1998 (5) TMI 231 - CEGAT, NEW DELHI
COLLECTOR OF C. EX., BOMBAY-III Versus BRIGHT ENGINEERING CO.
SSI Exemption - Brand name ......
........... e name/logo of brand name of owner are entitled for the benefit of Notification No. 175/86-C.E. dated 1-3-1986. When the collapsible tubes with brand name are entitled for the benefit of the notification, this benefit cannot be denied to the respondents as they are manufacturing only M.S. Boxes and Covers for the Chokes and not the complete chokes. Further the respondents are supplying these covers to the manufacturers of chokes. It is not the case of Revenue that the manufacturers of chokes are not entitled for the benefit of the Notification. 8. emsp In view of the fact that the respondents are only producing M.S. Boxes and Covers for Chokes and not the complete chokes, therefore, in view of the above mentioned Trade Notices, they are entitled for the benefit of Notification No. 175/86-C.E. dated 1-3-1986 as held by the Collector (Appeals), C. Ex., Bombay in the impugned order. Therefore, we do not find any merit in this appeal. The appeal filed by the Revenue is dismissed.
1998 (5) TMI 230 - CEGAT, NEW DELHI
COMMISSIONER OF C. EX., JAIPUR Versus SHRI RAM VINYL & CHEMICAL INDUSTRIES
Appeal by Department - Limitation ......
........... r relevant to the case or not. As regards citations made by the department in the case of C.C.E., Madras v. Union Carbide India Ltd., Calcutta reported in 1988 (38) E.L.T. 263 (A.P.), he submits that the delay condoned in that case are of some days only whereas in the present case it is of about 4 months. 4. emsp I have carefully considered the submissions made and have also seen the certificate given by the postal authorities. It is reasonable to accept that the certificate relates to the despatch of the papers in the present case. As regards precedent judgment, I observe that once it is felt that the delay on account of the postal authorities should not be held against the appellants, there is no need to distinguish the judgment on the basis of number of days of delay. Considering the submissions made, I find the case of the Revenue to be correct. I, therefore, set aside the impugned order and remand the proceedings back to the Commissioner (Appeals) for decision on merits.
1998 (5) TMI 229 - CEGAT, MUMBAI
COMMISSIONER OF C. EX., MUMBAI-I Versus BOROSIL GLASS WORKS LTD.
Glass and glassware - Benefit of exemption under Notification No. 67/88-C.E. available. ......
........... wares and its amendment in July, 1991 by which the specification was extended to include bowls, jugs, plates, casseroles, dishes with or without cover and it was also mentioned therein that they can also be used for preparing food. The Commissioner (Appeals) thereafter concluded that the amendment of the ISI specification removes the ambiguity in the matter and clarifies that glass articles like Square Cake Dish, Utility Dish, Pizza Plates are includable in glass tablewares and that such tablewares can also be used for preparing food. We do not find anything in the grounds of appeal to rebut this finding based on relevant material arrived at by the Commissioner (Appeals). In this context the subsequent order of the Commissioner (Appeals) and in the case of the same respondent and on the same issue is also relevant against which no appeal has been filed by the Department. In this view of the matter we find no reason to interfere with the impugned order. The appeal is rejected.
1998 (5) TMI 228 - CEGAT, MUMBAI
COMMR. OF C. EX., AHMEDABAD Versus NEW MANEKCHOWK TEXTILE MILLS
Reference to High Court ......
........... respondent the Department filed an appeal. That is Appeal No. E/370/97. The Tribunal by its judgment dated 23-5-1997 following the judgment of the Tribunal in Moosa Haji Patrawala rsquo s case has held that the claim of the respondent is justified in law and the appeal of the revenue was dismissed. 4. emsp The question is whether the above said question raised by the De- partment is referable to the Hon rsquo ble High court of Ahmedabad for its opinion. 5. emsp The Tribunal by its judgment in the Moosa Haji Patrawala case reported in 1997 (92) E.L.T. page 588 has referred the question to High Court of Mumbai for its opinion. Hence following the said judgment in this case also I refer the above said question to the High Court for its opinion. The Reference Application is allowed. 6. emsp The Registry may send with the necessary papers namely the Order-in-Original, Order-in-Appeal and show cause notice along with this order to the Registry of the High Court for further action.
