2000 (11) TMI 200 - CEGAT, NEW DELHI
VANI SPINNERS (P) LIMITED Versus COMMISSIONER OF C. EX., CHANDIGARH
Annual capacity of production ......
........... nd knitting. In this view of the matter, we hold that the appellant is not an independent processor for the purpose of Notification Nos. 2/99, dated 13-1-1999 and 16/99, dated 28-2-1999. 12.Insofar as the payment of duty on processed cotton knitted fabrics is concerned, we find that is not the issue posed before us and, therefore no particular answer is being given. 13.Insofar as the limitation is concerned, we find that the appellants had central excise registration up to 12-1-1999. Only on 13-1-1999, they sent an intimation to the department that they will not be processing the man-made fabrics. Looking to the fact that we have already held that the compounded levy was not applicable to the appellant as he was not an independent processor, therefore, the question of limitation is only of academic interest and is not being examined in detail. In view of the above, the appeal is allowed. Consequential relief, if any shall be admissible to the appellant in accordance with law.
2000 (11) TMI 198 - CEGAT, COURT NO. III, NEW DELHI
COLLECTOR OF CENTRAL EXCISE, KANPUR Versus HIND LAMPS LTD.
Provisional assessment - Order ......
........... ormat an order has to conform, to be considered a speaking order. If it can convey what it intends and gives reasons for coming to a particular decision on it, it cannot be considered non-speaking. We find no justification to call the AC s order in this case as non-speaking order. (d) As regards the direction to Range Supdt. we do not find them to be vague. The Range Supdt. has proceeded to finalise assessments under Rule 173-I and the same have been done. No evidence is placed or reasons given as to how these assessments made were not legal or proper. Therefore, we find no force in this plea. (e) As regards the plea of a SCN remaining pending, it is for that concerned authority to pass an order in that case as per law and we have no findings to arrive regarding the same except to record that, a pending SCN can be no ground to upset the order of Commissioner (Appeals). 5. In view of our findings the order of Commissioner (Appeals) is confirmed and Revenue appeal is rejected.
2000 (11) TMI 197 - CEGAT, COURT NO. IV, NEW DELHI
INDUSTRIAL SUPPLIES & SERVICES Versus COLLECTOR OF C. EX., JAIPUR
SSI Exemption - Dummy unit - Evidence of ......
........... ely accounted with reference to each firm in the record and for this reason one unit was not held to be dummy of another. But in the case in hand from the evidence referred to above and the material brought on record the dummy character of the four units named above, stands amply proved. 16.The finding of the Additional Collector that the four units, namely, M/s. K.K. Enterprises, M/s. M.K. Enterprises, M/s. Lucky Traders and M/s. United Traders and Contractors were dummy units created by the appellants to evade the payment of excise duty and to avail the benefit of Notification No. 175/86 illegally deserve to be accepted and affirmed. Therefore, his impugned order confirming the duty demand of Rs. 3,72,466/- and imposing penalty of Rs. 1,00,000/- under Rule 173Q and of Rs. 2,000/- under rule 226 is upheld being perfectly valid and free from factual and legal infirmity. 17.Consequently, there is no merit in the appeal of the appellants and the same is ordered to be dismissed.
2000 (11) TMI 194 - CEGAT, NEW DELHI
MILTON LAMINATES LTD. Versus COMMISSIONER OF C. EX., AHMEDABAD
Modvat - Transitional credit ......
........... mmissioner of Central Excise stating that (a) such inputs are lying in the stock or received in the factory after filing the declaration made under Rule 57G. In this case, the declaration for the inputs furnace oil was filed on 12-3-94 and on 10-3-95 when they applied for availing the Modvat credit in respect of the furnace oil received by them during the period 29-4-94 to 24-1-95 there was no quantity of this input held in stock by the appellants. Therefore the Modvat credit could not be allowed to them in view of the provisions stated above. Further, no fault could also be found with the findings of the lower authorities that the credit cannot be taken after six months from the date of issue of modvatable documents as held in the decision of the Larger Bench of the CEGAT in Kusum Ingots and Alloys Ltd. v. CCE, Indore - 2000 (120) E.L.T. 214 (T) (LB). 4. In view of the above facts and the position in law, there is no force in the appeal and the same is accordingly rejected.
2000 (11) TMI 191 - CEGAT, NEW DELHI
RAMSAY PHARMA (P) LTD. Versus COMMISSIONER OF C. EX., ALLAHABAD
SSI Exemption - Value of clearances ......
........... hers and both these decisions have been followed in the recent decision in the case of M/s. S.K.N. Gas Appliances v. Commissioner of Central Excise, New Delhi reported in 2000 (120) E.L.T. 732 (Tribunal). Learned DR Shri Dube seeks to distinguish the decisions in the case of Ogesh Industries and Dawn Fire Factory Works cited supra by submitting that the present case is not one of clubbing of clearances however, we find from the impugned order that the Department has proceeded on the basis that the aggregate value of clearances of excisable goods effected by the appellants and all the units of M/s. Shree Baidyanath Ayurved Bhawan taken together exceeds the ceiling limit on value of clearances prescribed in the SSI exemption Notifications. Therefore, the ratio of the above cited decisions is applicable on all fours to the present case and following the same, we set aside the impugned order as bad in law on this preliminary point alone without going into the merits of the case.
