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Case Laws
Showing 241 to 260 of 474 Records
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2000 (10) TMI 379 - CEGAT, MUMBAI
Valuation - Class of buyer ... ... ... ... ..... not be in more than one class of buyers at the same time. We see nothing in Section 4 of the Act which militate against this view. The reason advanced for the two prices to the same manufacturer is acceptable. A customer who has a component of a product manufactured by him would buy large quantity of that component. He is also an assured customer whose purchase will remain more or less steady for many years. Hence such a buyer could be expected to get a lower price than others. The Asst. Collector records that the price of the goods supplied to the respondent as original equipment was comparable with the price at which the goods that were supplied to TELCO, another original equipment buyer. The fact that M/s. Kirloskar Cummins purchased from the respondent some other goods at higher price as a dealer comparable to price at which the other dealers purchased the goods, is by no means not in accordance with the law. We therefore see no reason to interfere and dismiss the appeal.
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2000 (10) TMI 378 - CEGAT, NEW DELHI
Valuation - Appeal ... ... ... ... ..... s. It is settled law that in the absence of a profit, no addition towards notional profit can be made while fixing the assessable value of captively consumed goods. This is clear from the provision of Rule 6(b) which speaks of profits, if any . Several orders of this Tribunal confirm this position. We are in agreement with the learned Counsel for the respondent that contrary decision has not been rendered by the Supreme Court in Assam Valley Plywood case either. In the circumstances, we are not able to find any merit in the appeal and the same is accordingly rejected. We must, before concluding, state that the present appeal filed by the Revenue is grossly improper, for the present order has been passed as a result of order in remand. The remand order had laid down principles according to which the case had to be readjudicated. If the Revenue was aggrieved with that order, that order should have been taken up in appeal. That having not been done, this appeal is ill-conceived.
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2000 (10) TMI 377 - CEGAT, MUMBAI
... ...
... ... ..... nd normally some explanation would be needed for any transactions which would be at prices which are different. The Tribunal however emphasized that it would not be permissible to apply the price in LME to each and every transactions and noted that variations from these prices would be possible. In the case before us, the difference between the lower of the LME prices and the prices quoted by the importer works out 20 cents per pound or less than 2 . The price shown by the importer therefore in effect conforms to the LME price. We do not think the difference of less than 2 between the LME price and the price under consideration is of such significance as to call for an explanation or variation. It can in fact be explained by the fact that the import was in June, 1993 whereas the LME prices are for late April, 1993. The difference of almost two months can itself be a justification for the negligible difference. 3. emsp We therefore see no reason to interfere. Appeal dismissed.
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2000 (10) TMI 376 - CEGAT, MUMBAI
Catheter - Entitled to the benefit of Notification No. 16/2000-Cus. ... ... ... ... ..... fort for the use of an article, or is supplementary or secondary to the main or primary importance. rdquo It cannot be disputed that the catheter is an unavoidable adjunct or accompaniment to the haemodyliser. Unless the blood is carried to the haemodyliser for filtration and returned to the patient, in both cases through the catheter, the haemodylisers cannot function. There will be nothing for it to dialyse. To that extent, therefore, the catheter should be considered an adjunct or accompaniment for the convenient use of the haemodyliser. The fact that the Director General Health Services in its opinion dated 24-2-1994 to M/s. Intra Medica Exim (P) Ltd., New Delhi has informed it after consulting an expert in nephrology, that catheters of the kind specified in the letter are accessories of haemodyliser lends weight to this conclusion. The goods were therefore entitled to the benefit of the notification. 4. emsp Appeal allowed. Impugned order set aside. Consequential relief.
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2000 (10) TMI 375 - CEGAT, MUMBAI
Modvat - Duty paying documents ... ... ... ... ..... were subsequently registered will be accepted. The evidence of subsequent registration on 15-7-1994 of the dealer who issued these documents was produced. 3. emsp The Tribunal, in its decision in Jenny Plywood Industries Ltd v. CCE, 1997 (96) E.L.T. 606 has held that absence of the time of removal in the invoice is a defect which can be remedied. 4. emsp We are not able to see what object will be achieved by putting the time and date and mode of transport now. There is no dispute that the goods have in fact travelled up to the respondent s factory or had been utilised therein for manufacture. The object of putting these and other particulars in the invoice is to prevent misuse of the invoice by using the same document to cover more than one consignment, one or more of which may be for goods on which duty has not been paid. In these circumstances, we are of the view that these minor lapses, which should be condoned. 5. emsp We therefore decline to interfere. Appeal dismissed.
