Central Excise Case Laws

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1998 (1) TMI 339 - CEGAT, CALCUTTA

AGARWAL STEEL TRADING CO. Versus MCOMMISSIONER OF C. EX., CALCUTTA

Penalty ......

........... o would have been sufficient. The expression ldquo these rules rdquo in my view is referring to the sub-rules of Rule 174 which lays down the condition to be followed by the registered persons. However, there is a distinction between the expression ldquo provisions of the Act rdquo and ldquo conditions of the Act rdquo . The said sub-rule using the expression ldquo breach of any condition rdquo is definitely referring to the conditions as laid down in Rule 174. In view of above clear position of law, I do not find any question of law as raised by the applicant-Commissioner as worth referring to the Hon rsquo ble High Court. Consequently, both the Reference Applications are rejected. rdquo 12. emsp In view of the above Order, I agree with the submissions made by the learned Consultant, Shri Chattopadhyay and quash the revocation of the licence as ordered by the adjudicating authority. The impugned Order is modified to this limited extent. The appeal is disposed of accordingly.

1998 (1) TMI 331 - CEGAT, MADRAS

SRI RAMAKRISHNA INDUSTRIES Versus COMMISSIONER OF CUS. & C. EX., TRICHY

Demand - Limitation - Valuation ......

........... tion of the materials given by the buyers and also the job charges charged. We find that the materials given by the buyers are not complete and not enough to manufacture the trailer in each case. Therefore as the basis of valuation no reliance could be placed thereupon. The ld. Advocate also graciously conceded this fact. Therefore, the same valuation would apply to the trailers which were manufactured on the job work basis. 10. emsp We hold that the Collector was in error in basing his valuation on the proforma invoice but that the correct basis should be the last price list approved. We, therefore, set aside his order and remand the proceedings back to him for re-determination of the quantum of the value as well as the duty not levied in terms of our instructions above. He will, thereafter, again determine the quantum of penalty attracted by the present appellants. The Collector shall do so after giving the present appellants as opportunity to be heard. Ordered accordingly.

1998 (1) TMI 330 - CEGAT, NEW DELHI

COLLR. OF C. EX., MADRAS Versus TAMIL NADU ELECTRICITY BOARD WORKSHOP

Manufacture ......

........... for the petitioners to establish the case before the adjudicating authorities otherwise rdquo . Therefore, the High Court after noting the case law on this aspect rejected the writ petition. As can be seen from this judgment, the High Court has expressed only a prima facie view and had left it to the petitioner to establish their case before the adjudicating authorities. In the judgment of the Tribunal, the authorities had adjudicated the issue and the Tribunal has considered all the points in the light of the judgment of Hon ble Supreme Court with regard to the ldquo excisability rdquo and the terms ldquo goods rdquo . Therefore, we are inclined to follow the judgments rendered by the Tribunal in the cases cited above and in that view of the matter, we do not find any merits in the appeals and the same is rejected. The cross-objections are in the nature of arguments and hence no separate order is required on the cross-objection. 5. emsp Thus, the revenue appeal is rejected.

1998 (1) TMI 329 - CEGAT, MUMBAI

COMMISSIONER OF C. EX., VADODARA Versus PEARIM PHARMACEUTICALS (P) LTD.

Modvat - Declaration ......

........... n these circumstances the Tribunal held that there was no justification for disallowing Modvat credit. We find some relevance in the ratio of the above decision of the Tribunal for the facts of the present case. The manufacture of the final product with the declared inputs took place only in the factory of the respondents and there is also no dispute about this fact. The Department case is that the respondents ought to have, but did not, file a declaration in their own name under Rule 57G and did not maintain Modvat account in their own name. However, in the circumstances and in the light of the case law as discussed above, we feel that the lapse on the part of the respondents is not so serious as to deny Modvat credit on that account. In coming to this conclusion we also note that the matter was remedied in accordance with the view of the Department by filling a revised declaration. In the result, we see no reason to interfere with the impugned-order. The appeal is rejected.

