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Case Laws
Showing 141 to 160 of 422 Records
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1999 (7) TMI 405 - CEGAT, MUMBAI
Reference to Larger Bench - Modvat - Penalty
... ... ... ... ..... ia. What it exempts is excise duty equal to the extent of additional duty payable on such goods if imported into India. These errors however appear to be mere errors in drafting than errors of substance. The Tribunal in the same paragraph has specifically referred to in the proviso to notification 177/86 of the Modvat credit to the extent of duty paid on such inputs. 3. emsp It would therefore follow that on the identical issue two different benches have taken diametrically opposing views and having regard to the orders, it would not be possible for us to adopt one view as correct while completely disregarding the other. Therefore, the question considered in each of these orders requires to be referred to a Larger Bench for resolving the conflict. 4. emsp I am in agreement with my colleague, for the reasons stated by him, that the appeals of the apellants other than M/s. Vikram Ispat Ltd. are to be allowed and the orders imposing penalties on them are requied to be set aside.
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1999 (7) TMI 404 - CEGAT, NEW DELHI
EXIM Policy ... ... ... ... ..... n the item C in his order, which appears to be proper and correct. There is no reason to come to a different conclusion. As pointed out by the JDR in the Bill of Entry goods is described as, zinc dross scrap, and zinc dross in the bill of lading. In the invoice also it is described as a zinc dross. The certificate of the supplier also shows as zinc dross, which has 92 minimum zinc content. So the description of the goods is different from one document to another. Actual contract is not produced in this case, but only its number is pointed out in the invoice. Even according to the letter of DGFT the party should satisfy the Customs Authority in that regard for which actual contract should have been produced which is not done in the instant case. Under thsese circumstances the contention of the JDR is accepted and the point raised is answered in the negative. Hence I pass the following order. ORDER For the reasons discussed above the appeal cannot be allowed and it is rejected.
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1999 (7) TMI 397 - CEGAT, NEW DELHI
D2 Aminobutanol Tartrate - Manufacture - Marketability - Demand - Limitation ... ... ... ... ..... reaction. The respondents have not successfully controverted these findings of the Collector. Mere visit of the officers of their factory premises is not sufficient to arrive at a conclusion that the officers had the knowledge about the entire manufacturing process. In Self Removal Procedure, under which the Respondents works, the Department comes to know about the manufacture of goods only through the declarations filed by the manufacturers, by taking out manufacturing licence under Excise Law and filing of classification list, etc. If the assessee does not file a classification list or take out a licence, it would certainly amount to suppression of facts. In the present matter the Respondents have not filed any declaration about the impugned product and accordingly the proviso to Section 11A(1) of the Central Excise Act is invocable in the present matter. In view of these facts and circumstances, we set aside the impugned order and allow the appeal filed by the Department.
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1999 (7) TMI 396 - CEGAT, MUMBAI
Artsilk fabrics - Confiscation - Penalty - Clandestine removal ... ... ... ... ..... reupon. The order of the Collector does not suggest that this was followed. Shri Willingdon cites the Tribunal judgment in the case of Padmanabh Dyeing and . Finishing Work and Anr. v. C.C.E. 1997 (90) E.L.T. 343 (Tribunal) 1996 (16) RLT 410 in which in identical circumstances the Tribunal held that charge of clandestine removal based on electricity consumption alone without any corroborative evidence was not sustainable. The ratio of this judgment would apply fully to the facts before us. On this analysis it must be held that the demand amounting to Rs. 32,01,123.57 does not sustain. 24. emsp In the result the appeal is allowed in part. The confirmation of demand to the extent of Rs. 15,97,629.07 is upheld. The confirmation of duty demand to the extent of Rs. 32,01,123.57 is set aside. The orders of confiscation of the fabrics, the tempo and the plant and machinery etc. are set aside. The orders imposing penalty on the appellants are set aside. Appropriate relief is ordered.
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1999 (7) TMI 395 - CEGAT, MUMBAI
Valuation - Design and Engineering charges ... ... ... ... ..... set of items. Duty would be payable on the second set of items, on the cost of manufacture plus its profit that the appellant normally earns in terms of Rule 6(b)(ii) of the Valuation Rules. Sub-rule 6(b)(ii) would not be available as comparable goods are not manufactured and cleared. The charges towards design and engineering of such equipment are then includable in the assessable value. This decision was not disputed by the assessee. 5. emsp It would however be necessary to determine by reference to contract and value of data, the value of such charges duty required to be payable on them. This would have to be undertaken by the Asst. Commissioner for him. The advocate for the appellant undertakes within 2 months from the receipt of this order, to produce relevant worksheet supported by certificate and other data. 6. emsp Appeal is allowed, impugned order set aside. The Asst. Commissioner shall determine the duty payable by the appellant and communicate it to the appellant.
