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Case Laws
Showing 221 to 240 of 538 Records
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2000 (5) TMI 515 - CEGAT, KOLKATA
Exemption - Capital goods ... ... ... ... ..... ment dismissed the Revenue rsquo s appeal in that case by holding that HSD Oil - a consumable - utilized by the respondent as fuel for generating electricity which in turn is utilized in operation of dumpers can be held to be brought in connection with the manufacture of articles into an approved undertaking and exempt from central excise duty within the meaning of the notification. As such we find no infirmity in the order of the Commissioner (Appeals) extending the benefit of Notification to the Transformer Oil Purification Plant which has admittedly been brought by the respondents for utilization in connection with the manufacture of articles inasmuch as the Notification does not extend the benefit only to those capital goods which are directly used in the manufacture of final products but extends the benefit of capital goods which are brought in connection with the manufacture of articles. As such we do not find any merit in the Revenue rsquo s appeal and reject the same.
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2000 (5) TMI 514 - CEGAT, CHENNAI
Telephone Exchange - ... ... ... ... ..... fitted in the RAX to become an integral part of the RAX system hardware. It is stated that it is only a fault diagnostic Acid. 3. emsp The learned DR, Shri M. Kunhikannan submits that the issue is no longer res integra as this Bench in the case of CCE, Bangalore v. United Telecom Ltd. as reported in 1998 (98) E.L.T. 750 in an identical matter held that line tester unit is not part of RAX 128 as seen from the catalogue from the system architecture. 4. emsp The respondents are not present despite several notices. 5. emsp On consideration of the submission and on perusal of the noted judgment we notice that this issue has been gone into in great detail in the cited judgment. The Tribunal has examined the technical literature and has held that the item in question i.e. LTU is independent of the RAX 128 and hence not entitled to the benefit of the said notification in question. Respectfully applying the ratio therein, the impugned order is set aside and the Revenue appeal allowed.
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2000 (5) TMI 513 - CEGAT, KOLKATA
Refund - Limitation - Returned goods ... ... ... ... ..... nt date. 4. emsp As such we find that the refund claim has to be filed within six months from the date of entry into the assessee rsquo s factory. Accordingly, we do not find the reasoning adopted by the Commissioner (Appeals) as a justified reasoning. 5. emsp However, we find that in terms of Rule 173L(1) (Proviso iv), the amount of refund payable shall in no case be in excess of the duty payable on such goods after being re-made, refined, re-conditioned or subjected to any other similar process in the factory. 6. emsp From the Order of the Commissioner, we find that the duty originally paid was to the tune of Rs. 80,336.50 of which the appellants are claiming refund, whereas the duty paid subsequently, after remaking of the goods in question, was to the tune of Rs. 53,453.00 only. As such, in terms of the above provisions of law, the quantum of refund has to be restricted to the quantum of duty subsequently paid on the remade goods. The appeal is disposed of in above terms.
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2000 (5) TMI 512 - CEGAT, KOLKATA
Demand - Limitation ... ... ... ... ..... ter Note 1 of Chapter 83 and intentionally classified their product under Chapter 73. There is no finding by the Commissioner (Appeals) that there was any declaration as regards the description of the products by the appellants. The appellants have described their product as lsquo Flexible Tubing Base Metal rsquo . It is well settled that mis-classifying under different headings based upon interpretation as understood by the assessee does not amount to misdeclaration of the description of the product. We find from the earlier order-in-appeal of the Commissioner (Appeals) relied upon by the learned Advocate that the declarations filed by them were also granted permission by the jurisdictional Supdt. As such it cannot be said that appellant suppressed any factual position from the Department with the intent to evade payment of duty. Accordingly, we set aside the impugned order and allow the appeal on limitation with consequential relief to the appellants in accordance with law.
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2000 (5) TMI 511 - CEGAT, MUMBAI
Demand - Limitation - Clearance of excisable goods ... ... ... ... ..... ver agree that extended period of limitation would not be available to the department. Despite the fact that correct tariff heading was not shown in the gate passes in question, the fact that the duty which was paid was less than the duty payable would have been apparent from these gates passes, copies of which were required to be submitted with the RT 12 returns for the month in question. There is no question that they have been submitted. Even in the absence of the correct tariff heading of the gate passes, the department by examining the duty paid on these gate passes would easily come to the conclusion the duty which was paid was not the duty which was due. Failure to detect the short payment within six months was therefore not on account of any act or omission of the appellant. It would therefore follow that the extended period of limitation would not be available. The demand is barred by limitation. 5. emsp The appeal is accordingly allowed and impugned order set aside.
