1998 (7) TMI 295 - CEGAT, NEW DELHI
GUJARAT STATE FERTILIZER CO. LTD. Versus COLLECTOR OF C. EX., VADODARA
Demand - Limitation ......
........... consignor after heavy hydrogen is extracted therefrom by the HWP. In these circumstances rsquo it cannot be said that GSFC is totally absolved of their liability for the loss of synthesis gas received back from HWP and for their failure to report the actual quantity of such loss which was admittedly higher than one M.T. agreed to between GSFC and HWP. Accordingly, we hold that the duty demand calculated at the rate of one M.T. plus 5 M.T. per day would be rightly demanded from GSFC for the period July 16, 1986 to 14-9-1986. 12. emsp Accordingly, we modify the impugned order by confirming the duty demandable as 1 M.T. plus 5 M.T. per day for the aforesaid period. The actual rate of duty shall be worked out in the light of our above observations by the jurisdictional Assistant Collector (now designated as Assistant Commissioner) in accordance with law and after affording the appellants an opportunity to present their case. 13. emsp The Appeal is in the result allowed by remand.
1998 (7) TMI 294 - CEGAT, NEW DELHI
COMMISSIONER OF C. EX., CHENNAI Versus SOUMAG ELECTRONICS LTD.
........... .S. Negi, SDR for the Revenue. The respondents were not present. 3. emsp We have carefully considered the written and oral submissions. 4. emsp Heading 85.31 covered electric sound or visual signalling apparatus and specifically covered indicator panels. Heading 84.79 covers machines and mechanical appliances having individual function which are not specified and included elsewhere in Chapter 84. Note 5(b) to Chapter 84 excludes from the coverage of Heading 84.71 those appliances working with or in conjunction with the computer. The note advised classification in the headings appropriate to their respective functions or failing that in residual headings. Since this specific function is enumerated in Heading 85.31, the impugned goods could not be classified under residual Heading such as 84.79 when they were found not classifiable under Heading 84.71. We find that the Collector had wrongly classified the products. Upholding the classification under 85.31, we allow this appeal.
1998 (7) TMI 293 - CEGAT, MUMBAI
SUDARSHAN ELECTRONICS TV. LTD. Versus COMMR. OF C. EX., MUMBAI-I
........... on the other hand Joshi says that they were packed. In the absence of the relevant details in the panchnama and the contradictory view and the depositions of the officer we think it appropriate to extend the benefit of doubt with regard to these goods and set aside their confiscation. 6. emsp Apart from our findings with regard to 43 television sets and 54 television sets we allow the appeal and set aside the impugned order. The Commissioner shall, after giving the appellant reasonable opportunity of being heard (which Mr. Pochkhanawalla Sr. Advocate says that they will not need more than 15 days) the Commissioner shall pass a speaking order with regard to duty liability. While doing so he will also take into account any arithmetical and other errors which according to the Advocate for the appellants existed in his order as a result of application of incorrect rate of duty. The Commissioner shall also even if duty is payable he shall determine the appropriate quantum of duty.
1998 (7) TMI 291 - CEGAT, NEW DELHI
COLLECTOR OF C. EX., BARODA Versus BIPICO INDUSTRIES (TOOLS) PVT. LTD.
Tools - Interchangeable tools ......
........... ools. Before the Collector, the assessees claimed that the subjects goods could be used for plaining of wood, for cutting grooves on rubber plants used as a chisel in small workshop or for use as a scraper in tyre industries. The numerous applications in which the subject goods could be used, would itself show their interchangeability. The Collector has observed that plainers and chisels fall under sub-heading 82.05 as hand tools. We have seen the HSN Explanatory Notes. It is true that plainers are classified therein but interchangeable tools used for plaining, cleaning, grooving, etc. are shown to fall under 82.07. Thus, if the plainers were fixed in a specific hand tool, they would have merited classification under Heading 82.05, but where admittedly, they were capable of multiple applications, their classification under 82.07 is warranted. We, therefore, allow this appeal, set aside the Collector rsquo s order and restore the classification made by the Assistant Collector.
1998 (7) TMI 289 - CEGAT, MUMBAI
URISAN COSMETICS LTD. Versus COMMISSIONER OF CENTRAL EXCISE, MUMBAI-II
Stay/dispensation of pre-deposit ......
........... dit. 3. emsp After hearing the ld. DR Shri S.V. Singh, it is found that the issue is arguable and will have to be decided in the light of the scope of capital goods under Rule 57Q and the function of the air-conditioners in relation to the manufacture of the hair dye in question. This is not permissible in a stay application to go into in detail. Therefore for the purpose of hearing the appeal on merits the applicants are directed to deposit an amount of Rs. 30,000/- on or before 31st August, 1998 subject to which the pre-deposit of balance duty and penalty is dispensed with and recovery stayed. 4. emsp The matter to come up for ascertaining compliance on 7th September, 1998.
