2002 (1) TMI 180 - CEGAT, MUMBAI
NIRANJAN MILLS Versus COMMISSIONER OF CUS. & C. EX., BARODA
Rectification of mistake ......
........... this judgment of the Supreme Court cited (supra) which is dated 1st February, 2000 was cited before the Bench which passed the final order after hearing on 21-7-2000, the learned Representative of the applicant fairly states that there is nothing on record to show that the judgment was brought to the notice of the Bench before passing of the final order. 4. 8195 Since it is the settled view that non-citing of an existing judgment before passing of the final order would not give rise to any mistake in the order so as to warrant any rectification, I hold that the applicant have not made out that any error has occurred in the Tribunal s final order and hence the application is rejected.
2002 (1) TMI 178 - CEGAT, MUMBAI
SURE INDIA Versus COMMISSIONER OF CENTRAL EXCISE, MUMBAI-V
Appeal by Department ......
........... al held as invalid, the resultant orders. In the present case, we find that whereas the Commissioner had authorized the Deputy Commissioner, the application was filed by Assistant Commissioner with the averment that he had been directed to file the appeal. Shri Patil shows us the amendment made by the Finance Act, 1999 whereby the earlier reference to Assistant Commissioner could be termed as reference either to an Assistant Commissioner or to a Deputy Commissioner. However in terms of the amendment the reference made to a Deputy Commissioner, would thereafter relate to a Joint Commissioner. This amendment brings out the impropriety and illegality of the Review application filed before the Commissioner. We therefore hold that the application made in pursuance of the order of the Commissioner is not maintainable and that the orders of the Commissioners (Appeals) in disposal thereof are equally unsustainable. The Appeal succeeds and is allowed with consequential relief if any.
2002 (1) TMI 177 - CEGAT, MUMBAI
SUMAN SILK MILLS PVT. LTD. Versus COMMISSIONER OF CUS. & C. EX., BARODA
Demand - Clandestine Removal - Octroi Register - Natural Justice ......
........... y the Counsel. It was claimed that various discrepancies in the statement were pointed out to the learned Collector. The Collector had granted redemption in the quantum of duty to be confirmed in terms of para 17 of his order. Counsel, however, contends and shows that there was scope for further reduction. This argument is accepted by us. 20.On the basis of our analysis above we make the following order. (i) The orders of imposition of penalty on both the appellants are set aside. (ii) The orders of confiscation of goods and of imposition of fine in lieu of confiscation thereof are set aside. (iii) While upholding the belief of the Collector that duty was evaded by the appellants the matter is remanded for fresh quantification. Counsel shall draw up a statement of discrepancies in the annexures whereupon the quantification of the duty evaded would be amended. The appropriate jurisdictional authority shall consider this and give his finding. 21.The appeals are allowed partly.
2002 (1) TMI 176 - CEGAT, CHENNAI
PRODUCT ENGG. INDUSTRY Versus COMMISSIONER OF CENTRAL EXCISE, CHENNAI
Refund - Limitation - Demand ......
........... d that incidence of duty has not been passed on to the customers and after sanctioning the refund claim, he adjusted the same towards the arrears which were pending against them. We find that the refund claim was not time barred as it was filed immediately within six months i.e. 26-3-97 whereas the remodelled machinery was cleared on 7-12-96. Secondly, the department cannot demand the refunded amount after a lapse of six months by a review order under Section 35E(2). Such orders involving refund have to be completed prior to six months and notices have to be issued, if department wants to recover such refund amount which has been erroneously refunded to them by the department. With these observations, we feel that the matter should be remanded to the original authority for de novo consideration of the whole issue afresh after giving a reasonable opportunity to the appellants to produce necessary evidence in the matter. Appeal is allowed by way of remand. Ordered accordingly.
