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Case Laws
Showing 141 to 160 of 501 Records
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1996 (9) TMI 427 - CEGAT, MUMBAI
Modvat - Duty paying documents ... ... ... ... ..... re is also no dispute that the certificate have been issued and produced before the Department. Merely because the certificates were applied for at a latter date, by itself, would not provide any bar in taking the credit on such certificates, when they are validly issued. There therefore, does not seem to be any point of law involved calling for admission of the appeals to be heard on merits. Exercising the powers under second proviso of Section 35B of the Central Excises and Salt Act, 1944, therefore both the appeals are not admitted and are dismissed.
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1996 (9) TMI 426 - CEGAT, MUMBAI
Modvat - Cylinders of fire extinguishers for packing/filling carbon dioxide gas ... ... ... ... ..... n the assessable value of fire extinguishers. It is further explained that after the extinguishers are used the cylinders are destroyed or kept by the buyers. It is thus distinguishable from the type of cylinders in which gases of various types are packed and transported. In the latter case the cylinders are almost invariably returned to the manufacturer and hence their value is not included in the assessable value. In the light of the clear reasoning given in the circular, it would be evident that the cylinders which form part of fire extinguisher would not be hit by the Explanation to Rule 57A and credit would have been available on these cylinders. In these circumstances, we are unable to accept the contentions of the Deptl. representative that the clarification should only take effect from the date from which it was issued. In any event, the Board cannot restrict or enlarge by the scope of the law by a clarification. 4. emsp Appeal allowed. Consequential relief to follow.
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1996 (9) TMI 425 - CEGAT, MUMBAI
Import - DEEC Scheme - Valuation ... ... ... ... ..... ed to be ldquo identical rdquo or ldquo similar rdquo goods within the meaning of the Valuation Rules or to be ldquo such or like goods rdquo within the meaning of Section 14, even if we assume, (as contended by the Departmental Representative) that sub-section (1) of Section 14 would apply. The only thing common between these three importations is that they are from the same country Korea. They are all velvet. This alone is not sufficient to question the transaction value. The charge of undervaluation therefore fails. Since the goods have been confiscated only on the ground of mis-declaration of value, their confiscation and imposition of penalty are not sustainable. 10. emsp It would follow from this that the department rsquo s appeal, seeking enhancement of redemption fine and penalty, fails. 11. emsp The Appeal C/2129/92D is partially allowed to the extent that confiscation of the goods and imposition of penalty on Garment Craft are set aside. Appeal C/1038/93A dismissed.
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1996 (9) TMI 424 - CEGAT, NEW DELHI
Modvat - Declaration ... ... ... ... ..... ent of both the sides, we proceed for the purpose of deciding the appeal. 10. emsp In this respect, we further notice that the case cited by the learned Counsel is distinguishable inasmuch as it is a case where Rule 57H was also involved. The filing of a declaration is an important part of the procedure which has been prescribed and the purpose is to enable the officers to verify the declaration, if necessary. Therefore, in the normal course, the appellants should have filed the declaration before taking the credit or availing the same. However, since there is no dispute on the basic fact that the Modvat credit was otherwise available, we hold that in the circumstances, the credit need not have been disallowed but a penalty could be imposed. Hence, we set aside the order insofar as it relates to disallowing the credit but uphold the penalty imposed on the appellants. The orders of the lower authorities are modified to that extent. The appeal is disposed of in the above terms.
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1996 (9) TMI 423 - CEGAT, NEW DELHI
... ...
... ... ..... which the respondents incurred and charged by issue of debit notes should be included in the assessable value, because value for the purpose of assessment should be determined in terms of Section 4(1)(a) of Central Excises and Salt Act, even though the assessee avail of the benefit of invoice price under Notification 120/85. As regards time bar issue, I see sufficient justification in the arguments of the applicant - Astt. Collector. I find that there was an allegation of suppression of facts in the show cause notice. I agree with the applicant rsquo s contention that the respondents were issuing debit notes without intimation to the department. So Astt. Collector should have invoked extended period of 5 years in his order-in-original. His order is not correct and is therefore set aside. rdquo 5. emsp Since the issue has been considered and the same has not been substantiated by the party, we do not find any infirmity in the impugned order and accordingly appeal is dismissed.
