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Case Laws
Showing 141 to 160 of 465 Records
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1997 (2) TMI 335 - CEGAT, CALCUTTA
Modvat - Transfer of the unutilised credit to the Modvat account ... ... ... ... ..... t of the declaration made under Rule 57G from RG23 to RG23A Part-II account. The appellant had maintained RG23 account under Rule 56A which had not been authorised by the Board and the same was discontinued in February, 1987 i.e. before the Modvat scheme was introduced. Collector, Central Excise, Bhubaneswar had refused transfer of unutilised credit laying in RG23 to RG23A Part II account because this case did not fall under the provision of Rule 57H(3). Hence the order of Collector (Appeals) is not legal, proper and correct on the above ground. rdquo 3. emsp I have carefully considered the pleas advanced by the learned SDR. I have also gone through the records. I am inclined to agree with the findings of the lower appellate authority that the credit was remaining unutilised immediately before introduction of the Modvat credit. Consequently, its transfer has been rightly ordered by the lower appellate authority in terms of Rule 57H. Hence, Revenue rsquo s appeal is dismissed.
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1997 (2) TMI 334 - CEGAT, CALCUTTA
Modvat - Reversal of ... ... ... ... ..... y of limitation, a right vests in the other party and because there is no discretion with an adjudicating/appellate authority to relax the limitation under Rule 57-I on sufficient cause being shown. 4.2 emsp Other plea taken by the ld. SDR is that it has been held in a number of cases by the Tribunal, when there was no time limit laid down in Rule 57-I, the limitation under Section 11A would apply to recovery of wrong Modvat credit under Rule 57-I. This plea is not sustainable for the reason that those judgments of the Tribunal are no longer applicable in view of the specific time limit spelt out in Rule 57-I itself. 4.3 emsp Accordingly, I hold that the show cause notice is barred by time on admitted facts. 4.4 emsp It is not denied that a wrong Modvat credit had been taken by the appellant in the above situation. Penalty of Rs. 1,000/- is sustainable under Rule 173Q(1)(bb). I, therefore, confirm the penalty of Rs. 1,000/- (Rupees one thousand only) imposed on the appellant.
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1997 (2) TMI 333 - CEGAT, CALCUTTA
Import trade control - Consumer goods ... ... ... ... ..... declared by the Highest Court in the State. rdquo (Emphasis supplied) It is, therefore, apparent from the emphasised portion above, that the Court has not interpreted the Circulars conclusively. In any case, this matter does not rest upon the two Circulars and therefore, is not relevant to the facts of this case. 9.2 emsp Further, as rightly pointed out by the learned JDR, ldquo Nutmegs rdquo require a licence in any case, being not listed in the List appended to the Public Notice dated 31-3-1993. It cannot be doubted that Public Notice dated 31-3-1993 is a Policy Amendment because the initial Policy, 1992-97 was issued only as a Public Notice. Hence, even a REP Licence (in respect of which Actual-User Condition gets relaxed) would also require a specific endorsement for lsquo Nutmegs rsquo without shells. On first principles, Nutmegs rsquo without shell is a spice and therefore a consumer goods. 9.3 I, therefore, do not find any substance in the appeal. Hence it is rejected.
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1997 (2) TMI 332 - CEGAT, CALCUTTA
Demand and penalty - Limitation ... ... ... ... ..... Ld. Counsel is, however, banking upon the fact of knowledge that the appellant rsquo s main manufacture was of A.C.S.R. cables which was known to the Department in some other documents submitted by the appellants. We are unable to agree with the said submissions of the ld. Advocate being vague. No evidence to that effect has been placed before us. A declaration was required to be made by the appellants for availing the benefit of Notification 77/83 that declaration having been found to be defective and not made correctly despite the clear wordings of Items 4, 5 and 6 about which declarations were required to be made, the charge of wilful mis-statement is sustainable against the appellants. Accordingly, we confirm the demand of duty of Rs. 36,120.50 against the appellants. However, having regard to the over all facts and circumstances of the case including the amount of evasion of duty, we reduce the penalty from Rs. 20,000/- to Rs. 5,000/-. Appeal disposed of in above terms.
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1997 (2) TMI 331 - CEGAT, CALCUTTA
Modvat - By product ... ... ... ... ..... t decision of Honourable Allahabad High Court in the case of Varuna Salphonators (P) Ltd. v. Union of India reported in 1993 (68) E.L.T. 42 (All.), which fully justifies the stand taken by the lower authorities. He, therefore, submits that Revenue rsquo s Appeal has no substance and it be dismissed. 6. emsp I have carefully considered the submissions of both sides. I have gone through the impugned order. I do not find any infirmity in the said order and Rule 57D is clearly applicable in the facts and circumstances of the case, inasmuch as it cannot be denied that oleum, the input, was used in the manufacture of the final product namely, Detergent. Spent Acid was not their by product. It is merely refuse or scum. Rule 57D, therefore, prevents the Department from reversing any Modvat credit. Apart from that, reliance placed by the learned Counsel for the respondent company on Varuna Salphonators (supra) is also correct. In the circumstances, I dismiss the Appeal of the Revenue.
