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Case Laws
Showing 61 to 80 of 217 Records
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1993 (11) TMI 164 - CEGAT, MADRAS
Modvat - Withdrawal of - Recovery ... ... ... ... ..... anufacturing Unit. Under Rule 49, consumption of the goods in the factory has to be deemed to be as if these goods have been issued out or removed from the factory place of premises for home consumption. In our view, provisions of Rule 57F(2) of the Central Excise Rules, 1944 will continue to operate in respect of the inputs on which MODVAT Credit has been taken. The only course open to the Revenue is to demand duty in respect of the goods when these are taken and utilised in the said factory. What we are saying is that so far as the MODVAT Credit is concerned, the same has been utilised and taken correctly and therefore, there is no question of the same being held as not having been utilised or taken correctly. The Revenue should in our view demand duty on these inputs which are lying in stock on the date these were taken in use after 1-10-1987, the date when the Notification No. 203/87 became operative. With the above observation, we dismiss the appeal filed by the Revenue.
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1993 (11) TMI 163 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... the erstwhile Central Excise Tariff is not appropriate. The appellants rsquo claim for classification during this period for the goods seems to be under Heading 87.14 as parts and accessories of motor cycles including scooters. There is no finding of this aspect with reference to the provision of the Tariff Heading, Section Notes and Chapter Notes of Central Excise Tariff Act, 1985 in the orders of the lower authorities. Therefore, the impugned order of the Collector (Appeals) dated 23-8-1989 in Appeal No. E/4098/89-D needs to be remanded to the Collector (Appeals) for redetermining the issue of classification of the goods afresh under the appropriate heading in Central Excise Tariff Act, 1985 in accordance with law and after giving an opportunity of hearing. It is ordered accordingly so far as this appeal is concerned. 7. emsp The orders of the lower authorities in respect of the other appeals are correct in law and are upheld. The appeals are disposed of in the above terms.
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1993 (11) TMI 162 - CEGAT, BOMBAY
Modvat credit ... ... ... ... ..... f show cause notice. 8. emsp We are not impressed with the contention of the Dept, that these chemicals are added in the water only for prevention of scale formation in the boiler. These are inputs for obtaining soft water, which is necessary for steam generation. If hard water is used, continuous generation of steam in the boiler will be affected and hence water treatment with chemicals is necessary for steam generation.These chemicals are not to be equated with anticorrosion paints or lubricants for maintenance of machinery. 9. emsp In the result, we remand the cases back to the Asst. Collector for restricting the demand limited to period of six months in respect of duty paid on chemicals used in production of steam, restricted to its usage in turbine for power generation. However, that part of steam, which goes from boiler directly into the manufacturing process (other than in turbine), should be given Modvat credit. 10. Both the appeals are disposed of in the above terms.
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1993 (11) TMI 161 - CEGAT, BOMBAY
Modvat Credit ... ... ... ... ..... has been done. The appellants would be eligible for Modvat Credit for only for so much of the inputs, lying and such inputs have to be verified by the Department. Shri Uday Joshi, makes a statement that the verification has been done but no record is available here. In view of this, it would be just and proper to permit the Assistant Collector to re-examine the issue and after proper verification of the records and the verification allegedly done by the department, grant approval for availment of Modvat Credit to the extent of amount as could be satisfactorily proved to be eligible for such credit, by the appellant. In the result, the orders of the authorities below are set aside. The appellants are held eligible to get the Modvat Credit for the inputs lying in balance on the date they filed the declaration. The Assistant Collector shall scrutinise the record and sanction credit to the extent of the inputs satisfactorily proved to have been lying in the factory on 9-12-1991.
