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Showing 221 to 240 of 772 Records
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2005 (2) TMI 692
Refund - Maintainability of ... ... ... ... ..... hout protest and after including the value of bought out items in the assessable value of goods manufactured by them and appellant had not challenged the order of assessment, therefore, the refund is not maintainable. 4. emsp It is admitted by the appellant that the assessment order or direction of the revenue whereby they were asked to include the value of bought out items into the assessable value of the goods manufactured is not challenged by them. In this circumstances, in view of the decision of the Hon rsquo ble Supreme Court in the case of CCE v. Flock (India) Pvt. Ltd. reported in 2000 (120) E.L.T. 285 wherein the Hon rsquo ble Supreme Court held that correctness of assessment order cannot be challenged merely by filing a refund where remedy of statutory appeal is available under the Act. In these circumstances, we find merit in the objection raised by the Revenue, therefore, we find no merit in this appeal. The appeal is dismissed. (Order dictated in the open Court.)
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2005 (2) TMI 691
Valuation - Demand - Limitation ... ... ... ... ..... the present case, the appellants have not produced any evidence regarding such arrangement. Therefore, we find no infirmity in the impugned order whereby the demand was confirmed. 8. emsp In respect of the limitation, as the appellants have never declared to the Revenue that they are not including the value of the packing material in the assessable value of the final product, therefore, we find no merits in the contention of the appellants that the demand is time barred. The contention of the appellants is that they were under bona fide belief that the cost of returnable and durable packing material is not includible in the assessable value of the final produce. In such a situation, we find no infirmity in the impugned order whereby the demand is confirmed. However, taking into consideration the facts and circumstances of the case, the penalty imposed on the appellants is set aside. 9. emsp The appeal is disposed of as indicated above. (Pronounced and dictated in open Court).
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2005 (2) TMI 690
Production capacity based duty - Independent processor ... ... ... ... ..... Amit Textile who sent fabrics in lots for the purpose of processing on the zero-zero machine. The statement of Shri R.G. Prajapati that for zero-zero process, the cloth is not required to be put in the stentering machine is therefore, to be seen in the light of the affidavits of the above mentioned 3 persons. There is no requirement in clause 8(3) of Notification No. 32/2001 that the stentering has to be carried out by the independent textile processor. In this view of the matter, we hold that the appellant company has not contravened clause 8(3) of Notification No. 32/2001. 10. emsp For the above reasons, we hold that the appellant company is an independent processor eligible to the benefit of exemption under Notifications in question, set aside the impugned order and allow the appeals. 11. emsp Since the appeals are being allowed on merits, we do not deem it necessary to record any finding on the further argument that the demand is barred by limitation. (Dictated in Court).
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2005 (2) TMI 689
Cenvat/Modvat ... ... ... ... ..... cise duty is claimed from the department. Duty is paid on the full value. Appellant has also relied upon the decision of this Tribunal in the case of M/s. Voltas Limited - Allwyn Ltd. v. C.C.E., Hyderabad - 1999 (111) E.L.T. 255 in support of his contention that the deductions allowed from the invoice price to the buyer makes no difference to the credit available as long as such deductions are not taken into consideration for the purpose of the assessment of the goods. Their contention is that the credit entitlement is equal to the duty paid. 3. emsp The appellant rsquo s contention is entirely in terms of the Modvat Rules which allow credit equivalent to the duty paid on the consignment. Temperature allowance given to the appellant is wholly irrelevant for the purpose of credit since that allowance was not taken into account for the purpose of determination of central excise duty. Appeal of the Revenue has no merit and is rejected. (Dictated and pronounced in the open Court)
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2005 (2) TMI 688
