2000 (11) TMI 396 - CEGAT, NEW DELHI
JINDAL POLYESTER LTD. Versus COMMISSIONER OF C. EX., AURANGABAD
Stay/Dispensation of pre-deposit ......
........... on began only on 19-7-1996 and that the applicants were entitled to claim depreciation only from 19-7-1996 and not from 29-3-1996. 3. emsp We have heard both sides. There is no dispute that the quantity produced in March, 1996 was exported. The Commissioner has accepted this position but has held that the manufacture in March was only trial production because they had produced only very small quantity of 1.74 MT which cannot be treated as commercial production. 3. emsp We have gone through the Circular No. 27/98, dated 21-4-1998 issued by CBEC which states that period of depreciation would be counted from the date, the capital goods have been put into the manufacturing process in the 100 EOU up to the date they are sought to be cleared to the Domestic Tariff Area. In view of this, we hold that the applicants have made out a prima facie case for waiver of pre-deposit and accordingly dispense with the pre-deposit of duty and penalty and stay recovery thereof pending the appeal.
2000 (11) TMI 395 - CEGAT, NEW DELHI
RAMACHANDRA & SONS Versus COMMISSIONER OF CUSTOMS, MADRAS
Appeal - Limitation - Condonation of delay ......
........... filing the appeal. In the instant case delay was caused due to searching and tracing/getting the papers and same cannot be said to be sufficient cause to condone the delay of 52 days in filing the appeal. I am also not convinced with the arguments advanced on behalf of the party that delay is to be condoned since the party has strong prima facie case in his favour. Whether party has got the strong case on merits or not is a question of fact which has to be looked into in detail and that can be done on proper examination. Prima facie it cannot be said that strong case in favour of the party. In view of the overall position and taking into consideration that there is an inordinate delay in filing the appeal and major portion of the delay has not been properly explained, there is no justification to condone the delay. In the view I have taken, an application filed by the party to condone the delay is hereby rejected. Consequently, Appeal No. C/132/2000 is dismissed as time bar.
2000 (11) TMI 394 - CEGAT, NEW DELHI
ELECTRICITY POLES MFG. UNIT Versus COMMISSIONER OF C. EX., GHAZIABAD
Stay/Dispensation of pre-deposit - Manufacturer ......
........... finding arrived by the authorities below. The appellate authority in the impugned order observed ldquo I find that the Assistant Commissioner, in his order, has held that the appellant is the manufacturer of the poles as they are availing the Modvat facilities and following of Central Excise procedures. rdquo In the light of this finding we are not in a position to hold that the appellants were not manufacturers. If they were not the manufacturers, under no circumstances could they avail of Modvat credit. These two are contradictory stands. In this petition appellant prays for waiver of pre-deposit as contemplated by Section 35F of the Act. In the nature of the contentions raised and the facts, we do not find justifiable reason to waive the entire amount demanded by way of duty. Appellant is directed to deposit Rs. 50,000/- (Rupees fifty thousand only) as a pre-condition for entertaining this appeal within 4 weeks from today. For reporting compliance adjourned to 14-12-2000.
2000 (11) TMI 392 - CEGAT, CALCUTTA
HIMADRI HEALTHCARE (P) LTD. Versus COMMISSIONER OF C. EX., BOLPUR
Stay - Modification of ......
........... oduced on record pertain to the year 1996-97 to 1999-2000. He submits that the balance sheets were not available with the appellants at the time of filing stay petition as also hearing of the stay petition. The same having not been filed by them at that time, we do not think it fit to refer to the said balance sheets when the Stay Order has already been passed. It has been observed that prima facie, no fault is found in the method of adoption of assessable value by the Revenue. Accordingly, we reject the Miscellaneous Application for modification of the Stay Order. However, in the interest of justice, we extend the period for deposit by another four weeks. Matter to come up for ascertaining compliance on 11th December, 2000. Needless to say that in case of non-compliance with the above Order the appeal itself would be dismissed without any further notice to the appellants. In case the appellants comply with the above order the appeal itself would be taken up on the said date.
2000 (11) TMI 391 - CEGAT, NEW DELHI
VENKATESH BEVERAGES LTD. Versus COMMISSIONER OF CENTRAL EXCISE, BHOPAL
Appeal to Appellate Tribunal ......
........... y of remand, for de novo decision in the light of the judgment recorded in the case of Krishna and Company v. Commissioner of Central Excise, Jaipur 2000 (125) E.L.T. 503 (T) 2000 (37) RLT 55 . 2. emsp The perusal of the record shows that the applicants thereafter independently applied before the Assistant Collector for refund of the duty amount before filing the present Misc. application before the Tribunal and Assistant Collector rejected the same on merits by passing detailed order dated 5-5-2000. No appeal has been filed by the applicants against that order of the Assistant Collector rejecting their refund claim. Therefore, the present Misc. application filed by them for refund claim before the Tribunal, without preferring any appeal against the said order of the Assistant Collector disallowing the refund, is not legally maintainable and the same is ordered to be dismissed. The applicant may, if so advised, file the appeal against that order of the Assistant Commissioner.