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1997 (2) TMI 330 - CEGAT, CALCUTTA
Modvat - Declaration ... ... ... ... ..... nesium alloy rdquo will be covered by ldquo nickel rdquo as well in view of Section Note 3 of Section XV of the Central Excise Tariff Act, 1985. There is no dispute about correct declaration of heading in the subsequent declaration in October, 1986. Therefore, intention of the appellant in making the Modvat credit declaration is clear. Similarly, in view of the Assistant Collector rsquo s own finding regarding description of inputs for March, 1986 declaration, it would cover the input in question and would settle the dispute in favour of the appellants. The Assistant Collector rsquo s observation in discarding the said declaration on the ground of Tariff heading/sub-heading is of no consequence in view of settled position of law by a series of decisions of the Tribunal, e.g., in the case of Kissan Products v. Collector of Central Excise reported in 1994 (69) E.L.T. 521 . 5. emsp In view of the foregoing citation, I allow the appeal with consequential relief to the appellants.
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1997 (2) TMI 329 - CEGAT, CALCUTTA
Modvat - Declaration ... ... ... ... ..... ldquo Steel Step Forging F rsquo rdquo which is also a forged product. I observe that this plea has not been discussed by the lower authorities at all. I am, however, of the view that this plea goes to the root of the matter and needs to be enquired into before denying the Modvat credit. In the circumstances, I remand the matter to the original authority namely concerned Assistant Collector of Central Excise to determine whether the two products i.e. ldquo Steel Round F rsquo rdquo and ldquo Steel Step Forging lsquo F rsquo rdquo are essentially the similar products or not. If it is so, the benefit of Modvat credit should be allowed to the appellants. In case, it is not so, the appellants would not be entitled to the benefit of Modvat credit. 5. emsp Appeal is thus allowed by remand, after setting aside the impugned order, for de novo proceeding in terms of aforesaid observations. 6. emsp Pre-deposit of Rs. 15,000/- would also abide by the decision of the de novo proceeding.
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1997 (2) TMI 328 - CEGAT, CALCUTTA
Cement - Exemption ... ... ... ... ..... dustries to the effect that State authorities can merely certify the installed capacity in the case of small scale industries which the respondents undoubtedly are. Accordingly, we reject the Revenue rsquo s appeal. 4.2 emsp At this stage, we may also mention that Board (CBEC) has subsequently clarified vide its letter dated 18-6-1990 issued from its file No. 356/46/88 that for the purposes of the said notifications as they were in force, the annual installed capacity certificates obtained by the small-scale industrial units from any of the authorities prescribed in the notification may be accepted while deciding the eligibility of units of excise duty exemption under the aforesaid notifications. It has further been stated that all pending cases relating to the matter may be settled in accordance with the clarifications. Board rsquo s clarification, therefore, confirms the view that we have already taken above. Consequently, appeals as already mentioned above, stand rejected.
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1997 (2) TMI 327 - CEGAT, CALCUTTA
Refund - Unjust enrichment ... ... ... ... ..... which the final duty has been paid by them. Therefore, I am of the view that the ratio of the Judgments is fully applicable to the facts and circumstances of the case. Consequently the concept of passing on the burden of duty would not be applicable in the present case. In the circumstances, the Refund Claim should have been allowed to the appellants by the Assistant Commissioner concerned. 4. emsp As regards the point taken by the learned SDR that the Refund Application should have been filed with the concerned Assistant Commissioner, since this was not an issue before the lower authority and also not an issue before me, I need not comment on it inasmuch as the issue involved was whether the burden of duty had been passed on to the customers or not. Since I have held that the question in regard to the burden of duty having been passed on to the customers, does not arise in the present case, therefore, the appeal is allowed with consequential reliefs to the appellants herein.
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1997 (2) TMI 326 - CEGAT, MUMBAI
Export - Confiscation of goods ... ... ... ... ..... f we bear in mind the scheme of the Act, it is clear that so far as the Customs Authorities are concerned all that they have to see is that no goods are exported without furnishing the declaration prescribed under S. 12(1). Once that stage is passed the rest of the matter is left in the hands of the Reserve Bank and the Director of Enforcement. rdquo 4. emsp Sections 12(1) and 23A of the then Act correspond to Sections 18(1) and Section 67 of the Foreign Exchange Regulation Act as it stands today. Therefore, applying the ratio of this decision, it would follow that goods in respect of which a declaration has been made in terms of a notification issued under Section 12(1) would not be ldquo prohibited goods rdquo for the purposes of the Customs Act, 1962. In that view of the matter, and since the goods are not dutiable, they would not be liable to confiscation under Section 113. The Collector (Appeals) rsquo finding to this effect has to be confirmed. 5. emsp Appeal dismissed.