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2000 (5) TMI 510 - CEGAT, NEW DELHI
Exemption - Cotton yarn - Appeal to Appellate Tribunal - Additional evidence ... ... ... ... ..... ficates. In order to claim the benefit of exemption under a Notification, the burden lies upon the person seeking the benefit, to prove that he is entitled to the benefit. In the present case, the notification is conditional and the burden of proof lies upon the assessee to show that the condition in the Notification was satisfied viz. that the yarn cleared by them was meant for use in the manufacture of fabrics. The appellants have not discharged this onus and, therefore, we agree with the lower appellate authority that the cotton yarn manufactured and cleared by the appellants during the period in dispute is not eligible to the benefit of exemption under the Notification 35/95. However, having regard to the duty amounts involved viz. Rs. 54,785/- in Order No. 35/99, Rs. 41,728/- in Order No 36/99 and Rs. 26,859/- in Order No. 37/99, we reduce the personal penalty to Rs. 4,000/- Rs. 3,000/- and Rs. 2,000/- respectively. 4. emsp The appeals are disposed of in the above terms.
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2000 (5) TMI 509 - CEGAT, KOLKATA
Cabinets for water coolers ... ... ... ... ..... limitation. The appellants are manufacturers of water coolers for last more than a decade. The Revenue is fully aware of the process of manufacture of water coolers undertaken by the appellants. It cannot, therefore, be said that there was a wilful mis-statement and suppression of facts by the appellants inasmuch as the Revenue is not only supposed to know the process of manufacture. But was actually aware of the process of manufacture. Consequently, entire amount of duty is time-barred. 3. emsp We have also heard Shri J.M. Kenedy, ld. JDR. 4. emsp We find that the issue is no more res integra and the same stands decided by the Tribunal s decisions referred by the ld. Advocate and as confirmed by the Hon ble Supreme Court. Ratio of all these decisions is that no cabinet come into existence separately before the manufacture of water coolers. As such by following the ratio of the earlier judgments, we set aside the impugned order and allow the appeal with consequential relief.
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2000 (5) TMI 508 - CEGAT, CHENNAI
Redemption fine - Quantum ... ... ... ... ..... ference to the margin of profit likely to be enjoyed by the importers in this consignment which in turn is calculated on the basis of ascertained/estimated market price of the goods after they are landed. Therefore, whether goods have been confiscated only for Import Trade Control or whether they have been confiscated for the misdeclaration in quantity, after they are confiscated, the RF would be adjudged only on the basis of margin of profit so estimated. This is because the RF is a fine in lieu of confiscation and is not in the nature of a penalty. The nature of violations made on various counts has to be considered while deciding upon the penalty amount but no necessarily the RF amount. Therefore, the ratio of the decision of the Tribunal cited above are to be respectfully applied in this case also. Doing so, I modify the order impugned to the extent that the RF is reduced to 85 of the CIF value and the appeal to that extent is allowed with consequential relief as per law.
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2000 (5) TMI 507 - CEGAT, KOLKATA
Waste and scrap ... ... ... ... ..... rer and having availed the benefit of exemption Notification No. 217/86-C.E., dated 2-4-1986. 2. emsp After hearing both sides we find that issue is no more res integra and is decided in favour of the appellants by the Hon rsquo ble Supreme Court in the case of C.C.E., Patna v. Usha Martin Industries - 1997 (94) E.L.T. 460 (S.C.) wherein nil duty paid on the goods has also been held to be appropriate duty paid thereon. We also find that in the case of Tata Iron and Steel Co. Ltd. v. C.C.E., Jamshedpur - 1996 (81) E.L.T. 338 (T) it was observed that the benefit of Notification No. 63/91-C.E. involved in that case cannot be denied on the ground that the inputs received were without payment of duty in terms of exemption Notification No. 217/86-C.E., dated 2-4-1986. As such following the ratio of the above decisions we set aside the impugned order in so far as relates to denial of benefit of Notifications involved in the present appeal of the appellants with consequential relief.
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2000 (5) TMI 506 - CEGAT, CHENNAI
Import - Films taken out of India for shooting without getting Export Certificate ... ... ... ... ..... taken for shooting purpose and hence the said films was required to have discharged duty and the duty has been rightly imposed. 6. emsp On careful consideration of the submissions, I notice that appellant has not made out a case for duty exemption as no evidence has been produced to show that the films which had been taken out from India for the purpose of shooting were the very films which were brought back. The best evidence required in the present case was Export Certificate and the appellant cannot take shelter on the plea that the officials had not issued to him such a certificate. As there is no evidence available on record with regard to the films having suffered duty in the first instance and also of the same films were taken out to Japan for the purpose of shooting and it is the very same films which have come back after exposure. Therefore, the impugned order of the authorities is required to be confirmed. There is no merit in the appeal and hence same is dismissed.