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1993 (11) TMI 160 - CEGAT, NEW DELHI
Stay/Dispensation of pre-deposit ... ... ... ... ..... given such direction for dispensing with the pre-deposit but observed in the event of Appellate Tribunal dispensing with the pre-deposit of the disputed amount, the respondents will refund the same forthwith. Neither grant of pre-deposit under Section 129E of the Customs Act arises in this case nor we find that any extraordinary circumstance to grant such relief as prayed for by the appellants during the pendency of the appeal by exercising inherent jurisdiction. In the view we have taken stay application filed by the party is hereby dismissed. 7. emsp In view of the direction given by the High Court that this matter is to be disposed of as expeditiously as possible preferably within four months and stay passed by the High Court is duly complied with as reported by the party, the matter will be taken up for final hearing and accordingly, this appeal is posted for regular hearing on 26-11-1993. This matter should be placed at the top of the list as regular matter on that day.
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1993 (11) TMI 159 - CEGAT, NEW DELHI
Modvat credit - Duty paying documents ... ... ... ... ..... Public Sector Undertaking. As the CBEC can prescribe any other document evidencing the payment of duty on inputs in exercise of the powers under Rule 57G(2) and the clarification that the trade is aware that the facility to avail credit under Rule 57A is available on the basis of the certificates by Public Sector Undertakings/Canalising Agencies like MMTC/STC by treating such certificates as evidence for payment of duty. This clarification very clearly says that the certificate issued by Public Sector Undertaking should be treated as duty paying documents. There is nothing on record to show that this clarification was not issued by the Central Board of Excise and Customs. I, therefore, do not see any reason not to agree with this clarification or any reason to ignore this clarification given by the Board. In this view of the matter, I set aside the impugned order and allow the appeals. Consequential relief, if any, shall be admissible to the appellant in accordance with law.
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1993 (11) TMI 158 - CEGAT, BOMBAY
Classification ... ... ... ... ..... f the range staff are not the proper authority to receive the same. However, Shri Mondal, the ld. SDR, pleads that earlier six declarations have been filed with the Assistant Collector and this is the solitary declaration, which is reported to have been filed in the Range office and hence filing of such declaration with the Range office is open to doubt, particularly when the office stamp of the range office is not available in the declaration. However, we find that there is a dated signature of a person in token of acknowledgement. No investigation has been made to indicate that this is a forged signature of somebody and the declaration has been planted subsequently. In any case, even without recourse to second declaration, appeal has to be allowed on the basis of the first declaration itself. Hence, we would not like to express any final opinion on the validity of the second declaration. Appeal is allowed and consequently demands for reversal of MODVAT Credit are set aside.
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1993 (11) TMI 157 - CEGAT, BOMBAY
Demand - Limitation ... ... ... ... ..... I have carefully considered this submission but could not persuade myself to accept the same because of the fact that the D-3 declaration, clearly revealed the source of acquisition of the inputs, alongwith the Gate Pass. There is no allegation to the effect that the particulars of the inputs received, do not tally with the Gate Passes. No evidences are discussed in the Asstt. Collector rsquo s order to show that the aforesaid source has mixed up various materials and supplied. In any case in such a situation, the officer who does the verification is entitled to demand the subsidiary Gate Pass instead of verifying and allowing credit. In view of the fact that the materials particulars were available before the Department at the time of verification and the entry of the inputs, the extended period may not be applicable. Hence, the Collector is justified in allowing the appeal of the respondents on the ground of time-bar. In the result, the appeal from the revenue is rejected.
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1993 (11) TMI 156 - CEGAT, BOMBAY
Modvat credit - Declaration ... ... ... ... ..... int had arisen before this Bench in the case of one of the parties namely M/s. Workwell Engg. Co. and this Bench vide Order No. 874-75/93-WRB, dated 28-5-1993 and also in another Order No. 1110/93-WRB, dated 25-6-1993 has taken the view that when plywood has been declared, there was no necessity of declaring as separate item, ldquo commercial plywood rdquo and that the MODVAT credit cannot be denied on the ground of non-declaration of the input. For the purpose of arriving at this conclusion, this Bench also took assistance from the decision of the Supreme Court in the case of Jain Shudh Vanaspati. The issue involved in the present set of appeals is identical and there is no fresh ground urged by the Ld. JDR to alter the view that has already been taken by this Bench earlier. Under the circumstances, the orders passed by the authorities below are to be set aside. The appeals are therefore allowed. The department shall authorise the appellants to restore the credit disallowed.
