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2001 (3) TMI 174
Remission of duty ... ... ... ... ..... oods processed in the warehouse is capable of condonation in terms of Rule 147 but for this rule to attract the commodity must fall under Chapter VII of the Rules in terms of a notification to be issued under Rule 139. It is likely that such loss is covered by executive instructions and therefore we do not find any force in the Commissioner s statement that there is no provision of law covering such loss. It is for the Commissioner to examine the provisions of law and in its absence the executive instructions to enable him to remit the payment of duty on the loss in refining of the sugar. For this, the proceedings will have to be remitted to the Commissioner and the assessees must assist him in determining the law. 7. In the result, the appeal is partly allowed. Confirmation of duty of Rs. 8,67,085/- is set aside. The orders of confirmation of demands of Rs. 54,570/- and Rs. 64,855/- are remitted back to the Commissioner for reconsideration in view of our observations above.
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2001 (3) TMI 173
Wrappers, labels ... ... ... ... ..... mption becomes untenable. 4. We also have seen the HSN entry on which this entry is based. The Explanatory Note thereto indicated that the coverage thereof is not limited to products based on paper. 5. Substantial case law has been produced by both sides. In view of the limited issue it may not be necessary to go into the judgments. The fact that similar products would be covered under Chapter 49 comes out in the Tribunal judgment reported in 1999 (108) E.L.T. 680 (Tribunal) in the case of Fitrite Packers v. Collector of Central Excise, Bombay as also in the case reported in 1988 (98) E.L.T. 365 (Tribunal), Collector of Central Excise v. Adhunik Plastic Industries. 6. The Supreme Court judgment in the case of Metagraphs Pvt. Ltd. v. Collector of Central Excise, Bombay 1996 (88) E.L.T. 630 (S.C.) held printed aluminium labels as finally under Chapter 49. 7. In the result, we find that the Commissioner s order does not sustain. This appeal is allowed with consequential relief.
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2001 (3) TMI 172
Valuation (Central Excise) - Related person ... ... ... ... ..... definition clause, they would be liable for the consequence thereof and no mutuality of intentment can be read, especially when 100 of the goods are sold to the buyer which is admittedly holding 60 of the shares of the assessee in this case. 4. We have considered the submissions and the material and the case laws relied. In view of the case law relied by the Ld. Advocate for the appellants, we find no merits in the Revenue s contentions and the submission of 100 sales being made to 60 stake holder of the assessee company in the absence of the mutuality of the interest of the assessee company being proved in the business of the holding company. In this view of the case law, with which we are bound and respectfully follow, we would find merits in the appellants case and cannot uphold the orders of the lower authorities. 5. In view of our findings, the orders of the lower authorities are set aside and the appellants appeal allowed with consequential relief, if any, as per law.
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2001 (3) TMI 171
Valuation (Central Excise) - Demand - Limitation ... ... ... ... ..... Corporation v. C.C.E.. In that case, the Tribunal has recorded a finding of the fact that the inspection charges were paid, not by the manufacturer, but incurred by the Railways, the only buyer. The ratio of that judgment, and of the judgment in Shree Pipes, would not apply to the facts before us. 6. It is contended that the notice is barred by limitation. The notice dated 21-2-1995 demanded duty for clearances made between 1st July, 1991 and July, 1992. It invoked extended period contained in proviso under sub-section (1) of Section 11A of the Act by alleging that the fact of recovery of these inspection charges was not declared to the Department. The representative of the appellant does not deny that the fact of recovery of these charges was not communicated to the Department. No other ground is urged with regard to limitation. In these circumstances, the conclusion of the Commissioner that the extended period would apply does not warrant interference. 7. Appeal dismissed.
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2001 (3) TMI 170
Valuation (Central Excise) ... ... ... ... ..... E.L.T. 164 (S.C.) has been distinguished and TOT in terms of Section 18(3) of the Karnataka Sales Tax Act, 1957 was found to be deductible from assessable value under Section 4(4)d(ii) of the Central Excise Act. (b) We find that instructions to the same effect have been given in the Basic Manual of Department Instructions on Excisable Manufacture Product, pages 102 and 103 of the 3rd Edition, wherein the opinion of Ministry of Law has been mentioned that the Central Excise and Salt Act does not stipulate the taxes which are not included in the value are which will be passed on to the Consumer. (c) Tribunal has been consistently holding the view of eligibility of TOT based on Supreme Court s decision in the case of MRF - 1995 (77) E.L.T. 433 and Hindustan Lever Ltd. - 1997 (89) E.L.T. 720 (Trib). Following the same we find no merits in the learned Commissioner (Appeals) orders to deny the deductions on TOT. 3. In view of our findings the Order is set aside and appeal allowed.
