2000 (8) TMI 830 - CEGAT, KOLKATA
ICI (I) LTD. Versus COMMISSIONER OF CENTRAL EXCISE, CALCUTTA-IV
Refund - Provisional assessment ......
........... was under Rule 173L, but proviso (iv) to the said rule is to effect that refund claim shall in no case be in excess of the duty payable on such goods after being re-made, refined, re-conditioned etc.. Inasmuch as the assessments were provisional, it could not be calculated as to how much duty was payable on the goods. 3. emsp Now we have been informed by the appellant duly represented by Shri R. Banerjee, ld. Manager (Taxation), that the assessments have been finalized in December 1998 but their refunds have not been taken up for sanction by the Asstt. Commr. He submits that they filed the proper refund claims, though pre-mature and in these circumstances it was the duty of the Asstt. Commr. to grant them refund on finalisation as observed by himself in his impugned order. 4. emsp In view of the foregoing we direct the Asstt. Commr. to look into the appellants rsquo claim for refund inasmuch as the assessments are no longer provisional. The appeals are allowed in above terms.
2000 (8) TMI 824 - CEGAT, KOLKATA
BIHAR CHEMICAL INDUSTRIES Versus COMMISSIONER OF CENTRAL EXCISE, PATNA
SSI Exemption - Demand - Limitation ......
........... s apart from clearance for home-consumption. Duty-free clearances for export were being allowed and it is only subsequently on an audit objection that a show cause notice was issued to them on 19-7-1994. 3. emsp After hearing the learned JDR, Shri R.K. Roy for the Revenue, we find sufficient force in the submissions made by the learned Advocate. It is not alleged that the Revenue was not aware of the factum of clearances being made to Nepal without payment of duty. We also find that the total clearances from the appellants rsquo factory were below exemption-limit of Rs. 15.00 lakhs. There was some Board rsquo s Circular referred to by the learned Advocate, which aided in confirmation of their bona fide belief that the export to Nepal would be covered by the Notification No. 175/86. As such, we find that the appellants have been able to make out a case on limitation. Accordingly, we set aside the impugned order and allow the appeal with consequential reliefs to the appellants.
2000 (8) TMI 819 - CEGAT, KOLKATA
COMMISSIONER OF CENTRAL EXCISE, PATNA Versus BHIMSEN BROS.
SSI Exemption - Value of clearances ......
........... ith the status of clearances for home consumption, it cannot be said that exports were covered by para 1 of the notification, which only applies to clearances for home consumption. Inasmuch as para 1 does not cover the export goods, the question of opting for payment of duty or for exemption in respect of goods specified in said para 1 for the export to Nepal does not arise. As such we hold that by opting to pay full rate of duty in respect of exports to Nepal, the appellant cannot be said to have exercised their option for payment of full rate of duty in terms of para 4 of Notification No. 1/93 so as to oust them to avail the exemption in terms of the said notification for the subsequent clearances. We do not find any merits in the Revenue rsquo s appeal and reject the same. rdquo 3. emsp As the issue is already settled in favour of the respondents we do not find any merits in the Revenue rsquo s appeal and reject all the three appeals. Cross objections also get disposed of.
2000 (8) TMI 810 - CEGAT, KOLKATA
HINDUSTAN LEVER LIMITED Versus COLLECTOR OF C. EX., CALCUTTA-I
Refund - Modvat - Removal of input ......
........... Rule 57F(2) permits the same, and there cannot be cause for denial of Refund of Modvat credit if eligible otherwise under Rule 57F(3). (b) The finding of the removals to be permissible only under Rule 57F(1) i.e. lsquo inputs as inputs rsquo , as arrived at by the lower authorities, also is not correct, since it is for the assessees to opt for the route of Rule 57F(1) or Rule 57F(2) when both routes are available no insistance on Rule 57F(1) removal is called for. (c) We find that refund of the credit in the Books of the appellants would be eligible under Rule 57F(3), if the conditions prescribed therein and the Notification are satisfied. There is no finding on this aspect in the orders of the lower authorities. Therefore the order is set aside with direction that the clerance of the subject inputs is covered under Rule 57(2) and the Refund claims be examined and dealt with reference to Rule 57F(3). The appeal is allowed for consideration of the refund claim in above terms.
