Reported in : (2007)(119)ECC118
.....case of l&t ltd. reported at 2005 (189) elt 179 had an occasion to consider the said judgment of the hon'ble supreme court and it applies to the fact as in this case. hence, he submits that his claim for interest for the period 26.8.95 to 2.5.96 is ought to be allowed.4. learned sdr on the other hand submits that the question of interest in this case does not arise because of the judgment of the hon'ble supreme court in the case of oswal agro mills (supra). it is his submission that once the bank guarantee is given by the appellant it mean he has not paid the excise duty. it is his submission that encashment of the bank guarantee is not covered under the provisions of section 11b.5. considered the submissions made by both sides at length and perused the record. the facts are undisputed. the appellant had filed claim for interest for the period 26.8.95 to 2.5.96 after enactment of section 11bb in the central excise act. the question involved in this case whether encashment of the bank guarantee by the authorities would constitute as pre-deposit or recovery of dues. a conservative view would indicate that encashment of bank guarantee would look like pre-deposit made by the.....
Tag this Judgment! Ask ChatGPTReported in : (2007)(118)ECC172
.....issued by the jurisdictional deputy commissioner (available on record). on the strength of these end-use certificates as also on the basis of the fact that the abidjan branch of m/s. bureau veritas was subsequently recognized as an inspection agency by the govt., the appellants are pleading for vacating fine and penalty. learned counsel relies on the tribunal's decision in northern india steel rolling mills v. commissioner 2006 (200) elt 123 (tri.del.), wherein, on similar facts, confiscation and penalty were set aside. learned counsel also claims support from the tribunal's decision in shri dinesh mills ltd. v. commissioner to his submission that, where end-use certificate is produced, penalty cannot be imposed.4. learned sdr submits that, in the case of northern india steel rolling mills (supra), the amendment to exim policy had been brought during the course of loading of consignment abroad and, in such circumstances, it was held that there was no intentional infraction of law by the importer. she also seeks to distinguish the other case cited by counsel.5. after giving careful consideration to the submissions, i find that the appellants have not established a case for.....
Tag this Judgment! Ask ChatGPTReported in : (2007)10STJ11CESTAT(Chennai)
.....for stay filed by m/s. thejus badri & jatin badri co., salem, the appellants have sought to stay the operation of the impugned order. facts of the case are that the appellants are registered as a 'clearing and forwarding agent' since february, 2004 in salem commissionerate. the appellant assists the representative of m/s.vasavadatta cement, gulburga, in receiving, warehousing and forwarding consignments of cement sent by m/s. vasavadatta cement. the function of the appellant include assisting the said representative of m/s.vasavadatta cement in the following activities. (a) receiving the goods from the factories or premises of the principal or his agents; (d) arranging dispatch of goods as per the directions of the principal by engaging transport on his own or through the authorized transporters of the principal.the original authority had confirmed demand of differential service tax from the appellant for the above mentioned services he had rendered during june, 2003 to march 2004 allegedly as a c&f agent. in the appeal before the commissioner (appeals), the appellants had argued that they were not a c&f agent and had been only assisting the representative.....
Tag this Judgment! Ask ChatGPTReported in : (2007)9STT193
.....to a conclusion whether there was existence of any reasonable cause to arrive at a decision that no penalty is warranted under section 76 and such a decision is to be dealt in the light of provisions contained in section 80. it is needless to mention that section 80 is overriding section and has primacy over section 76 of the finance act, 1994. the appellate authority while deciding the matter shall offer fair opportunity to the respondent to state the cause/reason which prevented them to comply to the provision of section 76 and consider the reasons so stated to satisfy mandate of section 80 for appropriate decision. the impugned order is thus set aside by way of remand and revenue succeeds partly.
Tag this Judgment! Ask ChatGPTReported in : (2007)(120)ECC282
1. the relevant facts of the case, in brief, are that the appellant engaged in the manufacture of v.p. sugar and molasses specified under chapter 17 of the schedule to the central excise tariff act 1985. the appellant had been availing cenvat credit on brass tubes as capital goods under rule 57q of central excise rule 1944. it has been alleged that the appellant had cleared/sold scrap of brass tubes which was generated out of capital goods on which the appellant had availed modvat credit. as such, in terms of rule 57ab(1) of central excise rules 1944 and explanation appended thereto valid upto 1.4.2000 to 30.6.2001 read with rule 3(4) of cenvat credit rules 2001 & 2002, they were required to pay duty @ 16% adv. on the scrap of brass tubes, which they failed to discharge and suppressed the fact.2. the ld. advocate on behalf of the appellant submits that the appellant cleared old and used brass tubes (scrap) on 9.8.2001 for further conversion into tubes, when cenvat credit rules 2001 were in force and therefore, demand of duty under central excise rules 1944 cannot be sustainable. he further submits that it is obligatory upon the department to prove that the old and used.....
