Mumbai Court December 2003 Judgments

Ashwinbhai Mohanlal Polra Vs. Commissioner of Cus.

Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai

Reported in: (2004)(166)ELT391Tri(Mum.)bai

1. The appellant have been proceeded against, based on the seizure of gold bars from him which were made from the gold ornaments purchased from one Talab Sidik. The said Talab Sidik had allegedly told the appellant that gold ornaments were made in Dubai. It appears that the police had made initial seizure based on the information that the gold ornaments were smuggled into India. The appellant has been implicated on the charges of smuggling based on the statement of Talab Sidik and Abas Jaku Bhaya to the effect that the ornaments were stolen from a jewellery shop in Malgoi (Dubai).2. Consequent to handing over of the case to customs in the adjudication proceedings, ld. Commissioner ordered confiscation of the seized gold and penalty of Rs. 1 lakh was imposed on the appellant.4. On examining the case records, I note that the entire alleged offence of gold smuggling or dealing in smuggling gold was based on the statement of a co-accused i.e. the seller Shri Talab Sidik. There is no colla...

Sansa Auto Engg. Co. Vs. Commissioner of Central Excise

Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai

Reported in: (2004)(176)ELT713Tri(Mum.)bai

1. Appellants, a SSI unit, manufacture Silencers for Scooters. Benefit of SSI notification No. 1/93 is denied to them as they were found to be using a brand name of another manufacturer who was engaged in the manufacture of Motor cycle Silencers. The CCE (Appeals), after considering the issues, has come to a finding - "(i) The mark being presently used by M/s. Dali & Samir as well as mark being used by M/s. Sansa comprise of 3 letters i.e. D.M & S in varying arrangements and that the mark presently being used by M/s. Sansa and earlier being used by M/s. Dali & Samir also contains in circle, giving impression that it is a registered mark. ii) It is not disputed that the mark being presently used by M/s. Sansa was infact in use by M/s. Dali & Samir for long number of years (more than a decasde) till 1987 or till the date of issuing of show cause notice. (iii) It is not in dispute that this mark which was in use of Dali & Samir had not been sold / transferred to or re...

Asian Plastics Vs. Commissioner of Central Excise

Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai

Reported in: (2004)(186)ELT71Tri(Mum.)bai

1. The stay application arose out of the order of the Commissioner (Appeals) in which he held that the classification of goods, viz.plastic CD tower and plastic audio cassette stand, falls under chapter heading 94.03 of the Central Excise Tariff Act. The applicant classified the above goods under Chapter 39 which covers plastics and articles thereof. According to the department, the goods are rightly classifiable under Chapter 94 which includes furniture, bedding, mattresses etc. The department's contention is that the assessee's goods are classifiable as furniture. The applicant claims that articles of plastic falling under Chapter 39 are exempt from payment of duty. In the impugned order, the Commissioner (Appeals) upheld the lower authority's decision to invoke extended period of limitation as the applicant misdeclared the product in dispute as other household articles instead of describing them as furniture and also that the applicant has not declared the fact that they were using...

Samartha Rubber Products Ltd. and Vs. Commissioner of Central Excise

Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai

Jyoti Balasundaram, Member(J) 1. After hearing both sides for some time on the applications for waiver of pre-deposit of duties and penalties as detailed in the Annexure to this order, we found it possible to decide the appeals themselves; hence after waiving pre-deposit we take up the appeals for final hearing with the consent of both sides.2. The case of the department is that M/s. Pang Rubber Products Pvt.Ltd. has set up another unit namely Samartha Rubber Products Ltd. for fragmentation of its clearances in order to wrongly avail of the benefit of concessional rate of duty under SSI Notification No. 1/93.3. We have heard both sides. We find that the Show Cause Notice raises duty demand on M/s. Samarth Rubber Pvt. Ltd. / M/s. Pang Rubber Products ( Name of the company has since changed as Kwik Patch Ltd.).The adjudicating authority has proceeded on the same basis. The demands therefore have been confirmed on both units which is not legally permissible in the light of the Apex Court...

Jayaswals Neco Ltd. Vs. Commissioner of C. Ex.

Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai

Reported in: (2004)(166)ELT392Tri(Mum.)bai

1. Heard bath sides. A plea has been made by the learned Advocates for the appellants that there is settlement under the Kar Vivad Samadhan Scheme and hence subsequent order of confiscation and penalty is not in order. They cite the following decisions in favour of their arguments :- (1) Prem Lamicoats (P) Ltd. v. C.C.E. Chenmi - 2000 (122) E.L.T. 819 (Tribunal)Pvt. Ltd. v. C.C.E., Mumbai-VI - 2001 (129) E.L.T. 239 (Tri.-Mum.) (3) Kedia Great Galleon Ltd. v. C.C.E. Indore ~ 2001 (135) E.L.T. 218 (Tri.-Del.) 2. The learned J.D.R. however, submits that the settlement under K..V.S.S. was specifically with reference to the duty demand on the shortages and it was made amply clear in the order issued under K.V.S.S. that the settlement will not cover other aspects of the case including goods found in excess.3. I find force in the submissions made by the learned J.D.R. Since the settlement under K.V.S.S. was not a full settlement covering all aspects of the case and was restricted only to the...