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1993 (11) TMI 155 - CEGAT, BOMBAY
Appeal - Limitation - Condonation of delay ... ... ... ... ..... Jagesha, submits that immediately after the receipt of the order, the appeal is filed and there is no wanton negligent on their part. To show their bona fides, he offered to deposit the full duty amount. 4. Heard Shri Harnek Singh, the ld. JDR. 5. emsp Considering the submissions made, in the absence of any negligence on the part of the applicants, the delay is condoned. In view of the offer made, the applicants are directed to deposit the full duty amount within a period of eight weeks from the date of communication of this order and report compliance within nine weeks, failing which their appeal is liable to be rejected. On deposit of the duty amount, there shall be stay and waiver of recovery of the penalty amount.
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1993 (11) TMI 154 - CEGAT, BOMBAY
Modvat credit - Declaration ... ... ... ... ..... t there is some variation in relation to the tariff entry and that the same entry has been correctly specified only in the subsequent declaration. The settled law on the issue is that, if a declaration given is proper in relation to description of the items, some variation in mentioning the Tariff entry would not disentitle the party from claiming the modvat credit. The approach of the authorities below on that ground therefore cannot be sustained. Further, the authorities below have overlooked the position that the declaration has already been made as on 15-10-1989 and not as on 19-10-1991 as has been observed by the authorities below. 6. emsp Considering all these grounds and submissions made, there appears to be no justifiable ground to uphold the orders of the authorities below, on the facts as well as on law. The appeal is therefore allowed. Consequential relief to follow. 7. Since the appeal itself is disposed of, the stay application does not survive for consideration.
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1993 (11) TMI 153 - CEGAT, BOMBAY
Natural Justice - Order ... ... ... ... ..... ion of the principles of natural justice. 5. emsp On a perusal of the order, we find that the Collector (Appeals) has gone by the technicality of the issues decided on the Show Cause Notices. In any case, when he concedes that the composite order is violative of the principles of natural justice, he cannot just confirm one part of the order and hold that other part of the order is only violative of the principles of natural justice. The entire order calls for de novo consideration, if the Collector (Appeals) feels that the order vitiates violation of the principles of natural justice. In view of this, we agree with the request made by the appellants for remand of the case back to the Assistant Collector for consideration even the duty demand of Rs. 6,63,364/- in respect of Protobex. The appeal is allowed by way of remand. 6. emsp Since the appeal itself is allowed by way of remand, the stay application does not survive for consideration and the same is treated as disposed of.
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1993 (11) TMI 152 - CEGAT, BOMBAY
Reference to High Court - Modvat ... ... ... ... ..... is likelihood of potential danger to revenue in receiving modvat inputs in the premises not under licensing control. On a specific question put to Shri Madhav Rao as to whether Rule 173Q permits imposition of penalty for violation of the Modvat Rules, he agrees to this position but contends that when there is no duty evasion, there cannot be any mens rea and hence penalty cannot be imposed. We, however, could not agree with him for the reasons recorded in the order. Even the Apex Court have held that where there is a violation of the Rules irrespective of mens rea, penalty can be justified. The question of imposition of penalty and the quantum thereof is a matter to be decided purely based on the facts of each case and the attendant circumstances. Here, when an established manufacturer completely disregarded the provisions of law, which might lead to a potential evasion, penalty is justified. Hence, both the Reference Application as well as the cross-objections are dismissed.
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1993 (11) TMI 151 - CEGAT, BOMBAY
Stay/Dispensation of pre-deposit ... ... ... ... ..... inst the impugned order and obtained unconditional stay against implementing the order and effecting recovery of the duty consequent on classification held against them by the Department. This application is only for the limited purpose of waiver of deposit of duty amount for entertaining the appeal. He would, however, move for consideration of the appeal only after the outcome of the High Court rsquo s decision. 3. emsp After hearing both the sides, in view of the stay granted by the High Court in Writ Petition No. 3408/93 in the case of the applicants, we grant waiver of pre-deposit of the duty amount.