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2000 (10) TMI 374 - CEGAT, NEW DELHI
Demand of Modvat - Recovery of credit ... ... ... ... ..... ue a SCN either in terms of Rule 57-I or in terms of Rule 2(14) of the Central Excise Rules or in terms of the clarification given by the Central Board of Excise and Customs. He therefore, submits that the SCN is without jurisdiction. He, therefore, prays that the appeal may be allowed. 4. emsp Shri S.K. Das, ld. DR reiterates the findings of the authorities below. 5. emsp We have heard the submissions of the ld. Counsel for the appellant and the ld. DR for Revenue. We note that the appellant had taken up the question of jurisdiction in reply to the SCN. This aspect was not examined by the ld. Commissioner in detail. We note that in the instant case, SCN was issued by the Range Supdt. We note that the Range Supdt. is not the proper officer in terms of Rule 57-I read with Rule 2 of the Central Excise Rules, 1944. We, therefore, hold that the SCN was ab initio void. In the circumstances, the appeal is allowed. Consequential Relief, if any, shall be admissible to the appellants.
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2000 (10) TMI 373 - CEGAT, MUMBAI
Modvat - Job work - Demand - Limitation ... ... ... ... ..... under consideration. It cannot then turn around and accuse the appellant of suppression of facts. We are, in point of fact, unable to see what great difficulty lay in ascertaining the amount of scrap. All that was required to be done was to weigh representative samples of the unfinished rings sent to the job worker, the finished rings obtained therefrom, and the scrap actually obtained. Why the department, instead of determining the percentage, chose to ask the appellant to determine and accept it blindly is beyond our understanding. Whatever be the reasons for this, having done so, we are of the view that the extended period of limitation cannot be invoked by accusing the appellant of suppression, more particularly when the department itself is unsure about the scrap generated relative to the material sent to the job worker. 6. emsp For these reasons, we are unable to support the impugned order and set it aside by allowing the appeal. Consequential relief, according to law.
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2000 (10) TMI 372 - CEGAT, CALCUTTA
Tribunal’s order ... ... ... ... ..... rest and has also observed that in failure on the part of the Revenue to implement the Tribunal rsquo s Order, the interest portion may be recovered from the Assistant Commissioner of Customs. 5. emsp After going through the said order of the Tribunal, we observe that it was for the Revenue to implement the Tribunal s Order within a reasonable period and refund the amount to the appellants along with interest. This having not been done and instead of refund having been rejected on the question of time bar by separate adjudication proceeding, we do not appreciate the Revenue s stand now taken before us that Deputy Commissioner s subsequent order stands in the way of Revenue in granting refund. Accordingly, we direct the Revenue authorities to grant the amount of refund along with interest at the prescribed rates within a period of one month from today. Both the Miscellaneous Applications are disposed of in the above terms. Matter to reporting compliance on 20th November, 2000.
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2000 (10) TMI 371 - CEGAT, NEW DELHI
... ...
... ... ..... 57GG on the basis of which the assessee had availed Modvat credit. I have considered these submissions. 4. emsp It is observed that there is no discrepancy observed in the documents on which the appellants have availed the Modvat credit. The discrepancy is observed in the documents on the strength of which the registered dealer had further passed on the Modvat credit to actual users under Rule 57GG. It is contended that the dealer was not authorised to issue invoices under Rule 57GG. If that is the case, it is felt imperative that the dealer who had passed on the Modvat credit to the appellants should have been made a party to the proceedings. So long as there is no discrepancy in the documents on the strength of which the present appellants have availed the Modvat credit, the same cannot be denied to them. The appellants cannot be penalised for the fault of the dealer in which they had no role to play. The appeal therefore has no force and the same is accordingly, rejected.
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2000 (10) TMI 370 - CEGAT, NEW DELHI
... ...
... ... ..... for the appellants and Sh. Y.R. Kilania, JDR for the respondents. I have carefully considered the submissions made before me. As already stated the above mentioned amount of Modvat credit has been denied to the appellants only on the ground that the dealers invoices did not contain the rate of duty at which the manufacturer of the goods had paid the duty. I must observe this is a very flimsy ground to deny the Modvat credit. When the particulars relating to the value of the goods and the total amount of the duty paid are available, it is not a tall order to arrive at the rate at which the goods must have suffered the duty at the manufacturers end, if at all the original authority is so keen to know the same. Even otherwise also one can refer to the Central Excise Tariff to know the rate at which the goods were subject to duty at the relevant time. In view of these findings therefore, the order appealed against is not sustainable and the same is set aside allowing the appeal.
