2000 (9) TMI 453 - CEGAT, MUMBAI
DEMPO ENGINEERING WORKS LTD. Versus COMMISSIONER OF CUS. & C. EX., GOA
Stay/Dispensation of pre-deposit ......
........... sonably believe that customs duty although leviable on the goods was exempted, and concluded that in that situation it was not liable to excise duty. The fact that the contract between the applicant and the buyer referred to excise duty, if any, payable is no answer. This initial belief could well have been changed later in the light of the other factors which we have enumerated. 3. emsp There is another aspect. These barges manufactured by the appellant appear to be ocean-going vessel as interpreted by the Tribunal in decision in Vipul Shipyard v. CCE 1985 (19) E.L.T. 122, exempted from excise duty by various notifications, except between 1-3-1997 to 7-5-1997 when the exemption notifications were not in force. There could therefore be a reason to believe prima facie that Notification 25/97 issued on 7-5-1997 restoring the exemption on barge would have retrospective application. 4. emsp Accordingly we waive deposit of duty demanded and penalty imposed and stay their recovery.
2000 (9) TMI 452 - CEGAT, MUMBAI
RAJ RAYON LTD. Versus COMMISSIONER OF CENTRAL EXCISE, SURAT-II
Demand - Limitation ......
........... tion of limitation. The state of mind of the assessee or the department prior to the amendment would not be affected by this fact. That the department itself was under the belief that such air-texturing was not a process amounting to manufacture is made clear in the report which the Chief Commissioner having jurisdiction over the assessees has sent to the Ministry of Finance by the letter dated 3-6-1999 of his Joint Commissioner. In the letter, the Joint Commissioner has communicated to the Ministry the views of the Chief Commissioner that the yarn subjected the air-mingling or air-texturing was being levied to duty from the date of presenting of the budget. It is thus clear that prior to this date the department itself did not consider either of these processes to be manufacture. Therefore the extended period was not available to the department and duty demanded, penalty imposed and confiscation have to be set aside. 5. emsp The appeals are allowed. Impugned order set aside.
2000 (9) TMI 451 - CEGAT, CHENNAI
YODEVA PLASTICS (P) LTD. Versus COMMISSIONER OF C. EX., COIMBATORE
Batteries - Parts of - Exemption ......
........... ts in this case cannot be exempted since they have not been cleared to site, for assembly of batteries they have been cleared to a factory premises for manufacture of stationary batteries which are thereafter cleared to certain other sites in unassembled condition. We find that this submission has not been made by the department and was never part of the show cause notice issued. We refrain from giving any findings on the same when we are coming to a conclusion that parts of lsquo storage batteries rsquo used for manufacture of lsquo stationary batteries rsquo elsewhere than in the factory of production are not eligible for the benefit of the Notification in question as per Sl. 5 of the table annexed thereto. A finding on this submission of the learned DR is not called for. 5. emsp In view of above findings, we hold that there is no reason in the grounds made before us to upset the order of the Collector (Appeals) and we confirm the same and therefore, the appeal is rejected.
2000 (9) TMI 449 - CEGAT, MUMBAI
VASU CHEMICALS Versus COMMISSIONER OF CENTRAL EXCISE, MUMBAI
SSI Exemption - Registration ......
........... een complied with. 2. emsp The Asstt. Collector confirmed the proposal in the notice. The appeal against this order having been dismissed by the Collector (Appeals) on the ground of limitation, the appellant is before us. 3. emsp Notification 1/93 contained the condition that the manufacturer should be registered as a small scale industry with the Director of Industry, that the appellant was not so registered was not disputed. In its decision in Manko Industries v. CCE 1994 (73) E.L.T. 375 the Tribunal has held that it is not necessary for the benefit of the Notification 175/86 to be extended that each product manufactured must be specified in the registration certificate issued to a manufacturer as a small scale industry. The Notification 1/93 is a successor of 175/86 and the reasoning of the Tribunal would apply with equal force to this notification. The appellant therefore was entitled to the benefit of notification. 4. emsp The appeal is allowed. Impugned order set aside.
2000 (9) TMI 447 - CEGAT, MUMBAI
ACME MANUFACTURING CO. Versus COMMISSIONER OF C. EX., MUMBAI-II
........... -assembled for transport to be re-assembled at the site of the customer will not lead to their emergence as a complete product being deferred to at the site of the customer. The appellant had submitted before the Assistant Collector that the cranes were tested at its factory before being disassembled for transport and this is not being questioned. One of the contract for the nitrogen plant for supply to M/s. Tata Metals and Strips Limited at Navsari dated 6-2-1991 refers to inspection at various stages of manufacture by buyer s representative at appellant s or sub-suppliers works and for provision of test certificate at various stages of manufacture. This indicates to us that the goods were complete before they were cleared. In any case as we have noted he emphasises of the Collector (Appeals) order is only upon the singularity of the contract. In these circumstances we are of the view that these charges are not includable. 5. emsp Appeal allowed and impugned order set aside.