1998 (5) TMI 225 - CEGAT, MUMBAI
COMMISSIONER OF C. EX., MUMBAI-II Versus MONOPOL CHEMICAL PVT. LTD.
Modvat - Declaration ......
........... complete the Department will be justified in denying the Modvat credit. 3. emsp We have heard Shri S.V. Singh, the ld. DR for the appellant Commissioner and Shri S.K. Banerjee, General Manager (Finance) of the respondent is also present. We find that the Commissioner (Appeals) has taken the view that where the declaration has made indicating the chapter heading in the Tariff and where it is found incorrect, that should not be made a ground for denying Modvat credit. This view find support in several decisions of the Tribunal which have held that for such minor breaches Modvat credit should not be denied. Therefore, the appeal of the Department on this aspect of the Commissioner rsquo s (Appeals) order is not sustainable as it is consonance with the broader purpose of Modvat scheme for input duty relief. The appeal of the Department is accordingly disposed off upholding that portion of the Commissioner rsquo s (Appeals) order against which the Department has come up in appeal.
1998 (5) TMI 221 - CEGAT, CALCUTTA
SUPREME PAPER MILLS LTD. Versus COMMISSIONER OF CENTRAL EXCISE, BOLPUR
Modvat - Packing material ......
........... istant Collector has unnecessarily raised the question of non-inclusion of cost of packaging in the value for cess. The period involved is January 1989 to September 1991. We allow this plea of the appellants subject to the verification that the appellants were entitled to pay duty at specific rate on their production of paper and paper board during the aforesaid period. Otherwise they will have to prove that the cost of packaging materials was being included in the assessable value of the final product. In other words in short we have allowed the appeal in respect of all items regarding admissibiity of Modvat credit, and subject to verification on packaging materials as aforesaid except in respect of two items coal and steam on which the appellants ld. representative does not prays for Modvat credit. 7. emsp Keeping in view the above facts and circumstances the appeals of the assessees are allowed with consequential relief to them and revenue rsquo s appeal is thus dismissed.
1998 (5) TMI 220 - CEGAT, MUMBAI
MEGHDEV ENTERPRISES Versus COMMISSIONER OF CENTRAL EXCISE, RAJKOT
Modvat - Transfer of proforma credit to Modvat credit ......
........... , we hold that if credit for differential duty paid subsequently cannot be given in the proforma account because of its closure, it would still be available by way of credit in PLA. Hence, the whole exercise of taking initial credit in RG 23 (proforma) account and that thereafter its closure and thereafter transfer to Modvat account in terms of Rule 57H, is redundant and is not called for. Following the said decision, the Tribunal in the subsequent case of M/s. Moti Laminates (P) Ltd. had also allowed the appeal of the appellants. Hence, following the said precedent decisions, we allow the appeals of the appellants. However, we add and declare that for the period from 1-6-1983 to 28-2-1986 since the appellant was given refund, they are not entitled to the transfer of proforma credit to Modvat credit account. For the qualification purpose, we remand the matter to the jurisdictional Asstt. Commissioner. Appeals are allowed and remanded to the jurisdictional Asstt. Commissioner.
1998 (5) TMI 219 - CEGAT, NEW DELHI
GRASSIM INDUSTRIES LTD. Versus COLLECTOR OF CENTRAL EXCISE, INDORE
Valuation - Notional interest on advances ......