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1997 (2) TMI 325 - CEGAT, NEW DELHI
Valuation - Unjust enrichment ... ... ... ... ..... stant Collector on the ground of unjust enrichment and the order was confirmed by the Collector (Appeals) and this order was set aside by the Tribunal and the case was remanded to the Collector (Appeals) for fresh decision. Thereafter, the Collector (Appeals) set aside the order passed by the Assistant Collector and allowed refund. This order also was set aside by the Tribunal and the case again remanded to the Collector (Appeals). It is stated that the appeal is even now pending before the Collector (Appeals). 4. emsp In considering whether declared value is to be accepted or loaded, the question of possible unjust enrichment cannot enter into the picture. That question may arise in considering the refund claim, which is now pending before the Collector (Appeals). Department has not challenged the order passed by the Collector (Appeals) setting aside the loading of value made by the Assistant Collector on merits. 5. emsp We find no ground to interfere and dismiss the appeal.
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1997 (2) TMI 324 - CEGAT, NEW DELHI
Kitchen equipments - Dish washing machine ... ... ... ... ..... pares. rdquo The notification No. 6/86, dated 2-1-1986 includes Dish Washing Machine rsquo but prescribes as one of the conditions not merely a certificate from the Joint Secretary in the Department of Tourism but also evidence of actual use for the intended purpose within two years or such extended period as A.C. may allow. The copy of the notification which is produced is dated 2-1-1986 And, the authorities below have the authority and discretion to satisfy themselves that the conditions of this notification are duly fulfilled. 6. emsp We also take note of their letter dated 1-2-1986 addressed to D.G., Tourism And, in view of the catena of Tribunal rsquo s orders in which relevant certificates which were otherwise valid and covered the items and periods were allowed to be taken into consideration even if they were produced subsequent to the clearance, the matter is remanded to the Assistant Collector for de novo consideration in the light of above observations and findings.
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1997 (2) TMI 323 - CEGAT, NEW DELHI
Valuation - Reassessment ... ... ... ... ..... y Tyre International Ltd. case and the specific provisions of Section 4(4)(d)(ii) of the Act which provide for the exclusion of the element of duty from the price. As the Superintendent had not carried out the reassessment in the manner provided for under Rule 173C(11), the appellant became an aggrieved person within the meaning of Section 35 and hence was entitled to file an appeal which was what he did. The Collector (Appeals) should have decided the appeal directing the proper officer to examine the contention raised by the appellant. 5. emsp For the reasons indicated above, we set aside the impugned orders of assessment and appellate orders and direct the appropriate authority to pass fresh assessment orders after considering the plea of the appellant that the assessable value should not include interest on receivables and duty payable should be recalculated and if excess duty is seen to have been paid give appropriate relief to the appellant. 6. emsp Appeals are allowed.
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1997 (2) TMI 322 - CEGAT, NEW DELHI
Machine - Composite machine - Coding, marking, ink printing machine ... ... ... ... ..... s observation that ldquo The printing system consists of 3 inking and printing stations it is a flexographic printing system with rubber or plastic stereos rdquo has not been challenged or shown to be wrong. In fact, the catalogue itself shows that it is the press blower which has been described as injection blow moulder and the other machine is described only as a decorating unit and the photographs also shows the words, various designs and patterns printed on it. Therefore, learned Collector was right in rejecting classification under heading 84.77 and holding it as classifiable under heading 8443.30. 18. emsp Again, the learned Collector is right in pointing out that since it is not a coding or marking machine, therefore, it is not covered by Sl. No. 21 of Notification No. 125/86 19. emsp In view of the above discussion, we hold that the order of the Collector (Appeals) is correct. We, therefore, uphold the same and reject the appeal as already announced in the open Court.
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1997 (2) TMI 321 - CEGAT, NEW DELHI
Valuation - Demand - Limitation ... ... ... ... ..... and realisation of price and the advertisement expenses separately point to a clear and deliberate action on their part in regard to the assessment of their goods which had a bearing on the duty paid by them. Our conclusion on the application of extended time limit is not affected by this plea of theirs. 12. emsp In the circumstances, the imposition of penalties is justified. The penalties imposed are commensurate with the duty amounts involved. 13. emsp We set aside the impugned orders in regard to duty demand for the period more than five years from the date of service of the show cause notice i.e. the period before November 1983 and also for the period after 26-9-1986 when the Tribunal allowed the appeal of M/s. Parle Exports on the question of exemption for beverage base and confirm the order in other aspects. The demand for duty for the balance period is to be worked out by the Commissioner after hearing the appellants. The appeals are allowed in part as indicated above.
