2001 (5) TMI 465 - CEGAT, BANGALORE
ESSAR GUJARAT LTD. Versus COMMISSIONER OF CENTRAL EXCISE, BANGALORE
........... ommissioner (Appeals). If the charges are towards Engineering expenses, Port dredging expenses, Port management and secretarial expenses and Medical and Welfare expenses as claimed by the M/s. Kudremukh Iron Ore Co. Ltd., they prima facie, being Post Removal Expenses, should not form the part of valuation for excisable goods only such component of the lsquo Port Charges rsquo , if any, relating to loading of the goods up to the factory gate could be added. Therefore, we keep this issue of determining of the nature of the charges out of Rs. 18/- per M.T. which could be added open to be determined in the remand proceedings being proposed by us. 7. emsp In view of our findings, the order is set aside and remanded back to the Commissioner (Appeals) for re-determination of the time and place of Removal and the nature and component part of the ldquo Port Charges rdquo of Rs. 18/- per M.T. which would be included in the valuation or not and accordingly determine the claim of refund.
2001 (5) TMI 462 - CEGAT, NEW DELHI
SHRI LAXMI IRON & STEEL RE-ROLLING MILLS Versus COMMR. OF C. EX., JAIPUR
Production capacity based duty - Rolling Mills - Adjudication ......
........... y as in paras (i) and (ii) of the order. 4. emsp As regards the order in para (iii), we consider that when show cause-cum-demand notice had been issued it was necessary that the appellants should have been given opportunity to reply to the same and then the matter should have been adjudicated after following the principles of natural justice. Thus in so far as the applicability of this order to the four show cause notices mentioned in para (iii) of the order are concerned, the matter is sent back to the jurisdictional authorities for passing speaking appealable order after hearing the appellants. The appellants are also given opportunity to reply to the show cause notices to the concerned authorities as mentioned in the show cause notices. Thus on this limited point the matter is remanded to the jurisdictional Central Excise authorities for de novo consideration as per the above observations. 5. emsp The appeal is thus partly allowed as referred to above. Ordered accordingly.
2001 (5) TMI 418 - CEGAT, MUMBAI
CALICO INDUSTRIAL ENGINEERS Versus COMMISSIONER OF C. EX., MUMBAI
........... g manufacture of a complete machine, at the duty payable on complete machines. The counsel for the appellant says that the ratio of this decision would squarely apply to the facts before us. 5. emsp The decision in Flat Products Equipments had not been passed when this matter was pending before the lower authorities and could not have been cited before them. We are of the view that the matter should be re-examined by the Asstt. Commissioner to see whether it is in fact covered by this decision. Mr. M.H. Patil undertakes to make submissions before the Asstt. Commissioner on the applicability of this decision within two months from the receipt of this order, incorporating the material, which will be required to substantiate his submission. After considering these and such evidence that the department may produce, in support of this view, the Asstt. Commissioner shall pass orders on this aspect in accordance with law. 6. emsp Appeal accordingly allowed. Impugned order set aside.
2001 (5) TMI 417 - CEGAT, NEW DELHI
DURA CELL INDIA (P) LTD. Versus COMMISSIONER OF CENTRAL EXCISE, DELHI-III
Rectification of mistake - Penalty ......
........... 978 (2) E.L.T. (J159) (SC) JCT Ltd. v. CCE, 1998 (99) E.L.T. 393 and Nagpal Silicate and Glass Industry v. CCE, 1996 (83) E.L.T. 313 (T). It is settled law that penalty imposed has to be commensurate with the offence committed by the assessee. In this case the Modvat credit was dis-allowed to the applicants in respect of 3 bills of entry. On appeal, the Tribunal held that the applicants were eligible to avail the Modvat credit in respect of one bill of entry. Accordingly the amount of credit dis-allowed has been reduced from Rs. 15.82 lakhs to Rs. 9.01 lakns. Thus the Tribunal, in the interest of justice, should have also considered the quantum of penalty imposed on the applicants. We, therefore, agree that there was a mistake in not giving any findings on the quantum of penalty. We, therefore, allow the application for ROM, and order that the amount of penalty will be reduced from Rs. 1.5 lakhs to Rs. 1 lakh only. The ROM application is thus allowed with the above direction.
2001 (5) TMI 416 - CEGAT, NEW DELHI
CAPITAL TRADERS Versus COMMISSIONER OF CENTRAL EXCISE, JAIPUR
Stay/Dispensation of pre-deposit - Penalty ......
........... only if it is approved that they had knowledge or had reason to believe the goods they were purchasing were liable to confiscation. It is the appellants rsquo contention that they made payments for the goods according to the negotiated prices and they were not aware about the non-payment of correct duty on the goods and that such non-payment of duty rendered the goods liable to confiscation. The main party to the proceeding has already deposited the entire duty amount payable on the goods and penalty due from them. In these circumstances, we consider it an appropriate case for grant of waiver of pre-deposit of penalties imposed on these dealers. It is, accordingly, ordered that the Revenue shall not take any coercive action for the recovery of the amounts during the pendency of their appeals. The appeals of the present applicants shall be tagged with the main appeal i.e. E/185/2001-A filed by M/s. Mayur Industries Ltd. and all the appeals shall be heard together on 12-6-2001.