........... e inferred that the receipt of the advance depressed the price to any extent. In the case of goods which are available on the shelf, it would be easy to verify whether there was nexus by comparing the prices charged by the particular manufacturer to buyers who did not pay any advance amount or the prices charged by other manufacturers for identical goods. As pointed out by Shri K. Srivastava, SDR, such a comparison is not possible in a case like the present one where the goods are tailor-made goods. The fact that it would be more difficult in the case of tailor-made goods to establish a nexus, will not relieve the department of the responsibility of establishing nexus by some credible means or other. 6. emsp The facts of the present case by themselves are not sufficient to establish such a nexus that being so the Commissioner was in error in including in the assessable value notional interest on amount of advance. 7. emsp We set aside the impugned order and allow the appeals.
1998 (5) TMI 218 - CEGAT, MUMBAI
COMMISSIONER OF C. EX., NAGPUR Versus A. MA EXTRUSION
........... the Commissioner (Appeals) order with which they can claim to be aggrieved. We find that the Commissioner (Appeals) observed that the Asstt. Commissioner has ignored that the respondents had opted to the Modvat credit on 21-4-1989 and the transitional Modvat credit under Rule 57H is to be reckoned as to the date of declaration under Rule 57G since the respondents herein had filed the declaration on that date stating therein that the particular in respect of Rule 57H would follow. The Commissioner (Appeals) has taken a broader view of the provisions of Rule 57H and we find no infirmity in such a view being taken having regard to the beneficial nature of the Modvat scheme to avoid the cascading effect of the input duties on the final product. We also note that the Government themselves have subsequently restored the provisions under Rule 57H which was deleted by the amendment on 5-5-1989. We, therefore, see no reason to interfere with the impugned order. The appeal is rejected.
1998 (5) TMI 217 - CEGAT, CALCUTTA
COLLECTOR OF C. EX., BOLPUR Versus MANGAL CHAND METAL MFG. CO.
Modvat - Appeal by Department - Different grounds ......
........... ground revenue rsquo s appeal should be dismissed. 7. emsp We have carefully considered that pleas advanced from both the sides. We find sufficient force in the plea of the ld. Advocate for the respondents. It is very clear that the revenue has now shifted its stand inasmuch as it has been urged in the appeal memo as also reiterated by the ld. JDR has now made out the case totally different than what was before the lower authorities and what was alleged in the show cause notice. We therefore do not allow this plea to be taken at this stage. 8. emsp As regards, the ground No. 3 of the appeal memo that the cables scrap has become non-duty paid because the Modvat credit has been taken on the inputs and that it has been removed under Rule 57F(2) in our view, it has been dealt with fairly and squarely by the lower appellate authority. We do not find any reason to differ with the same. Consequently we do not find any merit in the revenue rsquo s appeal. Hence, we dismiss the same.
1998 (5) TMI 216 - CEGAT, NEW DELHI
SOLAPUR ZILL VINKAR SEHKARI FEDRN. NIYAMIT Versus CCE., AURANGABAD
........... . We are, therefore, unable to find any support to the claim made by the appellants that the concerned officers had verified the fabrics and certified its quality or nature. 7. emsp Having regard to the above discussions, we do not find any merit in this appeal. As regards the penalties imposed on the Federation and its Chairman, we find that the penalty imposed on the Federation is Rs. 20,000/- in relation to the duty payment of Rs. 36,485.09 and the penalty imposed on the Chairman is Rs. 10,000/-. We feel that the penalty of Rs. 20,000/- on the Federation on a duty demand of Rs. 36,485.09 is highly disproportionate. We, therefore, reduce the penalty amount on the Federation from Rs. 20,000/- to Rs. 5,000/-. We also set aside the penalty of Rs. 10,000/- imposed on the Chairman of the Federation as nothing has been shown to involve the Chairman in the said mis-declaration under Rule 209A of the Central Excise Rules. 8. emsp The two appeals are disposed off in the above terms.
