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.
1998 (5) TMI 211 - CEGAT, NEW DELHI
INTERNATIONAL CYLINDERS PRIVATE LTD. Versus CCE., CHANDIGARH
Clandestine removal - Evidence - Demand - Benefit of doubt ......
........... hey were not available from any other sources. This fact has not been disputed by the Department. 7. emsp Having regard to the facts as emerging from the above discussions, we feel that the allegations against the appellants cannot be stated to have been substantiated to any reasonable extent by any material on record. The Department rsquo s case suffers from three major deficiencies, inasmuch as there is no clinching evidence on record to show that the materials required for the manufacture of alleged number of cylinders had been received. Secondly, the statements relied on by the Department and contested by the appellants have not been tested by cross examination. Thirdly, the entries in the Octroi/Sales Tax/Police Barriers do not appear to tally to the extent of showing the actual transportation of 400 cylinders on each trip. 8. emsp As a result, we give the benefit of doubt to the appellants. The impugned order, is in these circumstances, set aside and the appeal allowed.
1998 (5) TMI 210 - CEGAT, MUMBAI
LAXMAN PLASTICS P. LTD. Versus COMMISSIONER OF C. EX. & CUS., VADODARA
Departmental clarification - Trade notice ......
........... case before it by 11 9. Both sides agree that by applying that ratio the levy at revised rate will take effect in the case of appellant from the date of issue of trade notice, i.e. 14-10-1990. 5. emsp Advocate for the appellant contends that if the duty is payable on the sacks under Chapter 39 strips and fabrics captivity consumed in the manufacture of the fabrics sacks respectively will get the benefit of Notification No. 217/86 which was not available earlier for the reason that Chapter 54 under which goods are classified and specified in the notification. This prayer has to be accepted. In working out the duty involved the benefit of circular and Notification 217/86 should be taken into account. The demand of higher rate of duty is also applicable from 14-10-1990. 5. emsp The ratio thereof is fully applicable to the facts of the present case and applying it we dispose of the present appeal by allowing it in part on the same terms as in the above said order of the Tribunal.
1998 (5) TMI 209 - CEGAT, MADRAS
COMMISSIONER OF C. EX., COIMBATORE Versus CHEMICALS & PLASTICS INDIA LTD.
Reference to High Court - Modvat ......
........... rules. That is an invoice required to be issued as a condition precedent for clearance from a factory or warehouse of excisable goods. Ordinarily, it is true that the invoice will contain name of the consignee but there is nothing in the scheme or provisions of the rules to indicate that an invoice issued under Rule 52A showing name of a particular consignee ceases to be an invoice issued under Rule 52A, if goods are transferred by the consignee to another unit of the same company by an endorsement on the invoice. This has been the consistent view taken by the tribunal in large number of cases. Earlier applications references in the matter of certain other appeals have been dismissed. The department has not informed us that in any one of those matters the department has approached the juridictonal High Court for relief. 6. emsp In these circumstances, we are unable to agree that question of law as suggcsted arises for consideration and accordingly dismiss these applications.
1998 (5) TMI 207 - CEGAT, MUMBAI
STYLOPACK Versus COMMISSIONER OF C. EX. & CUS., SURAT-I
Stay/Dispensation of pre-deposit - SSI exemption ......
........... pronouncements, that the fact whether units are clubbed, in the circumstances cannot be based on a single factor such as common storage of raw materials but what has to be looked into is the cumulative effect of several factors and such several factors are present, in this case which have to be gone into to determine the real nature of the 4 units. Therefore, for the purpose of hearing the appeal on merits, no case has been made for total waiver of duty and penalty, and we direct that the appeals be heard on condition of the applicants making the deposit of Rs. 19.00 lacs on or before 31-8-1998, subject to which the pre-deposit of the balance duty amount and the penalty on these applicants is dispensed with and recovery stayed. The applicants are given the option to make the pre-deposit by way of cash deposit of Rs. 10.00 lacs and freezing of Rs. 9.00 lacs in their Modvat account in the RG 23. 5. emsp Matter to come up for ascertaining compliance with this order on 7-9-1998.
1998 (5) TMI 206 - CEGAT, MUMBAI
STS. CHEMICALS LTD. Versus COMMISSIONER OF CENTRAL EXCISE, PUNE
Modvat - Duty paying documents ......
........... amount of the additional duty paid shown as paid on the bill of entry. However the reverse of the bill of entry itself bore endorsements made by the officers of the factories for credit taken at that factory. The total of the amounts mentioned in these endorsement is equal to the total of the additional duty shown as being leviable and paid. The only possible objection that now remains is that, strictly speaking, a bill of entry could not be endorsed as a document for taking credit. In our view the ratio in the Larsen and Toubro case would apply by extension to the facts of this case. The importer is a company which owns both the factories. The entire amount of credit could, without objection have been taken by either of the factories. To deny the credit in this situation because it has partly taken by one factory and partly by the other would not be justifiable. On the facts of this case we hold that credit was rightly taken. 6. emsp Appeal allowed. Impugned order set aside.
1998 (5) TMI 205 - CEGAT, NEW DELHI
H & R JOHNSON (INDIA) LTD. Versus COMMISSIONER OF CENTRAL EXCISE, INDORE
Confiscation of goods and penalty ......
