1997 (11) TMI 254 - CEGAT, MUMBAI
SPACO CARBURETTORS (I) LTD. Versus COLLECTOR OF CEN. EXCISE, AHMEDABAD
Modvat - Repairing of the goods returned by customer ......
........... nufacture of final products. Hence he denied the credit taken by the Appellant under the Modvat scheme. Against the said order an appeal was filed by the Appellant before the Collector of Central Excise (Appeals) at Ahmedabad. He by the impugned order, rejected the said appeal. Hence this appeal. 3. emsp I have heard the Advocate for the Appellant Shri Acharya as well as the ld. DR. Shri Talajia. I am of the view that the admitted position is that the defective carburettor assembly has been brought for the purpose of repair. They have been cleared after said repairs. Receipt and clearance has been done by debit in the Modvat account. It appears to me that the Modvat scheme is not intented for such a purpose. In respect of return of the goods by the buyer for repair the Appellant could have made use of Rule 173H or L of the Central Excise Rules. The Modvat scheme need not be resorted for the said purpose. Hence the appeal, according to me is devoid of merit and thus dismissed.
1997 (11) TMI 251 - CEGAT, NEW DELHI
WALIA ENGINEERING ASSOCIATES P. LTD. Versus COLLR. OF C. EX., AHMEDABAD
Demand - Limitation ......
........... assessee must be aware that the duty was leviable and it must deliberately avoid paying it. The word evade rsquo in the context means defeating the provision of law of paying duty. It is made more stringent by use of the word ldquo intent rdquo . In other words, the assessee must deliberately avoid payment of duty which is payable in accordance with law. 5. emsp Since Collector himself has recorded that there was no intention to evade duty none of the ingredients required for invoking extended period under proviso to Section 11-A are attracted. In view of this we hold that the demand issued on 2-8-1987 for the period 1984-85 and 1985-86 upto September, 1985 is clearly time barred. Since the extended period is not sustainable for demand penalty is also not sustainable See Apex Court judgment in case of CCE., v. H.M.M. Ltd. -1995 (76) E.L.T. 497 (S.C.) . In the result, without going into the merits of the case, we allow the appeal on limitation and set aside the impugned order.
1997 (11) TMI 250 - CEGAT, NEW DELHI
MODI GBC LTD. Versus COLLECTOR OF C. EX., NEW DELHI
........... e end to another on the metallic core of the roller. When electricity is passed, the heater coils get heated thus heating the silicon rubber coated on the roller. With this heating the laminating film is melted and lamination is effected. It consists of the metal core, heater coils wound over it and the silicon rubber. In this roller, there is a re-roller assembly, therefore, this roller is not a simple roller of rubber which is classified under Chapter 40 which deals rubber and articles thereof. This roller is specifically made for the lamination machine and appropriate provision is made in the ends of the roller so that the roller straightaway fits into the machine. 13. emsp After giving careful consideration to this aspect, we find that this roller is classifiable only as parts of the machine under Tariff Heading 9479.90 of the Tariff. The impugned order is modified to this extent only otherwise we uphold the impugned order and the appeal is disposed of as indicated above.
1997 (11) TMI 248 - CEGAT, NEW DELHI
AAG ROLA MAGNETICS PVT. LTD. Versus COLLECTOR OF C. EX., MADRAS
‘Hard Ferrite’ pieces ......
........... purpose of transportation only and that is the general practice in the trade. 2. emsp The learned DR on perusal of the Notification submits that the 11C Notification covers the goods in question. 3. emsp On a careful consideration of the submissions made by the appellants in their written submission and on going through the grounds of appeal and also the Notification No. 48/90 dated 15-11-1990 issued under Section 11C of the Act, we are of the considered opinion that the demagnetised hard ferrite removed by the appellants are intended for use as articles intended to become permanent magnets falling under Heading No. 85.05 of the Schedule to the Central Excise Tariff Act, 1985 and in terms of Notification No. 160/86, dated 1-3-1986 and that of Notification issued under Section 11C hence the goods in question are covered and that they are not liable to pay duty or penalty in the present case. In that view of the matter, the impugned order is set aside and the appeal is allowed.
