2000 (6) TMI 604 - CEGAT, MUMBAI
SYNTHARZ PAINTS (P) LTD. Versus COMMISSIONER OF CENTRAL EXCISE, MUMBAI-III
Refund - Limitation - Protest ......
........... the Asstt. Commissioner rsquo s Order. Hence the present appeal. 2. emsp The evidence indicates that even when the assessment was provisional, the assessee had given their letter of protest. The refund claim was filed in December, 1983 and was in fact premature. In fact, the claim would be deemed to be made on the date of classification list was finalised. Strictly speaking, in terms of Rule 9B, there was no requirement for a refund claim to be made at all, but that the Asstt. Commissioner should have proceeded to grant suo motu, refund in terms of the Rule. 3. emsp The requirement of filing the protest would be to show that the claim would not be barred by limitation. In the case where the refund claim was properly filed or in the case where the refund should be paid suo motu, the question of protest otherwise would not be relevant . 4. emsp We find no merit in the logic of the Commissioner (Appeals). His order does not sustain. We set aside the same. The appeal is allowed.
2000 (6) TMI 593 - CEGAT, MUMBAI
COMMISSIONER OF C. EX., MUMBAI-II Versus ALLIED PHOTOGRAPHICS INDIA LTD.
Appeal to the Appellate Tribunal - Refund - Unjust enrichment ......
........... therefore they cannot usurp jurisdiction de hors provisions of law. We are therefore of the view that the interest which the respondent is claiming, is entitled to the same because in the appeal before the Commissioner this was not agitated by the department. But because they are agitating before the Tribunal that they wanted to retain their right to claim the interest and they do not want to forgo because they have already complied with the condition. We are therefore of the view that the respondent is entitled to claim interest. 17. emsp The appeal is dismissed and the cross-objection is allowed. We direct the department to pay Rs. 1,25,34,988.97 with 12 interest from the date of the withdrawal of the amount by the department from October 1993 in terms of the Bombay High Court rsquo s order dated 28-9-1993 in the Writ Petition No. 1776/93. This issue has been pending since 1974 onwards. We hope the department will not delay further. Miscellaneous application stands allowed.
2000 (6) TMI 591 - CEGAT, CHENNAI
THIRU AROORAN SUGARS LTD. Versus COMMISSIONER OF CENTRAL EXCISE, TRICHY
........... sallowed the refund claim on grounds of unjust enrichment. 5. emsp I have carefully considered the rival submissions and records of the case and I find substantial force in the submission of ld. DR. In the absence of there being any evidence to show that the duty incidence which was passed on along with the consignment by the buyer to the purchaser of this molasses, has been again reverted back to the manufacturer in the form of a credit note, etc., mere reversal of Modvat credit taken by the buyer would not satisfy the condition that duty incidence was not passed on by the manufacturer. The effect of the present situation would be that though duty incident was passed on by the manufacturer to the buyer, the buyer has voluntarily not chosen to avail Modvat credit thereon. But that would not amount to not passing of the incidence of duty to him. Therefore, it is clear that there is no infirmity in the order impugned and the appeal has no merits and hence the same is dismissed.
2000 (6) TMI 582 - CEGAT, MUMBAI
ALBRIGHT & WILSON CHEMICALS LTD. Versus COMMISSIONER OF C. EX., MUMBAI-III
Stay/Dispensation of pre-deposit ......
........... ue. However, it is not in dispute that the entire consigment was sold to the applicant, and transferred to it in instalments (this was explained due to lack of storage capacity in the applicant rsquo s plant). The contention that there is no out of charge order on the bill of entry is obviously unacceptable. The triplicate copy of the bill of entry does not appear that evidence of duty is clear on the bill of entry. The failure to comply with the trade notice at the most constitutes a contravention as technical and procedure in the extreme. 3. emsp I, accordingly, waive deposit of the duty and stay its recovery.
2000 (6) TMI 581 - CEGAT, MUMBAI
PRAFUL G. THAKKAR Versus COMMISSIONER OF CENTRAL EXCISE, VADODARA
Stay/Dispensation of pre-deposit - Penalty ......
........... Waiver of penalty of Rs. 10.00 lacs each on K. K. Agrawal and the Company was granted subject to the company depositing Rs. 27.00 lacs towards duty and penalty. 4. emsp The two applicants now before us say that they were, at the relevant time, employees of Nandesari Rasaynee in their capacity as clerks. Financial hardship is also pleaded on the ground that they have left the company rsquo s employment and there is no means to deposit the amounts . 5. emsp Taking note of our earlier order, and these submissions, we waive deposit of the penalties imposed on each of them and stay their recovery.
2000 (6) TMI 579 - CEGAT, MUMBAI
GHATGE PATIL INDUSTRIES LTD. Versus COMMISSIONER OF CENTRAL EXCISE (APPEALS), PUNE
Modvat - Duty paying documents ......