1998 (1) TMI 318 - CEGAT, MUMBAI

KEC INTERNATIONAL LTD. Versus COMMISSIONER OF CENTRAL EXCISE, MUMBAI-III

Modvat - By-products and waste ......

........... crap is exempted, without any condition of availment of Modvat credit. In such a situation the Tribunal held that Rule 57D would come into play and credit initially taken on PVC compound would not call for variation. In the present case also admittedly zinc dross and zinc ash arose during the manufacture of declared final product and exemption of zinc dross and zinc ash, at the material time, was unconditional and the condition later brought in by amending notification is clearly not retrospective. There is nothing in the amending notification to show such intention on the part of the authorities issuing the notification. In such situation the ratio of the decision of the Tribunal would clearly become applicable to the facts of the present case, and applying that ratio we hold that the lower authorities erred in seeking to recover the credit of duty on the zinc contained of zinc ash and zinc dross in this case. The appeal is allowed with consequential relief according to law.

1998 (1) TMI 317 - CEGAT, CALCUTTA

BATA INDIA LIMITED Versus COMMISSIONER OF CENTRAL EXCISE, PATNA

Modvat ......

........... v. Collector of Central Excise, Nagpur, 1996 (81) E.L.T. 3 (S.C.) has laid down that the Credit of Duty paid on common inputs is admissible without use in the manufacture of the final product (exempted and dutiable), provided that the said Credit of Duty paid on inputs going into an exempted category of the final product, is debited in RG 23A Part-II Account before the removal of the exempted final product on actual or pro rata (estimated) basis. In terms of para 4 of the said Circular, the assessee is required to submit a statement in the proforma of Annexure I showing reversal particulars to the jurisdictional Central Excise Officers at the end of every month. As the said Circular was not before the Commissioner a the relevant time, I set aside the impugned order and remand the matter to the Commissioner for fresh decision in the light of the latest instructions of the Board issued vide Circular No. 232/66/96-CX., dated 25-7-1996. Appeal is, thus, allowed by way of remand.

1998 (1) TMI 306 - CEGAT, MUMBAI

COMMISSIONER OF C. EX., VADODARA Versus LAKHANPAL NATIONAL LTD.

Modvat - Declaration ......

........... manufactured three types of starches falling under three different chapters of the Tariff. Nothing prevented them from filing a proper declaration under rule 57G mentioning the usage of the inputs maize starch. It is, in my view, mandatory for the person to get the benefit of the Modvat by following the mandatory procedure of rule 57G. If a person fails to do so, then he cannot avail of the benefit of rule 57A. If the argument of Collector has to be accepted, then the entire scheme will not work. Hence in my view the impugned order has been made in a wrong way. It is violating the mandatory provision of rule 57G. Moreover, rule 57G specifically uses the term ldquo shall file rdquo . The word ldquo shall rdquo cannot be treated as ldquo may rdquo in the context in which it is used. Hence I am of the view that the impugned order passed by the learned Collector is totally devoid of merits. Hence I reverse the order passed by the Collector and allow the appeal of the Department.

1998 (1) TMI 304 - CEGAT, NEW DELHI

COLLECTOR OF C. EX., SURAT Versus UMBERGAON RUBBER PRODUCTS (P) LTD.

Rubber - Eligible to the benefit of Notification No. 152/87-C.E. ......

........... anised compounded rubber is first converted into vulcanised sheets, and such sheets fall for classification under Chapter 40, the conditions of the notification are satisfied and the fact that sheets are further used in the manufacture of Hawai Chappals falling under Chapter 64 and not under Chapter 40 will not detract from the eligibility of the assessees to the benefit of the notification. 3. emsp The above decision applies squarely to the facts of the present case. Hence, following the ratio thereof, we are upholding the orders of the Collector (Appeals) and reject the Revenue Appeals. 4. emsp Incidentally, we may also add that the appeals are liable for dismissal for want of prosecution when the respondents cannot be served since their unit is closed down as seen from the postal remarks on the undelivered notice for today rsquo s hearing, following the Hon rsquo ble Apex Court order in the case of C.C.E., Hyderabad v. Electrolite Foils Ltd. report in 1997 (91) E.L.T. 543.