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2000 (10) TMI 369 - CEGAT, MUMBAI
... ...
... ... ..... ed in the LME has an important bearing on the international market price. However, we do not find it possible to accept that prime goods can be compared with defective goods by making an arbitrary deduction of 25 from the value of the prime goods. In this situation, there must be sufficient material to satisfy us that the deduction of 25 reflects the actual difference between the price at which the prime goods and price at which defective goods are treated. No such material is forthcoming. We also take note of the fact of the certification by the supplier of the goods that these were second or third grade. The Commissioner rsquo s finding that this kind of valuation is absurd is, in our view, completely correct. In the light of this it is not necessary to consider whether the Commissioner was right or not in placing reliance on the value of the importation produced by the appellant before him. 4. emsp We see no reason to interfere and dismiss the appeal. Consequential relief.
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2000 (10) TMI 368 - CEGAT, CHENNAI
Reference to High Court - SSI exemption ... ... ... ... ..... t, 1944 as well as penalty of Rs. 1,000/- was set aside. The Commissioner (Appeals) took up the plea that they are entitled to the benefit as claimed by them. The said view expressed by the Commissioner (Appeals) was accepted by the Tribunal on the plea that the issue was covered by the Tribunal rsquo s earlier decision rendered in the case of CCE, Coimbatore v. Sri Venkateswara Industries as reported in 1996 (86) E.L.T. 446 and the relevant portion of the said order in para 4 was extracted in the final order cited above. 4. emsp In view of the above facts, the Hon rsquo ble High Court has raised the question of law for reference and hence this reference application is submitted to the Hon rsquo ble High Court for answering the question. The Revenue rsquo s paper book is submitted along with this statement of facts. The Registry shall submit the same to the Registrar of High Court at Madras for placing before the relevant Bench for answering the question. Ordered accordingly.
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2000 (10) TMI 367 - CEGAT, MUMBAI
Modvat - Intermediate product ... ... ... ... ..... rt had confirmed the view of the Tribunal that M/s. Ponds (India) Limited was entitled to take credit of the plastic granules received by it and sent to a job worker for manufacturing jars which was received by M/s. Ponds (India) Limited to pack the cream manufactured by it. The High Court confirmed the Tribunal rsquo s view that the plastic jar was an intermediate product. The contention of the departmental representative that the corrugated boxes are exempted from duty does not make any material difference in view of the provisions of Rule 57D which permits credit to be taken on inputs even though the intermediate product may be exempted from duty. We therefore see no reason to interfere. 4. emsp Appeal dismissed.
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2000 (10) TMI 366 - CEGAT, MUMBAI
Classification ... ... ... ... ..... and carbon mono oxide and unburnt hydro carbons can by no means be considered to be air as so defined. The goods are thus not air filtration machinery but machinery for filtering gases. That the object of these machines to protect the environment by preventing emission of these toxic gases is well known and needs no argument. The goods are thus rightly to be considered to be environmental protection equipment classifiable under this heading 842139. The Customs tariff and the HSN Explanatory Notes provide in heading 8421.31 under the single dash heading is filtering, air purifying machinery and apparatus for gases for in take an air filter for internal combustion engine (sub-heading 31) and other sub-heading 39. These goods are clearly classifiable under sub-heading 39 and figure in the HSN Explanatory Notes to be included in this heading. The goods were therefore freely importable without a licence. 5. emsp The appeals are accordingly allowed and the impugned order set aside.
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2000 (10) TMI 365 - CEGAT, MUMBAI
Provisional assessment ... ... ... ... ..... e the procedure prescribed for provisional assessment has not been complied with, the assessments cannot be said to be provisional. Therefore, we cannot come to a conclusion in this case, that the judgments relied upon by the appellants will help the case of the appellants, as these judgments are in the context where assessments are admittedly provisional. The demands of duty have been worked out as per merits and the learned Advocate on a question from the Bench has clearly conceded that on merits, they do not have a case, since they had not contested the confirmation of the change in classification as made by the Assistant Collector and confirmed by the Collector (Appeals). 5. ensp In this view of the matter, we find no infirmity in the order of the Collector (Appeals) in upholding the demands determined by the proper officer under Section 11A and find no reason to interfere with the order of the Collector (Appeals). 6. ensp In view of our findings, the appeal is dismissed.
