2001 (9) TMI 208 - CEGAT, NEW DELHI
JAY KAY SYNTHETICS Versus COMMISSIONER OF C. EX., CHANDIGARH
........... them by the AC vide their Order-in-Original No. 94/D/AC/2000 to 99/D/AC/2000, any show cause notice was served on them. That being so, apparently such an adjustment could not be legally ordered by the Commissioner under the law. Moreover, the order of the A.C. raising demand against the appellants had not even attained finality being sub-judice in appeal filed by them before the Commissioner (Appeals). Therefore, the later part of the impugned order of the Commissioner ordering adjustment of the abatement of duty amount allowed to the appellants, cannot be legally sustained and has to be set aside. 6. Consequently, the later part of the impugned order of the Commissioner, referred to above, is set aside. The appeal of the appellants stands to that extent accordingly allowed. However, the department will be entitled to seek adjustment of the abatement of duty amount after the decision of the appeal (of the appellants) by the Commissioner (Appeals) against the order of the A.C.
2001 (9) TMI 206 - CEGAT, NEW DELHI
BALRAMPUR CHINI MILLS LTD. Versus COMMISSIONER OF C. EX., CHANDIGARH
Remission of duty ......
........... timated on the budget day. I agree that the loss of 5465.07 qntls. is to be seen in relation to the total molasses of 321920.68 qntls. and not in relation to 47590.47 qntls. if the loss actually found is taken in relation to the total quantity stored in the tanks from time to time. I find that the loss comes to only 1.7 . I note that the Central Board of Excise and Customs authorises the authorities below to condone a loss up to 2 . I further note that the figures intimated on the budget day are only estimated figures and dip reading method is not a scientific method of ascertaining the correct weight in respect of molasses. I agree that the loss of 5465.07 qntls. is on a total quantity of 321920.68 qntls. This loss being 1.7 only is condonable. I, therefore, hold that the authorities below were in error in rejecting the request of remission of duty and imposing penalties and demanding interest. In the circumstances, the impugned order is set aside and the appeal is allowed.
2001 (9) TMI 204 - CEGAT, COURT NO. II, NEW DELHI
AARTI STEELS LTD. Versus COLLECTOR OF CENTRAL EXCISE, CHANDIGARH
Dutiability - Demand - Limitation ......
........... s the manufacture of goods does not take place even when some of the items are specified under Central Excise Tariff Heading 73.08. The reliance is also placed on the judgment of Hon ble Karnataka High Court in Thungabhadra Steel Products Ltd. v. Union of India - 1998 (98) E.L.T. 334 (Karnataka). In this judgment it is held that such goods are not liable to excise duty. The SLP filed against this judgment of Hon ble Karnataka High Court is dismissed by the Apex Court as reported in page A139 in E.L.T. 1998. In any case the goods under consideration were fabricated during the period from January, 1988 to June, 1988 and the show cause notice is issued on 25-6-93. Thus the major period of demand in this case is beyond a period of 5 years and thus the same has to be held as time barred. Accordingly while holding that impugned goods are liable to Central Excise duty but the demand is held to be time barred and accordingly the appeal is allowed by setting aside the impugned order.
2001 (9) TMI 202 - CEGAT, KOLKATA
WEBIMPRESSIONS (INDIA) PVT. LTD. Versus COMMISSIONER OF C. EX., CALCUTTA-I
........... turing Co. Ltd. reported in 1999 (108) E.L.T. 280 holding printed wrapper for wrapping of soap cakes, chocolates etc. as falling under 4823.90 is distinguishable on facts inasmuch as in that case the subject-matter of dispute was wrapping paper, cut to size, for wrapping of individual soap cakes, chocolates etc. whereas in the present matter the product is not used for wrapping of individual cigarette but number of cigarette packets. The same is thus not cut to size and cannot be called as a wrapper for individual cigarette. 3. After considering the submissions made by Shri A.K. Mondal, ld. JDR, we find that the appellants contention to be correct. The Tribunal in the case of Paxwell Printers has held that printed Gay Wrappers are classifiable under sub-heading 4901.90. As such, following the ratio of the same, we set aside the impugned order by holding that the correct classification of Gay Wrapper is under sub-heading 4901.90. Appeal is thus disposed of in the above terms.
