Central Excise Case Laws

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1997 (8) TMI 306 - CEGAT, MADRAS

COMMISSIONER OF CENTRAL EXCISE, COIMBATORE Versus TNEB

Valuation ......

........... the cost of production of RCC poles, the ultimate cost of production will have to be higher to that extent and accordingly the assessable value and the corresponding duty thereon will have to be higher. The establishment charges 15 and contingency charges 5 should form part of the assessable value of RCC poles. 5. emsp It is seen even in this order it has been only vaguely mentioned that some indirect expenses would be relatable to the poles which have been manufactured. While in principle, we observe, the plea may be acceptable, but unless it could be established with facts and figures and which are set out in the grounds of appeal or in the narration of facts, the plea cannot be gone into. Since in the present case the required facts are not there and the respondents have not been put to notice in regard to the same, the permission cannot be given at this stage to bring on record any new facts. Following therefore, the ratio of our earlier decision, we dismiss the appeals.

1997 (8) TMI 305 - CEGAT, MADRAS

TVS SUZUKI LIMITED Versus COMMISSIONER OF CENTRAL EXCISE, COIMBATORE

Penalty - Modvat credit wrongly taken but reversed and not utilised by assessee ......

........... the Modvat credit wrongly taken, therefore, could not have been levied in the facts and circumstances of this case. But that is not to say that the appellants are not liable to penalty. We observe the learned lower authority has taken note of the fact that there is no allegation against the appellants that they had wrongly utilised any portion of the credit which they had entered in the RG 23C register. The credit has also been reversed on 19-3-1996. When this be the position, the penalty has to be determined with reference to the benefit and the violation and the injury suffered by the revenue. The appellants are assessees paying high duty, according to the learned Advocate. 8. emsp Taking into consideration the totality of the facts and circumstances of the case and pleas made, we are of the view that the ends of justice would be served if the penalty is reduced to Rs. 5,00,000/- (Rupees Five Lakhs). 9. emsp But for the above modification, the appeal is otherwise, rejected.

1997 (8) TMI 304 - CEGAT, MADRAS

COMMISSIONER OF CENTRAL EXCISE, MADRAS Versus KARUNA ACQUA FARMS

Pond Aerator - Benefit of exemption under Notification No. 49/95-Cus. ......

........... bringing into existence tradeable item and and the tariff has to be therefore, understood in the background, of this technological advancement made and the new production process which have emerged. Taxation authorities have to take note of this realities as are emerging and have to interpret the tariff in a dynamic method to ensure that the benefits as are made available are not denied by reason of any narrow interpretation. The Hon rsquo ble Supreme Court in the case of CCE v. Lekhraj and Sons reported in 1996 (82) E.L.T. 162 has clearly laid down that while classifying the goods under a particular Tariff heading or for Modvat purposes, the scientific advancement made should be borne in mind. Therefore, following the ratio of the decision of the Hon rsquo ble Suprme Court and in view of what we have held above, we are of the view that the learned CCE(A) has rightly allowed the benefit of the Notifications to the appellants. The appeal of the Revenue is therefore, dismissed.

1997 (8) TMI 303 - CEGAT, MADRAS

KERALA CO-OP. MILK MARKETING FEDERATION LTD. Versus CCE., COCHIN

Classification ......

........... the Hon rsquo ble Supreme Court ( 3 Hon rsquo ble Judges), and, therefore, we follow the decision of the Hon rsquo ble Supreme Court in this respect and hold that the demand can be made retrospectively for the past period of 6 months. In the premises, there is no merit in the appeal and, therefore, the same is dismissed. Therefore following the ratio of our earlier decision and also the ratio of the decision of the Hon rsquo ble Supreme Court, we hold that there is no force in the plea of the Chartered Accountant and we therefore dismiss the appeal. rdquo 4. emsp We observe that we have held that the goods are classifiable under 2202.90 and also that the demand could be raised for the past period. The learned C.A. informs us that the notification under Section 11C had been issued for part of the period. We observe that so far as the demand is concerned, the lower authority will demand the duty after taking into consideration this notification, if applicable to the appellants.

1997 (8) TMI 302 - CEGAT, MADRAS

BCM PLASTICS (P) LTD. Versus COMMISSIONER OF C. EX., HYDERABAD

Demand - Limitation - Suppression of facts ......

........... propose to enter into the merits, since we are satisfied that appellant is entitled to succeed on the ground of limitation. Accepting that the relevant classification list did not disclose the use of power-operated circular loom in the conversion of Tape into Fabrics, the trade had been informed even in December, 1987 that benefit Notification will be denied only if power is used in the conversion of Fabrics into Sacks and use of power at any prior stage would not render the Notification inapplicable. If a manufacturer has acted on the strength of such a stand taken by the department, he cannot be considered to be guilty of suppression of material facts in the classification list or intent to evade duty. The notice was issued more than 6 months after the period covered by the demand and since the proviso to Section 11A(1) of the Central Excise Act, 1944 cannot be invoked, the notice would be barred by time. On this ground we set aside the impugned order and allow the appeal.

