Central Excise Case Laws

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1998 (4) TMI 261 - CEGAT, NEW DELHI

RUBY MILLS LTD. Versus COLLECTOR OF CENTRAL EXCISE, BOMBAY-I

Classification ......

........... as a separate commodity. From the expression ldquo other than acrylic fiber rdquo it was indicated that acrylic fiber was a synthetic staple fiber of non-cellulosic origin but the same was excluded for the purpose of the above category of spun yarn. Similarly in the case of Birla Jute and Industries Ltd. v. Asstt. Collector of Central Excise reported in 1992 (57) E.L.T. 674 (Cal.), the matter related to the new Central Excise Tariff where under Heading No. 54.04 the yarn in which acrylic or mode acrylic staple fiber pre-dominated by weight. We are not concerned with the interpretation of such a Tariff Entry. We find that the Tariff Entry under the Central Excise Tariff under Item No. 18III was categorical and the Explanation III was not relevant as the fibers i.e. acrylic fibers and viscose fibers were not equal in weight. 10. emsp Taking all the relevant facts and considerations into account, we do find any merit in this appeal and the same is rejected. Ordered accordingly.

1998 (4) TMI 260 - CEGAT, MUMBAI

COMMISSIONER OF CENTRAL EXCISE, PUNE Versus US. VITAMINS (I) LTD.

Modvat - Gate Pass ......

........... e can only be two endorsements. Endorsement means it is an endorsement simplicity as required by Central Excise Act and Rules. For the purpose of Central Excise Act and Rules two units are treated as separate entities even though of the same judicial or legal person. Hence following the judgement of the Supreme Court referred to above and it has been referred to by the judgment of the Tribunal in Premier Induction Pvt. Ltd. (Supra), I have to accept the arguments of the DR. I must also see that it is also to be recorded that the Tribunal in Premier Induction Pvt. Ltd. case has taken note of the judgment of the Tribunal in S.B.S. Organics Pvt. Ltd. - 1990 (45) E.L.T. 701. I would like to follow the latter judgement of the Tribunal. There cannot be a reference to the judgment of the Supreme Court referred to in the later judgment, i.e. S.B.S. Organics Pvt. Ltd. case as the Supreme Court considered later. Therefore I am constrained to allow the appeal. 4. emsp Appeal is allowed.

1998 (4) TMI 259 - CEGAT, NEW DELHI

COMMISSIONER OF C. EX., MEERUT Versus MODI XEROX LTD.

Modvat on capital goods ......

........... ograph (Temperature and Humidity Recorder) and in respect of fan coils. The Tribunal while holding the Thermohygrograph as capital goods observed that Thermohygrograph is used for maintaining a uniform temperature and humidity for the purpose of completing the process of coating which is integral process of manufacture of final product and as such is covered by the definition of the capital goods. The Respondent has explained that unless the Air in the Thermohygrograph room is clarified and clean, the process of coating which is magnetic in nature cannot be completed and as such the air handling units dryer with filter, which is essential for bringing the change in the air for the purpose of further processing is used in bringing about a change in a substance. Following the ratio of the decisions in the Respondents rsquo own case, I do not find any reason to interfere with the orders passed by the Commissioner (Appeals). Accordingly, the departments rsquo appeal is dismissed.

1998 (4) TMI 258 - CEGAT, NEW DELHI

MANOHAR BROTHERS (CAPACITORS) PVT. LTD. Versus COLLECTOR OF C. EX., BOMBAY

Appeal ......

........... le has been misplaced in the office and it is not traceable. We are unable to accept this ground for adjournment particularly when ld. Advocate Shri P.K. Mittal had appeared on 23-2-1998. Accordingly, we dismiss the appeal for default in appearance under Rule 20 of the CEGAT (Procedure) Rules, 1982.

1998 (4) TMI 257 - CEGAT, MADRAS

MILLIPORE (INDIA) PVT. LTD. Versus COMMR. OF CUS. & C. EX., BANGALORE

Modvat - Duty paying documents ......

........... the appellant appears plausible. It is also noticed that neither at the original nor at the appellate stage, the department has alleged that these documents were not authentic or were fraudulent. 9. emsp I also find that neither of the two products imported not being consumer goods but being raw materials/components namely Pre-filter material and Flowguard pulsation lamper, there is hardly any possibility of original documents having been used by any other person for taking Modvat credit, particularly, because the two documents were made out in favour of the appellants only. In view of this analysis, it is clear that the case laws cited supra by the ld. advocate are squarely applicable to the facts of the case. 10. emsp I respectfully apply the ratio of the aforesaid decisions and find that Order-in-Original and Order-in-Appeal need to be set aside with consequential relief by granting Modvat credit to the appellant. Ordered accordingly and the appeal succeeds on this basis.

1998 (4) TMI 255 - CEGAT, CALCUTTA

COLLECTOR OF CENTRAL EXCISE, JAMSHEDPUR Versus TELCO

Modvat - Precedent ......