2000 (11) TMI 380 - CEGAT, NEW DELHI
INTRON LTD. Versus COMMISSIONER OF CENTRAL EXCISE, NEW DELHI
Appeal - Restoration of ......
........... tter. Shri M.P. Singh, learned D.R. opposed the prayer submitting that the Advocate should have intimated the changed address to the Tribunal and the notice was also sent to the appellants. 3. emsp We have considered the submission of both the sides. We find that the Advocate remained absent on the date of hearing on account of non-receipt of notice of hearing. No doubt it was required of the Advocate on record to intimate the change in her postal address. However, we are of the view that reasons for non-appearance has been explained properly and accordingly we recall our Final Order No. 1081/2000-B dated 10-7-2000 and restore the appeal to its original number. The appeal is posted for final hearing on 11-12-2000.
2000 (11) TMI 379 - CEGAT, CALCUTTA
RAIGANJ PLYWOOD PRODUCTS Versus COMMISSIONER OF C. EX., BOLPUR
Stay - Modification of ......
........... s as regards the clandestine manufacture are serious charges, which being clandestine activities in any case, would not get reflected in the balance sheet, thus not showing actual financial position of the appellants. The appellants have not been able to show any reason after passing of the order reflecting upon their poor financial position so as to interfere with the earlier order of the Tribunal. With these observations we reject the Miscellaneous Applications for modification of the Stay Order. However, in the interest of the justice we grant further period by another one month so as to enable the appellant to deposit the amount in question. The matter to come up for ascertaining compliance on 7th December, 2000. Needless to say that if the appellants fail to deposit the above amount, their appeals would become liable to be dismissed without any further notice. In case the appellants comply with the above order their appeals itself would be taken up on 7th December, 2000.
2000 (11) TMI 378 - CEGAT, CHENNAI
LARSEN & TOUBRO LTD. Versus COMMISSIONER OF C. EX., NEW DELHI
Appeal if not filed against another order - Effect on refund claim - Refund ......
........... separate order directing them to pay duty and the refund claim has to be adjudicated under Section 28 of the Act so long as the refund claim is in time. We have considered the submissions raised in the appeal and we are inclined to accept the same. We notice that there is no dispute with regard to duty having been paid under protest. The grounds of refund are required to be examined by the original authority and the grounds cannot be rejected solely on the plea that the matter has been adjudicated by the department by a different order and same had not been appealed. As long as the refund claim is in time all the grounds made out in the refund application are required to be examined. 5. emsp In that view of the matter, matter is remanded to the original authority for de novo consideration. The original authority shall call notice of hearing and hear appellants and examine the matter on all counts and give a detailed order. Appeal allowed by way of remand. Ordered accordingly.
2000 (11) TMI 377 - CEGAT, NEW DELHI
LAUREL ORGANICS LTD. Versus COMMISSIONER OF C. EX., DELHI-III
Stay/Dispensation of pre-deposit ......
........... he plea of financial hardship pleaded in this case. Since we find that there is a positive admission of clandestine removal and its resorting to and knowledge on the part of the Managing Director of present appellant before us, the Managing Director of the Company is a very responsible person under the Companies Act in-charge of the affairs of the company and if clandestine removal of the goods without payment of duty was within his knowledge, the penalty imposed under Rule 209A prima facie appears to be called for. However, keeping in mind the certificate of assets submitted by the appellant, Shri Bansal, we would consider the pre-deposit of Rs. 50,000/- to be called for and on such pre-deposit of Rs. 50,000/- against the penalty imposed, the remaining amount stands waived till the final decision of this appeal. We also direct that this pre-deposit of Rs. 50,000/- being ordered should be complied with and compliance to be reported on or before 19-1-2001. Ordered accordingly.
2000 (11) TMI 376 - CEGAT, CALCUTTA
MODERN MALLEABLES LIMITED Versus COMMR. OF C. EX., CALCUTTA-II
Appeal - Limitation ......
........... lly considered the same. The fact of delay has been admitted by the applicant, but explains it away by saying that the delay has occurred on account of the Dealing Assistant s absence from work till he eventually quit the employment in June, 2000. The appeal was filed on 14-7-2000. The applicant also explains that the retainer of the company Shri Mahapatra had undergone heart operation. Although no documentary evidence has been placed on record to the effect, the oral submission of the learned Advocate himself can be taken as true. On a careful consideration, I find that the applicant has made out a prima facie case in his favour on merits inasmuch as Modvat credit was denied to the appellant on mere procedural lapses. When the applicant has a strong prima facie case in his favour on merits, rejection of application for condonation of delay would amount to denial of justice. In view thereof, I am inclined to grant the said prayer for condonation of delay. Ordered accordingly.
2000 (11) TMI 374 - CEGAT, NEW DELHI
ELECTRO MECH. ENGINEERING Versus COLLECTOR OF CENTRAL EXCISE, RAJKOT
Rectification of mistake ......
