2001 (8) TMI 250 - CEGAT, KOLKATA
ORISSA CONSTRUCTION CORPN. LTD. Versus COMMR. OF C. EX., BHUBANESWAR
Demand - Limitation ......
........... ot sure about the legal position. In any case, the inevitable conclusion which emerges from the above facts is that the Department was aware of the activities undertaken by both the appellants as far back as in the year, 1993. Even then the Revenue took about three years in issuing the present show cause notice to the appellants invoking longer period of limitation. In these circumstances, no suppression, fraud, misstatement or contravention of any provision of law with intent to evade payment of duty, can be attributed to M/s. OCCL who had been held to be manufacturer of the goods in question. As such without expressing any opinion on the merits of the case, we hold that the demand in question is barred by limitation. For the similar reason, imposition of penalties upon both the appellants, are not justified. 7. As a result of our above discussions, we set aside the impugned Order on the point of limitation and allow the appeals with consequential reliefs to the appellants.
2001 (8) TMI 249 - CEGAT, KOLKATA
LA OPALA RG LTD. Versus COMMISSIONER OF C. EX., JSR
Demand - Recovery of erroneous refund ......
........... order granting erroneous refund under Section 35E(2), no erroneous refund can be recovered. Therefore, the Department should initiate proceedings simultaneously under Section 11A within the time-limit prescribed therein and also under Section 35E(2) within the time-limit prescribed therein. 4. A reading of the above para shows that the Department was required to take action for recovery of the erroneous refund under the provisions of Section 11A as well as Section 35E(2). In the instant case no appeal has been filed against the refund order. Issuing of show cause notice under the provisions of Section 11A without seeking setting aside of the refund order cannot be held to be a valid proceedings. As such without going into the question as to whether the refund granted to the appellant was paid by them to their customer or not, I set aside the impugned order on this ground alone and allow the appeal with consequential relief to the appeal. Stay Petition also gets disposed of.
2001 (8) TMI 248 - CEGAT, NEW DELHI
RAHUL STEEL FORGING PVT. LTD. Versus COMMISSIONER OF C. EX., BHOPAL
Modvat/Cenvat - Duty paying documents ......
........... (103) E.L.T. 65 and 2000 (122) E.L.T. 366 in support of his submission that Modvat credit should not be denied on account of curable, peripheral difference in documents. Heard the ld. DR also. 3. The supplies of inputs in the present case were by a Central Govt. undertaking. The invoices indicated the duty paid nature of the goods. The invoices were marked according to the method of marketing adopted by the Company. The goods are also directly supplied in tankers by the supplier. The supplier had further confirmed the duty paid nature of the inputs. The Revenue has also not raised any doubt about the duty paid nature of the goods. The objections are, therefore, not of a substantial nature. Pre-authentication of invoices and such matters are also beyond the capacity of the buyer to ensure. In these circumstances the denial of credit was not justified. The appeal is accordingly allowed with consequential relief, if any, to the appellant after setting aside the impugned orders.
2001 (8) TMI 246 - CEGAT, CHENNAI
TECCO Versus COMMISSIONER OF C. EX., MADURAI
........... ants by the railway authorities, as the railways were converting the meter Gauge rails into Broad Gauge. We find that the appellants in support of their contention cited and relied upon the decision of the Tribunal in the case of Delhi Tourism and Transportation Development Corpn. v. CCE cited above. The ratio of this decision is applicable to the facts of this case of the appellant. In view of the fact that the railways also intimated to the Central Excise authorities that the site was allotted by them for manufacture of the cement articles, thus, on this count also, the appellants are entitled to the benefit of the notification. 9. Thus, on both counts, the impugned order is not sustainable in law, the same is set aside and the appeal is allowed. 6. The above findings in the case of K.S. Swamy and Co. would apply to the facts of the present case and applying the ratio thereof, the impugned order is set aside and appeal allowed with consequential relief, if any, as per law.
2001 (8) TMI 245 - CEGAT, MUMBAI
INDABRATOR LTD. Versus COMMISSIONER OF CENTRAL EXCISE, MUMBAI-V
Penalty - Modvat ......
........... ssions are only of academic significance. 5. The post bill of entry was required solely because of the short payment initially. That document is therefore to be considered a separate document, (although its filing was a result of first short payment) and therefore cannot be considered to have been issued on the date of which the first document was issued. It would be correct to say that the date on which the duty was paid on the post bill of entry is the date of its issue. There being no dispute that the credit of the duty paid on the post bill of entry was taken within six months of its issue, it was not correct to deny that. 6. We also do not find any scope for imposing penalty. Doubtless the appellant has taken credit that was not due but we accept the submission of Counsel for the applicant that this was done on its understanding of law, however imperfect that may have been. We therefore set aside the penalty on the appellant. 7. Appeal allowed. Impugned order set aside.
2001 (8) TMI 244 - CEGAT, CHENNAI
AGARWAL RUBBER (P) LTD. Versus COMMISSIONER OF CUS. AND C. EX., HYDERABAD
Value of clearances - Stay/Dispensation of pre-deposit - Adjudication ......