........... was taken on 31-12-93 on the basis of the invoices issued by the original manufacturer. The ld. Counsel Shri V.K. Gaikwad placed on record photocopies of the invoices in which the challan numbers under which the consignment agents had despatched the consignments had been shown. The stamp there shows date of credit taken as on 31-12-93. The same date is shown in the show cause notice, also. Therefore it is clear that the credit was taken on the manufacturers invoice and not merely on the challans issued by the consignment agents. This claim does not seem to have been advanced before the lower authorities. In the face of this invoice No. 309, dated 31-12-93 which is admittedly a modvatable document, the appeal succeeds and is allowed.
2000 (6) TMI 577 - CEGAT, MUMBAI
GHATGE PATIL INDUSTRIES LTD. Versus COMMISSIONER OF CENTRAL EXCISE, PUNE
........... sent appeal. 2. emsp Shri V.B. Gaikwad, ld. Advocate relies upon Tribunal rsquo s Larger Bench judgment in the case of Union Carbide India Ltd. v. Collector of Central Excise, Calcutta-I 1996 (86) E.L.T. 613 (Tribunal) . Shri K.M. Patwari relies upon single Member judgment in the case of Upper Ganges Sugar and Industries Ltd. v. Commissioner of Central Excise 1998 (98) E.L.T. 166 (Tribunal) . I find that the ratio of the cited judgment in the case of Union Carbide India Ltd. v. CCE would apply to the facts of this case. The appeal is accordingly allowed with consequential relief.
2000 (6) TMI 576 - CEGAT, MUMBAI
GHATGE PATIL INDUSTRIES LTD. Versus COMMISSIONER OF CENTRAL EXCISE, PUNE
........... ocate relies upon the Tribunal judgment in the case of CCE, Patna v. Tata Engg. and Locomotive Co. Ltd. 1997 (92) E.L.T. 107 (Tribunal) , in which it was held in identical circumstances that Argon Gas qualified as input. Shri K.M. Patwari relies upon Tribunal judgment in the case of Collector of Central Excise v. Kunal Engineering Co. Ltd. 1992 (62) E.L.T. 560 (Tribunal) . I find that the ratio of the judgment in the case of CCE v. TELCO will apply in this case. Following the said judgment, these two appeals are allowed with consequential relief.
2000 (6) TMI 544 - CEGAT, NEW DELHI
PAHARPUR PLASTICS LTD. Versus COLLECTOR OF CENTRAL EXCISE, MEERUT
Modvat - Removal of inputs from RG 23A stock ......
........... it of Rs. 117/-, I hold that the appellants are eligible to the remaining amount of Rs. 57,873.41. This appeal is partly allowed. 6. emsp Appeal No. E/2689/99 relates to denial of credit of Rs. 80,141/- availed during the month of October, 1994 on sweep waste granules on the ground that they had cleared 8,250 Kgs of LDPE granules vide invoice dated 29-10-1994 in the garb of sweep waste granules on the value of Rs. 1.93 per Kg by debiting duty of Rs. 4,777/-, whereas they availed credit Rs. 34.31 per Kg. The appellants rsquo contend that the quantity of 8,250 Kgs. is out of the stock on which Modvat credit has not been availed and thus they are not required to reverse the credit. They are, however, unable to substantiate this contention. The above mentioned quantity is shown in the RG 23A Part II and they are required to enter in this register, inputs on which credit has been availed. I, therefore, uphold the denial of credit of Rs. 80,141/- and reject Appeal No. E/2689/99-NB.
2000 (6) TMI 542 - CEGAT, NEW DELHI
HEMVIN INDUSTRIES Versus COMMISSIONER OF CENTRAL EXCISE, BOMBAY
Demand - Rate of duty ......
........... ble as provisions of Section 11A of the Central Excises Act had been amended after passing of the Budget of 2000. By virtue of the amendment notwithstanding any approval of assessment relating to the rate of duty or value of the excisable goods by any Central Excise Officer, still notice can be served on the assessee for recovery of short payment of duty amount. 6. emsp The right of the competent officer to review the classification list after approval of any assessment can hardly be disputed as the law is well setteled that the approved classification list can be reviewed if earlier was erroneously approved on account of error of fact or law. Therefore, we do not find any legal infirmity in the impugned order of the Collector (Appeals) vide which he had confirmed the order in original of the Assistant Collector reviewing the classification lists of the appellants. 7. emsp Consequently, there is no merit in the appeal of the appellants and the same is ordered to be dismissed.
2000 (6) TMI 541 - CEGAT, NEW DELHI
RATHI ISPAT LIMITED Versus COMMISSIONER OF CENTRAL EXCISE, MEERUT
Modvat - “Lubricating oil” is input, eligible for Modvat credit ......