1997 (11) TMI 247 - CEGAT, NEW DELHI
HARSIDDH DETERGENTS Versus COLLECTOR OF CENTRAL EXCISE, AHMEDABAD
Refund - Subsequent reduction in contract price ......
........... ved price lists which had built in provisions for escalation and de-escalation. We have seen the price list in the case before us. The price list does not refer to any contract. It also does not show whether there was any agreement between the parties as to the variation of the contracted prices. Even if there had been some subsequent correspondence, the declarations made by the assessees in the price list in Part II would alone be material to determine the rights of the assessees with regard to the claim of refund in case of reduction in price subsequent to the approval of the price list. Since the price lists did not indicate the possibility of any such variation in contract, the law cited by the ld. Advocate would not apply. In such a situation, there would be no force in the assessees rsquo claiming refund on the grounds that subsequently the prices were reduced. We find no infirmity in the impugned orders challenged before us. Upholding the orders, we reject this appeal.
1997 (11) TMI 246 - CEGAT, NEW DELHI
PASCAL PARAMOUNT PVT. LTD. Versus COLLECTOR OF C. EX., NEW DELHI
Exemption of duty vis-a-vis Modvat scheme - Demand - Modvat ......
........... the Modvat Scheme. In the facts of the instant case where the appellants are admittedly not registered for purposes of claiming benefit under Notification No. 1/93, there could be no question of their being compelled to operate under the said Notification. They cannot also be denied the option of paying duty on the inputs and claiming Modvat credit for their clearances. In such a situation there is no justification invoking Rule 57-I for demanding duty. 11. emsp As regards the maintainability of the SCN under Rule 57-I, in the facts and circumstances of the case we are in agreement with the submissions made on behalf of the appellants that no demand for wrong availment of Modvat credit can be raised on the appellants, having regard to the fact that the appellants have already paid the duty of excise on their inputs. 12. emsp In view of the above, we allow the appeal and set aside the impugned order with consequential benefits, if any, to the appellants in accordance with law.
1997 (11) TMI 245 - CEGAT, MUMBAI
ASHA NITROCHEM INDUSTRIES LTD. Versus COMMISSIONER OF C. EX., SURAT
Modvat - Limitation for recovery of credit wrongly availed of ......
........... en and utilised including details of inputs received, in the prescribed form in RG 22. It also enclosed copies of the gate passes under which the goods were received and these have been seen and defaced by the Superintendent. Therefore, he says the charge of suppression will not survive. 4. emsp The Departmental Representative adopts the reasoning in the order impugned in the appeal. 5. emsp The copies of the RG 23 account show that the appellant had indicated the numbers of the gate passes under which the goods were received. Copies of the gate passes themselves are seen to have been defaced by the Superintendent by making an endorsement that Modvat credit has been availed. The appellant therefore, notwithstanding its failure to declare the input had brought to the notice of the Department the fact that it received the goods and took credit. The extended period would therefore not apply and the notice is barred by limitation. 6. emsp Appeal allowed. Impugned order set aside.
1997 (11) TMI 244 - CEGAT, MUMBAI
ANTIFRICATION BEARING CORPN. LTD. Versus COMMISSIONER OF C. EX., PUNE
Penalty imposed for not filing classification as required by trade notice - Modvat ......
