2001 (7) TMI 409 - CEGAT, NEW DELHI
CALCUTTA TEACHEST & FIBRE LTD. Versus COMMISSIONER OF CENTRAL EXCISE, CALCUTTA - I
........... (l) or (m) above or to the definition of wire. rdquo On examination we find that Chapter Heading 7207.00 covers tube or pipe fittings of iron or steel. The goods in question are not classifiable under sub-heading 7307.00. We note that under sub-heading 8302.00, Metal Fittings for chest are mentioned. Though there is no reference to teachest, yet we find that the fittings referred to in sub-heading No. 8302.00 are for different products like furniture, staircases, windows, caskets etc. While the fittings had to be necessarily of base metal, it is not the requirement of sub-heading that such fittings should be suitable only for articles of base metals. 6. emsp Having regards to this, we do not see any reason to disagree with the findings of this Tribunal in the case of P.D. Sarawagi and Co. In this view of the matter, we hold that the classification of Metal Fittings for Tea chest shall fall under Chapter sub-heading 8302.00. Accordingly, the appeal of the assessee is rejected.
2001 (7) TMI 408 - CEGAT, NEW DELHI
CENTURY CEMENT Versus COMMISSIONER OF CENTRAL EXCISE, BHOPAL
Refund - Unjust enrichment ......
........... from the buyers though it was mandatory under Section 12A of the Central Excise Act. The claimant failed to prove in their written reply to Show Cause Notice and the submission made during the personal hearing held on 14-6-1994, that they have not passed on the incidence of special excise duty to their consignee. The claimant also failed to produce any documents to prove that they have not passed on the incidence of special excise duty to their consignees. Hence I am of the view that the claimant has passed on the incidence of duty to their customers as per Section 12B of Central Excise Act, 1944. rdquo 5. emsp I fully endorse the above findings of the original authority. In terms of the provision of Section 12B, there is rebuttable presumption against an assessee that the duty of excise paid by him has been passed on to the buyer, which the appellants in this case have failed to rebut. Consequently I find no force in the present appeal and the same is accordingly dismissed.
2001 (7) TMI 407 - CEGAT, NEW DELHI
CENTURY YARN Versus COMMISSIONER OF CENTRAL EXCISE, BHOPAL
Cotton yarn and waste ......
........... the Board rsquo s Circular and cannot be legally permitted to go against its spirit. Therefore, the impugned order of the Commissioner (Appeals) allowing the benefit of Notification No. 55/91 read with the above said Board rsquo s Circular to the respondents is perfectly valid and does not suffer from any legal infirmity. rdquo He, therefore, prayed that the appeal may be allowed. 4. emsp Ms. Ananya Ray, ld. DR reiterates the findings of the authorities below. 5. emsp On careful consideration of the submissions made by both the sides as also para 6 of the decision of this Tribunal in the case of Maikal Fibre Ltd., we hold that the benefit of Notification No. 55/91 by which the Central Govt. granted exemption to excisable goods produced by the manufacturer in 100 Export Oriented Unit from payment of additional duty will be admissible to the appellants. The appeal is accordingly allowed. Consequential relief, if any, shall be admissible to the appellants in accordance with law.
2001 (7) TMI 405 - CEGAT, NEW DELHI
RANBAXY LABORATORIES LTD. Versus COMMISSIONER OF C. EX., CHANDIGARH
Modvat - Capital goods ......
........... final product rsquo as synonymous with lsquo used rsquo for bringing about any change in any substance for the manufacture of the final product. The expression used for producing or processing would not be limited to ingredients or commodities used in the process or those directly or actually needed for turning out or the creation of the goods. rdquo These views were supported by another Larger Bench of the Tribunal in the case of C.C.E., Indore v. M/s. Surya Roshni Ltd. (supra) wherein it was held that machine, machinery etc. mentioned in clause (a) of the explanation to Rule 57Q should satisfy one of the three conditions mentioned in the second part of the clause. I, therefore, hold that HPLC column for chromatography and Multipurpose Electronic Platform are covered by clause 1(a) of Explanation to Rule 57Q. Further, by virtue of clause (b) components of HPLC are also eligible for capital goods credit. Accordingly, the impugned order is set aside and the appeal is allowed.