2002 (1) TMI 173 - CEGAT, NEW DELHI
PREW INDUSTRIES LTD. Versus COMMISSIONER OF CENTRAL EXCISE, DELHI
Accounting of excisable goods - Non-accountal of goods - Confiscation - Penalty ......
........... ea has been ruled out by that authority. It has been held by this Tribunal in the cited case of Bhillai Conductors that a contravention of Rules 53 and 173G would attract the penal provisions of Clause (d) of Rule 173Q(1) and no other clause of that sub-rule. The present case is not a case of contravention of Rule 53 simpliciter, it is a case of cumulative contravention of Rules 53 and 173G as alleged in the show cause notice. Such a case will be covered by Bhillai Conductors (supra). As per the decision in that case, mens rea is a sine qua non for confiscation and imposition of penalty under Clause (d) of Rule 173Q(1). That element having been ruled out by the lower appellate authority, it was not open to that authority to sustain the confiscation and penalty. That authority ought to have set aside both confiscation and penalty and allowed the assessee s appeal. 7. In view of the above findings, the orders of the lower authorities cannot be sustained. The appeal is allowed.
2002 (1) TMI 171 - CEGAT, MUMBAI
AERO PACK PRODUCTS Versus COMMISSIONER OF CENTRAL EXCISE, MUMBAI-VI
........... nd the mode of the use of goods has changed and there is substantial value addition. The addition of value cannot by itself justify the conclusion that it is a result of manufacture, in the absence of a deeming provision in law to this effect. At the relevant time, there was no provision that repacking of these goods amounted to manufacture. It is also not correct to say that the mode of use has changed. The use of the preparation was by applying it to the surface work piece. It is the method of such application that has changed. This change alone does not satisfy the requirement of a new product with a different name and use has emerged. The finding of the Tribunal in Indrol Lubricants and Specialities Ltd. v. CCE 1999 (111) E.L.T. 544 that blending of two or more lubricating oils does not amount to manufacture for the reason that the resultant oil was not differently known in the market would apply to the facts before us. 5. The appeal is allowed. Impugned order set aside.
2002 (1) TMI 166 - CEGAT, CHENNAI
WESTERN INDIA PAINTS AND COLOUR CO. (P) Versus COMMR. OF C. EX., CHENNAI
Adjudication - Order ......
........... The Commissioner cannot change his mind in de novo consideration to impose 100 equal amount towards penalty. Therefore, at the time of hearing the stay application, the then Bench applied its mind and directed the appellants to pre-deposit Rs. 30,000/- towards penalty amount by the company and Rs. 1000/- each by the M.D. and the Director. Ld. Counsel submitted that Rule 173Q is not applicable to individuals in terms of clear provision of the rules itself. As we notice from the facts of the case in para-4 that besides various other provisions and rules under 226 and Rule 209A have also been invoked to propose penalty on K. Subramaniam and Shri S. Sekhar. In that view of the matter, we reduce the penalty in the present case on the company to Rs. 30,000/- (Rupees Thirty Thousand only) and Rs. 1,000/- each (Rupees One Thousand only) as already directed in the stay order. The impugned order is modified to the extent indicated above. The appeals are disposed of in the above terms.
2002 (1) TMI 165 - CEGAT, MUMBAI
KARTARLAL PURANMAL PARPIYANI Versus COMMR. OF C. EX., AURANGABAD
Adjudication - Evidence - Cross-examination ......
........... otice. We do not see why cross examination of these officers is required in order to point out these inconsistencies. We also do not see why an admission from these officers of any inconsistencies in the show cause notice will result in these inconsistencies being better established than they were pointed out by the appellant. 7. 8195 The Commissioner to whom we propose to remand the matter, will make genuine efforts to enforce attendance of the other 14 witnesses and make them available for cross examination. In the event that he finds that they were not available, he will inform the Counsel for the appellant of the steps that he has taken which were unsuccessful for enforcing their attendance. After cross examination, a reasonable opportunity shall be provided to the representatives of the noticees to make their submissions on the merits of the issue. The Commissioner shall thereafter pass his orders. 8. The appeals are accordingly allowed and the impugned order set aside.
