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.
2001 (8) TMI 214 - CEGAT, KOLKATA
MAHABIR INDUSTRIES Versus COMMISSIONER OF CENTRAL EXCISE, PATNA
Refund - Exemption - Demand - Limitation ......
........... ent 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. A reading of the above para shows that the Department is required to initiate action for recovery of the erroneous refund under the provisions of Section 11A as well as Section 35E(2). Inasmuch as in the instant case, no appeal has been filed against the Refund Order of the Superintendent under the provisions of Section 35E(2), issuance of show cause notice under the provisions of Section 11A without seeking setting aside of the earlier Order of the Refund cannot be held to be the valid proceedings. In any case, we also find that the show cause notice having been issued in the year, 1997 without any suppression or mis-statement on the part of the appellants, is clearly barred by limitation. Accordingly, we set aside the impugned Order and allow the appeal with consequential reliefs to the appellants.
2001 (8) TMI 211 - CEGAT, MUMBAI
COMMISSIONER OF C. EX., AHMEDABAD Versus CONTINENTAL CHEMICALS
Confiscation of goods ......
........... required to do. In the context of the rule, it is clear that the expression is used in such a manner as to cast a burden on the manufacturer or other person concerned to show the existence of the goods that he has manufactured or received, or to offer a valid explanation for their absence. Acceptance of the meaning attributed to it by the Commissioner would then necessarily lead to the conclusion that there are two provisions in the rules for dealing with the same contravention, Rule 173Q and Rule 226. The latter rule provides for confiscation of goods that are not entered in the account to be maintained by a manufacturer. It is this rule that in fact should have been applied and had it been cited in the show cause notice, I would have upheld the confiscation. However, the show cause notice does not propose confiscation under Rule 226. It does not even cite it. In these circumstances, I am unable to interfere with the order of the Commissioner (Appeals). 3. Appeal dismissed.
2001 (8) TMI 208 - CEGAT, KOLKATA
BENGAL HAMMER INDUSTRIES (P) LTD. Versus COMMISSIONER OF C. EX., CALCUTTA
Manufacture - Demand ......
........... boats and other floating structures including barges mentioned in 8901.00 . 14. Having regard to the rulings of the Apex Court on the issue, we hold that the order of the Delhi Bench of the Tribunal in the case of Ashish Steel Pvt. Ltd. merged with the order of the Apex Court on its affirmation and it became the order of the Supreme Court and hence we hold that ship-breaking is to be considered as manufacturing activity under Central Excise Tariff Act, 85. We agree with the findings of the Tribunal in the case of Ashish Steel Pvt. Ltd. cited above holding that We are of the view that the entries against Chapter sub-heading 7215.00 do not give rise to any scope for doubt as to whether the said activity was an excisable activity or not. When Tariff sub-heading 72.15 clearly speaks of breaking up of ships as an excisable event no argument that the said activity is not a manufacture in terms of Section 2(f) of the Act can be accepted . The four appeals are, therefore, rejected.
2001 (8) TMI 206 - CEGAT, MUMBAI
AMAL PRODUCTS LTD. Versus COMMISSIONER OF CUS. & C. EX., VADODARA
Demand for Modvat - Limitation ......
........... t but find that the appellant had taken credit that it was not entitled to. This is what the notice affirms when it alleges that the fact of credit having been taken was noticed during verification and scrutiny . Such scrutiny was obviously of the documents that the appellant had submitted. The notice does not rely upon any other document. Therefore, if the officers could come to know two years after submission of the documents, the fact that the appellant availed credit of the duty in question, they ought to have known this within the period of six months provided in the law for raising the demand for duty short-levied or non-levied in the ordinary course. The delay in issue of notice was not on account of suppression of facts by the appellant but the failure of the officers to scrutinise the relevant documents in time. The extended period of limitation would therefore not be available to the Department. 5. The appeal is accordingly allowed and the impugned order set aside.
2001 (8) TMI 200 - CEGAT, NEW DELHI
MM DYEING & FINISHING Versus COMMISSIONER OF C. EX., CHANDIGARH
Demand - Clandestine processing and removal - Evidence ......