1998 (5) TMI 215 - CEGAT, NEW DELHI
COLLECTOR OF C. EX., ALLAHABAD Versus GHAZIPUR ENGINEERING INDUSTRIES
........... o. was set aside in appeal. While M/s. Surya Electric Construction Co. was supplying fans to M/s. Jay Engineering Works Ltd. as well as other wholesalers, the respondent was selling the entire production to M/s. Jay Engineering Works Ltd. and not to any other wholesalers. In the absence of any relationship as contemplated under Section 4(4)(c) of the Central Excise Act, 1944 being established, the respondent cannot be directed to pay duty on the price charged by the buyer to wholesalers or any price other than the consideration received from the buyer for the supply of fans. Even assuming that the price charged by the respondent to the sole buyer was slightly less than ordinary normal price charged by other manufacturers to wholesale dealers, the same cannot be regarded as the normal price in the present case since this was case of bulk buyer who was purchasing the entire production of the respondent. 4. emsp We find no ground to interfere, accordingly, we dismiss the appeal.
1998 (5) TMI 214 - CEGAT, MUMBAI
DHARIWAL TOBACCO PRODUCTS Versus COMMR. OF C. EX. & CUS., BARODA
Stay/Dispensation of pre-deposit - Demand - Penalty ......
........... ommissioner has arrived at his conclusion on the basis of material, which prima facie appears to us relevant. The Commmissioner has referred to the practice of clearance of the goods on payment of duty over a period of nearly about a year and it does not appear to be isolated or stray instance. In the fact that this was sale, the case would also differ from the Hindustan Cocoa Products decision. On limitation we are of the view that the appellants have a prima facie case for not extending the demand beyond six months, because of their letter to the Superintendent referred to (Supra) and the contents thereof. Therefore for the purpose of hearing the appeals on merits, we direct that the applicant to deposit a total amount of Rs.40.00 lacs on or before 31-7-1998, subject to which the pre-deposit of the balance amount of duty and the penalty on the appellants is dispensed with and recovery stayed. 5. emsp Matter to come up for ascertaining compliance with this order on 4-8-1998.
1998 (5) TMI 213 - CEGAT, NEW DELHI
COMMISSIONER OF C. EX., MEERUT Versus MUZAFFAR NAGAR STEEL LTD.
Modvat on capital goods ......
........... here is no dispute that the goods in question were received in the factory in September, 1994 and the show cause notice had also been issued much before the amending Notification No. 11/95-C.E. (N.T.), dated 16-3-1995. 9. emsp The learned Advocate had referred to the Tribunal rsquo s decision in the case of J.K. Synthetics Ltd., supra. The learned Advocate agreed that this explanation had not been dealt with in the Tribunal rsquo s order. 10. emsp Other decisions also referred to by the learned Advocate do not deal with this situation whether that when the capital goods were brought into the factory prior to 16-5-1995 and when such capital goods were not eligible for the credit under Rule 57Q, they will be so eligible under the unamended provisions. 11. emsp Taking all the relevant facts and considerations into account, I do not agree with the view taken by the learned Commissioner of Central Excise (Appeals) in this case. As a result, I allow the appeal filed by the Revenue.
1998 (5) TMI 212 - CEGAT, NEW DELHI
COLLECTOR OF C. EX., RAJKOT Versus GUJARAT HEAVY CHEMICALS LTD.
Valuation - Class of buyers ......
........... the higher price charged to buyers in Gujarat State. The notices proposed demand of differential duty on this basis. Though respondent resisted the notices, the Assistant Collector confirmed the demand. The Collector (Appeals) however, took a different view. 3. emsp Respondent had different prices for buyers in different regions. The price difference was based on the higher sales tax payable in respect of sales in Gujarat State and the fact that Central Sales Tax payable in respect of Inter State sales was much lower. In these circumstances, we are of the opinion that the buyers in Gujarat on the one hand and the buyers in other States other than Gujarat fell in two different classes and therefore two wholesale prices were admissible. The Assistant Collector was in error in demanding duty in respect of clearances made to buyers outside Gujarat on the basis of the wholesale price approved for buyers in Gujarat. We find no ground to interfere and accordingly dismiss the appeal.