1997 (8) TMI 301 - CEGAT, MADRAS

PASUMAI IRRIGATIONS LTD. Versus COMMISSIONER OF CENTRAL EXCISE, MADRAS

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

........... ow stands settled by the ratio of the decision of the First Bench of the Tribunal which considered the decision of the Hon rsquo ble Supreme Court in the case of Bata India reported in 1996 (84) E.L.T. 164, that in case the duty is demanded subsequent to the clearance of the goods, since this duty is now held to be payable in terms of Section 4(4)(d)(ii), the abatements in respect of the same would have to be allowed from the sale price. This view, we have taken in a number of decisions. 9. emsp In the above view of the matter, therefore, we hold that the matter will be required to be looked into afresh. Accordingly, we remand the matter to the adjudicating authority. The appellants shall report compliance in regard to the pre-deposit as ordered above to the learned adjudicating authority, who will after noting compliance, take-up the appeal for disposal. In case the appellants rsquo fail be to comply with the terms of pre-deposit, this appeal shall be deemed to be dismissed.

1997 (8) TMI 297 - CEGAT, CALCUTTA

COMMISSIONER OF C. EX., CALCUTTA-I Versus METROARK PRIVATE LTD.

Classification ......

........... b-heading, the expression lsquo medicaments rsquo as covered by definition in Note 2(i) (a) is wide enough to cover ldquo bulk drugs rdquo so long as these are products comprising two or more constituents and they have therapeutic and prophylactic use. Once any goods are covered by the definition of lsquo medicaments rsquo under Note 2(i) (a) and (b) their classification under Chapter 38 is ruled out in view of Note 1(c) to Chapter 38. The fact that lsquo medicaments rsquo are products of lsquo chemical industry rsquo is not material. Residuary products of chemical industry are more general in character and, therefore, specific Heading 30.03 i.e. lsquo medicaments rsquo though products of chemical industry will have to be given precedence over the general Heading 38.23. 5.4 emsp In short, Dimethicone BPC is classified under sub-heading 3910.00 and the other products referred to in Para 1.1 are classified under sub-heading 3003.20. 5.5 emsp Appeals disposed of in above manner.

1997 (8) TMI 294 - CEGAT, NEW DELHI

RB. JODHA MAL & CO. LTD. Versus COMMR. OF C. EX., CHANDIGARH

Modvat - Re-credit after a lapse of three years whether permissible ......

........... supports the view of the Revenue. 11. emsp In the case of Elgi Equipments Ltd. (supra) the Southern Bench has held that re-credit is permissible within 6 months when subsequently authorities held the same final product liable to duty and the said duty paid by the assessee. This judgment is also in favour of the Revenue. 12. emsp In the case of HCL Ltd. (supra), the Tribunal held that the Modvat credit being taken within a reasonable period of 10 months from the date of payment of duty and records evidencing. This citation also is not helpful to the assessee as the re-credit has been taken after 6 months and it is not a case falling within the ambit of facts of the citation. The citations referred to initially taking of Modvat credit and not a case where there has been a redebiting and taking of re-credit after a lapse of 3 years. Hence the citation is totally distinguishable. 13. emsp In that view of the matter, there is no merit in the appeal and hence the same is rejected.

1997 (8) TMI 293 - CEGAT, NEW DELHI

FLEX ENGINEERING LTD. Versus COLLECTOR OF CENTRAL EXCISE, MEERUT

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

........... ourse of manufacture of the printing machine. So is the case in the latter appeal which related to automatic cameras in respect of which they had claimed films as an input. 3. emsp Heard Shri V.R. Sethi, learned DR. He supported the impugned order and opposed the plea for stay. 4. emsp In the light of submissions made and the Tribunal decisions cited in support of the stay application it would appear that the applicants have made out a prima facie case notwithstanding the adverse decision in their own case in respect of the subject inputs vis-a-vis the subject final product. The matter may require a deeper examination when the appeal is itself taken up for decision to consider whether the earlier decision may require a second look by reference to a Larger Bench. In the circumstances, I allow the stay petition and grant waiver of pre-deposit of the amount in question for the hearing of the appeal. The recovery of the disputed amount is stayed during the pendency of the appeal.

1997 (8) TMI 292 - CEGAT, NEW DELHI

TRANSPEK INDUSTRY LTD. Versus COLLECTOR OF CENTRAL EXCISE, BARODA

Demand - Limitation ......

........... ment as Kgs. and these classification lists have been approved finally allowing clearance at nil rate of duty. In these circumstances, in the absence of any other evidence to show that it was so declared with mala fide intention, only normal period of limitation was available to the Department. There is also some force in the learned counsel rsquo s argument that even otherwise, as it was a bulk drug, they were entitled to the benefit of exemption notification subject to the production of Drug Controller rsquo s certificate which would have been, in the normal course, issued to them in view of their drug licence, a copy of which has been filed. We are, however, not required to go into that aspect at this stage. 9. emsp Looking to the totality of facts and circumstances, we feel that imposition of penality was also not called for as the Department has not been able to show any justification for the same. The impugned orders are, therefore, set aside and the appeal is accepted.

