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Central Excise - Case Laws
Showing 81 to 100 of 650 Records
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1991 (10) TMI 165 - CEGAT, NEW DELHI
Classification List ... ... ... ... ..... fore, in view of the decision given by Division Bench, Jaipur, I direct that the petitioner shall appear before the Assistant Collector, Central Excise to decide the classification of the petitioner after hearing him without prejudice to the observations made by the Supdt., Central Excise and Customs. Petitioner shall appear before him on 11-2-1991 and the Assistant Collector, Customs shall decide the matter in accordance with law within a period of 10 days, thereafter. rdquo 10. Therefore, respectfully following the ratio of the above rulings, we set aside the impugned order and remand the matter to the Assistant Collector for de novo consideration of all the pleas of the assessee and follow the procedure laid down under Rule 9B and Rule 173B read with Rule 233B of Central Excise Rules regarding approval of the classification list of the impugned product and pass a reasoned order thereon, after affording full opportunity to the appellants, expeditiously. Ordered accordingly.
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1991 (10) TMI 164 - CEGAT, MADRAS
Penalty - Delayed payment of duty ... ... ... ... ..... demand or enquiry from the Department. The show cause notice also does not allege or attribute any mala fides or intention to evade duty against the appellants. Keeping all these factors in mind, I hold that non-payment of duty at the proper time though not permissible under law would not call for a punitive treatment of the kind which would be called for in other cases where goods are cleared without payment of duty. No doubt, the Special Bench of the Delhi Tribunal has in the facts of that case held that imposition of penalty was not called for and that is in appreciation of the evidence in that case. Therefore, keeping all the relevant facts in mind, I am of the view that a nominal penalty for procedural infractions would meet the ends of justice, since the appellant was not actuated by any mala fides or intention to evade payment of duty. In this view, I reduce the penalty to Rs. 5,000 (Rs. Five thousand). But for the above modification the appeal is otherwise dismissed.
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1991 (10) TMI 162 - CEGAT, NEW DELHI
Appeal not readjudicable after remanding it not permissible ... ... ... ... ..... illary powers. We are of the view that for imparting justice, the Tribunal can always exercise inherent and ancillary powers in suitable cases. Rules 40 and 41 of the CEGAT (Procedure) Rules, 1982 also authorise the Tribunal to exercise control over the departmental authorities in certain matters and issue orders and directions in suitable circumstances. The learned Advocate Shri Habbu has cited a decision of the Calcutta High Court in the case of Scientific Instruments Co. Ltd. v. Collector of Customs and another reported in 1980 (6) E.L.T. 89 (Cal.). The facts and circumstances of that case are different and do not fit in the facts and circumstances of the present matter. 4. Keeping in view the totality of the facts and circumstances of the case, we are of the view that it is not a fit case where we should exercise our powers for issuing directions under Rules 40 and 41 of the CEGAT (Procedure) Rules, 1982. The miscellaneous application filed by the applicants is dismissed.
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1991 (10) TMI 161 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... pter 32.08 reads ldquo solutions as defined in Note 3 of this Chapter rdquo means that if solution are having volatile organic solvent exceeding 53 of the weight of the solution, it is included in the Chapter Heading 32.08. 12. Shri P.C. Anand, learned CA submitted that the department had not taken the chemical test. This submission appears to be incorrect as the learned Assistant Collector has clearly noted that the chemical test confirmed the product being sold in the form of non-aqueous solution and the weight of the solution is only 42 . The appellants are not disputing the percentage being less than 53 and in fact this appeal is filed on the doubt entertained by them that as the weight is less than 53 they would not be covered by chapter heading 32.08 and the products could be non-excisable. The learned Collector has rightly rejected their pleas and we confirm these findings. 13. There is no merit in the appeal and it is liable to be dismissed. It is ordered accordingly.
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1991 (10) TMI 160 - CEGAT, MADRAS
MODVAT Credit ... ... ... ... ..... giving benefit of this facility. In view of this we hold that by sending the inputs directly to the job worker rsquo s premises notwithstanding the issue of Notification 351/86 at a later date, the appellant cannot be straightaway disqualified for the benefit of MODVAT credit. What is required in the spirit of MODVAT credit scheme is that so long as the appellants are able to establish the identity of the inputs received at the job worker rsquo s premises and the intermediate goods arising therefrom and received from the job worker rsquo s premises, the benefit of MODVAT credit should be allowed in respect of those inputs. I agree with my learned brother that the matter has to be remanded to the original authority for reconsideration after due verification regarding the use of inputs in the manufacture of intermediate products which have been manufactured and sent to the appellant rsquo s factory for disposal of waste etc. as per rule, in the light of the above observations.
