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Case Laws
Showing 121 to 140 of 311 Records
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1996 (5) TMI 229 - CEGAT, NEW DELHI
Modvat - Sulphuric acid ... ... ... ... ..... ulphuric acid also helps prevention of scale deposition. It, therefore, is an input which is used in the process of manufacture as such and would be eligible input within the extended meaning of ldquo in or in relation to the manufacture rdquo , the expression used in Rule 57A. The learned counsel cites the case of Saurashtra Chemicals v. CCE - 1995 (80) E.L.T. 302. He also cites the case of J.K. Cotton v. Sales Tax Officer - AIR 1965 SC 1310. 3. emsp The learned DR submits that the inputs are used in removing scales and, therefore, no Modvat on these is admissible. 4. emsp We have heard both sides. To our specific query the advocate submits that sulphuric acid is not used by itself to remove scales it is added to the caustic soda solution. We hold that in the circumstances sulphuric acid is used it can be said to have entered the stream of manufacture and, therefore, would be eligible input for Modvat credit. In the result, the appeal is allowed and impugned order set aside.
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1996 (5) TMI 228 - CEGAT, MADRAS
Demand - Re-making of returned goods under Rule 173H ... ... ... ... ..... carried out in terms of Rule 173L and which operation are similar to those mentioned under Rule 173H, the goods are liable to pay duty. Under Rule 173L by a deeming fiction after re-making or refining has been carried out the goods so emerging after those processes are to be treated as a new manufacture. This is not the position under Rule 173H. As it is the authorities are demanding differential duty attributable to the value addition as a result of the processes carried out not on the full value of the goods which were brought into the factory. In case the goods have been treated as new manufacture then duty should have been demanded on the full value of the goods as cleared from the factory. This not having been done we hold that the authorities themselves are not treating the product emerging in the hands of the appellants as fresh manufactured goods. In that view of the matter we hold that the demand as raised is not sustainable in law and therefore we allow the appeal.
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1996 (5) TMI 227 - CEGAT, MUMBAI
Modvat - `Printing ink’ ... ... ... ... ..... upreme Court rsquo s judgment in Eastend Paper Mills case. In that judgment the Supreme Court held that ldquo anything required to make the goods marketable would form part of the manufacture and any raw material or any materials used for the same would be component parts for the end product rdquo . These observations would apply with equal force to the facts of the present case. Taking into account the normal commercial practice, a printing machine would not have been delivered to customers and would not have been accepted by such customers unless it had been established that the machines functioned properly for the purpose for which they were made. Such action was therefore necessary before they became marketable. As ink was used in the process of testing it has to be considered an input. In view of this finding, I do not consider it necessary to consider the arguments of non-application for the earlier period of limitation. 5. emsp Appeal allowed. Impugned order set aside.
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1996 (5) TMI 226 - CEGAT, MUMBAI
Demand - Directions for reversal of wrongly availed Modvat credit ... ... ... ... ..... of failure to maintain correct accounts, we observe that the Addl. Collector has not specified in his order that the penalty was on account of this contravention alone. The reading of this order would suggest that for all the 3 contraventions ennumerated therein he has imposed a combined penalty. The quantum thereof cannot be called to be excessive and therefore, there is no reason to interfere with this portion of the order also. The quantum of fine, given the value of the contraband goods cannot also be called to be excessive and does not warrant interference with. As regards the order of confiscation of land, building, etc., we agree with the submission of the ld. advocate that this is an extraordinary provision which should be invoked only in the case of habitual offenders. This not being the case here, we set aside the order of confisction of land, building, etc., and order remission of the redemption fine of Rs. 25,000/-. 11. emsp This appeal is decided in these terms.
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1996 (5) TMI 225 - CEGAT, NEW DELHI
... ...
... ... ..... at when the goods are bought out or optional and do not enter into manufacturing process of the goods cleared, their cost is not to be clubbed with the excisable goods under assessment. 10. emsp As the excisable goods cleared were insulators and the GI Pin is in the nature of an insulator fitting, the cost of the GI Pin in the hands of the appellants may not be includible while assessing the insulators to excise duty. As the process of fixation reveals it is only when the insulator is finally used by the customer, the GI Pin is required. It is not a part of the insulator in the hands of the manufacture of insulator. 11. emsp Thus, on merits we consider that the appellants have a case. In view of this, we are not going into the question of limitation. 12. emsp Taking all the relevant considerations into account, we accept the appeal and as a consequence the order-in-appeal passed by the Collector of Central Excise (Appeals), Calcutta is set aside. 13. emsp Ordered accordingly.