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1999 (7) TMI 394 - CEGAT, MUMBAI
Modvat - Packaging material - Words and Phrases - Precedent ... ... ... ... ..... l would cover not only the material from which all the packaging is made but that it would cover the ready to use packages or containers also. 18. emsp I find that, in fact, before the Madras High Court, it was contended citing the Board s instruction that what was intended to be covered was actually containers and not raw materials. The Board in holding so, followed the view of the two Member Bench in the case of Shreeram Drinks. 1994 (72) E.L.T. 427 . 19. emsp These judgments and specially the judgment in the case of Shreeram Drinks was not cited when the judgment in the case of Amritsar Beverages Pvt. Ltd. was given. On perusal of these judgments it becomes clear that the terms packaging material has to be interpreted giving it a most wide connotation bringing under its ambit and coverage not only materials for making containers but the containers themselves. 20. emsp With this observation, I agree with my ld. Brother in his findings. Consequently, the appeals are allowed.
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1999 (7) TMI 393 - CEGAT, NEW DELHI
Notification No. 101/66-C.E. ... ... ... ... ..... se, Bombay v. Sandoz (India) Ltd., 1985 (21) E.L.T. 216 wherein the Tribunal accepted that dilution is a process of preparation. Shri Shroff also submitted that the products were being bought and sold as preparations for use in specific industries and sold as wetting-cum-dispersing agents and produced advertisement material describing the goods as ldquo wetting-cum-dispersing agents. rdquo 6. emsp We have perused the records and have considered the submissions made by both sides. We find that the respondents are carrying out various processes like adding and mixing the required chemicals for preparing the slurry in question for making them into preparations suitable for use as wetting-out agents. Such preparations were specifically covered by Serial No. 4 of the exemption Notification No. 101/66. In the circumstances, there is no justification to hold that these items were not covered by this notification. Therefore, the appeals of the Revenue have no merit and are dismissed.
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1999 (7) TMI 392 - CEGAT, MADRAS
Sale - Stock transfer advice note - Sale of goods ... ... ... ... ..... pellant in terms of the order of the Tribunal will be entitled the benefit of modvat credit. We, therefore, set aside the order of the learned lower authority and remand the matter to the original authority for de novo consideration and decision in the light of our observations after affording an opportunity of hearing to the appellants to adduce the evidence as required in the facts of this case. rdquo 6. emsp As can be seen from the above observations the matter has been remanded for verification of facts as to whether there has been book transfer and on such verification to grant Modvat credit. In view of the observations, and the remand of the earlier matter therefore the impugned order is set aside and matter remanded to the original for de novo consideration who shall grant opportunity to the appellants to produce any additional evidence at the time of hearing and pass a considered order in the light of judgments noted above. Thus the appeal is allowed by way of remand.
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1999 (7) TMI 376 - CEGAT, NEW DELHI
Modvat on capital goods ... ... ... ... ..... authority has disallowed Modvat credit to the tune of Rs. 1.16 Crores approximately, yet the adjudicating authority has not imposed any penalty on the respondents herein despite there being a proposal to impose the penalty under Rule 173Q. In the various Orders-in-Original issued to the respondents no reason whatsoever has been given by the adjudicating authority as to why he is not imposing penalty except making a remark that the credit disallowed by him has already been reversed. We agree with the submission of the ld. JDR that some amount of penalty should have been imposed if the credit taken by the respondents herein had been utilised to some extent. The quantum of penalty will depend upon the amount utilised and for the period it remained utilised before reversal of the same by the respondents herein. We therefore remand the matter so far as the question of imposition of penalty on the respondents on this aspect is concerned. Appeals are disposed of in the above manner.
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1999 (7) TMI 375 - CEGAT, NEW DELHI
Stay/Dispensation of pre-deposit ... ... ... ... ..... plea that the goods were immovable property and hence not excisable. Further we find that the Applicants company is declared sick under the Sick Industrial Companies (Special Provisions) Act, 1985 by Board of Industrial and Financial Reconstruction (BIFR) vide order dated 9th February, 1988 and the Hon ble Supreme Court, in their own case reported in 1997 (94) E.L.T. 477, held that the recovery and arrears of Revenue due from Sick Industrial Companies are not recoverable by coercive process without the consent of the Board of Industrial Financial Reconstruction. In these circumstances, prima facie, we find the balance of convenience is in favour of the applicants. Therefore, the Application is allowed and the duty demand and penalty is waived for hearing of the appeal and recovery of the same stayed till the pendency of the appeal. However, taking into consideration, the issue involved in this appeal we direct the Registry to fix the appeal for regular hearing on 28-10-1999.
