2001 (2) TMI 447 - CEGAT, MUMBAI
COMMISSIONER OF C. EX., SURAT Versus YASH LABORATORIES
Pharmaceutical products - Expert opinion - Use, of product ......
........... redient as a medicament and not cosmetic. He has relied upon the affidavits of a dermatologist that the product is a medicament prescribed for specific conditions of skin and is only sold against prescription. 3. emsp The respondent is absent and unrepresented. 4. emsp In Nicholas Laboratories, the Tribunal has held that melamine cream containing as an active ingredient hydroquinone to be a medicament after considering the technical evidence. The fact that the department may have gone in appeal against the order does not render the decision as not having binding force. In addition, the Commissioner (Appeals) rsquo s reliance upon the affidavits of the physician and chemist cannot be questioned merely on the ground that it is the terms of the tariff that determined classification. That is no doubt true, but where the terms required use of the product to be taken into consideration, such use is to be considered. We therefore see no reason to interfere. 5. emsp Appeal dismissed.
2001 (2) TMI 445 - CEGAT, MUMBAI
COMMISSIONER OF C. EX., RAJKOT Versus DEVI ENTERPRISES
Modvat - Deemed credit ......
........... udgment, the Tribunal observed that where there was an unconditional notification, then it was safe to presume that the goods cleared thereunder were clearly recognisable as non-duty paid. In the case of conditional notification, unless it was shown that all the conditions were satisfied, it could not be said that the inputs were recognisable as non-duty paid. In paragraph 23 of the judgment, the burden for such establishment is cast on the Revenue. The averment made in the show cause notice is in the direct contradiction of this view of the Larger Bench. 7. emsp The Government had issued the deemed credit order with the definite knowledge that in some cases unwanted benefit would also accrue because on some of the scrap duty may not have been attracted. The conscious decision of the Government cannot be modified or altered by the executive officers. 8. emsp I find that the Commissioner had interpreted the provisions correctly. The orders sustain. These appeals are dismissed.
2001 (2) TMI 444 - CEGAT, NEW DELHI
KUSHAL BAGH MARBLES PVT. LTD. Versus COMMISSIONER OF C. EX., JAIPUR
Modvat credit on capital goods ......
........... Authority rdquo . We are not convinced with the arguments advanced on behalf of the Revenue that amended provisions and Circulars referred to above are not applicable to the point in issue. On going through the amendment to Rule 57G particularly with reference to sub-clause (ii) of 2(a) of 7/99-C.E. (N.T.), dated 9-2-1999 the Circulars and the case law, we find that matter is required to be re-examined as it was rightly pointed out by the intervener. In the view we have taken, the matter is remanded to the jurisdictional Assistant Commissioner to examine the admissibility of Modvat credit for the period covered under Appeal No. E/1840/95 and to pass an order in accordance with law. rdquo 9. emsp In view of the above decision of the Tribunal, the impugned order is set aside and the matter is remanded for de novo consideration to the adjudicating authority. The adjudicating authority decide the matter afresh after affording an opportunity of personal hearing to the appellants.
2001 (2) TMI 443 - CEGAT, MUMBAI
COMMISSIONER OF CUS. (IMPORT), MUMBAI Versus LAL INTERNATIONAL
........... . Hence this appeal by the department. 2. emsp We have heard the departmental representative. The respondent is absent and unrepresented despite notice. 3. emsp It is no doubt true that the Dy. Collector in his order has not furnished details of contemporaneous import on the basis of which he proposed enhancement of the value. However, if the importer, as he records, had, in the reply to the notice issued, which appears to have been orally accepted, agreed to the enhancement of the value proposed, we do not find it unreasonable that the Dy. Collector did not furnish details of the basis for enhancement of the value. Since that enhancement was later questioned by the importer we think it desirable that the Dy. Commissioner now pass orders incorporating the basis for his enhancement. 4. emsp Accordingly we allow the appeal and set aside the impugned order of the Commissioner (Appeals). The matter is now remanded to the Dy. Commissioner for passing orders in accordance with law.
2001 (2) TMI 420 - CEGAT, NEW DELHI
OSWAL AGRO FURANE LTD. Versus COMMISSIONER OF C. EX., CHANDIGARH
Appeal - Restoration of ......
........... The prayer is opposed by the learned DR who submits that since the Final Order has been passed on merits after considering all the pleas raised in the appeal, it is not legally permissible to recall the Final Order. 3. emsp On a careful consideration of the submissions made by both sides, we are satisfied with the explanation offered by the applicants for non-appearance before the Tribunal on 1-1-1999. The interests of justice require that both sides be heard and fresh orders passed thereafter. Hence, we set aside the ex parte order dated 6-4-1999, and fix the appeal for final hearing on 7-3-2001. 4. emsp The miscellaneous application is hereby allowed.