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2001 (3) TMI 169
SSI Exemption - Brand Name - Demand - Limitation ... ... ... ... ..... No. 15/2001-B, dated 11-1-2001 that All these facts together will lead to only one conclusion that there is mutuality of interest between the two units and as held by the Supreme Court in Calcutta Chromotype Ltd., 1998 (99) E.L.T. 202 (S.C.) the corporate veil can be lifted. The person behind manufacturer and buyer are same and the financial flow back is also there in the form of interest free advances and meeting of all the expenses for sales promotions as well as after sale services. Thus we hold that M/s. LMS Marketing Pvt. Ltd. are related person of the Appellants. 10.Accordingly we uphold the demand of Central Excise duty from 1-4-1990. However, amount of duty is reduced to Rs. 6,59,724/-. We also uphold the demand of duty amounting to Rs. 10,835/-. The redemption fine of Rs. 15,000/- is not on the higher side as such is confirmed. However, taking into consideration all facts, we reduce the amount of penalty to Rs. 60,000/-. The Appeal is disposed of in the above terms.
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2001 (3) TMI 168
Samples - Dutiability - Drugs - Demand ... ... ... ... ..... cise Rules, and in the preceding paragraph the contravention of Rule 53, among other rules, has been alleged. We however, find that the ld. Commissioner has refrained from imposing a penalty on the observation that there was no clandestine removal. He had not gone into the technical contravention at all. On the other hand Shri Willingdon submits that in terms of several judgments including that reported in 1985 (19) E.L.T. 307 (Tribunal) para 44 , the non-imposition of penalty would indicate absence of mala fides thereby belying the change of suppression or misrepresentation. As we have observed above we need not go into the aspect of suppression and the extended period in view of our finding that in neither case, the Central Excise duty was leviable. In the other cases leading to the orders being passed by the Commissioner (Appeals), also penalties were not imposed. 16.In the result the appeals succeed and are allowed. Consequential relief to the extent warranted is ordered.
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2001 (3) TMI 167
Fabrics processed with glue, starch, pigment ... ... ... ... ..... judication order only has assumed that it may be stiffened textile fabrics without giving any clear findings for classifying the impugned product under 59.01. As the same is used as backing materials for the coated abrasives and for this purpose they were using the starch, glue etc., we do not agree with the findings that the impugned goods used as backing material for the coated abrasives could be treated as textile fabric of a kind used for the outer covers of the books or the like. It does not satisfy the criteria laid down in Tariff Heading 59.01. The ld. Counsel has rightly relied upon the decision in the case of Swastik Coaters P. Ltd. (supra) and Solapur Zilla Vinkar Sahakari Federation (supra) where the cotton fabrics though processed with starch and dolomite has been classified under Heading 52.06. Following the ratio of these two decisions, we set aside the impugned order and hold that the impugned product is classifiable under Heading 52.06 of the said Tariff Act.
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2001 (3) TMI 166
Valuation (Central Excise) ... ... ... ... ..... at deduction could be allowed based on the comparable position of other manufacturers. In the present case, the appellants competitors were being given deduction of 28 from the retail price for the purpose of fixing the assessable value of their goods. The goods manufactured by the appellants are also photocopiers. We, therefore, find it appropriate that deduction at the same rate be allowed to the appellants also. This is all the more so, since deduction is being allowed at standard rates by the Revenue in the case of all goods which are being assessed on the basis of MRP. There is no justification for not giving deduction at the same rate to all manufacturers in the same industry. It is, accordingly, ordered that the photocopiers manufactured by the appellants be assessed to duty after allowing 28 deduction from retail price. Consequential relief, if any, shall be allowed upon such reassessment of the goods. Appeal is, thus, allowed after setting aside the impugned orders.
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2001 (3) TMI 165
Valuation (Central Excise) ... ... ... ... ..... any grounds or reason on part of the Revenue to have not accepted the order if the Assistant Commissioner, who had granted the TOT deductions this advise, not only binding on Revenue, is the correct position in law. TOT deductions are eligible. (c) We have perused the decision of M/s Bata India Ltd. 1996 (84) E.L.T. 164 (S.C.) and find that the issues decided therein are not deductions of TOT, held as permissible, by the Constitutional Bench of Supreme Court in the case of M/s Bombay Tyres International (P) Ltd. case, but deductions for purposes of interpreting the exemption notification. The ratio of that decision is not applicable in this case. We also rely on Tribunal s decision reported in 2000 (118) E.L.T. 530 and 1997 (89) E.L.T. 720 . 4. When we find that the Commissioner (Appeals) has relied on a decision, ratio of which is not applicable and the deductions are permissible, we set aside the order, restore the order of the Assistant Commissioner and allow this appeal.