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1991 (10) TMI 157 - CEGAT, BOMBAY
Reference to High Court ... ... ... ... ..... tiated by the Addl. Collector on the basis of a fresh show cause notice covering the same period on the same set of facts and circumstances. In my view, when there is a statutory remedy available under the Central Excises Act, for getting any illegal order passed by the Asst. Collector reversed by the competent authority, without resorting to this course of action, fresh proceedings on the same ground could not be initiated by another authority. The illegality can be on many grounds one ground can be on account of lack of jurisdiction. Hence, if the Asst. Collector has acted beyond his jurisdiction that order is to be construed as an illegal order and Sec. 35E(2) dearly stands attracted and this provision cannot be set at naught by ignoring the order already passed by the Asst. Collector as a nullity and initiating fresh proceedings. This legal provision being clear from the Act itself, no point of law arises requiring reference to the Hon rsquo ble High Court. Hence I agree.
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1991 (10) TMI 156 - CEGAT, BOMBAY
Adjudication Proceedings ... ... ... ... ..... . 6. On the merits, the demand is based on the appellants rsquo failure to co-relate transport receipt with duty paying documents. The specific allegations are made in the show cause notice, and the department has adduced the evidence as discussed in details in the order-in-original, to indicate that no co-relation existed between GP-1, and invoice as also TR. The appellants seems to have not adduced any evidence in rebuttal thereof. Even at the stage of hearing of the appeal, no additional evidence, by way of rebuttal, is adduced. The plea that part of the consignment removed under one GP-1, was on account of non-acceptance by the consignee, diverted to the third party, therefore, remains unsubstantiated. Facts within the special knowledge of the party have to be proved by the party alleging the same, and they having failed to do so, no interference with the finding of the adjudicating authority is called for. 7. In the result, the appeal has no merits and hence is rejected.
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1991 (10) TMI 154 - CEGAT, CALCUTTA
Rectification of mistake ... ... ... ... ..... oncerned for the limited purpose of deciding their request for grant of the benefit that may be available to them under Notification No. 175/86 dated 1-3-1986. As, however, the applicants also filed Reference Applications for referring certain questions of law arising from the orders dated 18th January, 1991 and as the same has been allowed and reference to the Honourable High Court of Calcutta is being made, the department may take suitable steps while granting reliefs to them in terms of the small scale exemption Notification. Shri Bagaria clarified in this connection that the benefit of deemed credit will be more than the benefit of small scale exemption and if at a later stage it is held that they are admissible for deemed credit facility, then the said benefit may be allowed to them by taking into account the duty benefit availed of by them under Notification 175/86 and only the differential amount paid to them. 5. The two Rectification Applications are allowed as above.
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1991 (10) TMI 153 - CEGAT, CALCUTTA
MODVAT Credit ... ... ... ... ..... ted the claim on the ground that the said claim having not been put forward by the assessee before the I.T.O. or the A.A.C., it could not be raised in second appeal. The Tribunal held that the directors rsquo report accompanied by balance-sheet and profit and loss account and other statements were filed by the assessee before the I.T.O. and practically all the details for allowing a claim under Section 80.1(1) of the Act were on record and hence it was open to the Tribunal to allow such a claim. On a reference Held, that the Tribunal was correct in allowing the claim of the assessee as there was material on record for allowing the same. Applying this decision, the Tribunal had held that the respondents therein had rightly taken the plea of limitation before them. We respectfully follow the same decisions. 14. For the foregoing reasons, we do not find any reason to interfere with the impugned Order-in-Appeal passed by the Collector (Appeals). We, therefore, dismiss the-appeal.
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1991 (10) TMI 152 - CEGAT, CALCUTTA
MODVAT Credit ... ... ... ... ..... bject inputs on merits, we find sufficient force in the alternate plea also of the respondents that the demand for disallowing the MODVAT credit utilised by them on the ground that it had been wrongly availed by them is hit by time bar. The learned Counsel relied upon our decision in Collector of Central Excise v. TELCO, reported in 1990 (28) E.C.R. 522. Questions on the applicability of time bar for such demands and the retrospective application of the amendment to Rule 57-1 carried out on 6th Oct., 1988 even prior to the said amendment had been answered in the affirmative by the Hon rsquo ble Karnataka High Court in Tungbhadra Industries v. Collector of Central Excise, Bangalore, reported in 1991 (31) E.C.C. 140. Going by the same, we find that the demand in this case was hit by time bar. Hence the appeal of the department fails on time bar also. Hence, both on merits and on time bar the respondents have established their case. The appeal accordingly fails and is dismissed.