2000 (9) TMI 445 - CEGAT, NEW DELHI
CENTURY LAMINATING CO. LTD. Versus COMMISSIONER OF C. EX., MEERUT
........... ocument under the rules, he cannot be denied the benefit of the same on the grounds that the dealer who had issued the modvatable invoice had received the goods from another dealer who had not got himself registered. First of all the appellants had no means to verify that the dealer who had passed on the modvat credit to him had in turn received the goods from another dealer who was not authorised to issue the modvatable invoices. Secondly, if at all the modvat credit was sought to be denied, the concerned party who had passed on the modvat credit in an authorised manner should have been made a party to the proceedings so as to enable them to state their part of the case and thereafter the decision should have been taken. In the present case the assessee has received the goods under the cover of the proper copy of invoice. I therefore, find no ground to deny them the Modvat credit. Accordingly I set aside the order passed by the lower Appellate authority and allow the appeal.
2000 (9) TMI 444 - CEGAT, CALCUTTA
HARBANS LAL MALHOTRA & SONS LTD. Versus COMMR. OF C. EX., CALCUTTA-II
Stay/Dispensation of pre-deposit - Modvat ......
........... habad - 1996 (87) E.L.T. 522 wherein it is held that an input which is merely used for better operation of the machinery shall remain outside the scope of Modvat scheme. He, therefore, submits that there is no case for grant of stay. 4. emsp On a careful consideration of the above submissions from both sides and on a close perusal of the case law by the ld. Constt. and also by the learned JDR, I am of the view that the applicant/appellant has made out a prima facie case in his favour. The case law cited by him appear to be relevant. It is observed that the case law cited by the ld. JDR was duly taken note of by the Tribunal in the case of Devidayal Aluminium Industries (P) Ltd. supra but rejected the ratio contained therein. From this it is evident that the applicant/appellant has made out a prima facie case in his favour. I, therefore, waive the condition of pre-deposit of duty and penalty and order that recovery of the same shall be stayed during the pendency of the appeal.
2000 (9) TMI 443 - CEGAT, CALCUTTA
BRIMS PRODUCT Versus COMMISSIONER OF CENTRAL EXCISE, PATNA
Stay/Dispensation of pre-deposit ......
........... an masala. As rightly pointed out by the learned Consultant, there appears no positive evidence to show clandestine manufacture and surreptitious removal of the impugned goods. The Department has mainly relied upon the raw material namely, lsquo supari rsquo received in the factory during the said period. For manufacture of pan masala, supari is no doubt the main ingredient but other ingredients such as, essence, kaththa, tobacco are also required. In order to prove the clandestine manufacture, one has to get the evidence with regard to surreptitious receipt of tobacco, essence and other ingredients that go into manufacture of pan masala. Such an evidence is not forthcoming on record. I am, therefore, convinced that the appellants have been able to make out a prima facie case in his favour. Accordingly, I order complete waiver of the condition of pre-deposit of the said duty and penalty. During the pendency of the appeal, recovery of the same shall not be made by the Revenue.
2000 (9) TMI 442 - CEGAT, CALCUTTA
BIHAR FOUNDRY & CASTINGS LTD. Versus COMMR. OF C. EX., JAMSHEDPUR
Stay/Dispensation of pre-deposit - Seizure ......
........... tional waiver of pre-deposit of the said duty and penalty. 3. emsp Shri R.K. Roy, learned JDR appearing for the Revenue, reiterates the reasoning contained in the impugned order. He submits that in view of the well reasoned findings of the learned Commissioner, the prayer of the appellants for waiver of pre-deposit of duty and penalty merits outright rejection. 4. emsp After hearing the rival contentions and on a cursory glance at the evidence on record, we find that on merits the matter is arguable from both sides. We note that the appellant rsquo s goods valued at Rs. 61,23,22/- (sic) are still lying under seizure which undoubtedly creates a severe financial constraint causing undue hardship to them. As the seized goods are stated to be under the custody of the Department, public interest is adequately safeguarded. Subject to continued custody by the Department of the said seized goods, we grant waiver of pre-deposit of the duty and penalty. Appeal to be heard on 26-9-2000.
2000 (9) TMI 441 - CEGAT, NEW DELHI
UREKA POLYMERS LTD. Versus COMMISSIONER OF CENTRAL EXCISE, NEW DELHI
Clandestine manufacture - Evidence of third party - Penalty ......
........... nt s firm and therefore, would not normally do the same business as Commission Agent and thus his contention that he was doing business on his own account is not convincing. 18. emsp In so far as imposition of penalty is concerned, we note that the appellant firm was not keeping correct record of the raw material received, used for manufacture and was removing the goods without payment of duty. We, therefore, hold that the imposition of penalty is warranted. However, looking to the facts of the case, we reduce the penalty to Rs. 5 lakhs on M/s. Ureka Polymers. 19. emsp We find that Shri Dinesh Rustagi during the material period was the Managing Director of the appellant firm. He was concerned with manufacturing, selling, dealing in excisable goods. We, therefore, hold that penalty was imposable. However, looking to all the facts and circumstances of the case, we reduce the penalty on Shri Dinesh Rustagi to Rs. one lakh. 20. emsp The appeals are disposed of in the above terms.