........... lying outside the temporary BSR should not have been held to liable to confiscation. However, as rightly pointed out by the learned Department Representative, the adjudicating authority has upheld the liability of these goods to confiscation for the reason that quantity represented approximately one month rsquo s production (the appellants production capacity is 3000 cartons per day) and that the appellants had not applied in time for any permission for storing goods outside temporary BSR. We also note that significantly, the date of application for permission is just one day prior to the date of visit of the Central Excise Officers to the factory of the appellants. We, therefore, see no reason to interfere with this finding of Commissioner. 3. emsp In the light of the above discussions, we uphold the impugned order but reduce the penalty to Rs. 3.5 lakhs. Subject to the above modification in the quantum of penalty, the impugned order is confirmed and the appeal is rejected.
1998 (5) TMI 204 - CEGAT, NEW DELHI
COMMISSIONER OF CENTRAL EXCISE, KANPUR Versus RAJ IRON FOUNDRY
Modvat - Excess duty paid on finished goods ......
........... e. As such there appear no violation of Central Excise Rules. As per S.R.P. Procedure, the assessee are entitled to debit and credit the short paid/excess paid duty within the same month. Rule 173-I(2) comes into operation when the appellants have filed the return and the credit is taken in the subsequent month. Accordingly, there is no reason to deny the credit correctly taken. rdquo 5. emsp The amount involved is only Rs. 16,480/-. It is an admitted position that the respondents had paid duty in excess. The ld. Commissioner (Appeals) had referred to the Departmental Procedures under Self-removal Procedure, wherein it had been provided that an assessee was entitled to debit and credit the short paid/excess paid duty within the same month. 6. emsp Taking into account the facts and circumstances of the case, I do not find any ground to interfere with the view taken by the ld. Commissioner (Appeals). As a result, the appeal filed by the Revenue is rejected. Ordered accordingly.
1998 (5) TMI 202 - CEGAT, MADRAS
JEETSTEX ENGINEERING PVT. LTD. Versus COMMISSIONER OF C. EX., COIMBATORE
Classification of goods ......
........... he assessee may adopt any design and the same is not relevant for finding out whether the goods are excisable or not and how they have to be classified at the time of removal. The Tribunal in its earlier order has not gone into these aspects of the matter and the ratio in the said order is not binding in the present case as it is sub silentio and per incurrium to the various well settled judgments of the Tribunal, High Court and the Supreme Court. 11. emsp The learned DR pointed out that the issue is only with regard to the goods removed from the factory and not in respect of what is coming into existence at site. This aspect of the matter has not been dealt with by the Collector. It is but proper that the department makes their position clear to the appellants on this issue also and the Collector is to decide the matter de novo in the light of the observation of the Hon rsquo ble Supreme Court in the law laid down in the noted judgments. Thus the appeal is allowed by remand.
1998 (5) TMI 201 - CEGAT, MUMBAI
AFCO INDUSTRIAL & CHEMICALS LTD. Versus COMMR. OF C. EX., MUMBAI-II
........... ed as advance and being retained for a short period by the assessee had been or would have been taken into consideration, in fixing the selling price for all buyers. The same principle has been reiterated by the Hon rsquo ble Madras High Court again following the Supreme Court judgment in Metal Box case in its judgment in the case of Union of India v. Lakshmi Machines Works - 1995 (77) E.L.T. 799. In the present case the department has not led evidence to show that the advance received from the customers has in anyway affected the selling price of the product. The Appellants have brought out that the advance was being taken by them for the tailor made machinery manufactured by them as a precautionary measure to guard against losses on possible cancellation of the orders. It is written in the terms of the contract. Therefore the ratio of the precedent decisions would apply to the facts of the present case, and following it, we set aside the impugned order and allow the appeal.
1998 (5) TMI 200 - CEGAT, NEW DELHI
COLLECTOR OF CENTRAL EXCISE, MUMBAI Versus TEKSONS LTD.
Nuts - End fittings of hose assembly ......
........... emerges from a wheel cylinder. This consists of a outer and a threaded metal inside with a male nipple. The corresponding part of the end fitting consisting of a outer and the threaded metal inside the male nipple is not manufactured by the respondents. The male nipple enters the female nipple and the outer cover seals itself upto the projected point. This projected point is in the shape of the nut. rdquo 5. emsp We have heard ld. SDR Shri A.K. Agarwal, we observe from the Memo. of appeal filed by the Revenue that the aforesaid process of manufacture as set out in the impugned order and extracted above has not been rebutted by the Revenue. From the process it is apparent that there is no separate making of nuts. Consequently the nut does not come into existance as a separate commodity. The whole commodity is end fitting of hose assembly. Accordingly there is no question of charging separate duty on a product called nut in this case. Hence we reject the appeal of the revenue.
1998 (5) TMI 199 - CEGAT, NEW DELHI
TOSHNIWAL INSTRUMENTS (INDIA) LTD. Versus COLLECTOR OF C. EX., PUNE
Classification - Demand - Limitation ......
........... ility of the Notification are concerned. 5. emsp On limitation, however, ld. Consultant has substantial force in his submissions. It is for the first time alleged in the Corrigendum dated 1-8-1989 that Notification 46/88 is not applicable to parts and accessories. We do not agree with the submissions of the ld. JDR that the original show cause notice dated 29-6-1989 indirectly implied that. We cannot read any such meaning in the said notice. The entire notice is based on the allegation that parts and accessories are classifiable under Tariff Heading 9033 and this classification has been proposed to be reversed in the subsequent corrigendum. Therefore, we agree with the ld. Consultant that the demand of duty can only be for the 6 months preceding the corrigendum dated 1-8-1989 and only that much demand of duty would be payable by the appellants herein. Demand of duty prior to 1-2-1989 will be barred by time. We ldquo order rdquo accordingly. Appeal disposed off in above terms.