1998 (7) TMI 288 - CEGAT, MUMBAI
VANAZ ENGINEERS LTD. Versus COMMISSIONER OF CENTRAL EXCISE, PUNE
Refund - Return of rejected goods ......
........... s were brought back for retesting. These were simply rejected goods which should not have been brought back within the factory and in such case the provisions of Rule 173L are not applicable. The appellants in the appeal memorandum has stated that the nature of their product is such that the inspecting thereof would require dismantling certain valves and the process of dismantling, reassembling, removing original marks and making fresh marks will entitle to the appellants to claim the facility under Rule 173L in respect of such product returned to their factory. However, it is seen that in the order of the Asstt. Commissioner, it is recorded that the goods were received back sinch the party has not taken the material. There is no reference to the reason of retesting. In such circumstances, the finding of the Commissioner (Appeals) that the appellants have failed to substantiate their eligibility to refund under Rule 173L is sustainable and the appeal is accordingly dismissed.
1998 (7) TMI 287 - CEGAT, MUMBAI
COMMISSIONER OF C. EX., MUMBAI-III Versus SIDHARTH DYEING & PTG. P. LTD.
Refund - Limitation ......
........... te mentioned in Section 11B would be the date of adjudication of notice within six months of this date. He therefore held that the claim is within time. Hence the appeal. 2. emsp We have heard the Departmental Representative. The respondent is absent despite notice issued when the case was adjourned. 3. emsp Release of goods pending adjudication is provided for in Rule 206. This rule does not refer to payment of duty. There is nothing to support the view that duty which may be paid by a person when the goods are provisionally released is itself provisional. It is true that in such cases the adjudication order does determine whether duty is payable or not. But this by itself does not render the payment one following provisional assessment. The relevant date would be when duty would be paid. Going by that date the claim is barred by limitation. 4. emsp We therefore allow the appeal, set aside the order of the Collector (Appeals) and restore the order of the Assistant Collector.
1998 (7) TMI 286 - CEGAT, MUMBAI
COMMISSIONER OF CENTRAL EXCISE, AURANGABAD Versus SWILL LTD.
Modvat - Deemed credit ......
........... he term copper scrap occurring in the deemed credit order refers only to copper and not to any alloy of copper. This was reiterated by the departmental representative. The entry indicates Tariff Heading 7404 against it. The heading in the notification has to be construed with reference to the definition of copper in the tariff in view and the tariff heading cited. The fact that two earlier headings mentioned in the appeal specify alloys in fact supports this view. Those two headings relate to refined copper and copper alloys and unwrought aluminium refining or not. I therefore see no reason to interfere. 3. emsp Appeals dismissed.
1998 (7) TMI 285 - CEGAT, NEW DELHI
VENKATESH BEVERAGES LTD. Versus COLLECTOR OF CENTRAL EXCISE, INDORE
........... using or consuming the contents of the carton - by piercing a whole at the designated place and using a straw or slitting a part of the carton at the designated place. Thus it is evident that alternative modes of user are available in case of fruit drink, intended to cater to the different requirements of consumers. It is in this light that fact-situation that all supplies of fruit drinks are not accompanied by straw has to be considered. Basically and ultimately it has to be realised that fruit drinks packed in cartons as in the present case are capable of being consumed without the use of straw. A straw is supplied only to provide convenience to the consumer to consume the contents conveniently. Such an article cannot be regarded as an integral or component part of the main product. Therefore, the cost of straw is not liable to be included in the assessable value of fruit drink. 10. emsp For the reasons indicated above, we set aside the impugned order and allow the appeal.
1998 (7) TMI 284 - CEGAT, MUMBAI
COMMR. OF C. EX., AHMEDABAD Versus PARAS PHARMACEUTICALS PVT. LTD.
Modvat - Packaging material ......
........... which is not included in the assessable value of the final products under Section 4 of the Central Excise Act. The rule itself does not define the term packaging materials. It is undisputed in this case that during the material period the respondents have received duty paid Aristrocrat suit cases and also they have used them in packing the tablets as secondary packing and the cost of such suit cases was included in the assessable value of the P or P medicines, as has been shown with reference to the value declared when the Aristrocrat suit cases were being used as compared to the period, when they were not used in packing medicines, in the impugned order by the Commissioner (Appeals). In the absence of any definition of the term packing material under Rule, what has to be looked for is only whether criterion in the Clause (iii) above is satisfied. Since it has been so fulfilled in the present case, we see no reason to interfere with the impugned order. The appeal is rejected.
1998 (7) TMI 283 - CEGAT, MADRAS
COMMISSIONER OF C. EX., BANGALORE Versus JAPAN MANNEQUIN CO.
