2001 (2) TMI 480 - CEGAT, NEW DELHI
BHARAT HEAVY ELECTRICALS LTD. Versus COMMISSIONER OF C. EX., BHOPAL
Penalty for wrong availment of Modvat ......
........... t is seen that the appellants had availed of the Modvat credit even when the inputs had not been received in their factory. The Modvat credit had also been availed of in respect of the inputs, which were found to be damaged, were not usable, and were not used in the manufacture of their final products. The credit has been retained and utilised for a considerable time even after they had received their claims from the Insurance Company. The conduct of the assessee could not be considered as bona fide with such facts on record. 6. emsp Thus, while we consider that imposition of some penalty was justified in the facts and circumstances of the case, we reduce the amount of penalty under Rule 57-I(4) of the Rules from Rs. 59,19,329/- to Rs. 20,00,000/- (Rupees twenty lakhs only). Penalty of Rs. 59,19,329/- imposed under Rule 173Q of the Rules is set aside. The appeal is disposed of accordingly. 7. emsp The operative part of this order was announced in the Open Court on 18-12-2000.
2001 (2) TMI 479 - CEGAT, NEW DELHI
COMMISSIONER OF C. EX., CHANDIGARH Versus PREMIER INDIA
Reference to High Court ......
........... is admissible in terms of Notification No. 16/94 (N.T.). It has been brought to the notice of the Bench that the Gujarat High Court in the case of CCE, Ahmedabad v. Gujarat Medicraft Pvt. Ltd., 2001 (42) RLT 475 (Guj.), on a reference made by CCE, Ahmedabad, has dismissed the application for reference holding that their is nothing in the language of the Rules ldquo to substantiate that the gate passes were also required to be endorsed before 1-4-1994 rdquo . The Gujarat High Court held that ldquo The fact that the Rule making authority also permitted the concerned parties to take benefit of the scheme on or before 30-6-1994, in our view, substantiates the case of the Respondents assessee that it was open to the assessee to get the benefit of the gate passes which was endorsed after 1-4-1994 but before 30-6-1994. rdquo 5. emsp As the question of law sought to be referred has been decided by the High Court of Gujarat, the reference application filed by the Revenue is rejected.
2001 (2) TMI 478 - CEGAT, KOLKATA
STEEL AUTHORITY OF INDIA Versus COMMISSIONER OF CENTRAL EXCISE, BOLPUR
........... -1988. The definition was made wider in scope including metal waste and scrap from the manufacture or mechanical working of metals. By applying this widened definition of waste and scrap, the Skelp Cobbles, which are on-line-rejection, would get covered by the definition. This was not so prior to 1-3-1988 as the definition of waste and scrap was restrictive in nature and that is why, during the earlier period, the classification was claimed by them under heading 72.08. 6. emsp We find that vide the earlier order, the Department rsquo s stand that the Skelp Cobbles are classifiable under heading 72.11, has already been rejected by us. As such, during the relevant period, the only alternative heading which is on the scene is sub-heading 7204.90. Accordingly, by following the ratio of the earlier decision and in view of the foregoing discussions, we set aside the impugned order and allow the appeal with consequential reliefs to the appellant. Stay Petition also gets disposed of.
2001 (2) TMI 477 - CEGAT, NEW DELHI
COMMISSIONER OF C. EX., MEERUT Versus SRF. LTD.
........... 85) E.L.T. 47 after considering the decision in the case of Easter Industries Ltd. I also observe that neither the decision in J.K. Synthetics nor the decision in the case of Ramakrishan Steel Industries were brought to the notice of Bench which decided Easter Industries matter. Moreover the Larger Bench of the Tribunal in C.C.E. Meerut v. Modi Rubber Ltd., 2000 (119) E.L.T. 197 has held that unless the machinery of the assessee are lubricated with the lubricants, heat will be generated on account of mechanical friction leading to adverse consequences affecting the process of manufacture and these facts would suffice to hold that lubrication of the machine is essential for their working and for the smooth process of manufacture of final products and that it does not matter whether the goods are used in the machinery or for the purpose of the machinery. Following the ratio of the decision in the Respondents own cases, supra, I reject all the three appeals filed by the Revenue.