........... ssee in terms of Rule 57Q was sufficient for the purpose of extending credit on glass bottles which were inputs within the meaning of Rule 57A. We also note that similar view in the instant case and sustain the appellants rsquo challenge against the impugned order of the Commissioner denying Modvat credit on the ground that the declaration was not in terms of Rule 57A. rdquo He, therefore submits that in view of the above submissions, the appeal may be allowed. 6. emsp Shri Mewa Singh, ld. SDR reiterates the findings of the lower authorities. 7. emsp We have carefully considered the submissions of the ld. Counsel. We have also perused the case law cited by him. We have also perused the findings of the authorities below. We note that the ld. Counsel for the appellants has cited the case law in support of each contention. We do not see anything to disagree with the findings of the Tribunal in the cases cited above by the ld. Counsel. In the circumstances, the appeal is allowed.
2000 (6) TMI 540 - CEGAT, NEW DELHI
BRASSCO EXTRUSIONS LTD. Versus COLLECTOR OF CENTRAL EXCISE, BOMBAY-III
Billets of brass arising during manufacture of brass rods from duty paid waste and scrap ......
........... in terms of the provisions of the 3 aforesaid notifications (149/86, 98/88, and 178/88). The Collector has not extended the benefit of notification as the appellants had already claimed and availed of the benefit of the 3 notifications in respect of brass rods. We also observe that in the impugned order the Collector has given his finding that the duty paid nature of waste and scrap is not in dispute. In the light of these findings of the Collector which have not been challenged by the Revenue by way of filing cross objection and also in view of the decision in the case of Variety Metals Pvt. Ltd. (supra), the benefit of which was not available to the adjudicating authority at the time of adjudicating the present matter, we remand all the 3 matters to the Commissioner of Central Excise for considering the availability of notification Nos. 149/86 and 178/88 in respect of brass billets manufactured by the appellants. Accordingly, all the 3 appeals are allowed by way of remand.
2000 (6) TMI 507 - CEGAT, KOLKATA
SHRIRAM BEARINGS LTD. Versus COMMISSIONER OF C. EX., JAMSHEDPUR
Parts of Parts covered by Notification No. 64/86-C.E. ......
........... ontention of the learned Advocate that availability of exemption Notification is not squarely dependent upon the same being claimed in the Classification List. The appellants claimed the Notification No. 217/86 in their Classification List which was denied to them and it was in the alernative, that they staked their claim for exemption in respect of the said Notification No. 64/86. Reliance by the learned Advocate on the Tribunal rsquo s decision in the case of Kopran Chemicals Co. Ltd. v. Collector of Central Excise reported in 1990 (48) E.L.T. 569 (Tribunal), holding that the exemption benefit is to be given even if not claimed in the Classification List, is appropriate. As such, we hold that the appellants rsquo claim to the benefit of the said Notification is sustainable. 5. emsp As the appeal is allowed on merits, no orders are required to be passed on the point of limitation, as agitated before us. The appeal is thus allowed with consequential reliefs to the appellants.
2000 (6) TMI 506 - CEGAT, NEW DELHI
NATIONAL WINDERS Versus COMMISSIONER OF C. EX., ALLAHABAD
Refund - Limitation ......
........... nal in the case of the appellants themselves reported in 2000 (118) E.L.T. 236 (T-LB) 2000 (38) RLT 424 and that the Larger Bench has held that the refund claim should be filed within six months from the date of purchase even where duty had been paid by the manufacturer under protest. 4. emsp We have perused the Larger Bench decision in this case. In view of the fact that the Larger Bench examined the evidence in the case similar to the one before us and held as indicated above. We have nothing but to agree with the decision of the Larger Bench. There is no other issue contested before us. In the circumstances, following the ratio of the decision of the Larger Bench as indicated above, we hold that purchaser of goods is required to file the refund claim within six months from the date of purchase even where the duty had been paid by the manufacturer under protest. In this view of the matter, the appeal is rejected. The cross objections are also disposed of in the above terms.
2000 (6) TMI 503 - CEGAT, KOLKATA
CHROME CHEMICAL INDUSTRIES Versus COMMISSIONER OF C. EX., CALCUTTA-IV
........... y received and duly utilised in the manufacture of the finished goods, the procedural lapses by the assessees with no mala fides need to be condoned or overlooked. Even non-endorsement of invoice by the head office or branch office, according to me, could be construed as a procedural lapse provided the inputs mentioned in the concerned invoice are duly received in the factory and properly utilised in the manufacture of the finished goods. In the instant case the fact of receipt of the inputs and utilisation of the same in the manufacture of the finished goods has not been disputed. Hence, Modvat credit in respect of such inputs is permissible. In this view of the matter, the invoice in question cannot be construed as an ineligible document for taking Modvat credit. 7. emsp In view of the above discussion, the order impugned deserves to be set aside with consequential relief, if any. Ordered accordingly. Consequently, the stay petition stands disposed of along with the appeal.