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1999 (7) TMI 374 - CEGAT, MUMBAI
Modvat credit of cess not admissible - Adjudication order ... ... ... ... ..... rious that the Custom House permitted the amendment of classification, presumably only on the duplicate copy of the bill of entry. This in my view not at all proper and could have been taken up by the Commissioner of Central Excise and Commissioner of Customs. However, it is not an issue for deciding the appeal. The fact there is incorrect classification could not itself be a bar to availing of credit on the goods which otherwise have been declared properly. The only difference between the two headings in question is width of the paper and part of these papers would be classifiable under this heading. It is a settled law that it cannot be held that there is no declaration of the goods if the classification declared is incorrect. I therefore see no reason to interfere with the Collector (Appeals) order in this regard. The appeal is therefore allowed to the extent that credit would not be available on Rs. 1441/- and the Assistant Collector rsquo s order restored to this extend.
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1999 (7) TMI 373 - CEGAT, MUMBAI
Stock taking - Processing loss ... ... ... ... ..... seen from the records that the appellant has produced the four precedent orders of Assistant Collector at pages 31 to 45 on the same issue in support of his case, which was not available to Assistant Collector as observed in the Order-in-Original. So also Sasmira Report dated 2-12-1992, in support of the case. Both the orders of lower authority are submitted in these regard. So it is necessary to remand the matter to Assistant Collector for reconsideration and fresh decision, after hearing the appellant. Point raised in the affirmative. Hence I pass the following order. ORDER For the reasons indicated above, the appeal is allowed, and impugned order and Order-in-Original are set aside, and the matter is remanded to Assistant Collector to readjudicate the case in the light of the Sasmira report and Precedent orders as observed in para 6 above without the reasonable time, after giving opportunity to appellant to adduce additional evidence, if any, and hearing on the whole case.
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1999 (7) TMI 372 - CEGAT, NEW DELHI
Oil - Furnace oil and Heavy Petroleum Stock ... ... ... ... ..... rporation Ltd., Tamilnadu v. Collector of Central Excises Madras, reported in 1985 (19) E.L.T. 617 (Tribunal) held that low sulphur heavy stock used for generation of steam could not be treated to have been used as feed stock in the manufacture of fertilizer. Respectfully, following the ratio of this decision, we do not find any merit in the contention of the appellant that furnace oil and HPS is used as feed stock for the manufacture of fertilizer. 10. emsp The Notification No. 75/84-C.E. provides the concessional rate of duty for furnace oil and HPS intended for use otherwise then as feed stock in the manufacture of fertilizer. The appellants are using furnace oil and HPS in the manufacture of fertilizer as discussed above hence appellants are entitled for concessional rate of duty as provided and Notification No. 75/84 for the Furnance oil and HPS intended for use otherwise then as feed stock in the manufacture of fertilizer. The appeals are disposed of as indicated above.
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1999 (7) TMI 371 - CEGAT, MUMBAI
Stay/Dispensation of pre-deposit ... ... ... ... ..... 15 (Guj.) held that where a hearing was given by one officer and where on the basis of the record maintained by him, his successor had passed an order, it amounted to violation of principle of natural justice. The ratio of this judgment applies fully in this case. 5. emsp At this stage therefore we proposed to take up the appeals for disposal after granting unconditional stay and waiver of the amount. Both sides agreeing this was done. 6. emsp We set aside the impugned orders on the ground of denial of natural justice. We remit the proceedings back to the Commissioner (Appeals). He shall grant adequate opportunity to the assessees to state their case, both in writing and orally and shall thereafter pass a well reasoned order. 7. emsp Shri Rangwani requests that we make directions to the Commissioner (Appeals) for disposal within a particular time frame. We do not think it is necessary to do so but are confident that the Commissioner shall take up the appeals at his earliest.
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1999 (7) TMI 370 - CEGAT, MUMBAI
Modvat - Capital goods ... ... ... ... ..... oods were received there was still a closing balance. So under these circumstances the contention of the appellant is fit to be accepted. The reason given by the Additional Commissioner for denying the credit on the project profile and lathe machine is very vague. The appellant has satisfied as to how checking of the end radius profile by the profile projector goes to control the process of production. The appellant has explained that without the use of profile projector and lathe machine, the final product cannot be marketed with accuracy. The use of lathe machine is properly explained in the manufacturing process, and the role played by it. So under these circumstances the appellant is entitled to succeed. The point raised is answered in the affirmative. Hence I pass the following order. ORDER For the reasons discussed above, the appeal is allowed with the consequential relief according to law, and the impugned order is modified accordingly. Stay application is disposed of.