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1996 (9) TMI 422 - CEGAT, NEW DELHI
Aluminium waste and scrap - Exemption - Demand - Limitation ... ... ... ... ..... that they are charging the same price from their customers for waste and scrap manufactured from duty paid indigenous Aluminium rods as well as from imported rods which are exempted from duty. The Collector has referred to certain invoices and Gate Passes to reach a finding that the appellants had in fact recovered a higher price as excise duty. But, as pointed out in the appeal these are stray documents numbering one or two which relate to a period not covered in the notice. Moreover, the ldquo order rdquo portion in the impugned order only seeks to confirm the demand of Rs. 7,74,792.08, under the proviso to Section 11A of the Act. This demand has been held by us to be barred by limitation. No order has been passed under Section 11D of the Act. No order thereunder is also called for in the facts and circumstances of the case. The same will hold good for the penalty also. Accordingly, the impugned order demanding duty and imposing penalty is set aside. The appeal is allowed.
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1996 (9) TMI 421 - CEGAT, NEW DELHI
... ...
... ... ..... nd the cost thereof cannot be deducted from the assessable value. These orders are now challenged. 2. emsp The matter is covered by an earlier decision of the Tribunal in Glaxo (I) Ltd. v. Collector of Central Excise, Kanpur - l995 (76) E.L.T. 451 (Tribunal) where the Tribunal has held that intention behind a free gift to unknown and unrelated retail buyers linking the same with sales cannot be anything but promotion of sale and the cost thereof has to be treated as cost of advertisement and the same cannot be deducted from the assessable value. We follow the above decision and dismiss the appeal.
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1996 (9) TMI 420 - CEGAT, NEW DELHI
Stay/Dispensation of pre-deposit - Modvat ... ... ... ... ..... had allowed Modvat credit in respect of other assessee for the period had allowed Modvat credit in respect of these inputs. He referred to the Assistant Commissioner rsquo s order dated 29-3-1996 relating to the M/s. Concast Steel. Counsel argued that definition of the input under Rule 57A with effect from 1-4-1994 included fuel as an input and therefore in their case the inputs in question namely LDO, FO and MO fulfil this condition. 2. emsp We have heard Shri Jangir Singh, ld. DR We find that the use of LDO and FO is directly used in furnace by the applicant for the manufacture of their final product namely iron and steel casting. There is prima facie ground to hold that these materials would be covered by the term input under Rule 57A as it stood with effect from 1-3-1994 and having regard to the wide import of the term lsquo used in relation to the manufacture rsquo occurring in Rule 57A. We are, therefore satisfied that this is a fit case for stay and order accordingly.
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1996 (9) TMI 419 - CEGAT, NEW DELHI
Valuation - Packing ... ... ... ... ..... factory gate to buyers or while being sent to outstation customers. Assessable value should be based on the wholesale price at the factory gate and regard must be had to the manner of packing necessary for delivery at the factory gate. It is difficult to accept that when large number of detergent cakes are being sold in bulk to wholesale buyers, only primary packing is used and secondary packing is not used. The records show that invariable the detergent cakes are packed in gunny bags or HDPE bags when delivered at the factory gate to the buyer. That being so, the secondary packing must be considered to be ldquo necessary rdquo as explained by the Supreme Court in M.R.F. s case, 1995 (77) E.L.T. 433. Hence the value of secondary packing has to be included in the assessable value of the goods. 4. emsp For reasons indicated above, the order passed by the Collector (Appeals) is set aside and the order passed by the Assistant Collector is restored. 5. emsp The appeal is allowed.
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1996 (9) TMI 418 - CEGAT, NEW DELHI
Modvat - Demand - Limitation - Declaration ... ... ... ... ..... or such benefit, their eligibility in this regard would be subject to their fulfilling the terms of this Rule. It is, however, seen that the Assistant Collector had discussed this question in her order (first paragraph on page 4 of the order-in-original). On the rest of the points where credit had been disallowed for credit taken on the strength of certificates issued by a Public Sector Undertaking, the plea is taken that in any case deemed credit was admissible to them. We find that this has not been adequately dealt with in the order of the authorities below. As the Collector (Appeals) had remanded the matter to the Assistant Collector for de novo decision in respect of certain issues, we are inclined to direct that authority may decide afresh all the grounds taken on merits. The submission of the appellants on other issues of jurisdiction, limitation and denial of principles of natural justice are rejected. 6. emsp The appeal is allowed by way of remand on the above terms.