2002 (1) TMI 164 - CEGAT, CHENNAI
HIGH ENERGY BATTERIES (I) LTD. Versus COMMISSIONER OF C. EX., TRICHY
Silver oxide - Exemption - Burden of proof - Strictures against Commissioner - Aircraft parts ......
........... sub-assemblies of mother vehicle. Both the citations have no relevancy at all. Further, the Commissioner s emphasis that the judgment of the Winter Misra Diamond Tools Ltd. lays down the proposition that section note and chapter note are required to be applied is totally mis-reading of the judgment. Ld. Commissioner has not applied his mind to see the ratio laid down therein. The section note and chapter note would apply to interpret the notification only when the entire chapter heading has been extracted in toto in an exemption notification. In the present case the notification is very wide in its sense, granting benefit to parts of aircraft and helicopter falling under any chapter heading of the first or second schedule of the tariff. Therefore, the judgment of Winter Misra is not at all applicable for denying the benefit to the exemption of the notification. 8. 8195 In that view of the matter for the reasons stated above the impugned order is set aside and appeal allowed.
2002 (1) TMI 161 - CEGAT, KOLKATA
ALFA TRANSFORMERS LTD. Versus COMMISSIONER OF C. EX. & CUS., BBSR-I
Stay/Dispensation of pre-deposit - Modvat ......
........... le only to the extent of actual duty paid by 100 EOU. Inasmuch as, in the instant case, the actual countervailing duty paid by 100 EOU is available, I am of the view that the authorities below have rightly restricted the credit to that extent. As such, the appellants do not have a prima facie case so as to allow the stay petition unconditionally. The appellants have also pleaded the financial hardship. Accordingly, taking into account the entire facts and circumstances of the case, I direct the appellants/applicants to deposit an amount of Rs. 50,000/- within a period of four weeks from the date of receipt of the said order and report compliance to the Tribunal on 11th March, 2002. Subject to deposit of the above amount, the condition of pre-deposit of balance amount of duty and penalty is waived and its recovery stayed during the pendency of the appeal. 9. 8195 In case of compliance with the above order by the applicants, the appeal itself would be taken up on the same date.
2002 (1) TMI 160 - CEGAT, CHENNAI
PL. HAULWEL TRAILERS Versus COMMISSIONER OF CENTRAL EXCISE, CHENNAI
Scientific and technical instruments - Trailer ......
........... ads as follows (a) Scientific and technical instruments, apparatus, equipment (including computers) (b) accessories and spare parts of goods specified in (a) above and consumables (c) computer software, compact disc-read only memory (CD-ROM) recorded magnetic tapes, micro-films, microfiches (d) prototypes. 5. 8195 Any apparatus or equipment or accessories and spare parts of scientific and technical instruments are also covered in the notification. So long as the apparatus and equipment required for using along with the scientific and technical instruments the benefit cannot be denied. There is a clear certificate issued by Deputy Secretary to the Govt. of India (Department of Atomic Energy) to the effect that this item is being used as an apparatus for carrying scientific equipment. This satisfies the term of the notification and therefore there is merit in the appellant s plea and hence the impugned order is set aside and the appeal allowed with consequential relief, if any.
2002 (1) TMI 157 - CEGAT, MUMBAI
NISHILAND PARK LTD. Versus COMMISSIONER OF CUSTOMS, NHAVA SHEVA
Go-karts - Redemption fine and penalty ......