2000 (11) TMI 188 - CEGAT, NEW DELHI
STI SANOH INDIA LTD. Versus COMMISSIONER OF CENTRAL EXCISE, INDORE
Refund - Limitation - Unjust enrichment ......
........... n in General Engineering Works v. CCE, Jaipur - 1999 (111) E.L.T. 86 (T). Consequently, the order for rejecting the refund claim as time barred by the lower authorities is not valid and the same is accordingly liable to be set aside. As regards the application of the doctrine of unjust enrichment to this claim, it is observed that the Central Excise Authorities raised objection on the appellant s taking the Modvat credit for the duty paid on a certain input. The appellants paid back the amount of Modvat credit taken on such input and agitated the matter further in which they finally succeeded. Therefore, the refund of such amount does not relate to the duty paid on the goods cleared by them, but it is in respect of the credit of duty admissible on the inputs. The doctrine of unjust enrichment on these facts therefore, would not be applicable to the impugned claim. It is therefore held that the refund claim is admissible to the appellants and the appeal is accordingly allowed.
2000 (11) TMI 187 - CEGAT, COURT NO. II, NEW DELHI
SOUTH EASTERN COALFIELD LTD. Versus COMMISSIONER OF C. EX., RAIPUR
........... ause (j) of Section 2 of the Mines Act, 1952. It is not disputed by the Appellants that the workshop is registered as a factory under the Factories Act, 1948. As per Section 2(m) of the Factories Act, factory means any premises including the precincts thereof......but does not include a mine subject to the operation of the Mines Act, 1952... In the light of specific exclusion of mine which is subject to the operation of Mines Act from the definition of factory, we do not find any substance in the submission of the ld. Consultant that both Acts can apply to the same unit. Accordingly, we hold that the benefit of the Notification No. 63/95-C.E., is not available to the goods in question. The demand of excise duty as confirmed in the impugned order is upheld. However, in view of the facts of the case, we are of the view that no penalty is imposable in the present matter and accordingly we set aside the penalty imposed on the Appellants. The appeal is disposed of in above terms.
2000 (11) TMI 185 - CEGAT, MUMBAI
PATHEJA FORGINGS & AUTO PARTS MFRS. LTD. Versus CCE. & C., PUNE
Demand and penalty ......
........... on that the raw material was utilised in the manufacture of finished goods without payment of duty. There is no evidence to point to any such manufacture or removal. The ratio of the decision of the Tribunal in Premier Packaging v. CCE - 1986 (26) E.L.T. 233, that shortage of raw material alone cannot lead to the conclusion that the raw material must have been used to produce finished goods would apply to the facts of the case. 6. The second reason for demanding duty is that the value of the scrap shown in the balance sheet of the appellant was higher than the quantity of which the duty was actually paid. The contention that there could be some calculation error is not acceptable, in the absence of any evidence in support. We therefore confirm the duty of Rs. 7,860/- on this score. In view of this, we set aside the confiscation ordered of the appellant s plant and machinery, and reduce the penalty imposed on it to Rs. 2,500/-. 7. Appeal allowed in part. Consequential relief.
2000 (11) TMI 183 - CEGAT, CHENNAI
COMMISSIONER OF C. EX., CHENNAI Versus CONVEYOR EQUIPMENTS (P) LTD.
Conveyor and material handling equipment ......
........... on of the OIA Order wherein a detailed finding has been given as to why the entire system has to be considered as an individual item as it satisfies the description of Heading 8428.00 as conveyor and material handling equipment. The Collector (Appeals) has taken into consideration the HSN notes appearing at page 1132 which is pari materia to classify the items. In that view of the matter, the ground taken up in appeal that entire clearances have to be separately classified and they are to be treated as individual items as motors, gears, fan heaters, pneumatic temperature recording controller and they act as parts of conveyor system cannot be extended, the reason being Commissioner has clearly noted that items were cleared in CKD condition as complete system for the purpose of transportation have had to be sent in different convoy of trucks. 6. In that view of the matter, there is no infirmity in the order impugned. Since there is no merit in the appeal, the same is rejected.
2000 (11) TMI 182 - CEGAT, CHENNAI
COMMISSIONER OF C. EX., CHENNAI Versus TURNBULL CONTROL SYSTEM (I) LTD.
SSI Exemption - Brand name ......
........... e Industries. In order to disqualify the assessee from the eligibility of the Notification, the assessee should affix any brand name on the same goods and the brand name should be associated with the product. In the present case, use of company name does not bring within the ambit of brand name and the said view has been expressed by the Hon ble Apex Court in the case of Astra Pharmaceuticals (P) Ltd. as reported in 1995 (75) E.L.T. 214 (S.C.), wherein it has been held that there is a distinction between house mark and product mark . It has also been held that House Mark (usually a device in the form of an emblem, word or both) is an identification of the manufacturer while the Product Mark or Brand Name is the one by which the product is identified. Therefore, the use of company s name label would not bring within the ambit of definition of brand name in the light of the Apex Court judgment. Therefore, there is no merit in the appeal of the Revenue and the same is rejected.