2001 (5) TMI 415 - CEGAT, NEW DELHI
ARTI STRIPS (P) LTD. Versus COMMISSIONER OF CENTRAL EXCISE, CHANDIGARH
Adjudication - Re-rolling mill ......
........... unal. We have gone through the impugned order and we find that all relevant aspects of the matter have been discussed. The Commissioner of Central Excise, Chandigarh, who had adjudicated the matter had held that the re-heating furnaces in question had the characteristics similar to those of pusher type furnaces and that the noticees had failed to produce any technical literature in support of their claim that their furnaces are batch type. They had failed to establish function of the furnaces in question to be as of batch type (refer para 39 of the impugned order). 5. emsp We do not find that any material has been placed before us to disturb these findings of fact by the adjudicating authority. The matter relates to the facts and after due analysis the adjudicating authority had come to a definite considered view. We do not find any merit in these appeals and we confirm the view taken by the adjudicating authority and all these four appeals are dismissed. Ordered accordingly.
2001 (5) TMI 387 - CEGAT, NEW DELHI
COMMISSIONER OF CENTRAL EXCISE, CHANDIGARH Versus AG FOODS LTD.
Confiscation of goods ......
........... in the statutory record and the respondents being a 100 per cent EOU and if the sale is effected in Domestic Tariff Area, then goods are chargeable to duty under Section 3 of the Central Excise Act read with Notification No. 13/98-C.E., dated 2-6-1998 as amended at the rate of 30 of each of customs duty. 6. emsp The contention of the respondent is that goods were lying in the factory and as per the earlier order-in-appeal the goods are liable to nil duty and there is no allegation that the respondents are clearing these goods for Domestic Tariff Area. The contention of the respondents is that if they clear the goods for Domestic Tariff Area, then they are liable to pay duty as now pleaded by the revenue. 7. emsp The admitted fact of the case is that the goods were in the factory and as per the earlier order-in-appeal, which is accepted by the revenue, I find no infirmity in the impugned order passed by the Commissioner (Appeals). The appeal, filed by the revenue, is rejected.
2001 (5) TMI 386 - CEGAT, KOLKATA
HINDUSTAN FIBRE GLASS WORKS Versus COMMISSIONER OF C. EX., CALCUTTA-III
Modvat - Shortage ......
........... before the officers. However from the said statement also I find that they have not pointed out any mistake or error in keeping the records which might result in more closing balance than the actual closing balance. At the time of visit of the officers it was the closing balance as reflected in their record maintained by them which was made the basis for arriving at the shortage. No explanation came from the appellants for showing the said shortage. Even the fact that the most of the goods were in the process were not brought to the notice of the officers during their visit. In fact I find that the inputs which might be in process stage at that time must have been reflected in the issuance slip of the inputs maintained by the appellants and as such this fact would not affect the physical stock or closing stock of RG 23A Part I. As such I do not find any merit in the appeal and reject the same. Inasmuch as the appeal has been rejected, the stay petition also gets disposed of.
2001 (5) TMI 385 - CEGAT, BANGALORE
COMMR. OF C. EX., BELGAUM Versus KARNATAKA ELECTRICITY BOARD
........... xcise duty. 5. emsp In the judgment and order of the Tribunal that is under challenge the Tribunal has failed to consider the facts of even a single of the appeal before it. It has proceeded simply upon the basis that structurals are not exigible to excise duty. It has failed to appreciate that there is a tariff entry which makes structurals exigible to excise duty and that they are so exigible, provided that they are new identifiable goods that are the result of manufacture or processes and they are marketable. rdquo 8. emsp Following the ratio of the aforesaid decision we are remanding the matter to the jurisdictional Assistant Commissioner to examine the issue afresh and to pass an Order accordingly on providing an opportunity to the party. All contentions may be raised before the Assistant Commissioner by either party. Liberty is given to produce additional evidence. These two appeals are disposed off in the above terms. Cross-objections are also disposed off accordingly.
2001 (5) TMI 384 - CEGAT, NEW DELHI
CCE., CHANDIGARH Versus SMITHKLINE BEECHAM CONSUMER HEALTHCARE LTD.
Natural justice - Provisional assessment ......