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1991 (10) TMI 149 - CEGAT, CALCUTTA
MODVAT Credit ... ... ... ... ..... ctor had observed in his order that they neither appeared for the hearing on the appointed day nor did they send any intimation that they were unable to come. The boot is on the other foot. 6. The appellants are also entitled to succeed on their third plea that the demand seeking to recover the modvat credit alleged to have been wrongly availed by them was hit by time bar, as the notice had been issued beyond six months and there was no allegation of suppression or wilful misstatement. There is no finding in the order on this contention. 7. Thus the appeal succeeds on all counts. We allow it accordingly and set aside the impugned order which is everything a proper order should not be, non-speaking and passed ex parte on the one hand and totally unsustainable on merits being inconsistent with the department rsquo s own stand in the matter which by a strange coincidence had been notified under the signature of the learned Additional Collector himself who passed it on the other.
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1991 (10) TMI 148 - CEGAT, NEW DELHI
... ... ... ... ..... or consultative jurisdiction while the appeals are pending before the Tribunal, therefore, nothing should be implied as detracting from the jurisdiction of the Tribunal. Power to grant stay is incidental and ancillary to the appellate jurisdiction. 5. Shri S.K. Sharma, learned J.D.R. appearing for the Revenue, stated that since he has opposed the reference application, he leaves this matter to the discretion of the Bench to decide on this issue. 6. On considering the facts and circumstances of the case and in view of the conferred jurisdiction even during the pendency of reference matter as observed by the Hon rsquo ble Supreme Court and following the ratio of the earlier decision, we are inclined to grant stay. 7. Accordingly, the stay issued by this Tribunal in E/Stay/656/88-NRB in Appeal No. E/2864/87-NRB as per Stay Order No. S/121/88-NRB dated 2-9-1988 is extended and continued to be in force till the pending disposal of the reference matter in Appeal No. E/2864/87-NRB.
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1991 (10) TMI 147 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... that Central Excise Tariff Heading 23.02 corresponds to HSN Heading 23.09 and that Heading 23.09 of HSN includes animal feed supplements which are devised to compensate deficiency of proteins, minerals and vitamins and to ensure balanced animal diet. The Board noted that these products are not fit for human consumption and opined that they are correctly classifiable under Heading 23.02 as preparations of kind used in animal feeding. Following it, the Collectorate had clarified this to the Trade in its Trade Note dated 12-12- 1989 referred to above. Board rsquo s letter has followed the HSN Heading 23.09 which corresponds to Heading 23.02 of CETA, 1985 and it is now well recognised that the CETA, 1985 is broadly patterned on HSN and hence the HSN heading and Explanatory Notes provide a useful guide in determining issues of classification. 3. Respectfully following the ratio of the above decision, we set aside the impugned orders and allow the appeals with consequential relief.
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1991 (10) TMI 146 - CEGAT, CALCUTTA
Stay/Predeposit of duty ... ... ... ... ..... t an unreported decision of the North Regional Bench of the Tribunal in Collector of Central Excise, Chandigarh v. M/s. Leader Engineering Works, Jalandhar (Order No. A 436 to A 445/91-NRB dated 12-8-1991) wherein it had been, inter alia, held that chemicals used for production of sand cores and sand moulds which are then utilised in the production of final product would be eligible for modvat benefit. 9. As there are decisions both for and against the admissibility of modvat credit on chemicals/resins used for production of sand moulds used in the manufacture of castings, the ones in favour being later and rendered after taking note of the contrary view in Mysore Kirloskar case and in view of the Supreme Court decision on the scope of the expression used in the manufacture of, we feel the applicants appear to have a prima facie case. Stay is granted subject to the applicants executing a personal bond for the disputed amount. 10. The appeal is posted for hearing on 25-2-1992.
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1991 (10) TMI 145 - CEGAT, NEW DELHI
Classifiction ... ... ... ... ..... .90) during the period before 10-2-1987 and under sub-heading 3506.00 on and from 10-2-1987. The composition of the products in dispute in this appeal is more akin to the composition of the product in the ELGI Polytex case. Here also the rubber content is admittedly only 10 to 15 and sulphur, zinc oxide and fillers and also some of ingredients. Caulk is not an ingredient at all while in the Sealtite Industries case, caulk content was 27.5 . The Chemical Examiner rsquo s report which is the basis for classification determined by the Department would not in our view form a sufficient or satisfactory basijs for classification of the goods under Heading 40.05. The products are more appropriately classifiable on the basis of their composition under Heading 35.06. 7. In the result we set aside the order of the lower authorities and direct that all 7 products manufactured by the appellants shall be classified under Heading 35.06, with consequential relief, if.any, to the appellants.
