Central Excise Case Laws

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1997 (3) TMI 326 - CEGAT, NEW DELHI

COLLECTOR OF CENTRAL EXCISE, MEERUT Versus ELECTRO STEEL CASTING LTD.

Modvat - Deemed credit ......

........... see had availed of the benefit of the deemed credit on the old and used scrap of iron and steel purchased from the market, the Modvat credit had been taken wrongly. It is further seen that the Excise officers had physically verified the scrap and had found that the scrap in question was in the nature of used and discarded items of iron and steel. 10. emsp The appellants had contended that in addition to kabaris scrap, wagon cuttings, turnings and borings etc., they had also received mild steel skull. We find that it has also been received from the kabaris and there is no evidence on record that at any stage any Central Excise duty had been paid thereon. 11. emsp Taking all the relevant facts on record into consideration, we do not agree with the view taken by the ld. Collector of Central Excise (Appeals), New Delhi, we set aside the same and as a result the order passed by the Assistant Collector of Central Excise, Ghaziabad is restored. The appeal of Revenue is thus allowed.

1997 (3) TMI 323 - CEGAT, CALCUTTA

RECKITT & COLMAN OF INDIA LTD. Versus COLLECTOR OF C. EX., CALCUTTA

Ointment ......

........... e product is not entitled to the benefit of the said notification. 3. emsp We have heard both sides. This question, we are of the view, can be resolved by a reference to the Drug Controller. The matter is, therefore, fit for remand to the original authority who shall make a detailed reference to the Drug Controller regarding the contents of entire composition of the said ointment and seek a clarification from him whether the content of Terpineol in the said ointment acts as an active ingredient or not. If the Drug Controller is found to be in affirmative then the product of DAC would not be entitled to the benefit of said notification. If, however, Drug Controller states that Terpineol in the said DAC does not act as an active ingredient, then the appellants herein would be entitled to the benefit of the said notification. Hence we remand the matter to the original authority for de novo adjudication in the light of our aforesaid observations. Appeal is thus allowed by remand.

1997 (3) TMI 322 - CEGAT, CALCUTTA

RADIANT INDUSTRIES LTD. Versus COMMISSIONER OF C. EX., CALCUTTA

Modvat - Demand - Limitation ......

........... i K.K. Biswas for two reasons - (i) emsp no doubt the Tariff Heading is 84.83 or 84.55 but the words ldquo Proof Machined Forging Article rdquo clearly indicate the nature of the article brought in by them as inputs. The very expression ldquo Proof Machined rdquo indicates that it is not as yet a part of machineries. It is merely a forged article up to the stage of ldquo Proof Machined rdquo . It has to be further machined to make it a part of machineries. (ii) emsp It is also not denied by the Revenue that the appellants herein have undertaken the machining in their factory on such ldquo Proof Machined Forging Article rdquo . I therefore, of the view, that there is no discrepancy between their declaration under Rule 57G and what has been actually brought by them. Merely on these small discrepancies by way of headings of the various inputs credit cannot be disallowed. Accordingly, I set aside the impugned order and allow the appeal with consequential relief to the appellants.

1997 (3) TMI 321 - CEGAT, NEW DELHI

ULTRA AUTOMAN RUBBERS (P) LTD. Versus COMMISSIONER OF C. EX., MEERUT

Demand - Short levy arising out of change of classification ......

........... alt Act, 1944 even with reference to the change of classification or price list approved. But in the recent case Bhiwani Textile Mills referred to above the Supreme Court following the ratio of the Collector of Central Excise v. Rajasthan Spg. and Wvg. Mills Ltd. 1995 (75) E.L.T. 36 (S.C.) and Union of India and Others v. Madhumilan Syntex Pvt. Ltd., reported in 1988 (35) E.L.T. 349 (S.C.) held that in respect of classification demand for short levy and on account of change in classification is enforceable from the date of show cause notice proposing revision of classification and not for earlier period. Since the Supreme Court has taken this view, following the ratio of the decisions, we hold that the demand for short levy on account of change in classification is enforceable from 23-11-1987 since show cause notice dated 23-11-1987 was the first show cause notice issued for proposing to change the earlier classification. With this view, the appeal is disposed of accordingly.