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1993 (11) TMI 150 - CEGAT, BOMBAY
SSI Exemption - Job work - Value of clearances ... ... ... ... ..... titled to avail the small scale exemption. All the same the value of the clearance effected on job work has also been included for purpose of computing the eligibility of small scale exemption in respect of the applicants rsquo unit. However, the lower authority has denied the small scale exemption on the ground that the person for whom the job work is done is not entitled to avail the small scale exemption. In the circumstances, prima facie we hold that the Collector rsquo s (Appeals) view is not in confirmity with the provisions of Notification No. 175/86 and hence we grant stay and waiver of recovery of the duty amount.
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1993 (11) TMI 149 - CEGAT, BOMBAY
Customs House Agent ... ... ... ... ..... both sides, we agree that this case cannot be dismissed lightly. All the same, the factors pleaded before us for extending leniency cannot be dismissed altogether. In this case we find that even according to Collector rsquo s finding, there are no allegations of any monetary consideration nor any action resulting in loss to Revenue. They are reportedly in this line for 30 years and a permanent disability would affect their livelihood. We therefore deem it proper that the revocation of the licence shall stand operative for a total period of 4 years from the date of order of the Collector and thereafter the licence may be restored to the appellants, on a clear warning endorsed on the licence to the effect that if any infringement of CHA Regulation is noticed in future, they would forfeit the licence for ever. This order is passed purely on humanitarian grounds, having regard to the accepted maxim that punishment should be commensurate with the nature of the offence established.
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1993 (11) TMI 148 - CEGAT, BOMBAY
Penalty not imposable for bona fide error, negligence or lapses if there is no revenue implication
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1993 (11) TMI 147 - CEGAT, BOMBAY
Stay/Dispensation of pre-deposit ... ... ... ... ..... considered without duty amount being quantified. This is the amount which is required to be deposited for entertaining the appeal. Moreover, the deptt. cannot resort to coercive measures without quantifying the amount of duty payable. Unless the amount of duty is quantified, then only for recovery of that amount, measures can be taken in accordance with law. Hence, we have not taken up the stay application for consideration, being premature. The applicants are however at liberty to revive the stay application as and when the duty amount is quantified.
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1993 (11) TMI 146 - CEGAT, BOMBAY
Refund on return of duty-paid goods for re-conditioning and re-making ... ... ... ... ..... ries. 4. emsp Shri Joshi, the ld. advocate, for the respondents, referred to the decision of the CEGAT in the case of Collector of Central Excise v. Insulated Conductors Pvt. Ltd. reported in 1990 (50) E.L.T. 545 (Tri.) and also the decision of the South Regional Bench reported in 1990 (50) E.L.T. 96 (Tri.) in the case of Tata Tea Ltd., and pleaded that the appeal of the revenue is to be rejected. 5. emsp After hearing both the sides, I find that so long as the spindle machines, which were returned, were utilised in the manufacture of another type of spindle machines, they are to be considered to be used in the production of goods of the same class. Rule 173L not only permits reconditioning but also remaking. When such machines are re-made into the machines of same class, no objection can be taken as per the decision cited above. I, therefore, do not find any sufficient reason to interfere with the order of the Collector (Appeals). Hence, I reject the appeal from the Revenue.
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1993 (11) TMI 145 - CEGAT, BOMBAY
Reference to High Court - Goods imported by importer ... ... ... ... ..... in the absence of any evidence of any pre-planned nature of the import of used serviceable items, our order based on the judgment of the Gujarat High Court does not call for any modification either on facts or on point of law. As regards the apprehension that this may lead to unscrupulous elements importing goods under misdeclaration and resorting to profess innocence, we may observe that the findings given by us in these two cases are entirely based on the facts noticed and they cannot be made applicable or be cited as case laws for all situations, where mala fides are discernable. Moreover, an apprehension expressed cannot be a point of law for reference to the High Court. 5. emsp In view of the above discussions, we reject both the Reference appli- cations filed by the revenue and direct the authorities to implement our order dated 30-8-1993, without any further delay. On request from the applicants (importers), we also extend the time limit for reshipment till 31-12-1993.
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