........... (P) Ltd. is supposed to be the main king pin as alleged to have set up the other units and there is mutuality of interest and that it is that person, whose hands are found in all the four units, then appellants are required to pay the entire demands in terms of the Apex Court judgment cited supra. However, we notice that Revenue has contradicted their stand in the show cause notice by demanding duty on each of the unit. It is for the Revenue to reapply its mind to correct the mistake they have done in the show cause notice, in accordance with law, without changing the parameters of the foundation of the show cause notice. Thus, the impugned order is set aside and matter remanded for de novo consideration in terms of law after granting full opportunity to the appellants to establish their case that the units are not clubbable and that demands are barred by time and further grounds taken before the ld. Commissioner as well as before us. Thus, the Appeals are allowed by remand.
2001 (8) TMI 240 - CEGAT, NEW DELHI
SIDHARTHA TUBES LTD. Versus COMMISSIONER OF CENTRAL EXCISE, INDORE
........... ion is applicable to 100 E.O.U. namely STL Export Ltd. notification specifically stipulates that inputs etc. required by 100 E.O.U. for manufactured by export goods should be received directly from the manufacturers. In view of this, CT-3 could have not been issued to M/s. STL Export Ltd. for procurement of items from the appellants since the appellants are not manufacturers of goods in question in terms of conditions under the notification read with Chapter X of the Central Excise Rules as this procedure applies to procurement of excisable goods only from manufacturers. Reference by the appellants to Board Circular dt. 31-12-96 in this context is not relevant as the circular covers utilisation of Modvat credit in respect of inputs on which credit is availed but inputs are exported as such under bond, which is not the case before me. I, therefore, held that claim for refund has been rightly rejected by Commissioner (Appeals) upheld the impugned order and dismiss this appeal.
2001 (8) TMI 236 - CEGAT, NEW DELHI
COMMISSIONER OF CENTRAL EXCISE, JAIPUR Versus SHRI RAM RAYONS
Duty liability - Job work ......
........... job workers were required to pay the additional duty of excise (Goods of Special Importance) Act. The Commissioner of Central Excise (Appeals) had taken a view that as the goods have been sent back by the job workers to the suppliers and there was no dispute on this ground, no duty was payable by the job workers. Shri M.P. Devnath refers to the Tribunal s decision in the case of CCE, Jaipur-II v. Nurani Textiles 2000 (122) E.L.T. 744 (T) 2000 (40) RLT 441 . 2. We have heard Shri A.K. Jain, SDR and Shri M P. Devnath, Advocate and have gone through the facts on record. We find that the movement of the goods was covered by the provisions of Rules 57F(3) of the Central Excise Rules and it was the responsibility of the supplier to pay the duty as applicable under the law. On going through the impugned order in appeal, we do not find any infirmity in the view taken by the Commissioner (Appeals). We do not find any merit in this appeal filed by the Revenue and the same is rejected.
2001 (8) TMI 234 - CEGAT, NEW DELHI
JAY YUHSHIN LIMITED Versus COMMR. OF C. EX., NEW DELHI
Penalty - Retrospective effect ......
........... ibunal in Lauls Limited (supra), the consolidated penalty under two different penal provisions cannot be sustained in the present case. 6. As regards the penalty of Rs. 30,000/- imposed under Rule 173Q, I observe that it is evident from the letter dated 22-06-1996 submitted by the appellants to the Range Superintendent that they were aware of the procedure but did not follow the same. When one omits to follow a procedure which one is aware of, it is a wilful omission. Therefore, the finding of fact to the effect that the appellants wilfully omitted to follow the procedure while making credit and debit entries in PLA and RG 23A Pt. II Accounts cannot be faulted. However, a penalty of Rs. 30,000/- is too harsh in the circumstances of the case and the same requires to be reduced. Accordingly, having regard to the totality of the facts and circumstances of the case, I reduce the penalty under Rule 173Q to an amount of Rs. 10,000/-. 7. The appeals are allowed to the above extent.
2001 (8) TMI 232 - CEGAT, NEW DELHI
WONDERSEAL PACKING Versus COMMISSIONER OF CENTRAL EXCISE, NAGPUR
Refund - Modvat credit - Exports ......
........... nts can be considered as valid documents in the absence of AR-4. The learned JDR for the respondent reiterates the findings arrived at by the original as well as the appellate authorities in their respective orders. 4. I have carefully considered the submissions made before me. As already stated above, the refund claims admissible to the appellants on merits are sought to be denied to them only on the ground that they did not have followed AR-4 procedure. It is well settled that the substantial right of the party cannot be denied merely on the ground of not following the procedural provisions. The present matter is squarely covered in favour of the appellants in terms of the ratio of the aforestated case of Kanwal Engineers. There is no valid ground on which the refund claims admissible to the appellants could be denied on the ground of their not following the AR-4 procedure. I, therefore, set aside the impugned orders and allow the appeals with consequential relief, if any.