2001 (2) TMI 476 - CEGAT, NEW DELHI
ESTER INDUSTRIES LTD. Versus COMMISSIONER OF C. EX., MEERUT
........... The position with regard to this type of situation remains clearly settled in favour of the assessees by the decision of the Supreme Court in the case of Samrat International (P) Ltd. v. Collector of Central Excise 1992 (58) E.L.T. 561 (S.C.) . The Apex Court ruled that during the period of pendency of the price list or classification list before excise authorities for approval, the assessments would be provisional. Therefore, in the present case, the assessments were provisional and not according to approved price list. It is also settled law that the provisions relating to unjust enrichment are not applicable in respect of provisional assessments Mafatlal Industries Ltd. v. Union of India 1997 (89) E.L.T. 247 . 3. emsp In view of what has been stated above, we hold that the rejection of the refund claim of the appellant was not legal or correct. The impugned order is set aside and it is ordered that the refund claim of the assessee be granted and amount returned forthwith.
2001 (2) TMI 473 - CEGAT, NEW DELHI
MODERN SYNTEX LTD. Versus COMMISSIONER OF C. EX., JAIPUR
Refund - Unjust enrichment ......
........... the Customer has never paid the entire amount of duty to the appellants and accordingly it cannot be claimed the entire incidence of duty was passed on to customer. It was held by the Tribunal in Oswal Cotton Spg. Mills case that once the Respondents has rebutted the presumption that every person who has paid duty of excise on any goods shall be deemed to have passed on the full incidence of such duty to the buyers of such goods, the principle of unjust enrichment will not apply as the Supreme Court in the case of Mafatlal Industries v. U.O.I. - 1997 (89) E.L.T. 247 (S.C.) has held that such presumption is a rebuttable presumption of law and not a conclusive presumption. In view of these facts that the appellants therein was held to have rebutted the presumption of passing of the incidence of the duty initially shown in the invoice to their customer. Accordingly, refund of the excise duty paid by them i.e. Rs. 4,75,744/- will be admissible to them. The appeal is thus allowed.
2001 (2) TMI 472 - CEGAT, NEW DELHI
HAWKINS COOKERS LTD. Versus COMMISSIONER OF C. EX., CHANDIGARH
Penalty - Quantum ......
........... C.C.E., Bhopal - 2000 (124) E.L.T. 843 (T) relied upon by the ld. Advocate. However, the fact remains that the goods were cleared without actually debiting the duty amount in PLA and, therefore, penalty under Rule 173Q is imposable on the appellants. Taking into account all the facts of the case, the interest of justice will be met if the appellants are directed to pay a penalty of Rs. 5,000/- only. Even in the case of Steel Industries the Tribunal observed that ldquo availability of sufficient balance in the PLA is a matter which could be kept in view in imposing penalties for infracting Rules rdquo and the Tribunal had reduced the penalty in that case also. Similarly in view of the fact that the goods were cleared only to Central Warehousing Corporations, a Central Government Undertaking, where the goods were properly accounted for, a token redemption fine should be sufficient. I, therefore, reduce the redemption fine to Rs. 6,000/- only. The appeal is thus allowed partly.
2001 (2) TMI 468 - CEGAT, NEW DELHI
ENGINEERS COMBINE Versus COMMISSIONER OF CENTRAL EXCISE, DELHI
Stay/Dispensation of pre-deposit ......