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1996 (5) TMI 224 - CEGAT, MADRAS
Modvat - Final product ... ... ... ... ..... rse of such operation is also returned to the said factory (b) emsp for the purpose of manufacture of intermediate products necessary for the manufacture of the final products and return the said intermediate products to his factory for further use in the manufacture of the final product or remove the same without payment of duty under bond for export, provided that the waste, if any, arising in the course of manufacture of such intermediate products is also returned to the said factory 4 Provided that the said waste need not be returned to the said factory if the appropriate duty of excise leviable thereon has been paid. (3) emsp Credit of specified duty allowed in respect of any inputs may be utilised towards payment of duty of excise. In view of the above, following the ratio of the above decisions, and what we have held above, we set aside the impugned order and allow the appeal. However, we are not expressing any opinion on the other legal pleas raised by the appellants.
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1996 (5) TMI 223 - CEGAT, MUMBAI
Natural justice - Hearing attended by Advocate not appointed by party ... ... ... ... ..... hese aspects have to be gone into at the final hearing stage. In that view of the matter, earlier observation of the Hon rsquo ble Member about their having not been convinced of the non compliance of the principles of natural justice, have to be accepted as their prima facie view and not the one of conclusive nature. 6. emsp Considering these aspects therefore, it appears that the matter ought to go back to the adjudicating authority for granting appropriate hearing, and then decide according to law. Because, it involves in adducing and appreciation of the oral evidence, we allow the appeal and set aside the order and remand the matters back to the adjudicating authority for granting personal hearing and decide the matters according to law. The Appellants shall remain present on the date fixed for personal hearing. As the matter is very old the Commissioner shall make efforts to dispose of the same within a period of three months from the date of communication of this order.
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1996 (5) TMI 222 - CEGAT, NEW DELHI
Modvat - Aluminium slugs ... ... ... ... ..... the assessee and were to be cleared on payment of duty. In the instant case the goods received by the assessee were slugs and goods finally alleged to be manufactured were slugs. Thus there was no new product coming into existence having distinct character, name and use. Thus slugs received by the appellants cannot be said to be input for the manufacture of slugs and therefore, it cannot fall under Modvat Scheme. Test therefore, to be applied in the instant case is whether there is any manufacture involved in utilisation of the material brought in under the Modvat Scheme and whether it beings into existence a new product. Applying this test, I am left with no alternative but to reject the appeal of the assessee and restore the order of the Collector (Appeals). In so far as the ground of double taxation is concerned, the assessee may resort to such other course of action as is available in the Rule. In this view of the matter, I uphold the impugned order and reject the appeal.
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1996 (5) TMI 221 - CEGAT, MUMBAI
Redemption fine ... ... ... ... ..... ng opportunity to both the side to adduce evidence if they so desire. The adjudicating authority may now, also have the benefit to ascertain the actual profit earned as the goods have been released and presumably have also been sold by the importer. 22. emsp In the result, we deem it necessary and proper to remand the matters by setting aside the order of Collector of Customs (Appeals), limited to the quantum of redemption fine and penalty, which has to be in conformity with the quantum of redemption fine and we would not like to segregate the same, though technically, it may be possible. 23. emsp Accordingly, by setting aside the order on the grounds raised in the appeals, the matter is remanded back to the adjudicating authority for re-examination of the issue, by permitting both the sides to procure and produce such evidences as they desire and after granting personal hearing, come to the conclusion according to law. 24. emsp The appeals are disposed of in the above terms.
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1996 (5) TMI 220 - CEGAT, NEW DELHI
... ...
... ... ..... from the factory is in a fully manufactured form and no further processes are required for its completion for the purpose of fitting the battery for use in Fork lift. For the purpose of fitting the battery in the Fork lift truck certain accessories are required. Such accessories are not used as essential inputs of a Battery and by such use, no ancillary process to the completion of manufacture occurs, as contended by the Revenue. Hence, steel plate cannot be considered as part and parcels of the battery as contended by the department. This view expressed by us finds support from the ratio of rulings rendered by Government of India, Tribunal, Bombay High Court and by Hon rsquo ble Supreme Court in the citations brought to our notice by the Learned Consultant. We do not find any reason to differ from these judgments and on application of these ratio. 5. emsp In that view of the matter, the impugned order is not sustainable and hence the same is set aside by allowing the appeal.