1997 (3) TMI 320 - CEGAT, MUMBAI

ARHAM CORPORATION Versus COMMISSIONER OF C. EX., SURAT

Stay/Dispensation of pre-deposit - Penalty ......

........... 96-Bom M/s. Rajshree Silk Mills 17,000 21. E/Stay-1302/96-Bom E/2568/96-Bom M/s. Dhiraj and Co. 20,000 22. E/Stay-1303/96-Bom E/2569/96-Bom M/s. Sweety Prints 27,000 23. E/Stay-1304/96-Bom E/2570/96-Bom M/s. Roop International 20,000 24. E/Stay-1305/96-Bom E/2571/96-Bom M/s. Harish Textile 30,000 25. E/275/97-Bom M/s. Roopchand Nandwani 1,00,000 2. emsp Shri Willingdon Christian, the ld. Counsel for the applicants submitted that they have also deposited a sum of Rs. 14,50,000/- towards duty and that the balance duty amount is being deposited. Applicants would only pray for waiver of penalty amounts. 3. emsp We have heard Shri Gurdeep Singh, the ld. DR for the respondent. In view of the submissions made before us, we direct that the balance duty amount be paid within fortnight from today, if not already paid. On such compliance, we grant waiver of the penalty amounts and stay its recovery pending disposal of the appeal. The stay applications are disposed of in the above terms.

1997 (3) TMI 318 - CEGAT, CALCUTTA

COMMISSIONER OF C. EX., BHUBANESWAR Versus LARSEN & TOUBRO LTD.

Appeal - Limitation ......

........... ght to be denied. On the other hand, the respondents herein by their written submissions have relied on two judgments of the Tribunal namely - (i) emsp Collector of Central Excise v. Avery India Ltd. reported in 1991 (56) E.L.T. 790 (CAL. CEGAT) (ii) emsp Larsen and Toubro Ltd. v. Collector of Central Excise reported in 1993 (63) E.L.T. 126 (CEGAT, Madras). 5. emsp We have carefully considered the submissions of the learned JDR in the course of hearing and we have also taken into account the written submissions of the respondents herein. We have also gone through the judgment of the respondents in their own case in Madras, CEGAT. We are satisfied that Acetylene Gas is used captively in the manufacture of further product or in relation to the manufacture of industrial machinery. It is, therefore, clearly an input. Hence the benefit of Notification No. 217/86-C.E. cannot be denied to the Acetylene Gas used for the aforesaid purpose. Hence the appeal of the Revenue is dismissed.

1997 (3) TMI 317 - CEGAT, CALCUTTA

COLLECTOR OF CENTRAL EXCISE, PATNA Versus INDIAN CABLE COMPANY

Valuation ......

........... ount, we agree with the Revenue that if a discount is subject to fulfilment of the conditions and if the conditions are not complied with, discount is inadmissible. But it has not been stated by the revenue categorically that discount herein is subject to a condition and that condition has not been fulfilled in the present case. Nevertheless, we observe that the impugned order also makes its finding subject to establishing that the grant is by practice, contract etc. and is identifiable with the trade discount allowed at the time and place of delivery of the goods. We do not find anything wrong in the impugned order. Even considering the second ground, the lower appellate authority has already held that discount is to be allowed subject to fulfilment of some conditions. In other words, we do not find any substance in the appeal of the Revenue. They should follow the directions given in the impugned order given by the lower appellate authority. Appeal is, therefore, dismissed.

1997 (3) TMI 316 - CEGAT, CALCUTTA

FLAKT INDIA LTD. Versus COMMISSIONER OF CENTRAL EXCISE, CALCUTTA-I

Valuation ......