........... lso in view of the decision of this Tribunal in CCE v. American Auto Service - 1996 (81) E.L.T. 71 which has decided the matter. 4. emsp The departmental representative contends that penalty has been imposed in terms of Trade Notice. According to him trade notice has statutory force. It has been issued in pursuance of instructions of the Board which in turn also has statutory effect. He cites the provision of Section 37C. Since in accordance with the trade notice classification was not filed, penalty was rightly imposable. 5. emsp The proposition of the departmental representative is not acceptable since he is not able to produce the instructions of the Board which is stated to have statutory force. He however agrees that they were not issued under Section 37B. Provisions of statutory rule cannot be enlarged by departmental instructions, unless the statute itself provides for this. Penalty was therefore not imposable and is therefore set aside. 6. emsp Appeal allowed in part.
1997 (11) TMI 243 - CEGAT, NEW DELHI
ESCORTS LTD. Versus COLLECTOR OF CENTRAL EXCISE, NEW DELHI
Valuation - Pre-delivery inspection (PDI) charges ......
........... it benefitted the manufacturer as indicated by the Supreme Court in Philips India Ltd. v. Collector of Central Excise, Pune, 1997 (91) E.L.T. 540 (S.C.). In this view, we do not find any justification to hold that the share of advertisement expenses borne by the dealers should be added to the assessable value. 7. emsp It is admitted that the appellant supplied some publicity materials to dealers and recovered the cost from them. The articles consist of posters, leaflets, calendars, key-chains, blocks, tinplates, T-shirts, etc. The dealers could as well have purchased the same from other sources. The fact that the articles were purchased from the manufacturer cannot be a circumstance to hold that the cost thereof is additional consideration received by the manufacturer for the Motor Cycles sold to the dealers. We do not agree that such cost should be included in the assessable value. 8. emsp For the reasons indicated above, we set aside the impugned order and allow the appeal.
1997 (11) TMI 241 - CEGAT, NEW DELHI
COLLECTOR OF CENTRAL EXCISE, BOMBAY Versus PLASTIC CONVERTERS
Reference to High Court - ......
........... equivalent authority, namely, the Collector (Appeals). There also, the judgment is not left to the Collector but to the Appellate Tribunal before whom the Executive Collector is empowered to file an application under that provision namely Section 35B. If it is the belief of the Collector that there is an apparent error in the order of the Tribunal, the law provides for an application to be made for the rectification thereof. Section 35G covers an entirely different area. Where on perusal of an order of the Tribunal it would appear that a substantial question of law arises out that order, there only can a reference be made to the jurisdictional High Court. Where the question of law has already been settled by a High Court or by Supreme Court, there also such a reference cannot be made. These distinctions made in the Act should be understood by every senior officer. It is to be hoped that the Collectors would exercise greater discretion in making applications under Section 35G.
1997 (11) TMI 240 - CEGAT, NEW DELHI
COMMISSIONER OF CENTRAL EXCISE, JAIPUR Versus ASSOCIATED CEMENT COMPANY LTD.
Reference to High Court - Modvat - Appeal - Adjournment ......
........... of. Accordingly it was held since part as such is not specifically excluded and the item was used in relation to the manufacture of the finished products and the same is eligible for Modvat credit. 6. emsp Filing the SLP against the earlier decision, is not a ground to adjourn the matter as it was rightly pointed by the respondents rsquo Counsel. In the case of NGEF Ltd. v. Collector of Central Excise, Bangalore, reported in 1996 (87) E.L.T. 722 (Tribunal) the Tribunal has taken the view that finding of Tribunal about non-eligibility of steel barrels of Modvat credit is purely a finding of fact on the basis of evidence and not give rise to a question of law. Hence based upon the facts deciding the issue whether an item is eligible inputs or not is purely a question of fact and in the view taken by the Tribunal, it cannot be said that this is a question of law to be referred to the High Court. With this view the Reference Application filed by the department is hereby rejected.
1997 (11) TMI 239 - CEGAT, NEW DELHI
THEMIS PHARMACEUTICALS Versus COLLECTOR OF CENTRAL EXCISE, SURAT
Medicine - P & P medicine - Samples ......