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1996 (5) TMI 219 - CEGAT, NEW DELHI
Video Tapes and Discs ... ... ... ... ..... that is to say the subject goods namely, cassettes (ii) that they are transferring their goods to sub-distributors on payment of Rs. 500/- said to be a security deposit on the condition that in case of non-return of the said amount will stand forfeited (iii) that the respondents have not disclosed the amount of rent which they were charging from the sub-distributors and (iv) that the rental period of 24 months is too long in view of the nature of the subject goods that is to say the cassettes which is highly sophisticated. 6. emsp Since from the definition of sale rsquo as given in Section 2(h), the transfer of the possession of goods by one person to another in the ordinary course of trade or business for cash or deferred payment or other valuable consideration also amounts to sale there remains no doubt to conclude that the transaction in the instant case was a sale. 7. emsp In the result, we set aside the impugned order-in-appeal and allow the appeal filed by the Revenue.
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1996 (5) TMI 218 - CEGAT, MADRAS
... ...
... ... ..... cannot stand. That being so, the impugned order deserves to be set aside. 8. emsp Appellant has also contended that the show cause notice dated 27-5-1993 is barred by limitation inasmuch as it was issued after six months of the relevant date and the extended period of limitation contemplated by proviso to Sec.11A of the Act is not available. There is no dispute that the classification filed by the appellant do not advert to cable gland at all. Appellant has no case that there existed any material available to the department with the aid of which the department could have acquired knowledge of the existence of these bought out items. The show cause notice makes it clear that it was only on perusal of the records subsequently which revealed this state of affairs. In these circumstances, we are not inclined to agree with the contenction of the appellant regarding the bar of limitation. 9. emsp In the result, we set aside the impugned order and allow the appellant rsquo s appeal.
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1996 (5) TMI 216 - CEGAT, NEW DELHI
Modvat - `Hessian Cloth’ - Packaging material ... ... ... ... ..... t the position. A specific provision for covering material used as fuel or those used for generating electricity has been given to remove an ambiguity as a doubt might have been felt that use of fuel or for generation of electricity are processes anterior to the actual production of the final product. The fact that there is no such express provision in respect of lubricating oil cannot deprive them of the benefit of Rule 57A if they satisfy the criterion of use in or in relation to the manufacture. In my opinion, the use of lubricating oil is in relation to the manufacture even if it is not directly in the manufacturing process as raw material. Without the use of such lubricating oil in the course of manufacture of paper such manufacture would become commercially inexpedient which is one of the tests laid down in the case of J.K. Cotton Spg. and Wvg. Mills referred to above. 6. emsp For the foregoing reasons, the appeal is partly allowed insofar as the Mobil Oil is concerned.
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1996 (5) TMI 206 - CEGAT, NEW DELHI
Demand - Shortage of goods ... ... ... ... ..... and winding register, is not enough to establish the charge of clandestine removal. In the case of Kashmir Vanaspati (P) Ltd. v. Collector of Central Excise reported in 1989 (39) E.L.T. 655 it was held by this Tribunal that note book maintained by labourers containing unauthenticated entries and over-writings are not dependable record to establish clandestine removal unless same are supported by other evidence such as raw material consumed, goods actually manufactured and packed etc. In this case we find that only one document i.e., production log maintained by workers, has been relied on and other documents i.e., daily production slips have been ignored. There is no other evidence except the variation between the production log and R.G. 1 to sustain the charge of clandestine removal. In these circumstances we hold that the evidence relied upon is not sufficient to sustain the charge of clandestine removal. In view of this we set aside the impugned order and allow the appeal.
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1996 (5) TMI 205 - CEGAT, NEW DELHI
Remission of duty ... ... ... ... ..... s to prevent and mitigate the loss due to auto-combustion. On this ground the remission of duty was permitted. We also observe that whereas the impugned Trade Notice had not withdrawn the permission earlier accorded to the assessee for storage in kuccha pits, it is also a fact that a very high percentage of the molasses lost was stored in pucca tanks and not in the kuccha tanks. In view of the analysis above, we are satisfied that remission of duty in this case is warranted. Before parting with the case an observation is required to be made and that is, when an assessee applies for remission of duty on the reason of some excisable goods being rendered into waste, the assessee stands to lose equally or more than the department. Where the assessee rsquo s intentions are not suspect, there need not be any resistance to granting remission of duty. 8. emsp In the light of the discussions, we allow the appeal. The order of the lower authority is set aside with consequential relief.