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1999 (7) TMI 369 - CEGAT, MUMBAI
EXIM policy - Transit goods ... ... ... ... ..... herefore, licence was required for their import. 7. emsp However, we have to keep in mind other aspects. They formed part of a much larger consignment, which was imported into India for the purpose of assembly into complete machinery to be exported. The value of the imported component is in excess of Rs. 3 crores and the value addition effected by the Indian manufacturer was nearly half, i.e. 48 . This is clear from the correspondence between M/s. Plasser and Theurer of Austria and the respondent. Therefore, there has been substantial earning of foreign exchange to the extent of Rs. 1.75 crores. In these circumstances, it would be justifiable to permit re-export of the goods on a warning or action without imposing any fine, even if strictly speaking, they would be held liable for confiscation for having imported without a licence. The effect of Collector (Appeals) order is precisely this. I therefore, see no reason to interfere. 8. emsp Appeal dismissed. Consequential relief.
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1999 (7) TMI 368 - CEGAT, MUMBAI
Stay/Dispensation of pre-deposit - Manufacture ... ... ... ... ..... y authority and is prima facie difficult to accept. 6. emsp It is also not possible at this stage to agree that the job worker were entirely free and independent. In the face of electricity charges being reimbursed to them for pulverisation than the applicant itself would have been incurred in its factory, and the machinery being supplied to them and being maintained by the applicant, it cannot be said, prima facie, that the job worker was an independent manufacturer. 7. emsp As far as the claim with regard penalty under Section 11AC, the applicant has a good prima facie, case for the period prior to September, 1996, since the clearance during these period would not prima facie attract penalty under that section. Taking all these aspects into account we direct the applicant to deposit Rs. 27 lakhs towards duty and penalty within two months from today. Thereupon we waive deposit of remaining amount of duty and penalty and stay its recovery. 8. emsp Compliance on July 21, 1999.
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1999 (7) TMI 350 - COMMISSIONER OF CUSTOMS AND CENTRAL EXCISE (APPEAL
Medicines - Clinical samples
... ... ... ... ..... f any foreign company and (2) no part of the capital of the company must be held by a foreigner or foreign company. The Hon rsquo ble Supreme Court in the case of Union of India v. Suhrid Geigy Ltd. reported in 1999 (107) E.L.T. Page 579 (SC) has held that both the conditions under the explanation to the said Notification must be read as conjunctive and not disjunctive. The Ethnor Ltd. does not hold any share in the capital of any foreign company though part of the capital of Ethnor Ltd. is held by foreign company. However both the conditions of the notification are not fulfilled simultaneously. Therefore Ethnor Ltd. is entitled to the benefit of the Notification No. 48/77. The aforesaid decision of the Supreme Court is squarely applicable to them. 12. emsp The application made by the Assistant Commissioner under Section 35E(4) of the Central Excise Act, 1944 is frivolous, bad in law and therefore liable to be set aside and accordingly I dismiss the appeal filed by the Deptt.
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1999 (7) TMI 349 - COMMISSIONER OF CUSTOMS & CENTRAL EXCISE (APPEALS)
Penalty - New assessee ... ... ... ... ..... e appellant were new to Central Excise law and so it was the duty of the department to have extended their co-operation and guided the appellants for following the Central Excise procedure and then only issued notice for penal action. From the records, it appears that wherever there was omission, the same has been made good by the appellants themselves. So it cannot be said that the contraventions were mala fide or with intention to evade Central Excise duty. Otherwise they would not have taken the trouble of obtaining Central Excise registration. In this connection the Supreme Court rsquo s decision in the case of Hindustan Steel Ltd. reported in 1978 (2) E.L.T. (J 159) (S.C.) is relevant. I therefore feel that there is no warrant for penalty in this case a simple warning would have served the purpose. Accordingly, the appellants are warned to be more careful in future. 6. emsp In the light of the above discussions, I vacate the penalties of Rs 10,000/- and allow the appeal.
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1999 (7) TMI 343 - CEGAT, MADRAS
Classification of goods ... ... ... ... ..... es, quoting large number of Apex Court/Tribunal judgments, the Tribunal upheld the plea raised by the assessee. 3. emsp Heard ld. DR who reiterates the departmental contention and submits that the Tribunal has to take a broad view in the matter and determine the question of classification irrespective of claims made by parties. 4. emsp On a careful consideration of the submissions, we are not inclined to accept the plea of ld. DR as it is well settled that the claim available is to be determined as made by party in the classification list or in terms of show cause notice issued by the department raising grounds for reclassifying the product. In this case, the Revenue for the first time have raised the above ground for reclassifying under a different heading. Therefore the said new grounds cannot be accepted at this stage. Therefore, applying respectfully the ratio of the judgment cited by ld. Counsel, we find no merit in the appeal filed by Revenue and hence same is rejected.
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