Cenvat/Modvat ... ... ... ... ..... terial for melting purpose only (ii) Value is akin to value of scrap. 8. emsp We do not find the reasons why the benefit of Notification 58/97-C.E., dated 30-8-1997 is denied and the reasons as arrived at in this case. If the proper Officer Incharge of the assessee had reasons to doubt the valuation as per Condition No. 5 of this Notification, which was pointed out towards within the course available to him was to first get the value and classification as made at the suppliers end to be get corrected and thereafter deny the credit or vary the same under Rule 57E. The route of Rule 57-I adopted cannot be upheld. 9. emsp Relying upon the decision of this Tribunal on similar issues in the case of CCE, Rajkot v. M/s. Hindustan Lever Ltd. 2000 (121) E.L.T. 437 (Tribunal) and M/s. Pearl Soap Co. Ltd. v. CCE, Mumbai-II 1999 (111) E.L.T. 135 (Tribunal) , and in view of the findings, the order is required to be set aside and the appeal allowed. Order accordingly. (Pronounced in Court)
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2005 (2) TMI 687
Demand - Limitation ... ... ... ... ..... dispute i.e. 1980-81. But show cause notice was issued on 22-8-85 and it was pasted on the outer gate of the factory of the appellants on 11-7-86, as is evident from para 2 of the impugned order. It was apparently served on the appellants after the expiry of five years of the duty demanded therein. Therefore, the duty demand was time barred and could not be legally confirmed. The case of the appellants stands fully covered by the ratio of law laid down by the Tribunal in Sewing Ltd. 1992 (62) E.L.T. 725 wherein the duty demand was set aside on this short ground alone that the show cause notice was served on the assessee after the expiry of period of six months. This decision of the Tribunal had also been affirmed by the Apex Court by dismissing the appeal of the Revenue as reported in 1997 (89) E.L.T. A-36 . 3. emsp In view of the discussion made above, the impugned order is set aside. The appeal of the appellants is allowed. (Order pronounced in the open Court on 17-2-2005)
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2005 (2) TMI 686
Stay/Dispensation of pre-deposit ... ... ... ... ..... the demand after classifying the pull out baskets under Heading No. 94.03 of the Central Excise Tariff Act whereas the applicants claimed the classification under Heading 73.23 of the Central Excise Tariff Act. The applicants relied upon the HSN Explanatory Notes to Chapter 73. 3. emsp We find from the Explanatory Notes that the goods in question are articles for table, kitchen or other household articles and parts thereof, of iron and steel iron or steel wool pot scourers and scouring or polishing pads, gloves and the like of iron or steel, are covered under Heading 73.23. Keeping in view the facts and circumstances of the case, prima facie, we find that the applicants had strong case as Heading 73.23 covers table, kitchen or other household articles and parts thereof of iron and steel. Therefore, pre-deposit of the whole duty amount is waived for hearing of the appeal. Matter is adjourned to 11-5-2005 for arguments. (Order dictated and pronounced in open Court on 16-2-2005)
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2005 (2) TMI 685
Stay order - Modification of - Pre-deposit of interest ... ... ... ... ..... 10-9-2004. An application under Section 35F of Central Excise Act for waiver of pre-deposit of interest demanded in the impugned order was filed. The Section 35F does not cover waiver of pre-deposit of interest demanded, but deals with duty and penalty. 2. emsp I see no merit on this case and therefore, application for modification is rejected. (Dictated in Court).
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2005 (2) TMI 684
Cenvat/Modvat - Capital goods ... ... ... ... ..... Notification. The Revenue had argued that, as the effluent treatment, which was a part of pollution control, was a post-manufacture activity, naphtha could not be considered to have been used in the process of manufacture of end product. This argument was rejected by their lordships and it was held that treatment of effluents for pollution control was also a part of the manufacturing process. This ruling supports the present appeal. It is also noticed that, in Final Order No. 1073/04 2005 (186) E.L.T. 417 (T) ibid, capital goods credit was allowed in respect of an equipment used for removal of waste materials generated in sugar factory, after holding that removal of waste materials was a part of the manufacture of sugar. 3. emsp Following the above case law, I hold that the appellants were entitled to take Modvat credit on the subject equipment for the period of dispute. The impugned order is set aside and the appeal is allowed. (Order dictated and pronounced in open Court).
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2005 (2) TMI 683
Appeal - Non-compliance with stay order ... ... ... ... ..... the appellant to make the pre-deposit. The order dated 5-12-2003 of the Rajasthan High Court is reproduced as under - ldquo Issue notice, returnable in one week lsquo Dasti rsquo service is permitted. Any order passed by the authority concerned will be subject to the decision of this Court. rdquo 3. emsp Thus there is no stay against the order of the pre-deposit. We, therefore, dismiss the appeal for non-compliance. (Dictated in Court).