........... CE, Vadodara, 2000 (123) E.L.T. 1148 (T) wherein also the charge of clandestine removal was based only on private record maintained by the workers for their own purpose, it was observed that the charge was not sustainable specially when the consumption of raw material to produce goods alleged to had been clandestinely removed was not actually proved. 14.In the light of the discussion made above, the charge of clandestine processing and removal of the goods without payment of duty during the disputed period i.e. April to August 1990 on the basis of bare entries in the diary and register allegedly maintained by the worker/Dyeing Master without any corroborative evidence in that regard, does not at all stand proved against the appellants. The impugned order of the Commissioner, therefore, deserves to be set aside. 15.Consequently, the impugned order of the Commissioner dated 29-1-1999 is set aside and the appeal of the appellants stands allowed with consequential relief, if any.
2001 (8) TMI 199 - CEGAT, MUMBAI
VYANKATESH PATRA UDYOG Versus COMMISSIONER (APPEALS) C. EX., MUMBAI-III
Appeal to the Commissioner (Appeals) ......
........... t of Notification No. 9/98 was not available and that differential duty was required to be paid by the assessee. The Commissioner (Appeals) has dismissed the appeal filed before him by the assessee on the ground that there is no appealable order issued by the lower authority. We do not agree. Any decision or order passed under the Central Excise Act by Central Excise Officer lower in rank than the Commissioner of Central Excise may be appealed against the Commissioner of Central Excise (Appeals), in terms of Section 35(1) of the Act. Since final assessment order is an order which affects rights of parties it falls within the scope of appealable order. Therefore the lower appellate authority ought to have heard the case on merits. Since this has not been done, we set aside the impugned order and remand the case for hearing on merits to the Commissioner (Appeals), after dispensing with the requirement of predeposit of differential duty. 3. The appeal is thus allowed by remand.
2001 (8) TMI 198 - CEGAT, KOLKATA
COMMR. OF C. EX., BHUBANESWAR-II Versus INDIAN ALUMINIUM CO. LTD.
Refund of duty paid ......
........... . In these circumstances also, we find that no unjust enrichment can be said to have accrued to the respondents. In any case, having held that proviso (c) to sub-section (2) of Section 11B contemplates and permits refund of Credit of Duty and carves out the exception of such refund from applicability of bar of unjust enrichment, the findings of the Assistant Commissioner that the respondents have not placed on record any evidence to show that the burden of duty has not been passed on to the buyers are unsustainable. 9. The Revenue s reference to the Honourable Supreme Court s decision in the case of Solar Pesticides 2000 (116) E.L.T. 401 (S.C.) that the bar of unjust enrichment would also apply for inputs captively consumed in the manufacture of final product, is not appropriate inasmuch as the same was given in different context and is distinguishable from the facts of the present case. In view of the foregoing, we find no merits in the Revenue s appeal and reject the same.
2001 (8) TMI 193 - CEGAT, MUMBAI
EPC IRRIGATION LTD. Versus COMMISSIONER OF CUS. & C. EX., AURANGABAD
Manufacture - Pipes and fittings ......
........... 1989 which is that prescribed for laterals i.e., parts of irrigation systems. Ranjan Mahapatra, Accounts Manager has also said that the goods were declared as parts of drippers and sprinkler irrigation systems. We have also referred to the Commissioner s finding that when the pipes are connected with the irrigation systems the whole can be termed a system and his finding that the entire system including pipes would be classifiable under heading 84.24 of the tariff. We are therefore satisfied that in the case before us that these requirements has been complied with. 10. In view of this, these goods would be classifiable under Heading 84.24 and the benefit of the exemption would be available. The demand for duty would not be sustainable and we therefore would not require to deal with the contentions made with regard to order appealed in appeal E/3262/2000-Mum. 11. Both the appeals are accordingly allowed and the impugned order set aside. Consequential relief according to law.