........... ce. For complying with the principles of natural justice it is not mandatory to issue a Show Cause Notice. Even without a Show Cause Notice a hearing can be afforded to the aggrieved party. In this case when the assessee is having specific contention that the entire basis of assessment is being altered to saddle him with additional liability by levying provisional duty, the adjudicating authority should have afforded a hearing to the assessee. The appellate authority rsquo s order challenged before us can be taken only us having the effect of directing the assessing authority to afford a reasonable opportunity of being heard in person to the assessee before levying provisional duty. That direction cannot be faulted. Even without issuing a SCN, the adjudicating authority/assessing authority should afford a reasonable opportunity of being heard in person to the assessee before passing order for provisional assessment. 5. emsp Appeal is disposed of with the above clarifications.
2001 (5) TMI 383 - CEGAT, NEW DELHI
COMMISSIONER OF C. EX., CHANDIGARH Versus VARDHMAN POLYTEX LTD.
Modvat on capital goods ......
........... are not used for producing or processing of any goods or bringing of any change in any substance for the manufacture of the final product. 3. emsp The Assistant Commissioner in the adjudication order specifically found that the Bus duct are spare parts of Transformer and the Transformer is an integral part of Plant. This factual aspect is not controverted by the Revenue. As these are parts of plants, therefore, these are entitled for the benefit of Modvat credit. 4. emsp In respect of distribution boards and panels the adjudicating authority gave a finding that these are used for regular electric supply to the machines which are used in the manufacture of final product and these are essential for the working of the machines. This finding of fact is also not controverted by the Revenue. As these boards are used with the machines are entitled for the benefit of the Modvat credit. In view of the above discussion, I find no infirmity in the impugned order. The appeal is rejected.
2001 (5) TMI 382 - CEGAT, KOLKATA
SWIL LTD. Versus COMMISSIONER OF CENTRAL EXCISE, CALCUTTA-IV
........... ttopadhyay, ld. JDR. The issue involved in the present appeal is the classification of water shower, water jet and water filter. The Appellate Tribunal vide Order No. A-1530/Cal/2000, dated 15-9-2000 2001 (128) E.L.T. 498 (Tribunal) has held that the products will be classified under Heading 84.24 of the Schedule to the CETA and not under Heading 84.39 decided by the Revenue. Following the ratio of the earlier decision we set aside the impugned order and allow the appeal with consequential relief to the appellants.
2001 (5) TMI 381 - CEGAT, CHENNAI
ZIGMA COMPUTER CORPORATION Versus COMMISSIONER OF C. EX., COIMBATORE
Adjudication - Valuation ......
........... and not to cum duty price to be arrived at in terms of Section 4 of the Central Excise Act. In that view of the matter the ld. DR rsquo s plea cannot be accepted. The matter has to be go back to the original authority for reconsideration with regard to, - (a) correct number of computers manufactured by the Appellants. (b) number of monitors manufactured by them. (c) consider the appellants claim regarding various deductions. (d) That the assessable value has to be treated as cum duty price in terms of Tribunals rsquo Larger Bench citations noted supra. Thus, in view of the judgments and decisions cited above, the impugned order is set aside and the matter is remanded back to the Original Authority for de novo consideration. The original Authority shall take all the evidence which had been produced by the Appellants and re-determine the case after granting an opportunity of hearing in the light of the several judgments cited above. Thus the Appeal is allowed by way of remand.
2001 (5) TMI 379 - CEGAT, BANGALORE
TUMMALA ELECTRONICS (P) LTD. Versus COMMR. OF C. EX. & CUS., BANGALORE
Classification of goods ......
........... Railways Marketability is an essential requirement to determine the classification when the entity cannot be classified clearly as per Statutory Rules of Interpretation. Order which do not consider the same, are required to be set aside for de novo consideration. (e) We also find, from the Order of the lower authority that the lsquo Rules for the Interpretation of the Schedule rsquo for classification have not been considered by the lower authority. In case of a conflict, the rule of akin and later the better i.e. rule 4 or rule 3(b) of classification has to be applied and ruled out. The Order therefore has to be remanded back to determine why these rules are not applicable. 4. emsp In view of our findings, we would set aside the Order and remand the matter back to the Original authority for redetermining the classification after hearing the appellants. We clarify that all other issues are kept open in the remand proceeding. Appeal allowed as remand for de novo adjudication.
2001 (5) TMI 377 - CEGAT, CHENNAI
KAA ARUNACHALAM PRINTING DIV. Versus COMMR. OF C. EX., MADURAI
SSI Exemption - Dummy unit ......
........... vate limited company was incorporated under the Company rsquo s Act and was functioning independently from 1961, while the other as partnership firm came into existence only in the year 1984. Where there were independent units and merely because there was common passage or there was some independent transaction between the unit, that has been negatived as a reason for clubbing of clearances. In the present case, the second unit had accepted certain job work and that was completely accounted for and the documents produced clearly indicate such a belief. The Department has not proved their case that TTPL had floated the second unit on paper only as a dummy unit and it was not in existence. The Registration certificates and independent transactions clearly indicate that they are independent unit and in such circumstances, the findings arrived at cannot be accepted and hence same is set aside. 8. emsp In that view of the matter, the impugned order is set aside and appeal allowed.