........... efit of notification is not available. Hence, this appeal by the assessees. 2. emsp We have heard Shri Mayur Shroff, learned Counsel and Shri H.K. Jain, learned SDR. We note that the very same issue on interpretation of Notification 48/77-C.E. came up for consideration by the Tribunal in the case of Indian Drugs and Pharmaceuticals Limited, Hyderabad v. Collector of Central Excise, Hyderabad reported in 1987 (31) E.L.T. 829 (Tribunal). In that case also, the samples, clinical packs and of commercial packs were packed identically and the clinical samples bore the markings ldquo Physician samples not to be sold. rdquo The Tribunal held that clinical samples of the medicines in dispute are not eligible for exemption because they were not packed distinctly from the commercial packs, minor difference notwithstanding. The ratio of the above decision is squarely applicable to the present case and hence, following the ratio thereof, we uphold the impugned order and reject the appeal.
1997 (11) TMI 238 - CEGAT, NEW DELHI
EICHER FARM MACHINERY LTD. Versus COLLECTOR OF C. EX., CHANDIGARH
........... er is not a component part of a tractor. Some buyers of tractor may require trailer also and may buy these two items to connect the trailer with the tractor. Annexure A rsquo to the show cause notice indicates that the demand is in respect of 6,055 units of Mudguard Seats, 3,835 units of Roof Canopy, 4,311 units of Coupling Mouth and 5,589 units of Coupling Bolt. It is stated that during the period in question around 10,000 tractors would have been sold. All these circumstances are sufficient to show that the items in question are only optional accessories sold at the request of specific buyers. Hence, their value cannot be included in the assessable value of tractors. In view of this finding, we find it unnecessary to consider the question of limitation, though we may notice, in passing that in respect of four items four show cause notices had been issued earlier and proceedings dropped. 4. emsp For the reasons aforesaid, we set aside the impugned order and allow the appeal.
1997 (11) TMI 237 - CEGAT, NEW DELHI
COLLECTOR OF C. EX. & CUS., AURANGABAD Versus ARVIND DETERGENTS (P) LTD.
SSI Exemption - Amending Notification No. 174/89-C.E. ......
........... to decide the issue whether the benefit of the amendment brought out by Notification 174/89, dated 1-9-1989 in regard to the computation of value of clearances in the previous year viz. 1988-89 will affect the clearances in the relevant year involved in the dispute namely April 1989-March 1990 during the period prior to 1-9-1989, in other words, during the period 1-4-1989 to 31-8-1989. As we have already held earlier in this order the amendment in question relates to the value of clearances in the previous year which determines the eligibility for exemption in the relevant year. By the very fact that the subject amendment relates to the clearances in the previous year it is retrospective in nature and the clearances in the relevant year would be regulated by the changed criterion relating to the value of clearances in the previous year. Accordingly, we agree with the finding reached by the Additional Collector in his impugned order. We uphold the same and dismiss the appeal.
1997 (11) TMI 236 - CEGAT, NEW DELHI
TECHNOVA Versus COLLECTOR OF CENTRAL EXCISE, BOMBAY
........... them as falling under T.I. 68 and confirming the demands raised for the period from 10-1-1978 to 25-5-1978. While setting aside the demands for the period barred by limitation under Rule 10 of C. Ex. Rules, 1944, the Collector (Appeals) Bombay has also opined that the said ldquo roughening process rdquo will not amount to manufacture under Section 2(f) of C. Ex. Act, 1944. 7. emsp We also find that earlier Collector (Appeals) vide his order dated 27-3-1985 held in assessee rsquo s own case that roughening of aluminium sheets on one side would not amount to manufacture. We also take note of the statement made at Bar by the Learned Advocate that Revenue had not gone in appeal against that order. In view of the obvious infirmity in the order of Collector (Appeals) himself and the evidence as set out in the detailed order of the Assistant Collector including how such sheets are referred to in the BTN itself, we set aside the order of the Collector (Appeals) and allow the appeals.