2001 (9) TMI 201 - CEGAT, NEW DELHI
PUNJAB FIBRES LTD. Versus COMMISSIONER OF CENTRAL EXCISE, CHANDIGARH
Yarn - Demand - Limitation ......
........... to actual payment of duty confirmed in this order. 9. On careful consideration of the matter, we accept the plea of the appellants that after charging appropriate duty on the cotton yarn manufactured by them and captively used, the benefit of aforesaid notifications be extended to them. The Modvat credit if already taken in respect of the imported lycra yarn will have to be reversed as the duty then payable on the cabled yarn, after payment of duty on cotton yarn (imported lycra yarn being already duty paid) will be nil under the aforesaid notifications. 10. The demand of duty as applicable on the cotton yarn manufactured and captively consumed will be payable by the appellants and thereafter the benefit of aforesaid notifications will be extended to them. In the circumstances, the penalty imposed is set aside. The demand of duty will be worked out in the above manner. 11. With these observations, the appeal is allowed with consequential benefit to the appellants as per law.
2001 (9) TMI 198 - CEGAT, COURT NO. II, NEW DELHI
COMMISSIONER OF C. EX., PUNE Versus INDO SCHOTTLE AUTO PARTS PVT. LTD.
Rectification of mistake ......
........... n 110 of the Finance Act, 2000. We find that similar issue came up before the Larger Bench of this Tribunal in the case of Gujarat State Fertilizers and Chemicals reported in 2000 (122) E.L.T. 282 (Tribunal-LB) 2000 (40) RLT 793 wherein the Tribunal held that a subsequent decision of High Court or Supreme Court not to form the basis for rectification of mistake under Section 35C of the Central Excise Act, 1944. This decision will be equally applicable in cases where the Act has been amended, subsequent to the decision of this Tribunal even if the Act has been amended with retrospective effect. We find that this decision of the Larger Bench of this Tribunal is applicable to the facts of the present case inasmuch as this decision of the Tribunal is of 4-1-2000 when the Finance Bill, 2000 became an Act in May, 2000. We, therefore, hold that there is no substance in the application of Revenue. The application for rectification of mistake filed by Revenue is, therefore, rejected.
2001 (9) TMI 194 - CEGAT, COURT NO. IV, NEW DELHI
RAJASTHAN RAJYA SAHAKARI SPG. & WVG. MILLS FEDERATION Versus CCE., JAIPUR
........... R submits that there are discrepancies in the certificate now produced and as at the time of clearances, the requisite requirements had not been made the orders passed by the ld. Commissioner of Central Excise (Appeals) was correct. 3. After hearing both the sides and after going through the facts on record, we consider that the matter could be reexamined by the jurisdictional adjudicating authority with reference to the records maintained by the appellant as well as the National Handloom Development Corpn. Ltd. If all the requisite details are available and there is no discrepancy for extending the benefit of exemption then the condition of prior submission of the certificate could be relaxed by the adjudicating authority. With these observations the matter is remanded to the jurisdictional adjudicating authority for de novo considerations. Before passing final orders opportunity will be given to the appellants to present their case. This appeal is allowed by way of remand.
2001 (9) TMI 192 - CEGAT, COURT NO. I, NEW DELHI
EICHER DEMM Versus COMMISSIONER OF C. EX., CHANDIGARH
Appellate Tribunals order - Penalty and interest ......