........... the Collector in dropping the proceedings against those persons, issuing warning to some other person and drooping the proceedings for confiscating the land and building, is hereby confirmed. 17. emsp Imposition of fine of Rs. 20,000/- on Ram J. Harpalani and confiscation of 79 numbers of Mannequins seized from the office premises of the respondents and also ordering release of 105 nos. of Mannequins seized from the office premises which has been ordered unconditionally is also confirmed. 18. emsp In the result, we conclude that there is no irregularity in so far as order pertaining to under-valuation and clubbing of clearances, confiscation and dropping of proceedings against various persons as well as ordering for unconditional release of the goods as noted above. However, the aspect pertaining to clandestine removal and imposition of personal penalty alone is required to be redetermined in terms of our observations above. Thus the appeal is disposed of in the above terms.
1998 (7) TMI 280 - CEGAT, NEW DELHI
PANCHSHEEL ENTERPRISES Versus COLLECTOR OF C. EX., NEW DELHI
SSI Exemption - Brand name ......
........... buyers rsquo name is mentioned for the purpose of identification of the product, benefit of notification for small scale manufacturer is not deniable. The clarification of the Govt. also mentioned that benefit of small scale exemption is not deniable merely on the ground that manufacturers are using marks, labels etc. used by other manufacturers, so long as such marks etc. do not belong to a particular person. 3. emsp Heard ld. SDR, Shri H.K. Saran for the Revenue. 4. emsp We have perused the records of the case and have also considered the submissions. We find that this is only a case of putting certain marks on the PCB to distinguish the buyers. These marks themselves are not trade marks or brand name. They are also not owned by any one in particular. Therefore, following the ratio of the aforesaid decision of the CEGAT and the clarification of the Ministry of Finance, the appeal is allowed with consequential relief to the appellants and the adjudication order is set aside.
1998 (7) TMI 279 - CEGAT, NEW DELHI
KILPEST INDIA LTD. Versus COMMISSIONER OF C. EX., INDORE
Stay/Dispensation of pre-deposit - Manufacture ......
........... it for direct use and are sold after value addition mostly under a brand name and therefore, the process can be described as manufacture. 4. emsp We have considered the submissions of both the sides. We find that the issue involved in the present matter is regarding manufacture and not the classification and as such, we are not convinced that the decision in the case of Markfed Agro Chemicals will not have any application prima facie. We find that the Revenue has not brought out any evidence to show that in the new tariff any Chapter note or Section note has been added to treat this activity as amounting to manufacture. The applicants have made out the prima facie case in view of the decision of the Tribunal in the case of Markfed Agro Chemicals, and therefore, are eligible for waiver of pre-deposit of the entire amount of duty and penalty. We, accordingly, waive the pre-deposit of the entire amount of duty and penalty and stay the recovery during the pendency of the appeals.
1998 (7) TMI 278 - CEGAT, MUMBAI
COMMISSIONER OF C. EX., MUMBAI-III Versus RAM KISHAN METAL WORKS
........... al. 3. emsp I have heard the departmental representative and perused the papers. Respondent is absent. 4. emsp Deemed credit has been denied on the finding of the Assistant Collector that the goods in question cannot be rolled can only be forged. The Asstt. Collector in his order does not indicate why the goods in question could not be rolled. The appeal also does not indicate any basis for this conclusion. There is nothing to show that the goods could be only forged. The respondent has explained to the Collector (Appeals) that these pieces were obtained from the market and rolled by it after being heated. The Government rsquo s order No. 343/89, dated 1-6-1989 permitted credit to be taken on rerollable material on iron and steel purchased from outside without production of documentary evidence of payment of duty. Since it has not been shown successfully these are not rerollable material credit could not be denied. I, therefore, decline to interfere. 5. emsp Appeal dismissed.
1998 (7) TMI 277 - CEGAT, MUMBAI
COMMISSIONER OF CENTRAL EXCISE, RAJKOT Versus DECORA CERAMICS P. LTD.
Modvat - Inputs ......
........... o or three times. 4. emsp Now the fact that something cannot be used more than once or twice make necessary it an input which it may suggest it may not be. This part alone is not enough to say that it is not an excluded input. An example is the significance of the fact that Notification 221/86 exempts Saggars from duty is not clear. More significantly we are handicapped by the fact that its exact composition and function of ldquo Saggars is not rdquo indicated in the impugned order or in the appeal itself or by the respondent or appellant. The Collector (Appeals) does not explain why he treated SAGGARS as input and his order is not a speaking order. We, therefore, consider it necessary it should be set aside and he should be asked to pass a speaking order explaining the composition of the product and as to why he considers not to be excluded tool appliance or equipment. 5. emsp Appeal allowed in these terms. Commissioner (Appeals) to decide the appeal afresh according to law.