2001 (7) TMI 404 - CEGAT, CHENNAI
COMMISSIONER OF CENTRAL EXCISE, CHENNAI Versus HI-TECH COMPUTERS
........... of operation. The mouse pads are specifically designed for that purpose and the computer can only function with the mouse pads designed for it. Therefore, the Commissioner (Appeals) has rightly adopted the classification under Heading 8473.30 which is more specific. Further we notice that even in terms of Rule 3(a) of the Interpretative Rules to the Customs Tariff Act, the heading which is more specific shall be adopted in preference to the general description. In the present case, the item has been specifically manufactured as mouse pads. We notice that the Hon rsquo ble Supreme Court has upheld the applicability of Explanatory note to HSN as having persuasive value in terms of the Larger Bench judgment in the case ot Tata Liebert Ltd. and Ors. v. CCE, reported in 2000 (117) E.L.T. 817 (Tri-LB) 1999 (35) RLT 933 and other judgments. We do not find any infirmity in the impugned order and hence we confirm the impugned order and dismiss the Revenue appeal. Ordered accordingly.
2001 (7) TMI 403 - CEGAT, BANGALORE
PAUL AND SONS WOODESIGNS (INDIA) Versus COMMISSIONER OF C. EX., COCHIN
SSI Exemption - Value of clearances ......
........... l, on record, before the lower authorities, then how they had concluded as regards the extent of ornamentation and it was not substantial, is not understood. Therefore, we are not in a position to uphold the findings on this aspect as arrived at in Para 5.4 to deny the exemption under Notification 76/86. We would therefore in the interest of justice remand the matter back for re-determination in light of such evidence as may be available to determine as to the extent of ornamentation on the wooden furniture under dispute to determine what items and value thereof is of handicrafts eligible for duty exemption under Notification No. 76/86. (c) Since the Order is being remanded for re-adjudication by the original authority we would not arrive at a finding on other aspects raised in the appeal and leave all the issues open to both sides during the remand proceedings. 3. emsp In view of our findings the Order is set aside and the matter remanded for de novo adjudication as per law.
2001 (7) TMI 402 - CEGAT, MUMBAI
TOTAL LUBRICANTS INDIA LTD. Versus COMMISSIONER OF C. EX., MUMBAI-VII
Stay/Dispensation of pre-deposit - Valuation ......
........... ecifically refers to goods which are captively consumed by the assessee. Kandivali Metal Works v. CCE 1997 (90) E.L.T. 187 (T) 1997 (18) RLT 297 . 7. emsp There is prima facie some lack of clarity in the Commissioner rsquo s conclusion and we are not at this stage able to find precise provision of law under which he has enhanced the value. In a very similar situation we had waived deposit of duty demanded from Ultra Lubricants India Limited who were blending and lubricating oil as a job worker, in its decision referred to by the Counsel for the applicant. Taking note of these facts we waive deposit of duty demanded and penalties imposed and stay their recovery. 8. emsp We accept the prayer made by the Counsel for the applicants for out of turn hearing of this appeal on the ground of amount involved and issue repetitive. For the reason that the issue is similar we direct these appeals to be tagged with appeals E/2665 to 2667/2000 and listed for final hearing on 9 August, 2001.
2001 (7) TMI 401 - CEGAT, MUMBAI
IDEAL SHEET METAL STAMPINGS & PRESSINGS PVT. LTD. Versus CC., AHMEDABAD
........... esult in Note 7 being rendered meaningless - waste parings and scrap at all. The goods were, therefore, correctly classifiable under Heading 3907.40 of the Tariff and 390740 00 of the Policy. 7. emsp It is also difficult for us not to accept the contention of the Counsel for the appellant that the Commissioner has indulged in an exercise to avoid following the ratio of our earlier order. The situation of facts in both cases is identical as is the issue, classification of regrind polycarbonate. The fact that the first show cause notice did not cite the provisions of Note 3 to the Chapter does not give the Commissioner the liberty not to apply the Tribunal rsquo s earlier order on the pretext that it is distinguishable. If the Commissioner were of the view that the Tribunal rsquo s order was incorrect, the correct and proper course for him to adopt was to proceed to have that order set aside in accordance with law. 8. emsp The appeal is allowed and the impugned order set aside.