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2001 (3) TMI 164
Demand - 100% EOU - Confiscation & penalty ... ... ... ... ..... made in RG.1 format are not statutory and cannot have any additional evidential value than any other private record of the assessee. We also rely on the decisions on the specific issue that entries in stock register (RG.1) and Bank Statements, being different, cannot be sole ground for raising a presumption of manufacture and clandestine clearance K.J. Diesel - 2000 (120) E.L.T. 505) relied by the appellants in this connection, to find the evidence to be insufficient to allege unaccounted clearance to determine any demand of duty thereon. (e) For the reasons that RG.1 is not required to be maintained, we find no reason to confiscate the goods found within the factory premises. (f) When we find that demands of duty cannot be determined, confiscations cannot be ordered, the penalty is required to be set aside. (g) In view of our findings, we find no adequate reason to order confiscation under Rule 209(2). 6. In view of our findings, we set aside the order and allow the appeal.
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2001 (3) TMI 163
Valuation (Customs) ... ... ... ... ..... ractors Ltd v. CC, 2000 (122) E.L.T. 321. In the judgment, the Court has said that in the absence of an applicability of any of the exports contained in sub-rule (2) of rule 4 of the Customs Valuation the transaction value has to be accepted. The Tribunal in its order in CC v. Nippon Bearings (P) Ltd., 1991 (55) E.L.T. 68, while considering imports of such bearing from Hungary had not accepted the plea of the department that value should be enhanced, noting that there was no evidence of contemporary imports. This order has been upheld by the Supreme Court in 1996 (82) E.L.T. 3. The judgemert of the Supreme Court in Sharp Business Machine v. CCE, 1990 (49) E.L.T. 640, cited by the departmental representative has to be distinguished. The Court in that case took note of the fact that there was a special relationship between the importer and the manufacturer. That is not the case before us. 3. We therefore allow the appeals and set aside the impugned order. Consequential relief.
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2001 (3) TMI 162
Smuggling - Silver bullion - Burden of proof ... ... ... ... ..... n respect of small manufacturers and dealers. The circular further stipulated that if in smaller cases investigation was considered essential, the permission of the Asstt. Commissioner should be obtained. The proceedings in the present cases have been taken entirely contrary to the policy on investigation contained in the circular of the Government. Therefore, the seizure and the subsequent confiscation and imposition of penalty have to be held as bad as done by this Tribunal in an identical case of Shri N.S. Allaudeen v. CC, Trichy (supra). Consequently, the appeal succeeds. The impugned order is set aside in its entirety with consequential relief to the appellants. The confiscated goods shall be returned immediately to the appellants. For hearing of the appeal, appellants had made a pre-deposit of Rs. 10,000/- constituting part of the penalty of Rs. 20,000/-. In view of our setting aside the penalty, that amount of pre-deposit shall also be returned to appellants forthwith.
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2001 (3) TMI 160
EPABX System ... ... ... ... ..... of other statutory provisions which is not permissible under the law. He had relied upon some decisions to the effect that exemption notification has to be construed strictly, the words used in the provisions, imposing taxes or granting exemption should be understood in ordinary parlance the notification must be read as a whole in the context of other relevant provisions and notification should be given their due effect, keeping in view the purpose underlying. We feel that the Tribunal in Maruti Udyog extended the benefit keeping in view the purpose underlying in issuing the Notification. This decision has also been followed by the Tribunal in the case of Wipro G.E. Medical Systems, supra, observing that this view creates a harmonious reading between the Interpretative Rule as well as the Notification. In view of this the exemption under Notification will be available to the impugned goods. 11.Accordingly the impugned Order is set aside and all the three appeals are allowed.
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2001 (3) TMI 158
SSI Exemption - Brand name - Valuation (Central Excise) ... ... ... ... ..... bstantial financial transaction between the two. The ratio of the Narendra Machine Works order will, therefore, squarely apply on this aspect also, and hence we hold that the appellants of the Marketing Co. are related persons and therefore, the price at which the Marketing Co. sold the goods is the assessable value of goods in question. 4. The duty demand is, therefore, required to be requantified on the above basis, after extending the benefit of SSI Notification No. 175/86 and for this purpose, we remand the case to the jurisdictional Commissioner. The confiscation of five pieces of CAM Dobby Heads is set aside in the light of our finding on the first issue. Penalty is also sustainable in view of our finding that the appellants and M/s. L.M.S. Marketing P. Ltd. are related persons however, considering the fact that we have accepted the plea of the appellants regarding availability of SSI benefit, we reduce the penalty to Rs. 20,000/-. 5. The appeal is thus partly allowed.