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1996 (9) TMI 417 - CEGAT, NEW DELHI
Demand - Limitation - Adjudication - Natural justice ... ... ... ... ..... all the documents except copy of Bill of Entry allegedly cleared in the second week of October, 1985 relating to Airway Bill dated 13-9-1985 were supplied to the appellant. There was not contention that copies of Bills of entry relating to the subject consignments were not provided to the appellant. The solitary Bill of Entry referred to does not relate to the subject consignments. Appellant has not shown the relevance of this document in the matter of preparation of reply to the show cause notice or defending the case. Thus, we find that appellant deliberately refrained from submitting reply to the show cause notice, though copies of all the documents necessary for preparation of the reply were provided. We, therefore, reject the contention that there was any violation of principles of natural justice. 8. emsp In the circumstances referred to above, we find no ground to hold against the imposition of penalty or the quantum of penalty imposed. 9. emsp The appeal is dismissed.
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1996 (9) TMI 416 - CEGAT, NEW DELHI
Modvat - Natural Justice ... ... ... ... ..... ot at the lower authorities stage. Having regard to the facts and the circumstances of the present case I do not see that there was denial of natural justice. 13. emsp On the question of reversal of credit of duty taken in RG 23A Part II I find from the contention of both sides that there was irregularity in so far as taking of credit is concerned. Admittedly the goods in the instant case were received back in the factory for repairs there was no question of taking any Modvat credit of duty on these goods. However from the record I find that the goods were cleared after debiting the amount in PLA. As duty on the goods was paid there was no question of disallowing credit of duty taken in RG 23A Part II or recovering that amount from the appellants. I order accordingly. 14. emsp The impugned order its modified to the extent stated above and the appeal is disposed of accordingly. 15. emsp Consequential relief, if any, shall be admissible to the appellants in accordance with law.
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1996 (9) TMI 415 - CEGAT, NEW DELHI
Modvat - Demand - Limitation ... ... ... ... ..... duty and time bar have strong force. They have been able to show in view of the comments received from the A.C. that admittedly they had furnished the account of loss during the month of April and May 94 and therefore the demand which is the subject matter of A. No. E/1772/95 is partly time barred i.e. for beyond the normal period of time and the portion within time is required to be re-calculated. Since in the comments the A.C. has accepted that the rates indicated in the ld. Counsel rsquo s letter dated 12-7-1996 is correct, therefore, I accept the contention of the ld. Counsels regarding the re-calculation proposed by them. 27. emsp In the case of A. No. E/829/96 the demand is in time but is again required to be recalculated in view of the above submissions of the ld. Counsels with which the ld. DR has also agreed. 28. emsp The impugned orders are therefore modified and the matter is remanded for re-calculation of correct duty liability and realisation thereof accordingly.
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1996 (9) TMI 414 - CEGAT, NEW DELHI
Cess on cloth manufactured - Cess - Manufacture ... ... ... ... ..... ation, therefore, is whether in terms of Khadi and other Handloom Industries Development (Additional Excise Duties on Cloth) Act, the dyer of the fabrics is a manufacturer or not. This point becomes important in view of the fact that the term used for levy and collection of cess duty is on cloth and not on fabrics as used by the Central Excise Act. In the absence of any provision that dyeing of cloth shall be termed as manufacture for the purpose of levy of cess, we hold that duty on cloth (grey fabrics) has already been paid and no new product was coming into existence after dyeing inasmuch as cloth remains the same whether it was grey or dyed, we hold that cess cannot be levied and collected on dyed cloth if it has already been paid once on cloth. We also find that the Department could not substantiate its contention in the grounds of appeal. In the circumstances we set aside the impugned order inasmuch as it requires payment of differential duty and reject the appeal also.
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1996 (9) TMI 413 - CEGAT, NEW DELHI
Metal cuttings and trimmings ... ... ... ... ..... l which the Collector (Appeals) has taken into account has not been filed before us nor a copy of the statement of the partner of the firm or the purchasers of this material is before us. The respondents have also not filed any material before us. The manufacturer has also not responded to the notice. 11. emsp It is, however, clear that the old definition of waste and scrap referred to in the Board rsquo s circular 6/88, dated 1-3-1988 could not be applied and the definition in Section note 6(a) of Section XV during the relevant period was required to be interpreted in the light of our above observations and then applied to the facts of the case. 12. emsp The Collector (Appeals) has not passed speaking order and merely referred to his previous order which has not been enclosed. In the circumstances, we are constrained to set aside the impugned order and remand the matter back to the Assistant Collector for de-novo consideration in the light of above observations and findings.