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2000 (5) TMI 505 - CEGAT, KOLKATA
Parts of part of I.C. Engine are entitled to exemption under Notification No. 217/85-C.E. ... ... ... ... ..... acts are undisputed that the items on which the demand has been made by the authorities below have been used in the manufacture of ball bearings which are parts of I.C. Engines. As such the items in question are parts of parts of I.C. Engines. The Board rsquo s Circular and the Trade Notices referred to by the learned Advocate are to the effect that the parts which go into the manufacture of component parts that are in turn used in the manufacture of Diesel Oil Operated Internal Combustion Engines, would be entitled to exemption Notification No. 217/85-CE vide C.B.E.C. rsquo s Circular No. 14/88 dated 26-5-1988 and Calcutta-II Collectorate Trade Notice No. 139/CH. 30(4)-CE/CAL-II/88 dated 16-6-1988. The ratio laid down by the Tribunal in the case of Mahindra Engineering Works referred supra, is also to the same effect . Accordingly, following the ratio of the same, we set aside the impugned Order and allow the appeal filed by the appellants with consequential reliefs to them.
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2000 (5) TMI 504 - CEGAT, KOLKATA
Classification ... ... ... ... ..... chine, have to be classified as such. In the instant case, the Department has not placed on record any evidence to show that the lsquo Bitumen Pad rsquo in question is specifically designed to be used as a motor vehicle parts or accessories. Merely because, entire production of the appellants is being used by M/s. Hindusthan Motor Ltd., in the motor vehicles manufactured by them, it did not, by itself, establish that the Bitumen Pad is in the shape of motor vehicle parts or accessories when cleared from the appellants rsquo factory. On the other hand, the appellants have contended number of other uses in their product which have not been rebutted by the authorities below. As such, we do not find any merits in the revenue rsquo s claim that the lsquo Bitumen Pad rsquo in question is required to be classified as a motor vehicle parts or accessories under heading 87.01. Accordingly, we set aside the impugned order and allow the appeal with consequential relief to the appellants.
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2000 (5) TMI 503 - CEGAT, KOLKATA
Appeal - New plea ... ... ... ... ..... or remand of the matter to the Asstt. Commissioner. 2. emsp Shri R.K. Roy, learned JDR appearing for the Revenue reiterated the reasonings of the appellate authority. 3. emsp After considering the submissions made from both sides we find that though appellants have admitted that they are liable to pay duty as directed by the Superintendent, the question raised by them before the Commissioner (Appeals) i.e. as to whether the process undertaken by them amounts to manufacture or not is a legal plea and they cannot be stopped from raising the same. As such we are of the view that Commissioner (Appeals) should have allowed the appellant to raise the above ground before him. However, as there are no discussions by the Commissioner on the said ground we set aside the impugned order and remand the matter to the Commissioner (Appeals) for de novo decision on the point of manufacture as well as availability of Modvat credit to the appellant. The appeal is thus allowed by way of remand.
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2000 (5) TMI 501 - CEGAT, CHENNAI
Appeal - Limitation - Condonation of delay ... ... ... ... ..... in view of the explanation under clause (d) ibid. As against this the order impugned does not state any reason and it does not contain any discussion how Modvat credit is deniable in view of the fact that battery assembly is clearly designed to be suitable only for use with PLC unit. In fact this has been admitted by the authorities below in the order in original attendant to the order impugned. Since this fact is not disputed, the nature of the battery assembly, at the worst position imaginable, becomes accessories of capital goods i.e. PLC Unit. Since accessories of capital goods classifiable under Rule 57Q are eligible to Modvat credit as discussed above, the appellants are entitled to Modvat credit on the said battery assembly being only used with PLC Unit on which credit under Rule 57Q is allowed. 7. emsp In view of the above analysis, the order impugned along with the attendant order in original are set aside and the appeal allowed with consequential relief as per law.
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2000 (5) TMI 500 - CEGAT, NEW DELHI
... ...
... ... ..... ision of law) as contemplated under Clause (a) of Section 112 ibid. Such a finding is lacking in the impugned order. In view of these infirmities of the order of the lower authority, the impugned order cannot be sustained. 6. emsp Learned JDR has pointed out what has been recorded by the Commissioner in Para 4.3 of his order. This para indicates that the present appellants were represented at personal hearing by Shri Manpreet Singh. Even if this is assumed to be factually correct, it cannot absolve the lower authority of the legal obligation to show cause the party before penalising him under Section 112(a) of the Customs Act. 7. emsp In view of the foregoing findings and observations, I set aside the impugned order and allow this appeal. It is, however, made clear that this order will not stand in the way of the competent customs authorities proceeding against the appellants after issuing to them proper show-cause notice, if such proceedings are otherwise permissible in law.