1998 (1) TMI 303 - CEGAT, NEW DELHI

UNION CARBIDE (P) LTD. Versus COMMR. OF C. EX., HYDERABAD

Zinc off-cuts - Rate of duty ......

........... defending the lower order claimed that very language of the notification showed that the notification is mandatorily to be applied where the assessee was availing of the Modvat procedure. 4. emsp We have carefully considered the rival submissions. 5. emsp The perusal of the classification list shows that the benefit of Notification No. 178/84-C.E. had not been claimed for the zinc off-cuts. In terms of the cited judgement whether to avail the benefit of particular notification or not would be for the assessee to chose and not for the department to dictate. Since the notification did not apply to the clearances, there is no reason for going into the conflict created by the interpretation of this notification including the liability on the manufacture of pay-duty at a rate higher than what was prescribed in the tariff. On the preliminary submissions on the applicability of the notification, we allow this appeal, set aside the impugned order resulting relief, if any, warranted.

1998 (1) TMI 300 - CEGAT, NEW DELHI

COMMISSIONER OF C. EX., BOMBAY-II Versus JOHNSON & JOHNSON LTD.

Classification ......

........... re classifiable under Heading 76.06 prior to 1-3-1988 and under sub-heading 7607.50 subsequently. It was submitted by them that they are not in agreement with the said order dated 12-9-1996 passed by the CEGAT against which they have filed an appeal before the Supreme Court which is pending. It was also submitted by them that the Department has sought the classification of the said product under Chapter 7613.90 for the period prior to 1-3-1988. However, the Tribunal as per order dated 12-9-1996 has held that the product is classifiable under Heading 7606.00 as Aluminium Foil prior to 1-3-1988. 2. emsp Since the very issue with reference to the classification of the product has already been considered by the Tribunal holding that the item Printed Aluminium Labels are classifiable under Heading 76.06 prior to 1-3-1988 and under sub-heading 7607.50 subsequently. Following the ratio, we held that the same is classifiable. Accordingly this appeal is disposed of in the above terms.

1998 (1) TMI 299 - CEGAT, NEW DELHI

COLLECTOR OF C. EX., CHANDIGARH Versus BAKEMAN’S HOME PRODUCTS LTD.

Valuation - Packing ......

........... hallenged by the Department on authorisation by the competent authority. 2. emsp It is admitted that specified number of biscuits are wrapped in wax paper and then in printed paper. When biscuits are to be delivered to up-country buyers, specified number of biscuit packets are packed in cardboard boxes. Collector (Appeals) noticed from the records that one variety of biscuits, namely, glucose biscuits, when delivered at the factory gate to local wholesalers were not being packed in cardboard boxes but being packed in polythene bags. It was on this ground that the appellate authority held that packing in cardboard boxes was not necessary for the purpose of delivery in wholesale trade at the factory gate. It was on this ground that deduction in regard to glucose biscuit was allowed. This decision is in consonance with the principles laid down by the Supreme Court in M.R.F. case 1995 (77) E.L.T. 433. We, therefore, find no ground to interfere and accordingly dismiss the appeals.

1998 (1) TMI 295 - MADHYA PRADESH HIGH COURT

NEO SACKS LIMITED Versus CEGAT, NEW DELHI

Judicial review of Tribunal’s orders - Writ jurisdiction against CEGAT orders ......