........... uty liability under sub-section (2) of Section 11A should have been passed. The same was the legal position with regard to demand of interest also. It is the contention of the appellants that as no show cause notice had been issued and no order had been passed under sub-section (2) of Section 11A, no penalty or interest can be levied. 4. In the present case no adjudication proceedings under Section 11A of the Central Excise Act or any other provisions had been conducted at all. A perusal of Section 11AC and 11AB makes it clear that those sections can be invoked only in cases where determination regarding evasion of payment of duty had taken place under Section 11A. In these circumstances, the impugned order passed under Section 11AC and 11AB cannot be sustained. Penalty under Rule 173Q also cannot be imposed without any proceeding on a charge of duty evasion. Accordingly, impugned orders are set aside and appeal is allowed with consequential relief, if any, to the appellant.
2001 (9) TMI 190 - CEGAT, NEW DELHI
COMMISSIONER OF C. EX., INDORE Versus SURYA ROSHINI LTD.
Sample of bulb - Dutiability ......
........... manufacture of electric bulbs. On electric bulbs certain markings are to be embossed. These markings pertained to BS 1853. For purpose of quality control from each lot at the time of clearance of goods one or two pieces are selected. These one or two pieces do not leave the factory premises but are sent to the laboratory to conduct the prescribed tests to conform the BS Standard. In the process of quality control tests, the bulbs get destroyed fully. Since these particular bulbs were no doubt at the time of selection were excisable goods but when they got destroyed at the time of conducting those tests, they no longer remained fully manufactured for purpose of levy of excise duty. The fact remains that these bulbs were not cleared from the factory and got destroyed in the process of test. I, therefore, hold that no interference with the order passed by the Ld. Commissioner (Appeals) is warranted. In the circumstances, the impugned order is upheld and the appeal is rejected.
2001 (9) TMI 189 - CEGAT, NEW DELHI
MAGNA AGRO INDUS. Versus COMMISSIONER OF C. EX., ALLAHABAD
........... , ld. Counsel for the appellant and Shri Atul Saxena, ld. DR. In terms of Rule 213, the appeals are required to be signed by the appellant. However, non signing of the appeal by the appellant is a curable defect. Before rejecting the appeal, ld. Commissioner (Appeals) ought to have brought this defect to the notice of the appellant which was not done in these cases. In the circumstances, I hold that there was denial of natural justice inasmuch as no quasi judicial authority can give a decision without bringing a curable defect to the notice of the appellant. In these circumstances, I waive pre-deposit in all these cases. In all these cases, therefore, I consider these appeals to be fit cases for remand. The matters are, therefore, remanded to the Commissioner (Appeals) for getting the appeals signed by the appellants themselves and then to pass appropriate orders after considering the case for approate order also. These seven appeals are, therefore, allowed by way of remand.
2001 (9) TMI 186 - CEGAT, MUMBAI
LACURE PHARMACEUTICALS PVT. LTD. Versus COMMISSIONER OF CUSTOMS, MUMBAI
Demand - Customs - Import - Advance licence ......
........... n (1) of Section 28 of the Act. The contention in the notice that the importer made wrongful declaration of the export document that Modvat credit has been taken is totally incorrect. The two shipping bills and AR4 under which the goods were exported did not contain any such declaration. 3. The departmental representative, despite his best efforts, is unable to successfully rebut these arguments. This Tribunal, in its decision in Auto Ignition Ltd. v. CC, Appeal No. C/1241-R/99-Bom. and many other decisions, has held that in situation of this kind, there must not only be a basis for alleging that the condition in the notification had been contravened there must also be a basis to invoke the extended period of limitation. In the case before us neither of this is present. The notice issued to the appellant is therefore without authority of law and the order confirming the order proposing the demand is not maintainable. 4. The appeal is allowed and the impugned order set aside.
2001 (9) TMI 180 - CEGAT, COURT NO. I, NEW DELHI
UNIVERSAL ELECTRODES (P) LTD. Versus COMMISSIONER OF C. EX., INDORE
Valuation (Central Excise) - Welding Electrodes ......