2001 (7) TMI 400 - CEGAT, NEW DELHI
GENERAL CEMENT PRODUCTS LTD. Versus COMMR. OF C. EX., ALLAHABAD
Refund - Limitation - Demand - SSI Exemption ......
........... R 793 (T) in which it is held that the amendment to Notfn. No. 175/86 not covering the DGTD units under the proviso to para (4) of the notification itself was made on 30-10-1987 and under these circumstances the imposition of penalty was not proper. We are of the view that the ratio of this case squarely covers the facts under consideration. In respect of this allegation, therefore, the order of the Commissioner cannot be sustained. Consequently, the appeal of the party in respect of the demand of Rs. 4,13,816.97 is allowed and the order of the Collector in this regard is set aside. 16. emsp In conclusion, the confirmation of the demand of Rs. 9.60 lakhs on the appellants is upheld and their appeal in this respect is rejected. Order of confirmation of demand of Rs. 4,13,816.97 is, however, set aside and the appeal in respect of this amount is allowed. The penalty amount is also reduced to Rs. 2 lakhs (Rs. two lakhs only). 17. emsp The appeal is disposed of in the above terms.
2001 (7) TMI 399 - CEGAT, BANGALORE
H. ISMAIL Versus COMMISSIONER OF C. EX. & CUS., COCHIN
Seizure - Adjudication - Jurisdiction ......
........... iscated Foreign Marked Gold. In the case before us, no evidence has been led or found that Baggage Goods could not be sold or procured/purchased by the appellant. Following the decisions of the Apex Court, we have no hesitation to allow the appeal and order the return of the goods covered by Section 123 and other goods to the appellant here in this case. Since these goods were required to be proved as smuggled goods, by the Department, and that burden has not been discharged by them in the facts of this case. We would therefore, set aside the order of confiscation and penalty imposed on the appellant, as we do not find any justification for the confiscation or the penalty. The order of confiscation of the Foreign Currency seized and confiscated against which no appeal was filed by the appellant, is not disturbed. 4. emsp In view of our findings, the appeal is allowed, all goods except Foreign Currency stand released and the penalty is also set aside with consequential relief.
2001 (7) TMI 398 - CEGAT, NEW DELHI
COMMISSIONER OF CENTRAL EXCISE, VADODARA Versus BLUE STAR LTD.
Bottle coolers ......
........... plicable to the instant case as rightly submitted by ld. Counsel. In that case, the Tribunal held that the bottle coolers manufactured by M/s. Sheetal Enginering Works could not be considered as domestic refrigerators. The relevant question whether the said products were covered by the description of refrigerators under Sl. No. 2 of the Table annexed to Notification No. 252/83 was apparently neither raised nor considered in that case. 6. emsp In view of the findings recorded above, we hold that the respondents rsquo bottle coolers manufactured and cleared during the period of dispute were covered by the description of goods under Sl. No. 2 in the Table annexed to Notification No. 252/83-C.E. and, therefore, the benefit of concessional rate of duty under that Serial Number was available to the goods. Accordingly, we do not find any reason to interfere with the decision of the lower appellate authority. The impugned order is upheld and the Department rsquo s appeal is rejected.
2001 (7) TMI 395 - CEGAT, NEW DELHI
WHITE MACHINES Versus COMMISSIONER OF C. EX., DELHI-I
Stay/dispensation of pre-deposit ......