Commissioner of Central Excise Vs. Godrej and Boyce Mfg. Co. Ltd.

Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai

1. Heard both sides. This appeal has been filed by the Revenue against the impugned order-in-appeal passed by the Commissioner (Appeals) setting aside the order-in-original. The applicant Commissioner has preferred the following grounds of appeal:- "The order passed by the Commissioner (Appeals) under Section 35A is not legal and proper for the following reasons: The manufacturer intending to clear the goods to 100% EOU against the CT-3 certificate is required to file classification list/classification declaration with the jurisdictional Asstt. Commissioner claiming exemption from the duty under the relevant notification. In the instant case the jurisdictional AC as well as the Range Supdt. issued the show cause notices to the manufacturer seeking denial of the exemption benefit of the notification on the ground that the goods mentioned in the CT-3 certificates were not covered under the annexure to the exemption notification No. 1/95-CE dated 4.1.95. The Assistant Commissioner rightl...

Evergreen Exim P. Ltd. and Two ors. Vs. the Commissioner of Central

Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai

1. Appellants are an assessee, as 100% trading EOU registered with Customs & Central Excise department and the directors of the assessee company.2. Consequent to a proceeding taken by the jurisdictional Commissioner of Central Excise, duty demands under Customs Act 1962 of:- i) Rs. 80,68,012 for supply of the imported goods against Advance Licenses. ii) Rs. 8,27,40,022/- for supply of goods to other EOU s on, inter unit transfers under Bond.Have been fastened, along with penalties of Rs. 3 crores on the assessee company under Section 112 and Section 117 of the Customs Act 1962 and 1 crore each on the two directors (the other appellants) under Section 112 and 117 of the Customs Act 1962 imposed. Hence the appeals and the stay petitions.3. After hearing both sides and considering the submissions at this stage, for an order under Section 129 E of the Court Act for waiver of pre-deposit requirements it is found :- a) Inter unit transfer and removals have been effected under supervisio...

Chetak Enterprises and Shri Vs. Commissioner of Central Excise

Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai

1. Applications for waiver of pre-deposit of duty and penalty arise out of Order of the Commissioner of Customs who has confirmed duty demand of Rs. 13,07,980/- in respect of goods covered under Bill of Entry dated 26.4.2002 and imposed penalty of Rs. 5 lakhs upon M/s. Chetak Enterprises and in addition, imposed a penalty of Rs. 1 lakh upon Mr.Rashid Shaikh, who is treated by the department as the main person behind the import of goods, duty demand of Rs. 16,30,896/- in respect of goods covered by Bill of Entry dated 07.05.2002 and imposed penalties of Rs. 2,50,000/- each on the importers and Shri Shaikh. The goods covered by the Bill of Entry dated 26.4.2002 have already been cleared, while the goods covered by the second Bill of Entry are yet to be cleared.2. Since the goods covered by the Bill of Entry dated 07.05.2002 are still with the Customs authorities and have not been cleared duty on payment and fine, there is no need to apply for waiver of pre-deposit of Rs. 16,30,896/-. Th...

Sri Durga Traders, Jubilee Vs. Commissioner of Customs

Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai

1. These stay applications are being disposed off by this common order as arise from the same order.2. The appellants had filed Bills of Entry and had procured certain ship stores viz., steel wires, ropes etc. from ocean going vessels. The goods were cleared duty free under the guise of ship store scraps from coastal vessels. However, the department held that the goods were liable to duty as the same were procured from 'foreign going vessels' .Duty demands and penalties were imposed under Section 112 & 114A of the Customs Act 1962 and goods seized in turn confiscated.3. After hearing both sides and considering the facts on record and the findings arrived at by the Commissioner it is found that at this prima facie stage of considering an application for waiver of pre-deposit requirements under Section 129E of the Customs Act 1962, the appellant should be placed to a condition of pre-deposit, keeping in view that the demand period and the plea of Section 114A not being retrospective...

Eastern Rug Manufacturers Vs. Commissioner of Customs

Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai

Reported in: (2004)(92)ECC638

1. Vide the impugned order, the Commissioner (Appeals) has held that the Asst. Collector had no jurisdiction to issue show cause notice for demand of duty and imposition of penalty on the ground that inputs imported under the import export passbook duty free licence were being sold in the market contrary to the import and export policy providing for use of the imported items in the final product (catpets) manufactured by the appellants by invoking the extended period of limitation. He has however held that the department is at liberty to readjudicate the case by issuing proper show cause notice, if otherwise permissible under the law, and a fresh show cause notice has also been issued arid is pending adjudication.2. The grievance of the appellants is against such direction. They contend that the Commissioner (Appeals) having set aside the notice issued by the Asst. Collector and the order adjudicating such notice, should have ended the matter: there and not issued such a direction.The...