........... lty could not be increased. He also submits that duty demand is not justified as they had paid the entire amount. The demand has been made because the Commissioner has not accepted the full amount of Rs. 59,83,921/- paid by the assessee. We have heard the learned DR. He submits that the assessee should be directed to deposit at least part of the amounts involved. 2. emsp It was not permissible for the Commissioner to increase the penalty amount in a remand proceedings ordered on an appeal of the assessee. That part of the order is clearly illegal. The appellant rsquo s claim that they had paid the entire amount but the Commissioner has not taken into account about Rs. 7 lakhs, also is required to be gone into. In these circumstances, we do not find any justification to direct the appellant to pre-deposit the duty or penalty amount. Stay application of the appellant is accepted and recoveries of the duty and penalty are stayed. Matter to come up for hearing on 5th March, 2001.
2001 (2) TMI 466 - CEGAT, MUMBAI
COMMISSIONER OF C. EX. & CUS., AHMEDABAD Versus ANJANI SYNTHETICS LTD.
........... appeals of the manufacturers against the orders of the Assistant Commissioner. He has held that clearances under Rule 13 were not exempted from duty, and therefore Rule 57C would not be attracted. 3. emsp The department rsquo s appeals against these orders contend that the fact that the manufacturers removed the fabrics without payment of duty to garment manufacturers following the procedure prescribed in Chapter X of the Rules, as provided in Notification 47/94, shows that the goods were exempted. 4. emsp The Tribunal, in its decision in CCE v. Omkar Textile Mills Ltd., 2000 (122) E.L.T. 115 had found this argument unacceptable. It noted that the notification does not provide exemption from duty, but gives effect to the provisions of Rule 13, for which purpose it has prescribed following the procedure under Chapter X. The departmental representative is not able to say why the ratio of that decision will not apply. Therefore we decline to interfere. 5. emsp Appeal dismissed.
2001 (2) TMI 464 - CEGAT, NEW DELHI
VENKATESHWAR SYNTHETIC (P) LTD. Versus COMMISSIONER OF C. EX., JAIPUR
Refund - Limitation ......
........... rightly been held to be time-barred. The ld. Advocate for the appellants relied on the decision of Tribunal in the case of M/s. Andhra Cement Co. Ltd. v. C.C.E., Guntur reported in 1986 (26) E.L.T. 553 (T) 1986 (7) ECR 352 (CEGAT Ms.) and M/s. Advani Oerlikon Ltd. v. CCE, Madras reported in 1993 (63) E.L.T. 695 (T) 1992 (38) ECR 44 (CEGAT-SRB). In these decisions, it is held that the protests can be filed even before the completion of assessment that the provisions regarding endorsements on Gate Passes and RT 12 Return in the rules are directory in nature and that the endorsement of protest on Gate Passes is adequate form of protest. As we can see, the stand taken in the present case by the appellants is altogether different than what is dealt in the case laws cited by the ld. Advocate for the appellants. Therefore, the ratio of these cases cannot be made applicable to the facts of the present case. 4. emsp In the result, the appeal fails and the same is accordingly rejected.
2001 (2) TMI 463 - CEGAT, NEW DELHI
PAMWI TISSUES LIMITED Versus COMMISSIONER OF C. EX., CHANDIGARH
Demand - Limitation ......
........... perused the records and have considered the submissions made on behalf of both the sides. It is clear from the records that the appellants had declared the goods correctly in the classification list, gate passes and other documents. The goods were being assessed under exemption for several years. The department had drawn samples in 1984 specifically to consider whether the exemption was correctly available. In these facts and circumstances the demand which has been raised for the extended period alleging the ingredients of wilful suppression of facts with intent to evade duty (Proviso to S. 11A) cannot be upheld. The appeal is allowed on the ground of limitation and the impugned order is set aside in its entirety with consequential relief, if any, to the appellant. We do not consider it necessary to go into the merits of the dispute as the notice for short levy is not maintainable at the threshold on account of the time bar provision in Section 11A of the Central Excise Act.