2000 (8) TMI 809 - CEGAT, KOLKATA
INDIAN ALUMINIUM COMPANY LTD. Versus COLLECTOR OF C. EX., CALCUTTA
Demand for Modvat - Limitation - Penalty ......
........... d Appellants Company under Rule 173Q of the Central Excise Rules, 1944. No doubt the Rule 173Q provides for the levy of penalty for contravention by a Registered person availing Modvat. However, the rules do not provide for imposition of penalty if the credit has been availed correctly on duty paying documents/permissible documents and an account of the receipt and disposal has been tendered. There is no finding that this has not been complied with, except that ldquo consolidated RG 23A entries were being maintained rdquo . We have not been able to find any provisions in the rules to prohibit the maintenance of such consolidated entries. Therefore, no cause for imposition of penalty under Rule 173Q arise. In any case there is no mens rea the demands are time barred by limitation as per our findings and not maintainable on merits. Therefore, there is no question of imposition of penalty. 3. emsp In view of our findings the impugned order is set aside and the appeal is allowed.
2000 (8) TMI 804 - CEGAT, CHENNAI
BIO VACCINES (P) LTD. Versus COMMISSIONER OF CENTRAL EXCISE, HYDERABAD
Media - Culture media - Muller and Miller media - Excisability - Marketability ......
........... d that the product although covered by tariff item is not exigible to duty, unless marketable. Therefore, establishment of marketability is sine qua non before it could be decided. Mere specification in the tariff would not call for visiting of the Central Excise levy. The revenue has to establish marketability without any iota of doubt. Establishment of marketability based on similar product will not render Miller and Muller media to be excisable. What is required is article rsquo s technical and commercial evidences to be brought on record. (c) emsp Appellants have contested the question of time bar and valuation. Since we are inclined to set aside the order and direct re-determination of the marketability based on technical and commercial evidence to be brought on record, we refrain from giving a finding on the issue and leave the matter open to be agitated before the lower authority. 5. emsp In view of the above, the appeal is allowed as remanded for de novo adjudication.
2000 (8) TMI 777 - CEGAT, NEW DELHI
BAKSON HOMOEO PHARMACY (P) LTD. Versus COLLECTOR OF C. EX., NEW DELHI
Demand - Limitation ......
........... demand of duty, in the appellants rsquo case, is not justifiable. Learned Judicial Member rsquo s decision on the point is also concurred with. 29. emsp In respect of the issues touching Arnica Hair Shampoo, there is no difference of opinion between learned Member (Judicial) and learned Vice-President. 30. emsp The point of difference referred to me stands answered as follows - The appeals are to be allowed insofar as lsquo Arnica Hair Oil rsquo is concerned and the disputes relating to lsquo Arnica Shampoo rsquo require to be remanded to the lower authority for the purpose stated by the regular Bench. Registry shall take appropriate steps to formalise the final order in the appeal. Sd/- (P.G. Chacko) Member (J) MAJORITY ORDER 31. emsp The majority order is that appeals are to be allowed in so far as Arnica Hair oil is concerned and the dispute relating to Arnica Shampoo requires to be remanded to the lower authority. Sd/- (S.S. Kang) Member (J) Sd/- (G.R. Sharma) Member (J)
2000 (8) TMI 769 - CEGAT, KOLKATA
WAX (INDIA) Versus COMMISSIONER OF CENTRAL EXCISE, CALCUTTA-I
SSI Exemption - Clubbing of clearances - Clubbing of clearances ......