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1996 (5) TMI 204 - CEGAT, NEW DELHI
Modvat - Duty paying documents ... ... ... ... ..... Final Order No. A-788-89-96-NB, dated 7-3-1996 passed by this Tribunal in the other appeal of the present appellants it was held that the certificate of Superintendent in lieu of the Gate passes is sufficient to claim the Modvat Credit when there is no dispute that the inputs were received in the factory and were utilised as such. In the instant case since there is no dispute regarding the receipt and use of the inputs, I, following the ratio of the said order, hold that the production of the certificate of the Superintendent was sufficient to claim the Modvat Credit. Accordingly, I set aside the impugned order and allow the appeal with consequential relief to the appellants, if any.
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1996 (5) TMI 203 - CEGAT, NEW DELHI
Import - Populated Printed Circuit Boards ... ... ... ... ..... ent to cover the importation of the goods and therefore the confiscation thereof was correctly adjudged. 6. emsp Coming to the quantum of fine, we observe that the importers are not sellers but are actual manufacturers. Even before the original authorities, they had produced evidence such as the approval of valuation of the goods manufactured by them by the excise authorities. On this ground, there is sufficient justification for reducing the quantum of fine imposed by the lower authority. 7. emsp We, therefore, reduce the fine from Rs. 90,000 to Rs. 40,000/-. On the applicability of the Notification No. 232/83, we observe that the subject notification covers goods falling under Heading 8518/27 as it then existed. By virtue of Note 4 to Chapter 85 Populated Circuit Boards were excluded from the coverage of this tariff item. The plea for the benefit of the notification cannot be entertained. Subject to the modification in the quantum of fine, this appeal is otherwise rejected.
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1996 (5) TMI 202 - CEGAT, NEW DELHI
Revision by Collector ... ... ... ... ..... eal seeks to invoke only the ground of unjust enrichment to recover the refund already paid before the amendment in question. Since the said amendment came into effect only after the refund had already been paid and it was no longer a pending refund claim, the impugned order-in-appeal has to be sustained on this ground. The Tribunal decision in the Garware Polyester case cited by the learned counsel for the respondent is also supportive of such an approach. In the said case, it was held that if refund was yet to be settled by way of issue of cheque, any refund to be sanctioned after the introduction of the amended Section 11(B) had to be in accordance with the same. In the present case, refund had already been sanctioned and paid and the case is distinguishable from the Garware Polyester case as well as the I.T.C. and Jain Spinners case decided by the Supreme Court cited by the learned Senior Departmental Representative. The department rsquo s appeal is accordingly dismissed.
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1996 (5) TMI 201 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... original authority to whom the matter would have to be remanded. 15. emsp The appellants have a grievance regarding the calculation of duty also. It has been claimed that in calculating the assessable value, deduction has not been allowed to the appellants of the amount of excise duty. The validity of this claim would also have to be looked into by the original authority. 16. emsp We find that this plea had been made before the Collector (Appeals) also. The learned Collector had not dwelt on this aspect but had summarily rejected the various claims by stating that the appellants could not produce any evidence that the duty confirmed by the Assistant Collector was not correct. 17. emsp In the result the appeals succeed in part. We uphold the classification of the impugned goods under T.I. No. 19(III) or T.I. No. 22(3) as the case may be. We remand the matter to the original authority for re-determination of the duty leviable on laminated fabrics manufactured under Sort No. 48.
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1996 (5) TMI 200 - CEGAT, NEW DELHI
Zinc plates ... ... ... ... ..... m 26B(ii) for the purpose of countervailing duty. 4. emsp We have heard both sides. We find that Central Excise Tariff Item 26B specifically covers manufacture of Zinc and including thereunder plates, sheets, etc. There is nothing in this tariff item such as would exclude highly polished Zinc plates. In this view of the matter these zinc plates as such, even though highly polished, would get covered under Tariff Item 26B as ldquo manufacture rdquo of Zinc and would specifically answer to description of ldquo plates rdquo mentioned therein. 5. emsp There is no force in the plea of the appellants that even assuming while denying the goods are liable to duty of Central Excise they should be classified under Item 68. Since the goods squarely get covered under proper Tariff Item 26B they cannot be taken out from their legitimate parentage under Item 26B and consigned to the orphanage of a residuary item like 68. In view of this, both appeals are rejected and impugned order upheld.
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