Mumbai Court November 2001 Judgments

Pearl Plast Vs. Commissioner of Central Excise

Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai

1. The assessee filed an appeal to the Commissioner (Appeals) against the order of the Additional Commissioner of Customs and also simultaneously filed an application for seeking waiver of despot of duty demanded, penalty imposed and fine fixed for goods which had already been cleared. By his order dated 28.2.2001, the Commissioner (Appeals) directed the applicant to furnish a bond with a bank guarantee for Rs. 2.5 lakhs within 15 days from the receipt of this order. The assessee submitted a bond with bank guarantee with the Dy.Commissioner at Nashik, the jurisdictional authority, which was received by him on 30.3.2001. By order dated 30.3.2001, the Commissioner (Appeals) dismissed the appeal before him for failure to furnish evidence of compliance with the stay order. Representative of the applicant accepts that the Commissioner was informed of the acceptance by the Dy. Commissioner, Nashik of the bond and bank guarantee on 3.4.2001 i.e. three days after the date that he was to repor...

Nutan Dye Chem Vs. Commissioner of Customs, Mumbai

Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai

1. For reasons recorded below, we waive the pre-deposit of Rs.8,69,393/- and penalty of Rs. 80,000/- confirmed against the appellants herein and proceed to dispose of the appeal itself after hearing both sides since the issue stands covered by series of decisions of the Tribunal.2. The appellants were transferee holders of the Value Based Advance Licence and imported goods in November, 1994 in terms of Notification No.203/92. Show cause notice was issued both to the appellants as well as to the original licence holder M/s. Aarti Organic Ltd. proposing recovery of duty on the ground that the condition of the Notification had been violated since M/s. Aarti Organic Ltd. availed of modvat credit of inputs contrary to the condition of Notification No. 203/92.The notice also proposed penalty against both the notices.3. The Adjudicating Authority confirmed the duty demand by applying the extended period of limitation and also imposed penalty as above. Hence, this appeal.4. The Advance Licenc...

Stanlek Engineering Pvt. Ltd. Vs. Commissioner of Central Excise,

Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai

1. It is brought to our notice by the ld.Consultant for the applicants while arguing the application for waiver of pre-deposit of penalty of Rs.1,43,815/- that the matter had been come up earlier by way of appeal to the Tribunal which directed pre-deposit of Rs. 20,000/- towards penalty and remanded the case for fresh decision on merits and the ld.Consultant, therefore, submits that since this amount already stands paid by them consequent upon the Tribunal's remand order, no further pre-deposit of penalty may be called for keeping in mind that the duty amount stands paid.2. The ld.departmental representative reiterates the findings of the authority below.3. Having regard to the above submissions, we are of the view that no further pre-deposit should be called for and we, therefore, waive the pre-deposit of the penalty amount and stay recovery thereof pending the appeal....

Datar Switchgear Limited Vs. Commissioner of Customs and

Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai

1. The applicant seek modification of the stay order dated 30th July, 2001, by which pre-deposit of Rs. 40 lakhs, ordered to be recovery of modvat credit, was directed on the ground that they are a sick industrial company registered with the BIFR under the Sick Industrial Companies Act, 1985, and that their financial position has worsened since the passing of the stay order. In this connection they state that they have incurred losses of Rs. 26.57 crores up to 30th September, 2001. They are unable to pay interest to Banks and Financial Institutions, unable to pay salary and wages to their employees and are also unable to pay statutory dues such as Provident Fund, Employees' State Insurance, etc.2. The prayer is opposed by the learned DR on the ground that all the pleas raised now have been considered by the bench and taken into account while directing pre-deposit.3. We have carefully considered the rival submissions. The fact that the applicant Company's application to the BIFR was re...

Commissioner of Customs (P), Vs. Aandb Fashions Pvt. Ltd., J.S. Gill,

Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai

1. These applications are for stay of the operation of the order of the Tribunal made on 4.8.2000 in the appeals before them.2. In the impugned order, the Tribunal after looking into the facts of the case, evidence submitted before him, after appreciating the same have disposed of the appeals. In doing so, we have said that as far as the appeal filed by Abhyankar is concerned, the imposition of penalty was sustained. As far as the other appellants were concerned, the order imposing penalty and demanding duty do not sustain. The question is whether stay of operation of the order should be made when the department has moved a reference application in the Honourable High Court of Mumbai.3. The impugned order has been passed on the basis of the facts submitted before him and on the appreciation of evidence. These are all pure questions of fact. However, the Tribunal in its order dated 6.5.96 in C/Misc-185/96 in C/459/95, that is, appeal filed by A&B Fashions Pvt. Ltd. directed the app...