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2005 (2) TMI 682
Cenvat/Modvat - Penalty ... ... ... ... ..... on in the manufacture of sodium silicate. In the circumstances, the assessee should be given the benefit of amended provisions of Rule 57G, held to have retrospective application, by the Tribunal rsquo s Larger Bench in the case of Kamakya Steels. It is pertinent to mention in this context that Kamakya Steels was a case of non-filing of declaration under Rule 57G and, even in that case, the benefit of the Board rsquo s Circular ibid was allowed to the party. 5. emsp As regards penalty, I find that the lower authorities have been lenient to the appellants inasmuch as they have imposed a penalty of Rs. 5,000/- only on the party notwithstanding the latter rsquo s fraudulent conduct. Nevertheless, this penalty has to be sustained for want of departmental challenge. 6. emsp In the result, the impugned order is set aside to the extent it denies Modvat credit to the assessee. It is upheld as regards penalty. The appeal stands allowed in part. (Dictated and pronounced in open Court).
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2005 (2) TMI 681
Stay/Dispensation of pre-deposit ... ... ... ... ..... 20 (Bom.) , the Hon rsquo ble Bombay High Court held that the value of plastic caps are not to be included in the assessable value of extruded aluminium tubes. The ld. Advocate argued that even though these decisions pertains to tubes and not to Metal Containers the ratio of these decisions applies to the present case in regard to the value of the caps arrived at by the department. He argued there was absolutely no basis for determining the value of each cap at Rs. 50 piece. 5.We observe that the issue whether a cap of a container/tube is an accessory or not is debatable in the light of the decisions cited. We, hold that the appellant has made out a strong prima facie case in his favour to justify waiver of pre-deposit of duty and penalty. The various issues whether a container can be said to be so even without a cap can be gone into when the appeal is taken up for disposal. Pre-deposit of duty and penalty waived and recovery thereof stayed during the currency of this appeal.
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2005 (2) TMI 680
Appellate Tribunal ... ... ... ... ..... ral Excise authorities or any penalty levied under this Act, the person desirous of appealing against such decision or Order shall, pending the appeal, deposit with the Adjudicating Authority the duty demanded or the penalty levied. Proviso to Section 35F, further mentions that if the Appellate Tribunal is of the opinion, in any particular case, that the deposit of duty demanded or penalty levied would cause undue hardship to such persons, the Tribunal may dispense with such deposit subject to conditions as it may deem fit to impose so as to safeguard the interests of the Revenue. In the present matter, there is nothing on record to show that the entire amount of Modvat credit disallowed and the penalty levied has been deposited by the appellants nor they have filed any application for waiving the requirement of pre-deposit. In view of this, the appeal filed by them, is not maintainable and is dismissed as such. (Operative part of order pronounced in open Court on 11-2-2005).
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2005 (2) TMI 679
Appeal to Appellate Tribunal - New case ... ... ... ... ..... e classifiable under heading 87.07. The Adjudicating Authority after considering the submissions and the material available on record had dropped the demand against all the Appellants. Now the department is making out a completely new case by filing the appeal before the Commissioner (Appeals) as the grounds of appeal are relating to the classification of the impugned product. It is settled law that a new case cannot be made in appeal proceedings. It is not open to the Commissioner to travel beyond the scope of show cause notice and order filing of an appeal, pleading a ground, which is not specified as a ground for raising demand in the show cause notice. This was the view expressed by the Tribunal in the case of Swastik Coaters Pvt. Ltd. (supra). Accordingly the impugned Orders confirming the demand of duty against the Appellants on an entirely new ground cannot be sustained. We, therefore, set aside the impugned orders and allow the appeals. (Pronounced in the open Court).
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2005 (2) TMI 678
Cenvat/Modvat - Inputs - Moulds supplied to job workers ... ... ... ... ..... d on whether M/s. Brite Automotive (P) Ltd., to whom the moulds were supplied for the purpose of manufacturing washing machine parts for the respondents, were a job worker or not. The original authority did not recognise M/s. Brite Automotive (P) Ltd., as job workers of the respondents. The Commissioner (Appeals), however, has recognised them as job worker and accordingly, he has allowed credit of duty on the moulds to the respondents. We find that, on a similar set of facts, the Tribunal recognised as job worker for the purpose of Rule 57S(8), a party who manufactured washing machine parts for the respondents, as per the latter rsquo s specifications, out of raw materials purchased by the former (job worker) in the case reported in 2004 (178) E.L.T. 423 (Tri.) 2003 (59) R.L.T. 875 cited by the ld. Advocate. Following the cited decision, we uphold the impugned order and reject this appeal of the Revenue. (Operative part of the order was pronounced in open Court on 10-2-2005).