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2001 (3) TMI 157
Demand - Show cause notice - Adjudication - Appeal to Tribunal ... ... ... ... ..... remanded for de novo consideration, we make it clear that the Assistant Commissioner should deal with the matter afresh on all the claims made by the appellants and to pass an appropriate order in accordance with law after providing an opportunity to the appellants. When the entire matter regarding classification was left open and the authorities below rightly proceeded to examine whether the classification is to be made under Heading 04.04, the present argument advanced by the learned Departmental Representative is one which requires only to be stated to be rejected. We do so. 16.In view of what has been stated above, we hold that the subject goods with which we are concerned in this case, namely, (1) Nestle Kalakand Mix, (2) Nestle Rabri Mix and (3) Nestle Kesar Kulfi Mix are products classifiable under Heading 04.04 The duty demanded, as they are not classifiable under Chapter Heading 21.08, cannot stand. Appeal is allowed as stated above with consequential reliefs if any.
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2001 (3) TMI 155
Demand - Limitation - Remand ... ... ... ... ..... judgment rendered in M/s. Jaishri Engg. Co. (P) Ltd., v. C.C.E. - 1989 (40) E.L.T. 214 (S.C) that the visit of the departmental officials to the factory of the assessee would not be enough to hold that the department was aware of the production of the goods in question. These observations have also not kept in mind by the Collector while passing the impugned order. Even the Tribunal in M/s. Nizam Sugar Factory v. C.C.E. Hyderabad - 1999 (114) E.L.T. 429 (T) has taken the view that specific knowledge on the part of the department has to be established by the assessee about the activities carried out by him, in respect of the production/removal of the goods. 7. In view of discussion made above, the impugned order of the Collector is set aside and the matter is sent back to the Collector (adjudicating authority) for fresh decision on the question of limitation, after affording opportunity to both the sides. The appeal of the Revenue accordingly, stands allowed by way of remand.
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2001 (3) TMI 153
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... ... ..... mands on the job workers of ITC. Ltd. this Tribunal has held that job workers have no liability to make good any short payment of revenue or evasion of revenue on account of fraud committed by their principal. That decision applies to the job workers involved in the present appeals. We follow that decision and hold that the duty demands on the job workers involved in the present appeals were not legally sustainable. 9.It is also well settled law that in the absence of duty demand, there could be no penalty C.C.E. v. H.M.M. - 1995 (76) E.L.T. 497 (S.C.) . In the instant cases, since duty demands cannot survive, the penalties cannot survive independently. Accordingly, the penalties on the appellant job workers as well as G.T.C. also are set aside. 10.In view of what has been stated above, Appeal No. E/2752/86-A of M/s. Suvrna Filters Tobacco Co. is dismissed as not pressed. The other appeals are allowed with consequential relief, if any, after setting aside the impugned orders.
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2001 (3) TMI 151
Motor vehicles - Valuation (Central Excise) - Demand ... ... ... ... ..... be taken as cum duty price for the purpose of demand of duty. Consequently we do not find any substance in the contention of the ld. DR that as the appellants had cleared the impugned goods availing exemption, a question of price being cum duty price does not arise. The Larger Bench in Shri Chakra Tyres case has held that any consideration has to be taken as cum-duty price for the purpose of demand of higher duty subsequently . Any consideration that the same price would have gone up had credit duty been paid in the first instance can not, in our opinion, be made the basis for non-abatement of differential duty from the realised sale price. Total duty proposed to be demanded shall have to be abated from the cum duty price actually received and liable to be received as a consideration for sale of goods. Accordingly the duty wherever upheld by us has to be calculated after arriving at the assessable value from cum duty price. 11. All the appeals are disposed of on above terms.
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2001 (3) TMI 149
Printed plastic sheets ... ... ... ... ..... contested by TSA . 6. We are not able to accept the logic that the Commissioner advances. We agree that the plastic sheet containing the advertising matter is, so to speak, the heart of the advertising signs. The entire object of such signs is to display these sheets. This does not however mean that the process of printing of text of these sheets by itself makes them the signs as the Commissioner seems to suggest. However vital the plastic sheet is for making these signs, it cannot by itself comprise such a sign. It is to be placed in a frame and provided illumination for the text contained in it and displayed with the desired effect. It would therefore not be correct to say that merely by the process of printing a new product emerges. Such an interpretation would also render redundant the words not elsewhere specified occurring in Heading 84.05 (sic.). We therefore hold that the sheets were correctly classifiable under Chapter 49. 7. Appeal allowed. Impugned order set aside.
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