1997 (8) TMI 291 - CEGAT, MADRAS

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

Money credit - Appeal - Additional ground ......

........... tant Collector was taken up in appeal by the respondent before us, before the Collector (Appeals). The learned Advocate stated that this question of jurisdiction was raised before the Assistant Collector and he stated that this plea of the appellant is not valid and he has rejected the plea. Therefore, it is seen that when this plea was rejected it was for them to have contended about the same before the Collector (Appeals) by filing a cross objection, but that was not done. Even in the appeal before us the respondents did not challenge the same. It is now a well settled principle that all points which ought to have been raised at the proper time, if not raised, they are barred by principles of res judicata and, therefore, cannot be allowed to be raised before us in the appeal filed by the department. 8. emsp In this view of the matter that the above plea cannot be entertained at this stage and accordingly, the appeal is allowed in the above terms, with consequential reliefs.

1997 (8) TMI 290 - COMMISSIONER OF CENTRAL EXCISE & CUSTOMS (APPEALS)

IN RE: CIPLA LTD.

Refund - Limitation ......

........... ion should not be invoked. 3. emsp I have carefully considered the submissions made by the appellants. In this case, I find that the appellants have asked for a refund of duty already paid by them vide letter dated 27-3-1996. If it was considered by the department that the refund claim was not in proper format they should have communicated to the appelants immediately. The appellant was given the impression that the refund will be ordered on finalisation of the RT 12 assessment order. But though the RT 12 was finalised in June, 1996, no refund claim was sanctioned and the appellant was asked to file a regular refund claim in July, 1996 only. Since in this case the letter was entertained by the department without asking the appellants to file a claim in a regular form, the earlier letter has to be taken as their refund claim and the claim should be considered within time. 4. emsp In view of the above the appeal is allowed and the Asstt. Commissioner rsquo s order is set aside.

1997 (8) TMI 289 - CEGAT, MADRAS

TAPIOCA PRODUCTS Versus COMMISSIONER OF CENTRAL EXCISE, COCHIN

Modvat on capital goods ......

........... it consideration only if it is shown that fuel oil has been used in or in relation to the manufacture of the notified finished product. Here since we have held that plants for generation of electricity cannot be taken to be part of the set-up for processes for the manufacture of ferro alloys, the question of extending the benefit in respect of fuel oil for generation of electricity does not arise. rdquo He, therefore, stated that since the process is connected with the manufacture of the ultimate product, the appellants are entitled for the benefit. 3. emsp Heard the learned JDR, Shri Murugandy. He accepts the position that in similar circumstances we have granted the benefit as per the above said order. 4. emsp We have considered the submissions. We find that the process is integrally connected and the boiler in question is used for the ultimate production of the product i.e. the liquid glucose. In this view of the matter, following our earlier decisions we allow the appeal.

1997 (8) TMI 288 - CEGAT, MADRAS

COMMISSIONER OF C. EX., BANGALORE Versus WS. INDUSTRIES (P) LTD.

Line tester allowed for benefit of Notification No. 73/90-C.E. ......

........... learned JDR for the department intervened to say that the department has taken a ground that the line tester in question is not a permanent feature of the telephone exchange. 5. emsp We have considered the pleas made by both the sides. We observe prima facie the decision of the Tribunal should be applicable in respect of the line tester but since it is urged that the line tester in question is of different kind for fitment to a different configuration and the technical aspects will be required to be gone into, we are of the view, in the interest of justice, that the matter should be remanded to the original adjudicating authority for de novo consideration and decision after taking into consideration the decision of the Tribunal cited supra and after examining the technical aspects involved in the case of the equipment in question vis-a-vis the telephone exchange for which it is intended. 6. emsp The appeal of the Revenue is therefore allowed by remand in view of above terms.

1997 (8) TMI 287 - CEGAT, MADRAS

COMMR. OF C. EX., COIMBATORE Versus MAGTORQ POWDER CLUTCHES PVT. LTD.

Classifiaction ......

........... ified under these headings. The item in question in the present case has to be used as an accessory in conjunction with other equipment for the control mehanism to function. If the same is to be used with any one of the equipment falling under Heading 90.29, this by virtue of chapter notes of HSN Chapter 90, the same can be classified under Heading 90.29. However, this does not appear to be the position in the present case. As it is, according to the learned Chartered Accountant, the item is to be used with equipment falling under Heading 85.01. If that be so, then classifying the item under Heading 90.29 may not be proper. However, since this aspect has not been gone into by the lower appellate authority we hold that this is a fit case where the matter should be remanded. We, therefore, set aside the impugned order and remand the matter to the learned CCE(A), for de novo consideration of the matter in the light of our observations above. The appeal is thus allowed by remand.