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2000 (10) TMI 364 - CEGAT, MUMBAI
Manufacture ... ... ... ... ..... no duty has been demanded in the tin the advocate offers to pay such duty if it is payable according to law. The notice does not cite in support of claim that a new commodity has emerged. There was therefore no basis whatsoever to demand duty on the ground that the appellant had manufactured scrap. 3. emsp There can obviously be no confiscation of the scrap or any penalty imposable on the appellant with regard to scrap. As we have noted, no duty has been demanded on the tin in the show cause notice. There would therefore be no reason for confiscating of the tin or for imposing penalty on the appellant with regard to the tin. Even if there were some procedure infraction, we do not think that the facts of this case justify confiscation of the tin. The offer to pay duty in the tin despite the fact that it has not been demanded in the notice. 4. emsp Accordingly confiscation and penalty are set aside. Appeal allowed. The department may recover duty on the tin, if payable by law.
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2000 (10) TMI 363 - CEGAT, MUMBAI
Natural justice - Speaking order ... ... ... ... ..... lso required to submit proof of installation of machinery within the stipulated time frame. However, the appellant failed to comply with the conditions stipulated in notification No. 111/95-Cus. dated 5-6-1995. In view of this I hold the appellant liable to pay differential duty. rdquo 6. emsp The order has been therefore passed in utter disregard of the elementary principles of natural justice. The appeal succeeds on this ground and is allowed and (impugned order) set aside. The Commissioner (Appeals) shall now dispose of the appeal pending before him by dealing with each of the points which has been made. He shall do so after giving the appellant a reasonable opportunity of being heard. 7. emsp We direct that the bank guarantee for Rs. 15 crores should be continued during the pendency of the appeal before the Commissioner (Appeals) executed when this turbine was cleared from the customs in terms of the notification. The Commissioner shall thereafter not ask for any deposit.
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2000 (10) TMI 361 - CEGAT, MUMBAI
Exemption - Demand ... ... ... ... ..... ticulars of goods captively consumed. In that situation, where the facts within the special knowledge of the assessee were not brought to the notice of the department there was no possibility of specifying the duty. The Assistant Collector dropped the proceedings. The order of the Collector (Appeals) does not support the appellant s claim that relevant details were produced before him and at the hearing before the Assistant Collector. 4. emsp We are unable to hold that the demand for duty is illegal. We however, agree that the correct amount should be indicated to the appellant. Accordingly we hold that the product was liable to duty, notice valid, allow the appeal and set aside the impugned order. The appellant shall produce before the Commissioner (Appeals) the figures in support of its contention that duty payable is less than what has been demanded. The Commissioner shall after considering the material produced and hearing the appellant, pass order quantifying the demand.
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2000 (10) TMI 360 - CEGAT, NEW DELHI
Reference to High Court - Modvat - Duty paying documents ... ... ... ... ..... o be considered by the Hon ble High Court and urges that the application may be allowed and the questions referred to the Hon ble Madhya Pradesh High Court. 4. emsp The respondents have asked for a decision on merits. Hence I have perused the records after hearing the learned DR. 5. emsp The question raised is certainly a question of law namely interpretation of Rule 57A read with Rule 57G(2). Further, in view of the conflicting views in the Tribunal s decision in the light of the larger Bench decision in the case of Avis Electronics (supra), the question No 1 requires to be referred to the Hon ble High Court for its authoritative opinion. Hence I refer the following Question of law for the considered opinion of Hon ble Madhya Pradesh High Court ldquo Whether the Gate passes endorsed thrice can be treated as valid documents for availment of Modvat credit under Rule 57A read with Rule 57G(2) of Central Excise Rules ? rdquo 6. emsp The application is allowed in the above terms.
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2000 (10) TMI 358 - CEGAT, NEW DELHI
Reference to High Court - SSI exemption and Modvat credit ... ... ... ... ..... icular notification has to be read as a whole. It cannot be read in a piecemeal manner and the paras can also not be read in an isolated manner. He submitted that one of the settled principals of construction of an exemption notification is that it should be construed strictly, but once goods are found to satisfy the test by which it falls in the exemption notification then it cannot be excluded from it by construing such notification narrowly. Ld. Counsel, therefore, argued that no case is made out for reference to the High Court and prayed that the reference application may be rejected. 6. emsp We have heard the rival submissions. We note that Ministry rsquo s Order No. TS/36/94-TRU, dated 1-3-1994 is capable of two interpretations and the position is not clear whether the benefit of deemed Modvat credit is applicable even after the limit of aggregate value of clearances of Rs. 75 lakhs. We, therefore, hold that a point of law arises, the application, therefore, is allowed.
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