V.K. Mehta and Rajesh M. Desai Vs. Commissioner of Customs,

Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai

1. The above applications for waiver of pre-deposit of penalty of Rs.50 lakhs imposed on Shri Rajesh Desai and of Rs.1,00,000/- on Shri V.K.Mehta arise out of the order of the Commissioner of Customs and are taken up together and disposed of by this common stay order.2. Penalty has been imposed on Shri Rajesh M Desai holding that he was a front for import of KDPE/PP/LDPE by M/s. Tristar Exports of which Shri Viresh B.Kamdar was the proprietor, the duty free goods imported by which against the Actual User Advance Licence were not utilised in the manufacture of export product but diverted by sale in the domestic market instead of being utilised in the manufacture of export product in violation of the condition of the Notification No.204/92 dated 19.5.92, claimed by M/s. Tristar Exports. It is the contention of Shri H.R.Shetty, ld.counsel for Shri Rajesh M.Desai that his client is in no way connected with the import by M/s. Tristar Exports and in no way involved in any mis-use of actual ...

Gujarat Ship Trading Corporation Vs. Commissioner of Customs,

Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai

1. This is an application for waiver and stay of recovery of Rs. 3,17,814/- confirmed as differential duty upon the applicants herein.Against the duty confirmation, the applicants preferred an appeal before the Commissioner of Customs(Appeals) who dismissed the appeal before him on the ground of limitation. The applicants then fled an appeal before the Tribunal who remanded the case for fresh decision after supply of copy of the letter dated 17.7.2000 of the Dy.Commissioner which was relied upon for coming to the conclusion that the appeal was time barred since the date of receipt of the Order-in-Original was shown to be 25.3.99, to the appellants.2. None appeared for the applicants in spite of notice. Hence, we have heard the departmental representative and perused the records.3. The Commissioner(Appeals) on remand of the case to him has discussed the issue on limitation and come tot eh conclusion that the appeal filed before him was time barred after examination of the record to sho...

Sanju Silk Mills Pvt. Ltd. and Vs. Commissioner of Central Excise,

Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai

1. The Commissioner of Customs has confirmed the duty demand of Rs.11,64,313/- and imposed penalty of amount equal to duty on M/s.Sanju Sild Mills (P) Ltd. and he has imposed a penalty of Rs. 5 lakhs on Shri Tarachand B.Sharma, Director of M/s. Sanju Silk Mills Pvt.Ltd. The duty demand has been confirmed on the admitted fact of sale of raw materials instead of utilisation of the same in the manufacture of export products and this is the admission made by the Director of the company. The penalty has been imposed upon the Director on the ground that he was working Director of the unit and the goods were sold by him in the open market without payment of Customs duty.2. On hearing both the sides and noting that the entire duty amount already stands paid by the assessee even prior to the issue of show cause notice, we waive the pre-deposit of penalty imposed upon M/s.Sanju Silk Mills Pvt.Ltd. and stay recovery thereof pending the appeal filed by the Mills.3. Regarding the application filed...

D.B. Technologies (P) Ltd. Vs. Commissioner of Central Excise,

Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai

1. The application for early hearing of the above appeal is allowed and the appeal itself is taken up for disposal since the issue in dispute viz. classification of UPS system stands decided by the Larger Bench of the Tribunal in the case of Luminous Electronics Pvt. Ltd v. Comr. of C.Ex. New Delhi [2001(129) E.L.T 605 (Tri-LB) in which the Tribunal has held that UPS systems are classifiable as static converters under heading 85.04 of the Schedule to the Central Excise Tariff Act, 1985 over-ruling the earlier decision of the 3 Member Bench (LB) in the case of Tata Liebert (2000(117) E.L.T. 817 (Tri). In the present case, the authorities below classified UPS systems under Heading 8543. Following the ratio of the Larger Bench decision (supra) in the case of Luminous Electronics Pvt. Ltd. we hold that UPS systems manufactured by the appellants herein fall for classification under Heading 85.04 and set aside the impugned order and allow the appeal with consequential relief to the appellan...

Commissioner of Customs, Sheva Vs. R.C. Overseas Pvt. Ltd.

Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai

Reported in: (2002)(149)ELT338Tri(Mum.)bai

1. R.C. Overseas, the respondent to this appeal, filed four bills of entry for clearance of brass scrap of the type "Honey". Examination of the scrap totally weighing 72.51 tons revealed the presence of serviceable goods in the form of brass nozzles weighing 7.48 tons.Notice was issued to the importer proposing confiscation of the entire consignment under provision of Sub-section (l) and (m) of Section 111 of the Act and penalty under Section 112. After hearing the importer and considering the submission made by him, the Commissioner passed his order impugned in this appeal. He ordered the nozzles to be assessed to duty at the rate applicable not to scrap but to prime material, the rest to the rate applicable to scrap. He also provided that in the event that the importer seeks importation of the goods, the entire lot should be assessed to duty of scrap. Coming to his conclusion, the Commissioner said that the definition of "Honey: variety of brass scrap of the International Scrap Recy...