2001 (2) TMI 419 - CEGAT, NEW DELHI
SHREE CEMENTS LTD. Versus COMMISSIONER OF C. EX., JAIPUR
Stay/Dispensation of pre-deposit - Modvat ......
........... Central Excise, Delhi-III 2001 (127) E.L.T. 486 (Tribunal) 2000 (41) RLT 938 . In that case the Bench was dealing with the case where adjudication order was passed subsequent to the deletion of the Rule 96ZL. That situation makes a difference between the reported case and the case on hand. That difference, according to us justifies our stand that the said decisions cannot apply to the facts on hand. 6. emsp A duty liability of nearly Rs. 41 lakhs has been imposed on the appellants in two orders challenged in these appeals. We direct the appellant to make deposit of Rupees Twenty lakhs, roughly 50 of the duty liability. It is submitted by ld. Counsel representing the appellant that appellants have deposited a sum of Rupees Five lakhs towards the duty liability. This fact is not disputed by the ld. Departmental Representative. So we direct the appellant to make a further deposit of Rs. 15 lakhs, within 4 weeks from today. 7. emsp For reporting compliance adjourned to 20-3-2001.
2001 (2) TMI 418 - CEGAT, NEW DELHI
COMMISSIONER. OF C. EX., DELHI-III Versus AK AUTOMATICS
........... e of final product. The Tribunal also observed that it does not matter ldquo whether the goods are used in the machinery or for the purpose of the machinery. rdquo The Tribunal came to the conclusion that lubrication of the machinery is an activity which is concerned with or pertaining to the manufacture of the finished goods. It is rather integrally connected with the manufacture. The use of lubricants in the machinery is certainly in or in relation to the manufacture of the finished product. In the present matter it is not denied by the Revenue that the impugned goods are used as coolant in turning and grinding operations which shows clearly that these are used in relation to the manufacture of the final goods. Following the ratio of the Larger Bench decision I hold that the input credit is admissible in respect of impugned goods and accordingly the appeal filed by the Revenue is rejected. The Cross Objection, filed by the Respondent, is also disposed of in the above terms.
2001 (2) TMI 417 - CEGAT, NEW DELHI
PUNJAB CONCAST STEELS Versus COMMISSIONER OF C. EX., CHANDIGARH
Modvat - Duty paying documents ......
........... oice containing rate and amount of duty both in words and figures shall be the document for the purpose of availing of Modvat credit. Mere non-mention of rate and amount in words will not disentitle them for availing the Modvat credit as substantive compliance of the condition specified in the notification has been made. 5. emsp The Modvat Credit has also been disallowed to the appellants in respect of invoices issued by M/s. Durga Chemicals Agency and M/s. Singhania Chemical Agency as the quantity of goods cleared by the manufacturer to these dealers was not mentioned on the invoice. Again the invoice carry the details of Sl. No. and dated of the, invoices under which the goods were cleared by the manufacturers to the dealers. Mere omission of quantity will not make the appellants ineligible for availing the Modvat credit. The appellants are, therefore, eligible to avail of Modvat credit on the basis of invoice issued by these four dealers. The appeal is thus partly allowed.
2001 (2) TMI 416 - CEGAT, NEW DELHI
VISHWANATH PRASAD SANTOSH KUMAR Versus COLLECTOR OF C. EX., ALLAHABAD
Rectification of mistake application - Restoration of ......
........... ter was not placed before the Bench in absence of which ROM application was dismissed for non-prosecution. I also heard Shri K. Panchatcharam, ld. DR, who leaves the matter to the discretion of the Bench. 3. emsp I have considered the submissions, and I observe that the letter addressed by the ld. Advocate was received by the Registry on 25-10-2000 which is apparent from the rubber stamp of the Tribunal on the letter of the Advocate. As this request was not placed before the Bench, the ROM application was dismissed. I, therefore, recall the earlier Misc. Order No. 207/2000-NB, dated 27-2-2000 and post the ROM application for hearing on 3-4-2001.
2001 (2) TMI 415 - CEGAT, NEW DELHI
GCUL. LTD. Versus COMMISSIONER OF CENTRAL EXCISE, DELHI-III
Export Oriented Unit - Exemption ......
........... the terry towels manufactured and cleared by them to DTA were made solely out of indigenous raw materials, we hold that the claim for exemption in terms of Notification 8/97 remains unsubstantiated. The alternate plea raised before us during the arguments that at least the benefit of Notification 2/95 which grants 50 concessional rate to all excisable goods produced in 100 EOU, FTZ hellip hellip . when sold in India cannot be considered at this stage, since the plea has been raised for the first time at the hearing stage and further for the reason that Notification 2/95 is a conditional Notification to the effect that the amount of duty payable in accordance with the notification shall not be less than the duty of excise leviable on like goods produced or manufactured outside 100 EOU or FTZ etc hellip hellip hellip hellip .and it is not possible at this belated stage to ascertain the factual position. 4. emsp In the result, we uphold the impugned order and reject the appeal.