2001 (8) TMI 192 - CEGAT, MUMBAI
TERNA SHETKARI SAHAKARI SAKHAR KARKHANA LTD. Versus CCE, AURANGABAD
Modvat credit ......
........... ot be available. It would then happen that the manufacturer merely because he had made a claim for depreciation would be debarred from taking Modvat credit. In addition, the Commissioner s view that the filing of a revised return is not permissible ignores the Provision 139(5) of the Income Tax Act, 1961. He ought to have considered this provision of the Act and satisfied himself by looking at the relevant income-tax returns and other documents whether the claim merited consideration. We are of the view that he should at least do so. While doing so he may also consider the claim that the accounting practice followed by it, effectively washes out claim for depreciation under the Income Tax Act. The counsel for the appellant says that he will make submissions in these aspects supported by necessary evidence within two months from the receipt of this order. The Commissioner shall pass orders in accordance with law. 7. The appeal is accordingly allowed. Impugned order set aside.
2001 (8) TMI 189 - CEGAT, MUMBAI
BULLOWS PAINT EQUIPMENT PVT. LTD. Versus COMMR. OF C. EX., MUMBAI-VI
Modvat - Limitation ......
........... y that the goods would be received in the users factory within the period prescribed in sub-rule (5) of Rule 57G which reads as under - Credit shall also not be taken by the manufacturer after six months of the date of issue of any document specified in sub-rule (3) ...... I, therefore, find that the claim made by Shri Jain that the framers of the rule had deliberately not made the date of issue of the B/E to be the relevant date as correct. 5. Thus the bar imposed would not be attracted where the goods are received under the cover of Bill of Entry. In the present case, the bar would continue to apply as regards the denial of Modvat credit on the invoice. Thus, out of the total denial, the denial of Modvat credit to the extent of Rs. 1,190 would sustain and is upheld. The order of denial of Modvat credit amounting to Rs. 68,557/- is set aside. Since the penalty was imposed only on this ground, the orders of penalty is also set aside. The appeal is allowed in the above terms.
2001 (8) TMI 187 - CEGAT, COURT NO. II, NEW DELHI
HINDUSTAN COPPER LTD. Versus COMMISSIONER OF CENTRAL EXCISE, JAIPUR
Demand - Limitation ......
........... y the assessee had been duly approved under which the removal was made. The proviso to Section 11A is not attracted in the present case. That being so, the SCNs are clearly beyond the available period of limitation. Further, it is seen that the Nizam Sugar Factory case is later in time, however, the Apex Court s decision in Prabhu Steel Industries Ltd. which is earlier in time has not been referred to or considered in Nizam Sugar Factory case. Therefore, in our view as mentioned above, the extended period of limitation will not be applicable in the present case. The Apex Court s decision in Prabhu Steel Industries Ltd. is clearly applicable in the facts of the present case and as such the SCN are clearly time-barred. Besides, the interest as ordered in Appeal No. 2183/97-B will also not be leviable as the provisions with regard to levy of interest in Section 11AB of the Act were inserted on 28-9-1996. Accordingly, the appeals are allowed and the impugned orders are set aside.
2001 (8) TMI 185 - CEGAT, NEW DELHI
JINDAL POLYSTER LTD. Versus COMMISSIONER OF CENTRAL EXCISE, MEERUT
Demand - Modvat ......
........... ellants should have reversed the Modvat Credit taken once they knew that the inputs were not suitable for use. He also submitted that the case may be remanded for correlation of the credit taken in excess and to pass a fresh order. 8. The observations and findings quoted above make it clear that the demand has been made without ascertaining relevant facts. The adjudicating authority has not even verified whether the inputs in question had been received and credit taken. The demand has also been made despite the fact that the inputs are still available in the appellants factory. No such demand is permissible. Duty demand of about Rs. 10 Lakhs is in spite of the fact that the appellant had paid duty of about Rs. 8.5 Lakhs in respect of the same goods. Thus, the impugned order has been passed without any regard to relevant fact or law. Such an order cannot be sustained. It is, accordingly, set aside and the appeal is allowed with consequential relief, if any, to the appellants.