Tag this Judgment! Ask ChatGPTReported in : (2007)(118)ECC214
.....credit rules do not require that the inputs received have to be used within a specified period. as long as the inputs are available within the factory premises, credit need not be reversed. the following case-laws were relied on:bharat heavy electricals ltd. v. cce, bangalore 2002 (50) rlt 208(cegat-ban.). (iv) an amount of rs. 1,71,086/- in annexure 'd' relates to inputs cleared as such for the period from 01.04.2000 to 28.11.2001. the appellants have correctly reversed the credit availed on the inputs. however, revenue contended that when the inputs are cleared as such, duty ought to have been paid at the rate applicable to such goods on the date of removal on the value determined under section 4. department's contention is not correct in the light of board's circular no. 643/34/2002-cx dated 1.7.2002 and the following three decisions:ispat metallics industries ltd. v. cce, raigad (v) in respect of annexure 'e', an amount of rs. 10,20,835/-relates to the credit on rejected inputs lying in stock. according to the department, these inputs are not going to be used in the manufacture and, therefore, the credit is to be reversed. it was contended that in respect of inputs.....
Tag this Judgment! Ask ChatGPTReported in : (2007)10STJ20CESTAT(Chennai)
.....premise that the assessee had not paid service tax as assessed by themselves in the returns which were filed on 12.12.2002.that the assessee had, in fact, made such payment is a fact acknowledged by the original authority. however, apparently, it occurred to the commissioner that such payment of tax was beyond the period prescribed under the finance act, 2003. he took the view that that the finance act, 2003 did not grant any extension of time for payment of service tax by recipients of gto services for the aforesaid period. obviously, learned commissioner was misconceiving the provisions of law. he also failed to take into account the relief granted to similar assessees by the apex court in the case of gujarat ambuja cements (supra). their lordships had held, in para 44 of their judgment as under: ...furthermore the liability to pay interest or penalty on outstanding amounts will arise only if the dues are not paid within the period of two weeks from the order passed by this court on 17^th november, 2003. in those cases in which the tax may have been paid but not refunded to the writ petitioners, for whatever reason, there is no question of levy of any interest or penalty at.....
Tag this Judgment! Ask ChatGPTReported in : (2007)10STJ22CESTAT(Chennai)
.....the appeal, filed by the revenue was rejected. the said decision was made after considering the judgments cited by the ld. sdr, according to the ld. counsel.6. on a careful consideration of the submissions made by both sides and the facts contributing to the delay, i do not find that the appellant had pursued the appellate remedy with diligence it deserved. it is seen from the apex court's decision in the case of uoi v. tata yodogawa ltd. reported in 1988 (38) elt 739 (s.c.), that in that case the application seeking condonation of delay of 51 days filed by the revenue was dismissed for the reason that the appellant had failed to explain the cause for the delay. the hon'ble apex court felt that the delay was not condonable even after giving certain latitude to the appellant, it being an impersonal body and took longer time than private bodies or individuals. the delay involved has not been satisfactorily explained.in the circumstances, i do not find that the delay in filing the appeal had occasioned due to sufficient cause. accordingly, i reject the cod application. the appeal also is dismissed.
Tag this Judgment! Ask ChatGPTReported in : (2007)9STJ213CESTAT(Mum.)bai
1. the application for waiver of pre-deposit of service tax of rs. 56,736/- and penalty of equal amount is allowed, as prima facie the show cause notice does not call upon the applicants herein, the indian company, to show cause against the recovery of service tax and penalty.pre-deposit is therefore, waived and recovery stayed pending the appeal.
Tag this Judgment! Ask ChatGPTReported in : (2007)7STR266
.....that the recipient of the service has been treated as service provider and liable to pay service tax. prior to that service provided by the foreign company having no business establishment in india cannot be considered as a taxable service and, therefore, service tax cannot be recovered from it.3. we have considered the submissions. we find that as per section 64 of the finance act 1994, chapter relating to the service tax extends to the whole of india except the state of jammu and kashmir, which means that the tax will not apply, to a person or a company, which is situated out side india having no business establishment in india, service tax from such provider of the service cannot be recovered and it is for this purpose only that an amendment was made in 2002, when such service was treated as the taxable service and the recipient of the service was made liable to pay service tax. in view of the above, we allow the appeal and set aside the order of the commissioner (appeals).
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