........... r marketing the goods. These decisions have also been upheld by the Apex Court. In the appeal filed by the Revenue against the Tribunal s decision in Apar Pvt. Ltd. the Apex Court specifically took note of the decision in the Madras Rubber Factory Ltd. case (which decision has been strongly relied upon by the ld. DR) and still found no reason to interfere with the decision to exclude the value of wooden boxes from the assessable value of welding electrodes. 10. From the facts of the present case and the principle of valuation laid down in the aforesaid decision of the Tribunal and the Apex Court, we are of the opinion that in the appellant s case also, the necessary packing for putting the welding electrodes in the market at the factory gate is the packing up to the cardboard stage. And there is no justification to include the cost of wooden boxes. In this view of the matter the appeal is required to be allowed. We do so, with consequential relief, if any, to the appellants.
2001 (9) TMI 174 - CEGAT, KOLKATA
COMMISSIONER OF C. EX., BHUBANESWAR-II Versus SARVESH REFRACTORIES (P) LTD.
Modvat on capital goods - Loadalls - Jurisdiction ......
........... odvat credit. Whereas in the present case, if the goods have discharged their duty burden under heading 84.29, the same are to be ousted from the definition of capital goods. Commissioner (Appeals) while deciding the appeal of the receiver of the capital goods, cannot extend his jurisdiction so as to re-decide the classification of the production assessed at the manufacturer s end under heading 84.29. From the impugned Order, I find that the Commissioner (Appeals) has observed .......I proceed to examine the classification based on the manufacturer s brochure submitted at the time of heading and placed in file . From this, I find that the Commissioner has clearly over-stepped her jurisdiction. 4. Inasmuch as the goods in question have admittedly discharged duty-burden under heading 84.29 and the said heading is not covered by the definition of capital goods, I find that the impugned Order by Commissioner (Appeals) is not sustainable. Accordingly, I allow the Revenue s appeal.
2001 (9) TMI 172 - CEGAT, CHENNAI
NAGARJUNA AGNI TECH LTD. Versus COMMISSIONER OF C. EX., HYDERABAD
SSI Exemption ......
........... Court and the Tribunal have been brought to my notice by the learned Consultant in support of his contention that, in a case where demand of duty is set aside, there can be no penalty. 9.I have carefully considered those decisions which include the following 1. GCT Industries Ltd. v. CCE, Hyderabad - 2001 (132) E.L.T. 74 (held penalty not imposable in the absence of any duty demand). 2. LML. Ltd., v. CCE, New Delhi - 2001 (130) E.L.T. 480 (held Penalty not imposable when duty demand does not survive). 3. Salzer Controls Ltd. and Others v. CCE, Chennai - 2001 (95) ECR 312 (held As no duty was chargeable on the goods manufactured for export, penalties imposed on the appellants set aside). 10.I have to follow the above case law to hold that, in the instant case, no penalty was liable to be imposed on the party since the demand of duty was set aside by the adjucating authority itself. 11.In view of the findings noted above, I set aside the impugned orders and allow these appeals.
2001 (9) TMI 167 - CEGAT, KOLKATA
INDIAN RARE EARTHS LTD. Versus COMMISSIONER OF C. EX., BBSR-I
Rare mineral ......
........... of law is clear that basic operations carried out to produce usable ore would not amount to manufacture of a new product. In the instant case, the appellants are carrying out certain physical and mechanical processes to separate mineral sands from ordinary sea shore sand. At the end of the processes, the mineral sands do not undergo any transformation. They remain in the same condition in which they remained along with ordinary sand on the sea beach. No upgradation or augmentation of their purity takes place. The chemical structure of the ore remained the same. The processes are not any special treatments which would take the ores out of the stage of plain and simple ores. 10. From what has been stated above, it is clear that no manufacturing is involved in the present case justifying demand of excise duty. The impugned order which has confirmed excise duty demand is set aside and the appeal filed by M/s. Indian Rare Earths Ltd. is allowed, with consequential relief, if any.