........... nded Tariff Item 33, whereby the Tariff item was read to include regulator along with fan with effect from 18-6-1977. No such situation is existing in these cases. Apart from that, he submits that the impugned order was based on the Order-in-Appeal dated 13-3-1985 and when that Order-in-Appeal had been set aside in Tribunal rsquo s Final Order No. 554/96-A, dated 30-1-1996, the impugned order in these cases also falls. 5. emsp We have carefully considered the submissions of both sides. We agree with the submissions of the learned Consultant, Shri R.N. Sen. In view of the fact that the very basis of the impugned order has been set aside by the Tribunal vide its Final Order No. 554/96-A, dated 30-1-1996 (supra), the entire impugned order falls. Consequently, we set aside the impugned order and allow the appeals. We may mention at this stage that the Judgment in the case of Khaitan Fans relied upon by the learned SDR, has no relevancy in the facts and circumstances of the cases.

1997 (3) TMI 315 - CEGAT, MUMBAI

CONVERTER Versus COMMISSIONER OF CENTRAL EXCISE, PUNE

Packing material ......

........... of marketing these are packed in boxes known as the matchboxes. When a number of such boxes are packed in the goods under consideration, therefore, it would, in our view, be incorrect to say that these are used only to pack the container, the boxes and not the matches themselves. It is common practice in excise to consider primary and secondary packing i.e. packing which is essential to put the goods in the market and further packing in order to protect the goods from damage in transit. Therefore, the use of the word ldquo matchsticks rdquo (not matchboxes) in Heading 4819.11 does not justify the conclusion that the goods cannot be used to pack matchsticks. If the term match boxes were used in the heading it could be argued that it would be empty boxes and not the container matchboxes. The contention that it is only the sticks that would be considered for packing is unduly restricting and cannot be accepted. Appeal therefore succeeds on this ground. Impugned order set aside.

1997 (3) TMI 314 - COMMISSIONER OF CUSTOMS & CENTRAL EXCISE

IN RE: MOON BEVERAGES LTD.

Modvat ......

........... crates the Apex Court has held in the case of Indian Oxygen - 1988 (36) E.L.T. 730 (Tribunal) that collection for rental for durable was an ancillary or allied venture having no relationship with activity of manufacture and such rental charges can not be included in the assessable value. Recently the Tribunal in 1997 (89) E.L.T. 553 followed this decision of the Apex Court. Moreover reading of the adjudicating order shows that adjudicating authority has given cogent reasons for allowing Modvat credits on glass bottles and plastic crates. It is also observed that some of grounds raised in appeal were not part of the show cause notice and anything beyond the show cause notice cannot be taken at Appellate stage. 4. emsp In view of the above and the Order-in-Appeal No. 357/97, dated 10-3-1997 passed by me in the similar type of appeal in another case, I, see no reason to interfere with the order passed by the adjudicating authority. The appeal filed by the department is rejected.

1997 (3) TMI 313 - CEGAT, MADRAS

COMMR. OF C. EX., TIRUCHIRAPALLI Versus TRICHY DISTILLERIES & CHEM. LTD.

Modvat - Capital goods ......

........... e circumstances, dismiss the appeal. rdquo 6. emsp We observe that the learned lower authority has not taken into consideration the process of manufacture of the notified finished product as accepted vis-a-vis the use of the generator. What has to be considered is the integrality of the process of manufacture in the context of the definition of the input of the capital goods as given in the Central Excise Rules in this regard. Therefore, the findings are required to be entered as regards the use of the item vis-a-vis process of manufacture for the purpose of eligibility to the Modvat credit. The learned lower authority has not examined the issue in depth and he did not have the benefit of the decision of the Tribunal referred supra. In the above view of the matter, the matter has to be re-examined afresh in the light of the above. The order of the lower authority is, therefore, set aside and the matter remanded for de novo consideration and decision in the light of the above.