........... tio of the Tribunal rsquo s Order No. E-1091/97-B and E-1092/97-B. The ratio of Order No. E-1097/97-B1, dated 11-7-1997 is also the same. 3. emsp Shri T. Premkumar submits that this very issue stands referred to the jurisdictional High Court under a reference in two judgments namely, (i) Collector of Central Excise v. Hindustan Motor Ltd. 1994 (71) E.L.T. 966 as also in the case of (ii) Leader Engg. Works 1997 (90) E.L.T. 315 (Tribunal) . 4. emsp We have carefully perused the cited judgments. The three judgments cited by the respondent establish the case on merits in their favour. We further observe that the mere fact that the point of law arising out of judgments on similar counts stands referred to the High Court does not take away the ratio of the judgment as observed by the Calcutta High Court in the case of Sancheti Food Products Ltd. v. Union of India 1993 (67) E.L.T. 248 (Cal.) . 5. emsp We, therefore, uphold the impugned order and dismiss this appeal from the Revenue.

1998 (4) TMI 254 - CEGAT, NEW DELHI

ECE. INDUSTRIES Versus COLLECTOR OF CENTRAL EXCISE, DELHI

Manufacture - Cotton yarn - Exemption ......

........... a taken by the ld. Advocate Shri R. Nambirajan for the appellant, as mentioned above, has substantial force in view of the judgment of the Apex Court. If the department charges the duty, as confirmed as Rs. 24,31,025.80 for the period 1-3-1986 onwards, on stems manufactured and utilised in manufacture of bulbs of less than 60 Watts, then the appellant would also be entitled to the Modvat credit of duty paid on inputs utilised in manufacture of such stems. We, therefore, direct the Adjudicating Authority to verify the said amount which according to the appellant is to the tune of Rs. 26,51,527.25. After adjusting Modvat credit admissible to them in terms of aforesaid finding, the balance amount of duty, if any, leviable on the appellant will be payable by the appellant. On the question of penalty, we are of the view that considering overall facts and circumstances of this case imposition of penalty is not warranted. We order accordingly. Appeal disposed of in the above manner.

1998 (4) TMI 252 - CEGAT, NEW DELHI

COLLECTOR OF CENTRAL EXCISE, AHMEDABAD Versus SURGIPLAST LTD.

Valuation - Packing ......

........... Collector to give such an opportunity. However, the factual situation was clear and evidently therefore, remand was not ordered. 4. emsp The goods in question are disposable syringes packed in polythene covers. 50 Syringes in polythene covers are packed in cartons and a number of such cartons are in turn packed in cardboard boxes. The third packing is evidently to prevent damage to the smaller cartons during transit. The smaller carton containing 50 syringes was the unit of wholesale sale. It was in these circumstances, that the Collector (Appeals) allowed refund. There is no infirmity in the order except to the extent that the refund would be subject to the amended provisions of Section 11B(2) of the Central Excise Act, 1944. 5. emsp We direct the jurisdictional adjudicating authority to examine after due notice to the respondent the applicability and consequence of Section 11B(2) of the Act before actually granting the refund. With this direction the appeal is disposed off.

1998 (4) TMI 251 - CEGAT, NEW DELHI

COLLECTOR OF CENTRAL EXCISE, DELHI Versus KK. RUBBER CO. (P) LTD.

Rubberised cotton fabrics called friction cloth captively consumed in manufacture of transmission belting ......

........... process of manufacture of the transmission belting, was not marketable. 5. emsp We find that the matter is covered by the Punjab and Haryana High Court decision in the case of Punjab Rubber and Allied Industries v. UOI (supra). The Hon rsquo ble High Court had observed that the friction cloth was only an intermediate product captively used for the manufacture of belting and conveyor belts and that irrespective of amendment in Rules 9 and 49 of the Central Excise Rules, 1944, the friction cloth was not liable to central excise duty. 6. emsp In the light of the factual averments made in the adjudication order and the law as enunciated by the Hon rsquo ble High Court of Punjab and Haryana, we do not find any infirmity in the view taken by the learned Addl. Collector Central Excise in the present proceedings. We do not find any merit in this appeal filed by the Revenue and the same is rejected. The cross-objections filed by the Respondents are also disposed of in the above terms.

1998 (4) TMI 250 - CEGAT, NEW DELHI

COLLECTOR OF CENTRAL EXCISE, BOMBAY-II Versus REFAIR INDUSTRIES

Classification ......

........... r articles of iron and steel. It is, therefore, apparent, submits the ld. JDR, that the articles under consideration here in the present cases fall under Tariff Heading 73.18 by virtue of statutory Note 2(a) of Section XV. He, therefore, submits that the impugned order is not correct in law and therefore should be set aside. 4. emsp We are in agreement with the submissions of the ld. JDR in view of the specific Note 2(a) of Section XV of Schedule to the Central Excise Tariff Act, 1985. Consequently these are to be classified under Tariff Heading 7318.10 and we set aside the impugned order and restore the order-in-original. 5. emsp Before parting with this order we may also mention that Note 1(g) of Section XVI specifically excludes ldquo parts of general use rdquo as mentioned in Note 2 of Section XV from the scope of Section XVI under which Chapter 85 falls. Therefore, the classification contended by the respondents does not hold good. Appeals disposed of in the above terms.