........... the trading company. We find that the appellants as also the trading company have been held to be using the brand name - ldquo Monalisa rdquo . As such, it is important to find out who was the actual owner of the said brand name for which the onus lies upon the Revenue. 13. emsp As we have already observed that the objections raised by the appellants as regards the statement, needs to be re-examined after taking the expert rsquo s opinion and the factum of the appellants rsquo claim of having applied for registration of the said brand-name in their name needs to be looked into and whether the said brand-name has been registered in their name or not is required to be gone into, we are of the view that the matter needs to go back to the original adjudicating authority for de-novo decision in the light of the observations made by us as above. 14. emsp As such, after allowing the Stay Petition unconditionally, we set aside the impugned order and allow the appeal by way of remand.
2000 (8) TMI 768 - CEGAT, CHENNAI
COMMISSIONER OF C. EX., CHENNAI-III Versus TITAN INDUSTRIES LIMITED
Modvat - Capital goods ......
........... aining the proper environment in the factory for producing pharmaceutical products are required to be treated as eligible capital goods. He submits that this control panel is essential for maintaining the proper temperature for the manufacture of watches in the factory and these judgments directly apply to the facts of the present case. 4. emsp On consideration of the submissions made, I notice that in the noted judgments the Tribunal has gone into the facts in detail and held that Air Conditioning Plant is essential to maintain the required temperature for manufacture of watches and parts and as such the said item is required to be treated as capital goods. In the present case, the item is copper cable (copper conductor) which is used in the Air Conditioning plant which has been held to be essential for the manufacture of watches. The cited judgments clearly apply to the facts of the present case. The impugned order is therefore, confirmed and the Revenue appeal is rejected.
2000 (8) TMI 767 - CEGAT, CHENNAI
COMMISSIONER OF C. EX., COIMBATORE Versus SAMBANDAM SPNG. MILLS LTD.
Modvat on capital goods - Duty paying document ......
........... bmission and perusal of the order, there is no allegation in the show cause notice or in the Order-in-Original that the first invoice was destroyed. The only allegation was the change of invoice was not permissible without the permission from the department and the initial invoice supplied showed the Unit-I, Salem which cannot be replaced by another invoice without the department rsquo s permission. The Commissioner has noted that there is no supply of two items and the same item has been supplied. The same items rsquo invoice was corrected by proper authentication from the manufacturer. Such pre authentication and correction of invoice have been held to be curable defects as held in the case of Ramgarh Chini Mills Ltd. supra. The grounds raised in the appeal are not in the nature of serious infirmity in the grant of Modvat credit. Therefore, there is no infirmity in the order and the findings are legal and proper and hence the Revenue appeal is rejected. Ordered accordingly.
2000 (8) TMI 766 - CEGAT, CHENNAI
COMMISSIONER OF C. EX., TRICHY Versus SREE UMA PARAMESWARI MILLS LTD.
Departmental clarifications - Modvat ......
........... binding on the authorities and any amendment or direction given in the Board rsquo s circular pertaining to a procedure always has retrospective effect. Therefore, points raised in the appeal that the destination shown in invoice that of registered office and not in the name of factory should be a ground for rejecting the Modvat credit has already been overruled by Board itself as regd. office and factory belong to same assessee and therefore there cannot be serious objection in taking Modvat credit. It is also pointed out by ld. Consultant that invoices also indicate assessee rsquo s factory address and the contention of Revenue that the factory address has not been shown in the invoice is also not correct. On verification, the submission is found to be verified and correct. It is also not the case of Revenue that imported items have not reached the factory and same has not been utilised. Therefore, grounds taken are not valid for consideration and hence appeal is rejected.
2000 (8) TMI 765 - CEGAT, MUMBAI
INDIAN DYESTUFF INDUSTRIES LTD. Versus COMMISSIONER OF C. EX., MUMBAI
Appellate Order - Refund - Provisional assessment ......