........... he writ jurisdiction See 1964 SC 1419, 1985 (19) E.L.T. 22 (S.C.) AIR 1985 SC 330, AIR 1994 SC 2377 . 17. emsp In the ultimate analysis and all things considered we overrule the preliminary objection taken by the respondents and hold that CEGAT is as much amenable to the writ jurisdiction and supervisory jurisdiction of the Division Bench of the High Court under Article 226/227 of the Constitution in terms of the Supreme Court judgment in Chandra Kumar rsquo s case as any other Tribunal and that this High Court was competent to entertain a writ petition against any order/decision of the Tribunal even though passed at its New Delhi headquarter. It is further held that alternative statutory remedy of appeal to Supreme Court provided in Section 35L of the Central Excise Act against the order of the CEGAT would not operate as a bar to the maintainability of such petition. 18. emsp Registry is directed to post the writ petitions for further proceedings before an appropriate Bench.

1998 (1) TMI 294 - CEGAT, MUMBAI

FAG PRECISION BEARINGS LTD. Versus COMMISSIONER OF C. EX. & CUSTOMS

Demand ......

........... cise Act. Therefore, the matter now stands settled by the Supreme Court decision in Re-rolling Mills case, and, applying the ratio of the decision, there is no infirmity in the impugned orders passed by the Commissioner (Appeals) that the erroneous refund granted in these cases can be recovered only by issue of notice within the time limit prescribed under Section 11A of the CEA, 1944 notwithstanding the action taken under Section 35E of the Act. The Department rsquo s appeals are therefore rejected. 11. emsp On the question, whether the Commissioner (Appeals) is right in treating the higher credit of input duty taken as erroneous refund, we find that there is no serious infirmity in the Commissioner (Appeals) conclusion as regards the nature of the higher credit because what is taken as credit is only duty paid on the input materials. The appeal of the assessee appellant M/s. Fag Precision Bearing on this ground is also rejected. 12. emsp Appeals are disposed of accordingly.

1998 (1) TMI 290 - CEGAT, MUMBAI

SR. JHUNJHUNWALA Versus COLLECTOR OF CENTRAL EXCISE, MUMBAI-II

Demand - Limitation - Valuation ......

........... he penalty imposed on the appellants under Rule 209A we find that the SCN has not set out specific allegations against each of them. The Collector rsquo s reasoning in this regard is somewhat cryptic by merely saying that the ten appellants knowingly dealt with excisable goods which were undervalued. There is no elaboration as to how this conclusion is arrived at and how the ingredients of Rule 209A are satisfied. Therefore we hold that penalty on these appellants is not sustainable, and it is accordingly set aside. 12. emsp In view of the findings partially in favour of appellants in respect of limitation and on certain aspects of valuation as above, we reduce the fine in lieu of confiscation under Rule 173Q(2) from Rs. 5 lakhs to Rs. 75,000/- and the penalty on them under Rule 173Q from Rs. 5 lakhs to Rs. 50,000/-. 13. emsp It is also directed that the duty demand be redetermined in the light of our findings as above. 14. emsp The appeals are disposed of in the above terms.

1998 (1) TMI 283 - CEGAT, MUMBAI

GOA INDUSTRIAL PRODUCTS Versus COMMISSIONER OF C. EX. & CUS., GOA

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

........... ted that this could not be substantiated because the books of accounts of the applicant had been seized by the department in 1995 and hence balance sheet could not be prepared. The Departmental Representative contends that at least rough balance sheet certified by a Chartered Accountant could have been produced, in the absence of which financial hardship cannot be accepted. We are unable to understand why, even if the books of accounts were taken away at least a rough balance sheet showing approximate position could not have been made. After all it is impossible to believe that a manufacturer or trader could not know where he stands solely because the books of accounts for the past year had been taken away. Taking all these facts into account we direct that applicant GSP to deposit Rs. 20 lakhs within 2 months from today, upon which we waive deposit of remaining amount of duty and penalty and stay its recovery. We waive deposit of duty and penalty on the other two applicants.