1997 (3) TMI 312 - CEGAT, NEW DELHI

STEWARTS & LLOYDS OF INDIA LTD. Versus COLLECTOR OF C. EX., CALCUTTA

Classification ......

........... from the BTN entries. We consider that this decision had no applicability to the goods before us. In the case of Indian Metals and Ferro Alloys Ltd., Cuttack v. Collector of Central Excise, Bhubaneshwar - 1991 (51) E.L.T. 165 (S.C.) 1990 (2) SCALE 231 at page 1109, the matter related to the classification of poles. In his order-in-appeal dated 28-2-1981, the Member, Central Board of Excise and Customs had observed that the bent tubes or pipes remained tubes and pipes notwithstanding the bending process. He had referred to BTN Explanatory Notes that the coiled tubing was classifiable under Heading No. 73.18. As we see from the product literature, the goods in question were not the coiled tubing but tubular steel coils. They were not tubing. They had lost the character of tubing and were specific identifiable part of the superheaters, economisers etc. 15. emsp In view of the above discussion, we do not find any merit in this appeal and the same is rejected. Ordered accordingly.

1997 (3) TMI 311 - CEGAT, MADRAS

COMMR. OF C. EX., MADRAS Versus SHARDLOW INDIA LTD.

Valuation ......

........... be manufactured over a period of time. Therefore, what is required under law is that the element of the cost incurred towards master die should be worked out on pro rata basis taking into consideration the normal life span of the master die for the manufacture of certain number of pieces of subsidiary dies or direct use of the die for manufacture of the forgings and thereafter determine the duty liability by adding the element of the cost which may be taken to be rolling over a particular quantum of goods by use of the master die etc. In this view of the matter, we hold that there is no infirmity in the order of the C.C.E.(A). We also direct the authorities to work out the modalities with the help of the assessee as to the cost which can be taken to be pro rata attributable to the forgings. The assessee should furnish the necessary data in this regard to the authorities and thereafter the goods should be assessed. With these observations, we dismiss the appeal of the Revenue.

1997 (3) TMI 309 - CEGAT, NEW DELHI

SHRENO LTD. Versus COLLECTOR OF CENTRAL EXCISE, VADODARA

Dished ends - Dutiability - Demand - Limitation - Excisability - Interpretation of exemption notification ......

........... rounds or disclose any grievance against the portion of the Collector rsquo s order dealing with the order-in-original in question. The appellants have perhaps erroneously merely photocopied the appeal memorandum relevant for the other appeal dealt with by the Collector rsquo s order without realising their mistake. The learned advocate, had, during the course of hearing, mainly concentrated on the other appeal (which we have already accepted) and when the matter was allowed to lie over for hearing in respect of the present appeal, he did not present himself to make any further submissions. The appellants were, perhaps, not very serious in dealing with this particular appeal as the amounts are petty sums. I have, however, still discussed the matter to some length and made above observations so that the impugned orders may not be considered as upheld on grounds other than those which were relevant for the purpose of these appeals which are rejected herewith as unsubstantiated.

1997 (3) TMI 308 - CEGAT, NEW DELHI

BHATIA STEEL INDUSTRIES Versus COLLECTOR OF C. EX., CHANDIGARH

Modvat - Deemed credit ......

........... any benefit which was available to the trade in terms of the earlier order dated 7-4-1986. The finding that the appellant had not discharged the burden of proof that the goods were not clearly recognisable as non-duty paid or charged to nil rate of duty is contrary to the Larger Bench decision in the case of Machine Builders case referred to above. It had been held in the said decision that where conditional exemption Notification is there and where the goods available in the market are a mixture of duty paid and non-duty paid goods the assessee rsquo s claim that they are not recognisable as non-duty has to be rebutted by Revenue and that the assessee cannot be called upon to discharge this burden. The scope of the orders granting deemed credit to manufacturers in respect of the listed items have not been properly appreciated by the Assistant Collector and his orders have been wrongly upheld by the Collector (Appeals). These orders are set aside and the appeals are allowed.