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2000 (5) TMI 480 - CEGAT, MUMBAI
Modvat - Capital goods ... ... ... ... ..... e operation conducted by the machinery did not qualify under the term lsquo capital goods rsquo . The Commissioner (Appeals) summed it as saying ldquo it does not play any part in the manufacture of the finished goods rdquo . 3. emsp I observe that the phrase used in Rule 57Q is ldquo processing rdquo . Embossing a part with serial number is a process undertaken by the manufacturer. Even the phrase ldquo manufacture rdquo includes all processes incidental or ancillary thereto. There was no doubt that the said machinery was used in the processing of the textile machinery parts. The machine, thus qualifies for the phrase capital goods . The impugned order is set aside. The appeal is allowed with consequential relief.
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2000 (5) TMI 479 - CEGAT, MUMBAI
Reference to High Court ... ... ... ... ..... of the facts and circumstances of the case, ordered remission in the quantum of penalty. It will be noted that in the earli shy er portion of the paragraph 8 there is a reference to cornering of the licence by certain individuals. In our view this cannot be a question of law by any stretch of imagi shy nation. That is a question of fact which has been found in the orders of the Commissioner as well as the Tribunal. Apart from that learned Counsel for the importer brought before us several judgments of the Tribunal which held that quantum of redemption fine and penalty can only be treated as questions of fact, some judgments are (1) CC, Madras v. S. Anwarullah - 1987 (31) E.L.T. 250 and (2) P.M. Tette and Others v. CCE, Madras - 1987 (31) E.L.T. 959. In view of the above precedent decisions, we are of the view that the reference application is devoid of merits. The impugned order has been passed by us on the appreciation of facts. Hence the reference application is dismissed.
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2000 (5) TMI 478 - CEGAT, MUMBAI
Appeal - Limitation ... ... ... ... ..... ute the Commissioner was advised to file an affidavit. 3. emsp Today Shri K.M. Patwari, the ld. DR placed before me, the affidavit signed by the Assistant Commissioner to the effect that the order in appeal was in fact received on 17-6-1994. 4. emsp The impression on the date stamp was verified by both sides and by me which shows unmistakably that the date of receipt was 17-4-1994. In terms of Section 35B(2) of the Act, the Tribunal has authority to condone the delay where an application to that effect is made. In this case there is clearly a delay of three days in filing of the appeal. However there is no application for condonation. Accepting the claim of limitation made by the respondents. This appeal is dismissed as time barred.
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2000 (5) TMI 477 - CEGAT, CHENNAI
Modvat - Accessories ... ... ... ... ..... statute was considered by the Hon rsquo ble Apex Court in the case of S. Sundaram Pillai and Others as reported in AIR 1985 SC 582, wherein it was held that the explanation to statute is given merely to clarify substantive legal right which is already exist therein and therefore, would have retrospective effect. In this case, clause (e) was inserted to the Explanation clarifying the substantive statute under Rule 57A(1). Therefore, in view of the fact that the ratio of the Hon rsquo ble Apex Court Judgment noted above would apply to this case as well as the fact that learned Commissioner (Appeals) has followed the earlier decision on the Tribunal on this behalf, I do not find any merit in the stay application and the same is rejected. Since the appeal lies on a short compass, I proceed to consider the appeal itself and for the same reasons, I do not find any infirmity in the order impugned, which compells me to interfere with the same. Therefore, the appeal is also rejected.
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2000 (5) TMI 476 - CEGAT, MUMBAI
Modvat - Waste/scrap ... ... ... ... ..... rmed the demand for duty. The Collector (Appeals) confirmed this view. Hence this appeal. 4. emsp It is difficult to follow the reasoning that the Collector (Appeals) adopts, when she says that since the polyvinyl chloride scrap is arising from the processing of polyvinyl chloride compound, it cannot take into account the waste or by product. By applying this reasoning, we have to hold that no scrap or by product arises in the manufacture of any commodity. Virtually all commodities are manufactured by processing the inputs or raw materials. The fact that the goods are described as polyvinyl chloride scrap, and were classifiable under Heading 3915.30 which is waste and scrap of waste settled this beyond doubt. The provisions of Rule 57C therefore would squarely apply to the facts of this case, and will have to be held that the credit could not be denied because the scrap was cleared on payment of duty. 5. emsp The appeal is accordingly allowed and the impugned order set aside.
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