2000 (11) TMI 180 - CEGAT, NEW DELHI
PREM CABLES PVT. LTD. Versus COMMISSIONER OF CENTRAL EXCISE, JAIPUR
........... any authority to arbitrarily change the classification approved by another Collector, leave alone to demand duty calculated on the change of such classification. We further find that since he has exonerated the supplier of the inputs from the charge of wilfully entering the wrong classification there was no reason for him to impose any penalty on the present appellants. 7.The contention of the learned DR that the present case does not pertain to challenge to classification of goods manufactured by the supplier, but pertains to denial of credit on inputs which was not declared, is not tenable in view of the clear charge in the show cause notice that the appellants received unwrought aluminium in square shape, mis-declared as aluminium plates through M/s P.G. Foils Ltd. 8.In the light of the above discussion, we hold that the impugned order is not sustainable. As a result, we set aside the same and allow the appeal of the assessees with consequential relief, if any due to them.
2000 (11) TMI 179 - CEGAT, COURT NO. IV, NEW DELHI
COMMISSIONER OF CENTRAL EXCISE, KANPUR Versus KOTHARI PRODUCTS
........... e referred order passed in respondents own case and also in another Order No. A/563/97-NB(SM) dated 10-7-1997, but not accepted for want of any evidence/material on record. Both these orders of the Tribunal remain unchallenged and as such are binding on the Revenue. In the instant case also except for the version of the Revenue in the grounds of appeal, there is nothing on record to suggest if the damaged goods received by the respondents had no commercial value and that the quantity after refining or reconditioning or remixing cleared by them was more than the one cleared by them earlier. That being so, the contention of the learned JDR in this regard cannot be accepted. The respondents had already been directed by the Commissioner (Appeals) through the impugned order that they must reverse the Modvat credit before getting the refund. 8. In view of the discussion made above, there is no merit in both the appeals filed by the Revenue and the same are ordered to be dismissed.
2000 (11) TMI 178 - CEGAT, COURT NO. I, NEW DELHI
COMMISSIONER OF C. EX., BHOPAL Versus PERFECT REFRACTORIES
........... al Government. Appellant was wholly exempt in terms of exemption notification during part of the period. For remaining period duty was payable by him at reduced rate. No evidence has been brought on record to show that the assessee was, in any manner, representing the surcharge as duty of excise. In any case, during the period of exemption he was not liable to pay any duty at all. In these circumstances, Revenue s claim can only be treated as a mere presumption, lacking in any evidence to show that the surcharge collected was represented as duty of excise. 3. In view of what is stated above, we find the case to be entirely lacking in evidence. The appeal fails and is rejected.
2000 (11) TMI 177 - CEGAT, NEW DELHI
AMTEK AUTO LTD. Versus COMMISSIONER OF CENTRAL EXCISE, NEW DELHI
Modvat - Capital goods ......
........... een shifted to the sister unit of the company, namely, Amtek India Ltd. without raising any modvatable invoice and the machines were removed under the cover of photostat of original invoice duly endorsed in the name of Amtek India Ltd. on 25-2-98 and 26-2-98. Since the machines were removed without intimation to the proper officer and without observing the procedure as laid down under Rule 57 S of Central Excise Rules, credit on the goods is .not admissible to them. They have already reversed a sum of Rs. 15,31,938. We therefore hold that they are liable to reverse the balance credit. Penalty is also warranted for contravention of the Rules. However, having regard to the totality of facts and circumstances, including the fact that the credit of Rs. 15,31,938 was reversed on 28-2-98 i.e., immediately after detection of the contravention, we reduce the penalty on Amtek Auto Ltd. to Rs. 3 lakhs and the penalty on Shri M.P. Gupta to Rs. 10,000. 3. Appeals are thus partly allowed.
2000 (11) TMI 173 - CEGAT, COURT NO. I, NEW DELHI
IPF VIKRAM INDIA LTD. Versus COMMISSIONER OF C. EX., CHANDIGARH
Valuation (Central Excise) ......
........... finding that the case is similar to Ujagar Prints case and have observed - ...Despite repeated attempts made by the learned Counsel for the res-pondents we are unable to distinguish this case from the ratio laid down by this Court in the aforesaid two decisions of Ujagar Prints case. Therefore, the basis of the Commissioner not applying Ujagar Prints case 1988 (38) E.L.T. 535 (S.C.) and 1989 (39) E.L.T. 493 (S.C.) by calling the facts in this case being identical to Pawan Biscuits case, which has been held to be not distinguishable and similar to Ujagar Prints of Supreme Court will not survive. Any other mean or mode adopted by him to determine the valuation therefore need not be considered and is required to be set aside. (c) When we find that the basis of the Commissioner working out the demand of differential duty cannot be upheld and is to be set aside, no case or cause for any penalty can be found. 6. In view of our findings, the order is set aside and appeals allowed.