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1991 (10) TMI 142 - CEGAT, NEW DELHI
Manufacturer ... ... ... ... ..... ef of non-excisability of the goods and that there was scope for such a belief or opinion. It cannot also be said that the appellant State Govt. did not know about the goods were not excisable or required to be licensed, and would not attract the penal provisions of Section 11A of the Act. The appellants are not disputing the production of lsquo goods rsquo but their plea is that lsquo Cementing Yard rsquo is not a factory. Therefore, the ruling of Padmini Products (supra) is on a totally different footing on the different facts and circumstances and those facts and circumstances does not exist in this case to grant the benefit of the said rulings. 31. The learned Collector has examined the Notification No. 57/75 dated 1-3-1975 and also Notification No. 201/79-C.E., dated 4-6-1979 and rejected the plea of the appellants for its benefit. There is no infirmity in these findings also. The appellants are not entitled to any other benefit and the appeals are, therefore, dismissed.
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1991 (10) TMI 141 - CEGAT, NEW DELHI
... ... ... ... ..... r then price shown in the invoice would be the price under Section 4 of the Act. 9. In view of the above discussion, we do not find any merit in the appeals filed by the revenue. The learned SDR rsquo s argument that MRF decision was not brought to the notice of the Tribunal does not help him. In view of our above discussion, we remand the matters to the Assistant Collector of Central Excise to readjudicate the same after observing the principles of natural justice and allow necessary deductions in the light of the decision of the Supreme Court in the case of Union of India v. Bombay Tyres International reported in 1983 (14) E.L.T. 1896, Union of India and Others v. Bombay Tyres International Pvt. Ltd. reported in 1984 (17) E.L.T. 329 (S.C.) and Collector of Central Excise v. Indian Oxygen Ltd. reported in 1988 (36) E.L.T. 730 (S.C.). The Assistant Collector while readjudicating shall observe the principles of natural justice. The appeals are being disposed of in these terms.
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1991 (10) TMI 140 - CEGAT, NEW DELHI
Stay/Pre-deposit of duty - Financial hardship ... ... ... ... ..... pointed out by the Ld. S.D.R. The unit is also, admittedly, improving its performance and as a result of which they are in a position to cut down their losses. In such a context, it is reasonable to hold that the balance of convenience will be in favour of a partial pre-deposit of duty demanded in this case and, accordingly, it is ordered that the applicants, M/s. Rotex Textile Mills should deposit a sum of Rs. 12 lakh (Rs. Twelve lakhs only) on or before 31-1-1992 and report compliance and on such compliance, the pre-deposit of the balance of the duty amount and of the penalty is dispensed with. In the case of Applicants, S/Shri Nair and Chakraborty, in the facts of the present case, prima facie, the amount being in the nature of personal penalty we dispense with the pre-deposit of the same under Sec. 35F of Central Excises and Salt Act, 1944. The matter will come up for ascertaining compliance on 10th February 1992. The Stay Applications are disposed of in the above terms.
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1991 (10) TMI 139 - CEGAT, CALCUTTA
MODVAT credit ... ... ... ... ..... cal was used was anterior to and at one stage removed from the actual manufacture of paper. They upheld the contention of the respondents rsquo counsel, referred to above. It was observed that without it (viz. the chemical used in the anterior process) the presence of the end-product, as such, is rendered impossible and that this quality should coalesce with the requirement that its utilization is in the manufacturing process as distinct from the manufacturing apparatus. The use of chemicals/resins for water treatment fully conforms to the above-mentioned criteria laid down by the Supreme Court. 25. For the foregoing reasons, we find that the order of Collector (Appeals) in so far as allowing modvat credit on chemicals/resins for treatment of water and on felts is correct in law and deserves to be upheld. We, therefore, dismiss the department rsquo s appeal. For the same reason, the appeal filed by M/s. Straw Products Limited should succeed.-We accordingly allow their appeal.
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1991 (10) TMI 134 - CEGAT, MADRAS
Confiscation of unaccounted goods ... ... ... ... ..... that exercise has not been carried out in the impugned order and the duty liability worked out particularly with reference to the shortage of about 150 kgs. I am inclined to think that in the interests of justice the matter will have to be remitted to the adjudicating authority for working out the quantum of duty by giving such a set-off and the quantum of penalty will have to be worked out in the light of the duty which the appellant would be eventually liable to pay in the light of what I have stated above. In this view of the matter, without expressing any opinion on the quantum of duty which the appellant is liable to pay, I set aside the impugned order and remit the matter to the original authority for re-adjudication of the issue in accordance with law in respect of mattresses falling under Tariff Heading 9404.00 and other goods viz. bus seats, car seats, cycle seats, scooter seats, etc. falling under Tariff Heading 4016.11. The appeal is disposed of in the above terms.
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