........... ut that the assessee is a profit making concern. 4. emsp The duty liability and the rate of duty payable on an item depend upon the correct classification of the goods under Central Excise Tariff. The appellants have made a strong case that the classification ordered in the impugned order is contrary to the definition contained in the Chapter Note of the Central Excise Tariff. The appellants have got a very strong prima facie case. We, therefore, consider this to be a fit case for granting waiver of pre-deposit of duty and penalty. The stay application is ordered accordingly. The Revenue shall not take any coercive steps to recover the amount during the pendency of the appeal. 5. emsp This appeal of the assessee raises the issue of correct classification of the goods, which is a matter of continuing relevance for the correct assessment of the goods. Therefore this appeal is required to be heard on priority basis. The Registry shall post the case for early hearing out of turn.
2001 (7) TMI 394 - MADRAS HIGH COURT
GILDAS POOBALRAYAN Versus CBE. & C., NEW DELHI
Reward to informer - Quantum - Reward ......
........... nt dated 14-9-1990 sanctioning a sum of Rs. 25,000/- to the petitioners 2 to 6 (each Rs. 5,000) is set aside and the petitioners 2 to 6 are entitled to 20 of the total value of the goods seized. However, the order of rejection of the request of the first petitioner for reward amount is held to be justified since he did not in fact salvage the gunny bags and all that has been done by the first petitioner was that he simply passed on the information to the Customs officials as revealed to him by petitioners 2 to 6. In my considered view, the first petitioner cannot be considered, as informer as per para 3.1.1 of the Government Order. In view of the above the petitioners 2 to 6 are entitled to 20 of the amount as directed by the Court. Accordingly the respondents are directed to pay a sum of Rs. 92,540/- being the 20 of the total value of the goods seized within two months from the date of receipt of copy of this order. The Writ petition is allowed to the above extent. No costs.
2001 (7) TMI 393 - CEGAT, NEW DELHI
COMMR. OF C. EX., CHANDIGARH Versus BUDHEWAL CO-OP. SUGAR MILLS LTD.
Tank - Storage tank - Dutiability - Excisabilit ......
........... ed without dismantling. He also submitted that in view of the decision of the Supreme Court in the case of IOC 1991 Supp 2 SCC 18 it is settled law that storage tanks are immovable property and this decision has been followed by the Supreme Court in Triveni Engineering case reported in 2000 (120) E.L.T. 273 (S.C.). 6. emsp From the perusal of the records it is clear that the storage tank in question has been raised by welding upon RCC Foundation. Such tanks are immovable property. Further, the tank cannot be moved as such and brought to the market. And once dismantled is ceases to be a tank. Marketability is an essential attribute of goods and excise duty being leviable only on goods, items which fail marketability test cannot be levied to excise duty. The decision of the Commissioner (Appeals) is in conformity with the principle of law laid down by the Supreme Court in the IOC case and Triveni Engineering case. The same is confirmed and the appeal of the Revenue is rejected.
2001 (7) TMI 392 - CEGAT, KOLKATA
COMMR. OF C. EX., JAMSHEDPUR Versus TATA IRON & STEEL CO. (TUBE DIVISION)
Reference to Larger Bench - Demand - Limitation ......
........... d. v. C.C.E., Chandigarh - 2001 (130) E.L.T. 268 (T) 2001 (42) RLT 556 holding that the demand raised under Rule 196 is not barred by limitation as laid down under Section 11A. As against the above decisions, the decision in the case of Laxmi Tobacco v. C.C.E., Raipur - 2000 (125) E.L.T. 1105 (T) 2000 (39) RLT 834 is to the effect that limitation laid down under Section 11A of the C.E.A., 1944 is applicable to Rule 196. The said decision has been arrived at after taking into consideration the earlier decision of the Tribunal as reported in 1981 (8) E.L.T. 734 and the decision of the Hon rsquo ble High Court of Allahabad as reported in 1996 (86) E.L.T. 6. 6 emsp Inasmuch as the two divergent views on the issue involved are available we consider it to be a fit case to refer the matter to the Larger Bench. Accordingly, registry is directed to place the papers before the Hon rsquo ble President for constitution of Larger Bench for the purpose of deciding the disputed legal issue.