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2005 (2) TMI 677
... ... ... ... ..... istently held by the Apex Court that, without rejecting the transaction value on valid grounds, it is not open to the Customs authorities to proceed to determine the value of the goods by sequentially following the Customs (Valuation) Rules, 1988. It was so held in Eicher Tractors Ltd. v. Commissioner - 2000 (122) E.L.T. 321 (S.C.), which was followed by the Tribunal in Gujarat Ambuja Cements (supra) and by the Apex Court in Tolin Rubbers (supra). The valuation done by the lower authority cannot be sustained. The transaction value of the machinery, for rejecting which no reason whatsoever has been cited by the Revenue, has to be accepted and, in such an event, there is no excess value and hence no question of assessment on merits. Again, there is no misdeclaration of value and, therefore, there is no reason for confiscation or penalty. Accordingly, we set aside the impugned order and allow this appeal. (Operative portion of the order was pronounced in open Court on 10-2-2005)
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2005 (2) TMI 676
Stay/Dispensation of pre-deposit - Valuation ... ... ... ... ..... his issue has been decided against the assessee by the lower appellate authority. Ld. Counsel has endeavoured to fault the impugned order on the strength of the Tribunal rsquo s decision in Surya Foods and Agro Ltd. v. CCE, Noida 2003 (156) E.L.T. 488 , wherein it was held that free supply by selling certain varieties of biscuits were not to be included in the assessable value. We have heard ld. DR also. 2.After considering the submissions, we find that the appellants have made out a strong prima facie case on the strength of the cited case law. Accordingly, there will be waiver of pre-deposit and stay of recovery in respect of the duty amount till final disposal of the appeal. (Order dictated and pronounced in open court)
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2005 (2) TMI 675
Stay - Extension of ... ... ... ... ..... ent rsquo s appeal (filed against the same impugned order) for hearing but the latter cannot be heard for want of necessary clearance from the Committee on Disputes. Thus, it is pointed out, this Bench is incapable of disposing of Appeal No. E/1210/2000 of BHEL within the time frame under Section 35C ibid for reasons attributable to the department rsquo s failure in obtaining COD clearance. That the department is yet to obtain COD clearance for pursuing their appeal is not disputed. We have given them an opportunity to produce COD clearance and, accordingly, we have posted both the appeals to 21-4-2005. In view of the aforesaid circumstances, we think, it is necessary for the ends of justice to extend stay of recovery of duty till final disposal of the appeal. It is ordered accordingly, in terms of the Tribunal rsquo s Larger Bench decision in IPCL v. CCE, 2004 (169) E.L.T. 267 (Tri. - LB) 2004 (63) RLT (1). Issue by lsquo dasti rsquo . (Dictated and pronounced in open Court)
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2005 (2) TMI 674
Stay/Dispensation of pre-deposit - Demand and penalty ... ... ... ... ..... taken credit, he would be entitled to do so if the AED (GSI) was paid on or after 1-4-2000. For details, relevant clause of the Finance Bill may be referred to. The Circular No. 700/l6/2003-C.X., dated 6-3-2003 is consequently withdrawn. rdquo 4. emsp In the instant case the period of dispute involved is prior to 1-4-2000. Therefore, no credit can be taken on inputs on which duty has been paid prior to 1-4-2000. In case the same has been availed, the same would be liable to be recovered. Thus there is a clear cut bar for availment of credit on inputs on which the duty has been paid prior to 1-4-2000. 5. emsp We, therefore, direct the appellant to deposit Rs. 25 Lakhs towards the duty amount by 31-3-2005. The compliance is to be reported on 12-4-2005. On such pre-deposit being made, we dispense with the pre-deposit of balance amount of duty and entire amount of penalty. Subject to compliance being reported, the appeal will be finally heard on 25-4-2005. (Pronounced in Court).
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2005 (2) TMI 673
Valuation - Related person ... ... ... ... ..... y the appellant. As the factory gate price in respect of sale to the independent customers is available, therefore, the goods are to be assessed at the same rate at which were cleared to the related persons. As the duty was demanded after taking into consideration the same price to the independent buyers, therefore, we find no infirmity in respect of the demand of duty and imposition of penalty in the impugned order. The appeals filed by the appellants are dismissed. 8. emsp In the appeal filed by the Revenue the only ground is for enhancement of the penalty. We find that in this case demand after taking into consideration the penalty of Rs. 30,000/- and Rs. 10,000/- is imposed. It is a settled position of law that the adjudicating authority has discretion to impose lesser penalty than the maximum prescribed under the law. In these circumstances, we find no merit in the appeal filed by the Revenue. The appeals are dismissed. (Dictated and pronounced in open Court on 9-2-2005)
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