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1996 (9) TMI 412 - CEGAT, NEW DELHI
... ...
... ... ..... tion from the total value which might have been declared. The Explanation relates only to goods packed in round open top sanitary cans of particular sizes referred to therein. The Explanation will not cover goods packed in other kind of containers or of same kind of containers of different sizes. In other words, where the containers do not attract the description referred to in the Explanation, the value thereof, for the purpose of deduction from the declared value will have to be determined by the Department separately on the basis of the available material. The fact that the container in a particular case will not fall under the description contained in the Explanation will not have the consequence of negating the benefit of notification and the cost of the container will have to be separately declared by the assessee. The impugned orders are set aside. It is open to the appellant to seek refund if the appellant is entitled to any such refund. 5. emsp The appeal is allowed.
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1996 (9) TMI 411 - CEGAT, MUMBAI
Modvat - Duty paying documents ... ... ... ... ..... e lost or misplaced and the duty paying character is sought to be proved by production of secondary evidence. The appellants have already declared the misplacement and therefore it was required of the department to examine the secondary evidence adduced namely, the original copy of the invoice. This does not seem to have been done. The denial of credit simply because the principal document is not produced, therefore cannot be sustained. The matter to that extent is sent back to the adjudicating authority to examine the correctness of the claim for misplacement of duplicate invoice and accord sanction to availment of Modvat credit on the original invoice which, if on due scrutiny, is found to be corelated to the goods brought and that the duplicate copy is not misused by the party. They may also take appropriate precautionary measures by way of getting a bond executed from the party, against the misuse of the duplicate invoice. 6. emsp Appeal is disposed of in the above terms.
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1996 (9) TMI 410 - CEGAT, NEW DELHI
Refund - Protest ... ... ... ... ..... ted, citing the two notifications. However, the letter is clear enough to indicate their intention to clear the goods in terms of this exemption. In such circumstances having regard to the further fact that in the gate passes for the period they seem to have made endorsement of paying duty under protest, it will be reasonable to accept this as a letter of protest on the facts and in the circumstances of this case and in this view of the matter the jurisdictional Assistant Commissioner may consider their eligibility for the refund taking the letter to 3-10-1985 as a letter of protest for the clearances subsequent to that period and on satisfying himself that the conditions for claiming the exemption under the relevant notification have been satisfied in substance. The appeal is disposed of with the above direction by way of remand in the above terms. The Assistant Commissioner may dispose of the refund claim in accordance with law and after hearing the appellant in the matter.
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1996 (9) TMI 409 - CEGAT, MUMBAI
Import - Certificate ... ... ... ... ..... rought on record as to whether the Appellants had surrendered their Certificate on or before 31-7-1994 and if yes, whether endorsement of source of origin is made and whether the country from where the subject consignment is imported is recognised and if not, whether any action is taken regarding cancellation or any intimation after expiry of the specified date, has been sent to the Customs Authority not to accept the Registration Certificate for imports already made. 13. emsp The approach of the Customs Authority in objecting the clearance, therefore, does not appear justified and can not therefore be sustained. 14. emsp When the appellants could succeed on this point, the discussion and decision on the other points would be merely an academic one, and need not be given. 15. emsp The appeal under the circumstances is allowed. Impugned order is set aside. The Customs Authority shall clear the goods, if otherwise permissible for import. Consequential reliefs, if any to follow.
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1996 (9) TMI 408 - CEGAT, NEW DELHI
Valuation - Related person commonness of partners ... ... ... ... ..... , a subsidiary company, a relative and a distributor of the assessee, and any sub-distributor of such distributor. rdquo On going through the relevant provisions of Section 4(4)(c) it is clear that to treat the person as related, not only he must be related but directly or indirectly associated with the manufacturer. In the instant case, in the absence of any mutuality of interest or money flow back, mere commonness of partners is not sufficient to hold that M/s. Punjab Anand Meters (P) Ltd. are related persons to the appellants. Furthermore we find that the goods were not exclusively sold to related persons. Actually merely 9 goods sold to M/s. Punjab Anand Meters (P) Ltd. whereas remaining 91 were sold to other persons other than related persons according to the department. In the facts and circumstances, we do not find any substance in the impugned order. In the view we have taken, we set aside the impugned order and accordingly appeal is allowed with consequential relief.
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