Mumbai Court January 2010 Judgments
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Commissioner of Central Excise, Nashik Vs. Sunita Pipes Pvt Ltd
Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai
Decided on: Jan-13-2010
1. In this appeal filed by the Revenue, the short question arising for consideration is whether, under Section 11AC of the Act, any penalty is liable to be imposed on the respondent on the facts of this case. On 25.8.2004, officers of the department had visited the respondent’s factory and found shortage of finished goods to the extent of 61,685 kg valued at Rs 28,99,195/- on the basis of quantity of raw material consumed from April 2004 to the date of their visit (25.8.04). In the absence of records relating to the final products, officers ascertained the input-output ratio from the respondent and used it for arriving at the total quantity of finished goods manufactured during the said period. The aforesaid quantity of 61,685 kg was arrived at on this basis. These particulars were stated in a panchnama dated 25.8.2004, in the presence of independent witnesses. Statements of three functionaries of the company were also recorded under Section 14 of the Central Excise Act. In these...
Commissioner of Central Excise, Nashik Vs. Saurabh Manufacturers
Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai
Decided on: Jan-13-2010
1. In adjudication of a show-cause notice dated 6.1.2006, which invoked the proviso to Section 11A (1) of the Central Excise Act on the ground of suppression of facts with intent to evade payment of duty by the respondent, the original authority confirmed a demand of duty of Rs 68,516/- against them and also appropriated equal amount paid earlier by them, towards such demand. It also imposed equal amount of penalty on the party under Section 11AC of the Act. The appellate authority, in an appeal filed by the assessee, sustained the demand of duty but set aside the penalty, following the decision of the Tribunal in Rashtriya Ispat Nigam Ltd vs CCE 2003 (161) ELT 285 (Tri-Bang). The Revenue is in appeal against the setting aside of the penalty and interest. 2. After hearing both sides and considering their submissions, I find that the only question arising for consideration is whether, under Section 11AC of the Act, penalty equal to duty should be imposed on the respondent on the facts o...
Commissioner of Central Excise, Pune Iii Vs. NitIn Associates
Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai
Decided on: Jan-13-2010
1. In adjudication of a show-cause notice wherein it had been alleged, inter alia, that the respondent had clandestinely removed inputs after taking CENVAT Credit thereon and had suppressed material facts before the department with intent to evade payment of duty, the original authority confirmed the demand of duty to the extent of R 5,15,906.50 and appropriated equal amount paid earlier towards this demand. It, however, refrained from imposing any penalty on the assessee under Section 11AC of the Act, as they had paid duty before issue of the show-cause notice. The learned Commissioner (Appeals), in the impugned order, held that the assessee was liable for penalty under Section 11AC. However, considering the factum of payment of duty prior to issue of the show-cause notice, the appellate authority imposed penalty only to the extent of Rs 1.50 lakhs on the assessee to meet the ends of justice under Section 11AC. The present appeal of the Revenue is against the shortage of penalty. The ...
Commissioner of Central Excise, Thane I Vs. Pratibha Pipes and Structu ...
Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai
Decided on: Jan-13-2010
1. After examining the records and hearing both sides, I note that the short question arising for consideration is, whether under Section 11AB of the Central Excise Act, the respondent is liable to pay interest on the differential amount of duty paid by them for the period September 03 to May 05. The said duty was paid under supplementary invoices issued after clearance of the goods. When the goods were cleared from factory, duty had been paid on the assessable value determined on the basis of the price originally agreed between the assessee and their buyers. The price subsequently came to be enhanced as per the relevant price escalation clause of the contract. Accordingly, for recovering the differential price from the buyers and paying the differential duty on the goods, the assessee issued the above supplementary invoices. The question whether interest under Section 11AB was payable on such differential amount of duty was settled by the Hon’ble Supreme Court in the case of Com...
Commissioner of Central Excise, Pune-i Vs. M/S Automotive Stamping and ...
Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai
Decided on: Jan-13-2010
Per: Shri Ashok Jindal, Member (Judicial) This appeal is filed by the Revenue against the impugned order, wherein the lower appellate authority had held that the ratio of the decision in the case of Commissioner of Central Excise, Delhi-III Vs. Machino Montell (I) 2004 (62) RLT 709 (CESTAT-LB) is squarely applicable and accordingly, the penalty was dropped. Aggrieved from the same, the Revenue is before me. 2. The learned SDR submitted that it is well settled law by the Apex Court in the case of Union of India Vs. Rajasthan Spinning and Weaving Mills 2009 (238) ELT 3 (SC) that the mandatory penalty under Section 11AC is leviable on the assessee when the duty is confirmed and in that case the lower authorities have confirmed the demand under Rule 12 of the Cenvat Credit Rules, 2002 read with proviso to Section 11A of the Central Excise Act, 1944. In that event, the penalty equal to the duty is imposable on the respondents. He, further submitted that as the respondents did not pay the 2...
Commissioner of Customs (Acc and Import), Mumbai Vs. Anil Kumar Agarwa ...
Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai
Decided on: Jan-13-2010
1. The respondent had imported a motorcycle gifted to him by his Australian friend. After he filed a Bill of Entry dated 1.7.02 for its clearance, the Customs authorities, on first-check examination, found the motorcycle to be reconditioned. The vehicle was found to have been manufactured in July 1998. The registration certificate indicated that the vehicle was registered in 2000. As per the EXIM Policy 2002-07, imports of second-hand vehicles were governed by the Licensing Notes under Notification No 4(RE-2001)/1997-2002 dated 31.3.2001 issued by the DGFT. According to these Notes, the imported vehicle should not be more than three years old and the importer should fulfill certain conditions. One of these conditions was that the importer should submit a certificate issued by a testing agency (notified by the Central Government) to the effect that the second-hand/used vehicle imported into India had been tested immediately before shipment to India and the vehicle conformed to all the R...
Siganpurkar's Leather House Pvt Ltd Vs. Commissioner of Central Excise ...
Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai
Decided on: Jan-13-2010
1. The short question arising for consideration in this case is whether the appellant is liable to pay any interest over and above what they paid under Section 11AB of the Central Excise Act on the amount of duty paid for the period from June 03 to June 05. The facts of this case are similar to those of the decision in Sai Trading vs Commissioner 2009 (241) ELT 233 (Tri-Mum). The relevant part of the order passed by this Bench in the said case is reproduced below: “3. As rightly pointed out by the learned counsel for the appellants, the expression at the rate of 2% per month or Rs 1000/- per day, whichever is higher contained in Rule 8 (3) (as this provision stood prior to 1-4-2005) was invalidated by the Rajasthan High Court in the case of Lucid Colloids Ltd vs Union of India -2006 (200) ELT 377 (Raj) and it was held that interest chargeable on delayed payment of duty had to be only at the rate notified by the Central Government under Section 11AB. I am told that the view taken ...
Bhavesh Developers Vs. the Assessing Officer,
Court: Mumbai
Decided on: Jan-12-2010
D.Y. Chandrachud, J.1. Rule. By consent of the Counsel and at their request, made returnable forthwith and taken up for hearing and final disposal.2. The challenge in these proceedings under Article 226 of the Constitution of India, is inter alia to a notice issued under Section 148 of the Income Tax Act, 1961, seeking to reopen assessment proceedings. The relevant Assessment Year is 2002-03.3. The Petitioner engages in the business of developing and constructing buildings. During the Assessment Year 2002-03, the Petitioner filed a return of income on 14th January 2004 and claimed a deduction of Rs. 3,85,75,992/- under Section 80-IB(10) of the Act. The return of income was initially processed under Section 143(1) and the declared income was accepted by the Assessing Officer. The case of the Petitioner was thereupon selected for scrutiny. Notices were issued under Sections 143(2) and 142(1) of the Act. In response, the Chartered Accountant of the Petitioner submitted representations on ...
Commissioner of Central Excise, Mumbai Vs. M/S. Flow Control Industrie ...
Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai
Decided on: Jan-12-2010
Per : Ashok Jindal These appeals are filed by the Revenue. Brief facts of the case are that against the adjudication order No. V-Adj(Ch.73/84)15A-33/2002 dated 25.07.2002 appeals were preferred by both, the respondent as well as Revenue. The Commissioner (Appeals) while hearing the appeal of the respondent, allowed the appeal vide Order No. SDK (164) 164/M-V/2003 dated 30.06.03 and the appeal filed by the Revenue was also allowed vide Order No. SDK (212) 212/MV/03 dated 30.09.2003. Against the order in which the party’s appeal was allowed, the department is in appeal before us. 2. Heard. 3. From the records, we find that the Commissioner (Appeals) had passed a conflicting order in the appeals preferred by both the parties against the impugned order passed by the adjudicating authority. By allowing the appeal of both parties, the Commissioner (Appeals) has not arrived at a particular decision. In fact the Commissioner (Appeals) would have heard both the appeals altogether and had ...
Miltech Industries Pvt. Ltd. Vs. Commissioner of Central Excise, Nagpu ...
Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai
Decided on: Jan-12-2010
Per : Ashok Jindal The appellant filed this appeal against the order of confirmation of mandatory penalty of Rs.38,53,724/- under Section 11AC, penalty of Rs.1,00,000/- under Rule 173Q of erstwhile Central Excise Rules, 1944 read with Section 38A of the Central Excise Act, 1944 and imposition of redemption fine of Rs.10,00,000/- in lieu of confiscation of goods under Rule 173Q(1) of Central Excise Rules, 1944. 2. Facts of the case are that the appellants are engaged in the manufacture of Parts and Accessories of Arms and Ammunition falling under Chapter sub-heading No.9305.00 and Mine assembly falling under Chapter Sub Heading No. 9306.00. The appellant had filed the classification declaration with effect from 01.03.2001 claiming Central Excise Basic Duty @ 16% advalorem as per first schedule to the Central Excise Tariff Act, 1985 and Special Excise Duty @ 16% Adv. as per the Second Schedule to the Central Excise Tariff Act, 1985 payable on their final product. The appellant was payin...
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