2000 (9) TMI 391 - CEGAT, NEW DELHI
COMMISSIONER OF C. EX., RAIPUR Versus JAYPEE REWA CEMENT
Reference to High Court - Modvat ......
........... law. The fact remains that the factory has a definite connotation under the Excise law and Explosives normally are not used in the manufacture of lime-stone in the factory. We, therefore, hold that a point of law arises and needs to be referred to the Hon ble Madhya Pradesh High Court at Jabalpur. 5. emsp Insofar as furnace oil is concerned, we note that furnace oil in the instant case was being supplied by the outlet at Satna of the Indian Oil Corpn. This outlet was preparing documents in terms of Rule 57GG. Since the documents were in terms of Rule 57GG, therefore, registration of the outlet with the Excise authorities was a statutory requirement. We note that in the case against which the present application has been preferred, this aspect was not considered. We consider this aspect to be an important one and therefore, a point of law arises for reference to the Hon ble Madhya Pradesh High Court. 6. emsp In view of the above findings, the reference application is allowed.
2000 (9) TMI 390 - CEGAT, NEW DELHI
SHOBHIT IMPEX Versus COMMISSIONER OF CENTRAL EXCISE, CHANDIGARH
Stay/Dispensation of pre-deposit ......
........... for imported goods on which the buyer/manufacturer could avail of credit of additional duty, (and not excise duty) and that it is only after the amendment of this Sub-rule w.e.f. 21-7-1999 that the Rule covered cases where wrong entries were made in invoices to facilitate buyers/manufacturers to avail inadmissible credit of additional duty. The Commissioner has also given a finding in the order that he would have agreed with the applicants rsquo contention if the proposal to impose penalty was under that sub-rule of Rule 173Q. In view of the prima facie case made out, we waive the pre-deposit of penalty by the applicant No. 1 and stay recovery thereof during the pendency of the appeals. 4. emsp Pre-deposit of penalty by the other two applicants is also waived and their recovery stayed pending the appeals, in view of the fact that the show cause notice proposes penal action against them under Rule 173Q, while penalty has been imposed under Rule 209A in the adjudication order.
2000 (9) TMI 389 - CEGAT, NEW DELHI
DIAMOND WIRE INDUSTRIES Versus COMMISSIONER OF C. EX., INDORE
Rectification of mistake ......
........... ent view of this Tribunal that if any product, considered to be exempted from payment of duty initially, is held to be liable to central excise duty, Modvat credit will be available to the Assessee irrespective of the fact that Modvat procedure of filing the declaration, was not followed. Accordingly, we rectify the mistake by ordering that the Appellants would be eligible for Modvat credit of the duty paid on the inputs which were used in or in relation to the manufacture of enamelled copper winding wire manufactured by them and involved in the present proceedings subject to the condition that the Applicants satisfy the jurisdictional Assistant Commissioner by producing documentary evidence that eligible inputs were duty paid inputs. 4. emsp As far as request of M/s. Prestige Wire Industries regarding higher rate of duty is concerned, there is no mistake apparent on record as the said letter was not brought on record. 5. emsp All the Applications are accordingly disposed of.
2000 (9) TMI 388 - CEGAT, NEW DELHI
COMMISSIONER OF C. EX., NEW DELHI-II Versus USHA INDIA LTD.
........... ormer only and a new commodity known to the market does not emerge. In Becco Engg. Co. case the process was treated to be amounting to manufacture as the Tribunal observed that the operations carried out by the Appellants brought into existence a completely new model of lathe machine capable of performing some other functions and different functions that could not have been performed by the old mode-1. In Gehring India also the honing machine changed into a new machine which would be used for honing not only brake drums but also cylinder block. In the matter before us, the findings given by the Adjudicating Authority only mentions about the transformer becoming of a better model with high capacity and not a new distinct commodity known as such in the market. Thus following the ratio of the Supreme Court s decision, relied upon by the ld. Advocate for the Respondents, we find no reason to interfere with the impugned Order. Accordingly we reject the appeal filed by the Revenue.
2000 (9) TMI 386 - CEGAT, MUMBAI
BOMBAY DYEING & MANUFACTURING CO. LTD. Versus COMMR. OF C. EX., MUMBAI-I
Modvat on capital goods ......
........... spun seems reasonable. It is a matter of fairly common knowledge that spinning of cotton yarn requires a minimum degree of humidity to prevent breaks in the yarn while it is spun. In my view, it is no part of the department s function to question the employment of such technology. I must not be understood as saying that the department cannot question whether a machine which is stated to have been used in the factory was in fact in such use in the present case if there were evidence to show that it was not used in the factory but in the residence of an employee, the department would have every right to hold that the goods were not capital goods. But that however requires the department to establish that the machinery in question was in fact used in the factory s manufacture. There is no such allegation in the case before me. The appellant was therefore entitled to take credit of the duty paid on the inputs. 5. emsp I therefore allow the appeal and set aside the impugned order.