2000 (11) TMI 217 - CEGAT, KOLKATA
RELIANCE STORAGE ENERGY & SYSTEMS (P) LTD. Versus CCE., CALCUTTA-III
Manufacture - Demand - Limitation ......
........... enue their activities about re-conditioning and repairing of old batteries. In their letter dated 4-10-1988 addressed to the Superintendent, it has been clearly mentioned that the appellants only manufacture different type of ESB plate in their factory and all other components are purchased from the market and used by them in repairing, re-conditioning of different types of storage batteries. Subsequently while filing the price lists in the year 1992 they have again reiterated that price list is being filed ESB plates required by them for re-conditioning purposes for which no invoices are being raised by them. In these circumstances there is no justification in concluding that the appellants have suppressed the factum of repairing/re-conditioning activities being undertaken by them with an intention to evade payment of central excise duty. Accordingly I hold that the demand of duty is also barred by limitation. 8.As a result, appeal is allowed on merits as also on limitation.
2000 (11) TMI 214 - CEGAT, MUMBAI
VADILAL EMBROIDERY UNIT Versus COMMISSIONER OF C. EX., MUMBAI-II
Manufacture - Duty liability ......
........... ccount from any person subject to the various conditions mentioned in the notification. It is difficult for us to comprehend a situation where a manufacturer gets his goods manufactured on his account by any other person. Assuming the existence of such a possibility, the notification is relevant only to the application or otherwise of Rule 174, and has nothing to do with payment of duty. Accepting the proposition advanced by the departmental representative in fact lead to a view that if Vadilal and Doshi are the manufacturers Dura Processors could not be then be the manufacturer, since cannot be more than one person manufacturing the same goods at the same time. The departmental representative is not willing to concede that only one person can be the manufacturer. The alternative, of acceptance of the same goods being manufactured simultaneously by more than one person, is patently absurd. 6. Appeals allowed. Impugned order relating to the appellants now before us set aside.
2000 (11) TMI 212 - CEGAT, MUMBAI
KESHARBHAI ELECTRONICS PVT. LTD. Versus COMMISSIONER OF C. EX. & CUS., PUNE
Fan regulators - Classification of goods ......
........... an, whether or not fitted with filters. 8414.10 Gas compressors of a kind used in a refrigerating and air conditioning appliances and machinery. 8414.20 Electric fans 8414.80 Other Parts and accessories 8414.91 Of goods covered by sub-heading No. 8414.10 8414.99 Other The perusal would clearly show that parts and accessories of gas compressors etc. would merit classification under sub-heading 8414.91 and parts of other machinery falling under 8414 including electric fans would fall under 8414.99. 5. The rules of interpretation of the tariff detail that classification shall be determined according to the terms of heading and also the section and chapter notes. Where therefore the classification is possible on perusal of the heading then there would be no need to go by the section note or chapter note for determination. On this observation we do find the law laid down by the preceding judgments applicable to the present case. Adopting the ratio thereof. We dismiss this appeal.
2000 (11) TMI 210 - CEGAT, CHENNAI
COMMR. OF C. EX., CHENNAI Versus CHETTINAD CEMENT CORPORATION LTD.
Modvat on capital goods ......
........... . However, the issue has been decided by the Commissioner (A) in the light of Tribunal judgment and the Calcutta High Court judgment noted above, we are not inclined to grant adjournment in the matter and we are proceeding to pass the order. 5. On careful consideration of the submissions, and the grounds raised by the Commissioner in appeal and on going through the detailed order of Commissioner (Appeals), we are of the considered opinion that the CA has examined the ratio of the judgment of the Tribunal and the Calcutta High Court supra to hold as to how the benefit is required to be granted in the light of the judgment. The point with regard to chapter notes has also been discussed and the findings recorded. Therefore, the judgment of the Calcutta High Court and the Tribunal are binding on this Bench and in terms of judicial discipline the ratio has been rightly applied by the Commissioner (Appeals). Therefore, we do not find any merit in the appeals and same are rejected.
2000 (11) TMI 208 - CEGAT, COURT NO. IV, NEW DELHI
COMMISSIONER OF CENTRAL EXCISE, RAJKOT Versus SOMPURA CERAMICS
Show Cause Notice - Appeal by department ......
........... done the delay caused in filing the appeal beyond the period of three months allowed by the clause as it has in the case of appeal under Section 35B. In view of this, appeals filed by the Department as against the other units were dismissed as barred by time. Since no appeal lies against the co-noticee, issue with reference to clubbing of clearances of five units cannot be decided hearing the appellant alone as it was rightly pointed out by the respondent s counsel. We find that Tribunal in the similar situation in the case of CCE, Mumbai v. Maganlal and Nandlal and Sons reported in 1999 (113) E.L.T. 597 as well as in the case of CCE, Mumbai v. M/s. High Land Dye Chem, held that appeal by the Department against only one firm without impleading other firms is not maintainable when clearances of all the units are proposed to be clubbed. 4. In view of the foregoing conclusion, we do not find any substance in the appeal filed by the Department and accordingly appeal is rejected.
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.