2001 (8) TMI 231 - CEGAT, CHENNAI
COMMISSIONER OF C. EX., CHENNAI Versus DYNASPEDE INTEGRATED SYSTEMS LTD.
Exemption subject to production of certificate ......
........... e Tribunal in the decision quoted above, we hold that the NMI certificate issued to the appellants after the clearance of the goods was acceptable for the purpose of exemption under Notification No. 70-Cus., dated 26-3-1981. Accordingly, the appeal is allowed. The orders of the lower authorities are set aside with consequential relief to the appellants. 8. In view of the laid down proposition of the Apex Court in the case of Mangalore Chemicals and Fertilizers (supra) and also in the Tribunal s judgment rendered in the case of Birla Institute of Technology (supra) we do not find any infirmity in the order passed by the Commissioner. He has rightly followed the judgment and Revenue has not made out any other grounds as to why the said judgments does not apply to the facts of the case. Therefore, while rejecting the stay application, we take up the appeal and respectfully following the judgment noted above we do not find any merits in the revenue s appeal and dismiss the same.
2001 (8) TMI 228 - CEGAT, MUMBAI
TORRENT GUJARAT BIO-TECH LTD. Versus COMMISSIONER OF CUS. & C. EX., BARODA
Modvat/Cenvat - Modvat on capital goods ......
........... ods manufactured by it in the belief that they were entitled to exemption and duty is demanded later, the failure to declare inputs should not be allowed to come in the way of taking credit that would otherwise be due. We may cite the Tribunal s decision in Formica India v. CCE - 1997 (108) E.L.T. 761 the ratio of which has been affirmed by the Supreme Court in 1995 (77) E.L.T. 511. There are other decisions holding that notwithstanding the failure to claim an input specifically under Rule 57A if the fact of use of the inputs had been otherwise brought to the notice of the Department, the benefit under Rule 57A should not be denied. Thermal Coatings Pvt. Ltd. v. CCE - 1993 (63) E.L.T. 176 . Therefore, the failure merely to specify the input under Rule 57T should not be a bar for claiming credit. We are therefore of the view that the credit would be available to these chemicals under Rule 57A. 5. Appeals E/2265 and 2266/96 are allowed and appeals E/1117 and 1129/97 dismissed.
2001 (8) TMI 225 - CEGAT, MUMBAI
SPECIAL BOARD MFG. CO. Versus COMMR. OF C. EX. & CUS., AHMEDABAD-II
SSI Exemption - Partnership firm - Demand ......
........... t be available in the case, inter alia, of clearance of goods exceeding Rs. 2 crores from any factory by more than one manufacturer. The argument is entirely irrelevant because we are not concerned with the applicability of Notification 175/86. The other argument that he advances rests upon the provisions of clause (v) of the proviso under the first paragraph of Notification 138/86. It says, The exemption contained in this notification shall not apply to a manufacturer of paper or paperboards who avails of the exemption under Notification 175/86 . This, according to us, means that it is not permissible for a manufacturer to avail both Notifications 175/86 and 138/86 simultaneously. This is not the case before us. Further, the manufacturer who claimed the benefit of Notification 138/86 did not at the same time claim the benefit of Notification 175/86. 4. We accordingly allow this appeal, set aside the Commissioner (Appeals) s order and restore the Assistant Collector s order.
2001 (8) TMI 220 - CEGAT, MUMBAI
GAYATRI PROCESSORS Versus COMMISSIONER OF CENTRAL EXCISE, AHMEDABAD-I
Appeal by Power of Attorney holders ......
........... e has appeared. In terms of Rule 213(2)(a) of the Central Excise Rules it is stated that the grounds of appeal and the form of verification as contained in form EA-1 shall be signed in case of an individual by the individual himself or if the individual absent from India by the individual concerned or by a person duly authorised by him in his behalf. We have not been shown any specific authority given by the assessee in this case who authorised a person to file the appeal specifically in his behalf. Hence appeals stand dismissed for non-compliance of the provisions of Rule 213(2)(a) of the Central Excise Rules.
2001 (8) TMI 216 - CEGAT, MUMBAI
JBM TOOLS LTD. Versus COMMISSIONER OF CENTRAL EXCISE, PUNE
Modvat declaration - Capital goods ......
........... Bench in Kamakhya Steels (P) Ltd. v. CCE - 2000 (121) E.L.T. 247. The Bench held in that decision that the question raised before it, whether an assessee could avail Modvat credit in respect of inputs without filing a declaration, was not required to be answered. The Bench did not go into the question of there being two series of decisions of the Tribunal, which required resolution. It accepted the suggestion made to it by an intervener that the amendment to Rule 57G by insertion of sub-rule (2) under that rule resulted in a situation in which the credit could not be denied because a declaration was not filed. Sub-clause (ii) of sub-rule (2) of Rule 57G is identical with sub-clause (ii) of sub-rule (13) of Rule 57T. The ratio of the decision of the Larger Bench would therefore apply to the facts before us. The only ground on which credit has been denied is thus without basis. 6. Appeals allowed. Impugned orders set aside. Consequential relief where due in accordance with law.