2001 (2) TMI 462 - CEGAT, KOLKATA
SAIL Versus COLLECTOR OF C. EX., BOLPUR
........... ugned goods are correctly classifiable under sub-heading 7208.00. 4. emsp Shri R.K. Roy, learned JDR appearing for the Revenue, reiterates the reasoning contained in the impugned order. 5. emsp After a careful consideration of the submissions of both sides and on a close perusal of the relevant entries of the erstwhile Tariff Item No. 25 and sub-heading 7208.00 and 7211.40 of the Central Excise Tariff Act, 1985, we find that the pleas advanced on behalf of the appellants have a greater force inasmuch as the impugned goods appropriately answer to the description of the goods under sub-heading 7208.00 which corresponds to the erstwhile sub-item (8) of Tariff Item No. 25 under which duty was paid on the impugned goods prior to the introduction of the Central Excise Tariff Act, 1985. We are, therefore, of the view that the impugned order needs to be set aside. Accordingly, we do so. 6. emsp In the result, the appeal is allowed with consequential relief, if any, to the appellants.
2001 (2) TMI 460 - CEGAT, NEW DELHI
CHLORIDE INDUS. LTD. Versus COLLECTOR OF CENTRAL EXCISE, PUNE
........... neither goods nor marketable commodity and the same were not liable to excise duty. Reference has also been made to the Tribunal rsquo s decision in the case of Amar Wire and Rolling Mills v CCE, Mumbai, 1999 (114) E.L.T. 41 (T), wherein the Tribunal had held that scaling, ash and residues of copper were akin to dross and skimmings and were not covered under waste and scrap so as to attract central excise duty. In the present case, at no stage the excisability of the products in question was contested. The goods have been shown in the Classification List and the classification as per understanding of the appellants had been duly indicated. They have sought to avail of the benefit of the exemption notifications which according to them were applicable to their products. We do not consider that these decisions are in any way applicable to the facts of the present case. 9. emsp In the light of the above discussion, we do not find any merit in this appeal and the same is rejected.
2001 (2) TMI 459 - CEGAT, CHENNAI
ASHOK LEYLAND LTD. Versus COMMISSIONER OF CENTRAL EXCISE, TRICHY
ASHOK LEYLAND LTD. Versus COMMISSIONER OF CENTRAL EXCISE, TRICHY ......
........... from the adjudication order that chassis itself was sent back by DRDL for the engine to be replaced. Notification No. 263/87 exempts equipment and stores supplied to the Defence and intended to be used for the system and sub-system of the Integrated Guided Missiles subject to production of certificate from the Chairman or Member Secretary, Programme Management Board of the Management Service of DRDL. As the certificate to that effect has been given by Member Secretary, Programme Management Board, refund if any admissible cannot be denied on the ground that the certificate speaks only of chassis. However, we agree with the submission of the learned SDR that the refund has to be restricted to the amount of duty paid by the appellants at the time of clearance of the goods after being re-made or re-conditioned. As duty paid is only Rs. 16,510/- on the engine on 30-12-1993 refund admissible to the appellants is only to that extent. The appeal is partly allowed in the above terms.
2001 (2) TMI 457 - CEGAT, NEW DELHI
COMMISSIONER OF C. EX., INDORE Versus SHREE RAM SWITCHGEARS LTD.
Modvat - Photocopy of invoice not a valid duty paying document ......
........... ke the credit on the strength of duplicate copy of invoice. He submits that in the present case, respondents have not produced original/duplicate copy of invoice, but they have produced only photocopy of invoice, which is not a valid duty-paying document. He relies upon the decision of the Tribunal in the case of C.C.E., Indore v. M/s. Vishwa Organics (P) Ltd. Final Order No. A/1813/00-NB(S), dated 22-9-2000 , wherein it was held that the credit cannot be availed on the strength of extra or photocopy of the invoice. 4. emsp Heard ld. SDR and perused the appeal papers. 5. emsp The only issue involved in this appeal is whether the manufacturer can avail the credit on the strength of photocopy of invoice. The Tribunal in the case of Vishwa Organics (P) Ltd. (supra) held that the Modvat credit cannot be availed on the strength of extra copy of invoice. Respectfully following the above-mentioned decision of the Tribunal, the impugned order is set aside and the appeals are allowed.