........... d, that go-karts motor vehicles single seater/sports vehicle are correctly classifiable under Heading 87.03. 16. 8195 A contention was raised that in any event the goods are not liable to confiscation and the importer not liable to penalty. The appellant believed bona fide that the goods were genuinely classifiable under Heading 95.08. Evidence was produced in the form of bills of entry filed by Red Bottons Parks and Resorts Pvt. Ltd., classifying similar go-karts under Heading 9508.00. No doubt as the departmental representative contends, that import took place subsequent to the import under consideration. That does not make any difference. The bills of entry in question thus accepted classification of go-kart under Heading 95.08. The appellant could reasonably believe that it is liable to classification under Heading 95.08. We therefore, set aside the penalty imposed on the appellant and reduce the redemption fine from Rs. 4 lakhs to Rs. 50,000/- 17. Appeal allowed in part.
2002 (1) TMI 155 - CEGAT, CHENNAI
COMMR. OF C. EX., CHENNAI Versus TITANIUM EQUIPMENT & ANODE MFG. CO. LTD.
Chelate solution - Manufacture - Valuation (Central Excise) ......
........... he submissions, we notice from the impugned order of Commissioner (Appeals) that he has clearly given a finding that process of recoating of anodes does not amount to a process of manufacture. Yet, he has proceeded to add the charges of such expenses in the assessable value. We are not agreeable with the finding in view of the fact that the Board itself has vide their Circular No. 3/92, dated 14-5-92 clarified that re-coating of anodes done in a factory would not amount to process of manufacture under Section 2(f) of the CEA, 1944. In that view of the matter, question of asking the assessee to include such charges in the assessable value does not arise and the findings arrived at by the Commissioner (Appeals) is in contra to Board s circular noted above and hence demands raised and confirmed by Order-in-Original and Order-in-Appeal are required to be set aside by allowing the assessee s appeal. 18. All the Revenue appeals and party s appeals are disposed of in the above term.
2002 (1) TMI 152 - CEGAT, CHENNAI
EICHER LTD. Versus COMMISSIONER OF CENTRAL EXCISE, CHENNAI
Gear box parts and clutch ......
........... smissed . 3. 8195 Heard ld. DR, Shri A. Jayachandran who files a report received from the Commissioner of Central Excise, Chennai-I Commissionerate dated 24-1-2002 and the ld. Commissioner in Para 3 has conceded that the instant case is squarely covered by the judgment of CEGAT, Chennai upheld by the Hon ble Supreme Court in the case of CCE, Chennai v. Best Cast (P) Ltd. as reported in 2001 (127) E.L.T. 730 (Tri - Chennai). 4. 8195 We have carefully gone through the above matter and find that the issue is no longer res integra and has been settled by this Tribunal which order has been upheld by the Hon ble Supreme Court. We, therefore, respectfully following the judgment rendered by this Bench, which has been upheld by the Hon ble Supreme Court in the case of CCE, Chennai v. Best Cast (P) Ltd. (supra), the stay application and the appeal are allowed, by holding that the gear box parts and clutch are classifiable under Heading 8483.00 of the CET Act, 1985 as parts of gear box.
2002 (1) TMI 151 - CEGAT, CHENNAI
K. RAJAGOPAL Versus COMMISSIONER OF CENTRAL EXCISE, MADURAI
Demand - Clandestine removal ......
........... to be produced by the department for clandestine removal as in the case of Krishna Bottlers 1999 (32) RLT 845 . The above citations also deals with each of the factors required to be proved and it has been laid down very conclusively in the cited judgments that the scribe of the notebook is required to be examined and details of the notebook is required to be proved as in the case of CCE v. Raman Ispat (P) Ltd., CCE Mumbai v. Mira Silk Mills, CCE Patna v. Universal Polythene Industires, CCE Chandigarh v. Indian Hume Pipes Co., Deepak Tandon v. CCE Bhubaneswar, Shree Bhallabh Glass Works v. CCE Ahmedabad, etc. (all supra). 8. 8195 In view of the Revenue not having proved any evidence of the manufacture or removal without payment of duty in this case except the seized notebook which entries has not been proved including the scribe not having been examined, therefore applying the ratio of all the judgments noted supra, the impugned order is set aside and the appeals are allowed.