapter 94 of the Tariff corrigendum to the Show Cause Notice was issued - Held that:- As the present respondent had not filed any declaration or classification list claiming the classification of goods under chapter 73 of the Tariff. It is only the opinion of the Revenue in the first Show Cause Notice that the goods were classifiable under chapter 73 which were subsequently corrected by issuing a corrigendum. Therefore no merit in the contention of the present respondent that the classification under corrigendum is prospective in nature. The findings of the Commissioner(Appeals) in this regard are not sustainable hence set aside.
Merit in the contention of the Revenue that the steel tables supplied to the education department are rightly classifiable under chapter 94 of the Tariff. The findings of the Commissioner(Appeals) in this regard are not sustainable hence set aside.
Appellant has produced evidence regarding purchase of the items in question from other units and in respect of payments made to the suppliers. The Commissioner(Appeals) further held that proprietors of M/s.Dulax Steel and M/s.Radha Steel are relations of the present respondent but there is no mutuality of interest and flow back of consideration to the respondents is established. In the present appeal also this finding regarding mutuality of interest is not under challenge. Revenue is only relying upon the letter written to the education department. In absence of any other evidence no infirmity in the impugned order in this regard. If the clearance of bought out items are excluded from the clearance from the respondents regarding manufactured goods the respondents are well within the S.S.I. exemption therefore no infirmity in the impugned order in this regard. Appeal is disposed of as indicated above.
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2011 (1) TMI 978
Penalty - anti-dumping duty - mis-declaration - SCN issued for confiscation of the goods on the ground that M/s.Parnami Sales Corporation for practical purposes were not actual importer of the consignment under the cover of bill of entry in question - Held that:- There is no finding that IEC code was obtained by fraud or by mis-representation by Shri Mohan Pandey. The adjudicating authority accepted that the submission of the importer that they are having an establishment at the address given at the time of obtaining IEC code. There is no finding regarding mis-declaration of the consignment in question or earlier consignments. The importer fairly admitted during argument that goods are liable for anti-dumping duty and in respect of earlier consignments also appropriate anti-dumping duty as well as customs duty was paid. There is no evidence on record to show that Shri Sanjay Daga gave financial help to Shri Mohan Pandey. However, consideration amount is paid to the exporter by the importing firm. There is no evidence that Shri Sanjay Daga impersonated Shri Mohan Pandey before the customs authorities. Therefore the adjudication order passed on basis that M/s.Parnami Sales Corporation are not actual importer are not sustainable. It is also not established on record that Shri Mohan Pandey obtained IEC code by fraud or by giving any false declaration. There is no proceeding initiated by the D.G.F.T. for cancellation of IEC code. In favour of assesee.
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