2001 (2) TMI 414 - CEGAT, NEW DELHI
SHRI LAXMI IRON & STEEL RE-ROLLING MILLS Versus COMMR. OF C. EX., JAIPUR
Appeal - Restoration of ......
........... 1866/2000-NB (SM) and therefore, could not appear and argue the above appeal. In these circumstances, he prays that the dismissal order may be set aside and the appeal restored. 2. emsp The learned DR fairly leaves the matter for decision by the Bench. 3. emsp We are satisfied with the explanation offered by the learned Counsel hence we set aside the dismissal order, restore the appeal and fix it for regular hearing on 14-3-2001. The ROA application is hereby allowed.
2001 (2) TMI 397 - CEGAT, NEW DELHI
FLEX INDUSTRIES LTD. Versus COMMISSIONER OF C. EX., INDORE
Modvat - Capital goods - Appeal to Tribunal ......
........... their claim for capital goods credit under Rule 57Q in Appeal Memorandum and also in one appeal in the grounds of appeal also. As the claim had been made by the Appellants even before the Adjudicating Authority, they cannot be restrained from raising the same before the Tribunal. Accordingly, all the matters are required to be remanded to the Adjudicating Authority to consider the eligibility of evaporation boats for capital goods credit under Rule 57Q of the Central Excise Rules. The fact that the Appellants had not filed the declaration under Rule 57Q cannot be taken as an objection for not granting the capital goods credit as the declaration had been filed under Rule 57A and in the light of the Larger Bench decision in Modi Rubbers case, supra. Accordingly I remand all the four appeals to the Adjudicating Authority to decide afresh whether the Appellants are eligible to avail of capital goods credit in respect of evaporation boats. The appeals are allowed by way of remand.
2001 (2) TMI 396 - CEGAT, NEW DELHI
VISHAL PRINTING PRESS Versus COMMISSIONER OF C. EX., NEW DELHI
Appeal - Restoration of ......
........... ally submitted that non appearance on 21-11-2000 had occurred due to noting date of hearing wrongly that the non appearance was neither intentional nor deliberate. 3. emsp Shri M.D. Singh, ld. SDR, mentioned that the date of hearing noted by the Departmental Representative was 21-11-2000 as fixed by the Bench. 4. emsp I find that the Advocate did not appear on the date of hearing because of noting the date wrongly. The reason for non appearance has been explained satisfactorily and it was not for want of prosecution. I, therefore, recall the earlier Order No. A/2191/2000-NB, dated 21-11-2000 and restore the appeal to its original number. The Appeal is posted for final hearing on 26-4-2001.
2001 (2) TMI 394 - CEGAT, NEW DELHI
SHREE BAIDYANATH AYURVED BHAWAN LTD. Versus COMMR. OF C. EX., PATNA
Demand - Show cause notice ......
........... ld. Counsel representing the appellants, a duty demand could have been made by the competent authority only pursuant to show cause notice. No show cause notice was issued demanding the duty and according to Counsel, no opportunity was afforded to the manufacturer to submit his defence to the demand made by the Superintendent in the letter dated 12-8-1997. Ld. Departmental Representative reiterated the contentions stated by the Commissioner in the order impugned. 4. emsp Communication sent by the Superintendent demanding the duty amounting to Rs. 60,077.73 cannot be sustained in law because it is not the outcome of an order of the adjudication preceded by issue of show cause notice. On this short ground the order is set aside. We hasten to add that this will not debar the department in initiating proceedings in accordance with the law for raising the duty demand on the product manufactured by the appellants. 5. emsp Appeal is allowed as indicated above and the demand quashed.
2001 (2) TMI 392 - CEGAT, NEW DELHI
COMMISSIONER OF C. EX., JAIPUR Versus BIRLA JUTE & INDUSTRIES LTD.
Modvat on capital goods ......
........... equently by the Tribunal in the case of Century Cements Ltd. v. CCE reported in 1997 (95) E.L.T. 655 and in a number of cases decided thereafter. I also note that Larger Bench of this Tribunal in the case of Jawahar Mills Ltd. reported in 1999 (108) E.L.T. 47 which was further examined by still Larger Bench in the case of Surya Roshni reported in 2001 (128) E.L.T. 293 (Tribunal-LB) 2001 (42) RLT 817 held that each case is to be examined and then a decision has to be taken. In the instant case I find that the Hon rsquo ble Supreme Court has already rendered a finding that Pollution Control Equipment is an integral part of the process of manufacture of the products, I therefore, hold that it is eligible to Modvat credit. Having regard to this finding and following the ratio of the judgment of the Supreme Court I hold that Modvat credit will be admissible on Pollution Control Equipment. In the circumstances, the impugned order is upheld and the appeal of the Revenue is rejected.