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1997 (2) TMI 320 - CEGAT, NEW DELHI
Words and Phrases - “Imported by research institution” ... ... ... ... ..... sion imported by or on behalf of the institution the import has to be by the institution itself to be entitled to benefit of notification 70/81. Here also we find that import as such was made by Karnataka Dairy Dev. Corpn. Ltd. and it will not be possible to accept the plea that even if the import was on behalf of the Research Institution, they would be covered by exemption used in the notification. A reference was also made to the case of Collector of Customs, Bangalore v. R.V. College of Engg. - 1996 (17) RLT 876. We are, however, of the view that the case is distinguishable. The appellant themselves had imported the goods and the only question to be decided is whether the institution was engaged in research activity and, in that context, the Tribunal held that the certificate given by the specified authority had to be accepted. 5. emsp In view of this, we find considerable merit in the Revenue appeal. We therefore, allow the revenue appeal and set aside the impugned order.
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1997 (2) TMI 319 - CEGAT, NEW DELHI
Notification Nos. 77/86-C.E., 109/87-C.E. and 7/88-C.E. ... ... ... ... ..... Kores (India) case when dealing with the issue whether Typewriter ribbons were parts of typewriters or not. In that case it was held that even if the typewriter could not perform without ribbon, the ribbon could not become a part of the typewriter. 9. emsp Shri Khaitan sought to distinguish the imported goods from other spools on the ground of its special feature namely collapsibility. We do not find any reason to distinguish these spools from the others only on the simple ground. We find that the specifications given by the importers to the suppliers also used the words ldquo approximately rdquo when giving dimensional specifications of the spool. It is also correct that as per catalogue, the take up machines can take a variety of spool in all sizes. Therefore, it is not possible to accept the arg- uments that the present spools are dispensible parts of the take up machinery. 10. emsp In the result, we find no infirmity in the Collector rsquo s order this appeal is rejected.
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1997 (2) TMI 318 - CEGAT, NEW DELHI
Geared motors - Contraption - Distinction ... ... ... ... ..... 81 the Board had adviced that the value of gear mechanism need not be added to the value of the electric motor could not be said to have come into existence in independent and identifiable manner. In the present case also Shri Banerjee had drawn our attention to the schematic diagram showing the location of the various components on the platform of the traversers. Looking at the diagram we do find that the combination cannot be termed to be ldquo geared motor rdquo as is known to the market. It may be that the contraption performs the same function as that of geared motor, but that would not be sufficient for the contraption to be called a geared motor. On perusal of the evidence, the diagram, the tariff advices and the scheme of the tariff we find that the lower authorities have not established the case whereby the impugned goods could be called geared motors. We accordingly, allow this appeal, set aside the Collector rsquo s order and direction consequential relief, if any.
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1997 (2) TMI 317 - CEGAT, NEW DELHI
Valuation - Refund - Limitation ... ... ... ... ..... . Even in the absence of sub-sections (2) and (4) of Section 4 of Central Act 45 of 1986, the manufacturers who paid excise duty during the period 1-3-1986 to 2-4-1986 would be entitled to refund under Section 11B of the CE Act and the procedure would be governed by Section 11B. This position cannot be said to have been affected merely because the legislature took care to incorporate sub-sections (2) and (4) of Section 2 of Central Act 45 of 1986. Provisions in sub-section (2) of Section 11B of the Act will govern all refund claims of excise duty not finally disposed of on the date when the provision was incorporated in sub-section (2) of Section 11 of CE Act. This provision shall govern the refund claims consequent on Central Act 45 of 1986. 8. emsp We set aside the impugned order and remand the case to the jurisdictional adjudicating authority for considering the impact of Section 11B(2) of the Act on the refund claim and to pass consequential orders. The Appeal is allowed.
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1997 (2) TMI 316 - CEGAT, MUMBAI
SSI Exemption - Eligibility of ... ... ... ... ..... not by itself disentitle it to the benefit of the Notification. We are in agreement with this reasoning. The view of the Commissioner and reiterated by the departmental representatives is that since M/s. Zaverchand Gaekwad was not availing of the Notification the appellant was not entitled to its brand name. The fact that Zaverchand Gaekwad Ltd. did not avail of the notification does not mean that it was not eligible for the notification. It satisfied the criteria with regard to being an SSI unit and value of clearances. If it chose to avail of the notification, it could not have been denied it. The Commissioner has lost sight of the distinction between eligibility to the notification, and actually availing of it. M/s. Zaverchand Gaekwad was the owner of the brand name, and or eligible for the benefit of Notification 175/86. The appellant therefore would not be adversely affected by the condition in para 4 of the notification. 5. emsp Appeal allowed. Impugned order set aside.
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