........... respect of classification of Domestic Flour Mills. A copy of the circular was also enclosed with the letter. 4. emsp The contention of the revenue is that the impugned order was in favour of the applicants and they had no right to file any cross-objection and the cross-objections were only in the nature of counter. 5. emsp We have perused the record. The applicants had filed the cross-objections and the Final Order was passed without considering the cross-objections. The Circular issued by the Board, a copy of which was also filed with the letter dated 5-7-1999, was also not considered at the time of passing the Final Order. In this view of the matter, we hold that the appeal should have been decided after considering the cross-objections and the Circular issued by the Board. Accordingly, the rectification of mistake application is allowed and the Final Order No. 1078/99-B1, dated 5-10-1999 is recalled for fresh consideration and the appeal is restored to its original number.
2000 (11) TMI 373 - CEGAT, NEW DELHI
KRISHNAN & ASSOCIATED ENGINEERS Versus COMMR. OF C. EX., NEW DELHI
Valuation - Excise duty ......
........... be upheld. (c) When we find no reason to uphold the determination of any demand, the order is required to be set aside. Before, we part with the same, we would like to observe that the Commissioner s finding that primarily the party is liable for duty and its discharge could be treated to be over, if proof of payment by ISPL on their behalf is shown, is not supported by the Central Excise Act or the rules thereunder. The Act provides that duty shall be levied on goods manufactured and collected as prescribed and Rule 7 of Central Excise Rules, 1944 that every person who manufactures, shall pay the duty. It is only in case of Rule 7A the procurer i.e. of molasses produced by Khandsari manufacturer shall pay the duty. Therefore, Razor Blades procurer i.e. ISPL rsquo s payment cannot be evidence of discharge of duty under Rule 7 of the Central Excise Rules as is being found by the Commissioner. 5A. emsp In view of our findings, the impugned order is set aside and appeal allowed.
2000 (11) TMI 372 - CEGAT, NEW DELHI
COMMISSIONER OF CENTRAL EXCISE, JAIPUR-II Versus HINDUSTAN ZINC LTD.
Modvat - Explosive used in mines ......
........... reon. 2. emsp We have heard both sides. We find that this issue stands settled against the respondents by the decision of the Larger Bench in the case of Jaypee Rewa Cements v. Commissioner of Central Excise, Raipur reported in 2000 (119) E.L.T. 552 (T-LB) 2000 (38) RLT 1111 . In para 9.2 of the order, it has been held that the inputs in respect of which Modvat credit has been allowed under Rule 57A are required to be brought into the factory for being used in or in relation to the manufacture of final products. In the present case, there is a clear finding of the Assistant Commissioner that the approved factory premises does not include the mines. Applying the ratio of the Larger Bench decision, we set aside the impugned order by which the Commissioner (Appeals) has remanded the case for verification of the fact as to whether the mines are adjacent to the factory of the assessees and extend credit if the mines are adjacent to the factory, and allow the appeal of the Revenue.
2000 (11) TMI 371 - CEGAT, NEW DELHI
COMMISSIONER OF CENTRAL EXCISE, NEW DELHI Versus MODI STEEL LTD.
Demand - Limitation ......
........... on 11A of the Act, had not been alleged for invoking the extended period of limitation. All that has been alleged in the show cause notice dated 22-9-1989, is that there was mis-declaration of the product to avail the benefit of Notification No. 54/80. No allegations of fraud, collusion or intentional mis-declaration of the product had been attributed to the respondents. That being so, the demand for disputed period October, 1982 to April, 1983 on the basis of show cause notice dated 22.9.84 has been rightly held to be time barred by the Cellector. 8. emsp It may also be mentioned that even the demand for November, 1981 to September, 1982 on these very facts, had been dropped by the Assistant Collector being time barred, as is clear from the copy of the Order of the Assistant Collector dated 30-3-1993 produced by the Counsel before us. 9. emsp In view of the discussion made above, we find no merit in the appeal of the Revenue and therefore the same is ordered to be dismissed.
2000 (11) TMI 370 - CEGAT, NEW DELHI
COMMISSIONER OF CENTRAL EXCISE, CHANDIGARH Versus SINGLA STEELS LTD.
Runners and risers ......
........... th the sides. The issue involved in the present appeal stands settled by the Tribunal in the case of CCE, Chandigarh v. K.C. Alloys and Ors., supra. It was held in the said case as under - ldquo Applying the ratio of all the decisions discussed earlier and the fact that the Notification exempts waste and scrap when such waste and scrap arises in the course of manufacture of ingots and billets of non-alloy in all induction furnace unit on which duty of excise is paid under Section 3A of the Act, the benefit of exemption cannot be denied to the runners and risers in question as they squarely fall within the ambit of notification No. 49/97-CE. rdquo 4. emsp Following this decision we hold that the exemption under Notification No. 49/97 is available to runners and risers which emerge during the process of manufacture of ingots in a unit where the duty liability is discharged under Section 3A of the Central Excise Act. Accordingly all the appeals filed by the Revenue are rejected.