1998 (4) TMI 248 - CEGAT, NEW DELHI

ORIENTAL CONTAINERS LTD. Versus COLLECTOR OF CENTRAL EXCISE, MUMBAI

Classification ......

........... cation without finding out the basic fact whether the waste product is of iron or of steel by method of chemical testing or otherwise. On a query from the Bench ld. Counsel does not object to the matter being remanded inasmuch as their process of production are the same as at the relevant time. She submits that presumably it should be the same. Ld. JDR, Shri S. Nunthuk, leaves the matter to the discretion of the Bench. 3. emsp We have carefully considered the pleas advanced by both sides. We are of the view that the Revenue should have tested the product when the claim for the appellants had been that waste and scrap is of iron and not of steel. We, therefore, set aside the impugned order and remand the matter for re-adjudication by the Assistant Collector who should get the waste and scrap rsquo arising in the course of manufacture of metal containers as aforesaid tested by the competent authority to find out whether it is iron or steel. Thus the appeal is allowed by remand.

1998 (4) TMI 247 - CEGAT, NEW DELHI

COLLECTOR OF C. EX., MUMBAI Versus PRADEEP METALS LIMITED

Modvat - Declaration ......

........... quent statements given by him which are available at pages 13 and 15 of the Paper Book are nothing but a different form of the same statement because the statement at page 15 relates to the inputs which they have purchased under GP 1 inasmuch as it shows the amount in GP 1 whereas the statement at page 13 is in respect of inputs purchased by them from open market inasmuch as the amount of duty as per GP 1 has not been shown therein. From these overall facts and circumstances we do not agree with the contention of the Revenue that statement of inputs lying in stock and in finished goods was not produced by the respondents in August, 1987. Even otherwise if the records maintained by the respondents are not challenged (and in fact these have not been challenged by the original authority), there is no reason why the entries made in the records kept in regular course of business should be ignored. Consequently, we dismiss this appeal of the Revenue and confirm the order-in-appeal.

1998 (4) TMI 246 - CEGAT, MADRAS

TIDE WATER OIL CO. (INDIA) LTD. Versus COMMISSIONER OF C. EX., CHENNAI

Remission of duty - Lubricating oils ......

........... clearance from the factory on payment of duty as per law. With due respect to the order of the Hon rsquo ble Govt. of India cited above, it is our considered humble opinion that the losses in question are not processing loss but merely storage losses in a registered factory under Central Excise Law. This is because, firstly, the product has already become excisable and is ldquo goods rdquo and secondly, no evidence is available to show that any further process has been done thereon and thirdly, the loss occurred only due to storage operations either in bulk or ultimately in unit containers pending removal of the goods on payment of duty etc. from the registered factory. 11. emsp Since storage loss in a factory is excluded from the jurisdiction of this Tribunal vide Clause (a) of First Proviso to Section 35B(1) of the Central Excise Act, 1944, therefore, the appeal requires to be dismissed for lack of jurisdiction. The appeal is accordingly dismissed for lack of jurisdiction.

1998 (4) TMI 244 - CEGAT, CALCUTTA

COLLECTOR OF CENTRAL EXCISE, CALCUTTA-II Versus KB. ENGINEERS (P) LTD.

SSI Exemption - Brand name ......

........... t the expression used in para 7 of Notification No. 175/86-C.E. refers to the affixation of the brand name and it has no relationship with the technical drawings, specifications etc. 8. emsp In the impugned order-in-appeal the Collector of Central Excise (Appeals), Calcutta had observed that the appellants had not affixed any brand name of another person to their specified goods, that is Hose Assembly. He had further observed that the brand name Dunlop was already there when the inputs were received by the present manufacturer and this would not make the goods as affixed with brand name of Dunlop. 9. emsp We have already analysed the legal position as above. Taking into account the express wordings in the notification we do not find any infirmity in the view taken by the ld. Collector of Central Excise, Calcutta. We do not find any ground to interfere with the view taken by him. As a result we do not find any merit in this appeal filed by the revenue and the same is rejected.

1998 (4) TMI 243 - CEGAT, MADRAS

ELECTRONICA MACHINE TOOLS LTD. Versus COMMR. OF C. EX., BANGALORE

Refund - Return of goods for repair ......

........... idence to show that such process has been verified and such verifications has been done. 8. emsp On a careful consideration of the submissions made, I notice that the Commissioner has rejected the refund claim on the ground that no details of process undertaken had been intimated in Form V Register. It was contended that as regards the claim of Rs. 1,94,650/- it was intimated in Form V Register. On a perusal of the Form V Register, it is noticed that there is endorsement of the Inspector of Central Excise stating that ldquo verified the machine and found to agree with D 3 declaration. Only after verification the Inspector of Central Excise has signed by noting these words. Therefore, in the light of the ratio of judgments cited, the ground on which the refund claim which has been rejected is required to be negatived. In view of the ratio laid down in the judgments cited which are squarely applicable to the impugned order, the present case is set aside and appeals are allowed.