........... the amount of incidence of excise duty has been passed on to the consumer before the amount can be directed to be credited to the Consumer Welfare Fund. 11. emsp In the result, we allow the appeal with consequential benefits to the appellants. 12. emsp Assent per Gowri Shankar, Member (J) . - I agree with the reasoning and the conclusion expressed in paragraph 9 of the preceding order that the amount due as refund should be paid to the appellant instead of being credited to the Consumer Welfare Funds. 13. emsp I am however not able to persuade myself to agree with the view expressed in paragraph 10 of the order. But I do not propose to indicate the reasons for my disagreement. Once it is held that the refund arose consequent upon the finalisation of the provisional assessment, it is not necessary to consider what the situation would be if sub-section (2) of section 11B of the Act were to apply. The appeal can be disposed of without entering that area. 14. emsp Appeal allowed.
2000 (8) TMI 763 - CEGAT, NEW DELHI
JAL P. MISTRY Versus COLLECTOR OF CENTRAL EXCISE, RAJKOT
SSI Exemption - Clubbing of clearances - Penalty ......
........... /s. Kinotone and worked out the duty payable by M/s. Kinotone after denying the benefit of small scale exemption. We, therefore, uphold the duty demand and penalty on M/s. Kinotone. 4. emsp As regards penalty on M/s. Cine Lamp, the Collector has relied upon the statement of Manager of M/s. Patel Roadways, Bhiwandi that consignment of Cinema projector equipment used to be booked through his transport company by M/s. Cine Lamp and M/s. Kinotone. The evidence on record clearly establishes that M/s. Cine Lamp was concerned in acquiring possession or transporting, removing...... or purchasing excisable goods in question which they knew or had reason to believe are liable to confiscation and M/s. Cine Lamp has not specifically denied this fact. Therefore, we agree with the Collector that the ingredients of Rule 209A are attracted against M/s. Cine Lamp. We, therefore, uphold the penalty imposed upon M/s. Cine Lamp. In the result, we uphold the impugned order and reject the appeals.
2000 (8) TMI 761 - CEGAT, KOLKATA
PRITI MACHINES Versus COMMISSIONER OF C. EX., CALCUTTA-I
Order - Appellate order ......
........... ve that the Assistant Commissioner responsible for implementation of the Tribunal rsquo s Order has shown his irresponsibility and disrespect to the Tribunal as well as to the law of the land which requires disposal of the Refund Claims within a period of three months from the date of passing of the Tribunal rsquo s Order. This having not been done, we direct the Revenue to grant the Refund to the applicant firm along with the interest at the rate of 12 per p.a. from the date of expiry of three months rsquo period from the passing of the Tribunal rsquo s Order, as has been held by the Tribunal in the case of Gulf Olefines (P) Ltd. v. C.C.E., Madurai reported in 2000 (126) E.L.T. 1225 (Tribunal) 1999 (39) RLT 226 (CEGAT). We leave it to the Revenue to decide as to whether the said interest amount has to be recovered from the concerned person on whose account the Refund has been delayed to the applicants. With the above observations, we dispose of the Miscellaneous Application.
2000 (8) TMI 757 - CEGAT, NEW DELHI
GARG ISPAT UDYOG LTD. Versus COLLECTOR OF CENTRAL EXCISE, JAIPUR
Iron and steel products - Classification of inputs at the hands of receiver not challengeable - Demand - Limitation ......
........... on account of availability of Modvat credit available to the assessee, the intention to evade payment of duty cannot be attributed to the assessee. Reliance has been placed in the Larger Bench decision of the Tribunal in Jay Yuhshin Ltd. v. CCE Final Order No. 578/2000-A, dated 12-7-2000 2000 (119) E.L.T. 718 (Tribunal-LB) in support of this proposition. We observe that the said Final Order also lays down certain further conditions which also require to be satisfied to prove revenue neutrality as a defence against allegation of intention to evade duty. Since no evidence has been placed before us to show that the other conditions have been satisfied, we do not wish to go into this contention of the appellants. 13. emsp In the light of the discussion above we are satisfied that the appeal has merit and will have to be allowed. 14. emsp Accordingly, we set aside the impugned order and allow the Appeal with consequential benefits, if any, to the appellants in accordance with law.