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Case Laws
Showing 101 to 120 of 349 Records
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1998 (10) TMI 266 - CEGAT, NEW DELHI
Demand - Clandestine removal - Valuation ... ... ... ... ..... ht and compared with the weight shown in GRs issued by the transporters. The correlation between the quantity and the weight, particularly in view of the screws being of different sizes and having widely different prices as seen from the invoices, has not been established. As it has come out on record from the statement of Shri Ravinder Kumar before the departmental officers that they had supplied self tapping screws ordered by certain customers on bills showing them as screws M and as admittedly self tapping screws are higher price. Some misdeclaration of value and evasion of duty is disclosed. The quantification thereof has to be arrived at on proper basis which has not been done by the adjudicating authority. In the circumstances, we set aside the impugned order and allow the appeal by remand to the adjudicating authority de novo examination of the matter and proper quantification of the demand amount after granting further opportunity of personal hearing to the appellant.
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1998 (10) TMI 265 - CEGAT, NEW DELHI
Modvat - High speed diesel oil ... ... ... ... ..... The decision of the same High Court in Gowramma v. Yella Reddy ndash AIR 1985 AP 226, referred to by ld. SDR, however, is in relation to interpretation of a document and is not the one of interpreting two clauses of Statutory Rules, with one of them having non-obstante clause. 7. emsp In view of these findings, it is to be held that where there was a specific mention of a particular input in Rule 57B, credit of duty paid thereon could be availed of even where the inputs specifically stood excluded from the coverage of Rule 57A. 8. emsp A similar conclusion was drawn by ld. Single Member of the Tribunal in his Final Order No. A-813/98-NB, dated 15-7-1998 wherein he had followed the ratio of the India Cements Ltd. judgment of the Tribunal reported in 1997 (95) E.L.T. 520. 9. emsp On the basis of the interpretation of Rule 57B, I hold that Modvat credit was rightly taken by the assessees. I, therefore, set aside the impugned order and allow the appeals with consequential relief.
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1998 (10) TMI 264 - CEGAT, MUMBAI
Valuation - Spare parts - Confiscation - Misdeclaration ... ... ... ... ..... tter from the sponsoring authority. 14. emsp Even on the assumption that the goods were not cleared under OGL the fact remains that they were covered by the licence in question and the letter of the sponsoring authority. It is difficult to dispute the contention raised by the appellant that the value of the licence would have included the notional value of the goods of it and had asked for the licence to include this value. There was no additional outgo of foreign exchange. The fact that spares are specifically mentioned in the licence and sponsoring authority rsquo s letter show the intention of the licensing authority to permit import under the licence. The goods were entitled to assessment under Heading 98.01. 15. emsp We are told by the Advocate for the appellant that the project import assessments are yet to be finalised. We, therefore, direct that the benefit of Heading 98.01 to be extended to the appellant. 16. emsp Appeal allowed in part. Consequential relief, if any.
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1998 (10) TMI 260 - CEGAT, CALCUTTA
Confiscation of goods and penalty - Burden of proof ... ... ... ... ..... ect from the Revenue. rdquo To the similar effect is the Tribunal rsquo s decision in the case of C.C. (Prev.), Shillong v. Shri Asim Dasgupta reported in 1997 (21) RLT 671 (T) strongly relied upon by the appellants rsquo Counsel. The decisions relied upon the ld. SDR in the case reported in 1992 (61) E.L.T. 676 1986 (26) E.L.T. 108 and 1987 (21) E.L.T. 853 (Mad.) are all distinguishable on facts. In the instant case, the fact remains that the appellants have been able to produce the evidence on record to show the legal acquisition of the goods. It was the supplier rsquo s receipt, who had produced evidence to show the purchase of the goods from different parties of Bombay which was not substantiated. Failure of the Department to conduct further inquiries with those 4 parties cannot result in denial of justice to the appellants. 7. emsp In view of the foregoing discussions, I set aside the impugned orders and allow both the appeals with consequential relief to the appellants.
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1998 (10) TMI 259 - CEGAT, CALCUTTA
Adjudication - Guidelines for authorities ... ... ... ... ..... in their excise records with hand and to err is human. The appellants rsquo factory is a small scale unit and is not computerised for maintenance of Central Excise record. I also take note of the fact that it was the appellants themselves who detected the said mistake on their own and rectified the same and brought it to the notice of the department. The show cause notices were also issued by the department for imposition of penalty after about a gap of one year. As stated by the ld. Advocate across the bar, the appellants rsquo factory came under the excise net only with effect from January 1994 and this mistake occurred in January and February 1994. They were new in the excise field and the person responsible for making entry in the records was not experienced hand. In view of the explanation given by the appellants and the discussions made above, I accept their plea and set aside the impugned orders. 7. As the appeals have been allowed, stay petitions also get disposed of.
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1998 (10) TMI 257 - CEGAT, NEW DELHI
Gentamycin sulphate ... ... ... ... ..... d ingredients referred to in Sl. Nos. mentioned above even if such formulations contain ingredients in their salt forms as specified in Notification No. 455/86-C.E.. The Tribunal in the case of Johnson and Johnson extended the benefit to Miconazole Nitrate even though the Notification No. 122/86-C.E. covered only Miconazole. Other decisions of the Tribunal which have taken the same view are those in the case of Biddle Swayer Pvt. Ltd. v. C.C.E., Bombay - 1997 (95) E.L.T. 60 (Tribunal) and Khandelwal Lab. (P) Ltd. v. C.C.E., Bombay - 1994 (73) E.L.T. 671 (Tribunal). Following the ratio of the above decisions, we hold that Gentamycin Sulphate is entitled to the benefit of exemption in terms of Notification No. 122/86 setting aside the impugned order and allow the appeal. 2. emsp No orders are called for on the misc. application which is only an application for deciding the matter on the basis of written submissions. Order dictated and pronounced in the Open Court on 27-10-1998.
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1998 (10) TMI 256 - CEGAT, NEW DELHI
Demand - Value of clearances ... ... ... ... ..... emand. By confirming the demand upon all the 7 units, the Collector, however, has treated them all as assessees and implicitly recognised their independent existence. In the instant case here, if the Collector is of the view that the appellants M/s. Rupani Textile Inds., are the sole manufacturers there was no necessity for him to raise the demand against the other units. By confirming demand upon other units, it appears that he has treated all the three units as assessees and implicitly recognised their independent existence. In the similar facts and circumstances of the case, the Supreme Court has remanded the matter for reconsideration. Following the ratio of the above said decision, we are remanding the matter to the Collector to consider the entire case afresh in the light of the observations made by Supreme Court and to pass appropriate order in accordance with the law after providing an opportunity to the appellants. Thus all these appeals are allowed by way of remand.
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1998 (10) TMI 254 - CEGAT, NEW DELHI
Modvat vis-a-vis Exports ... ... ... ... ..... would not accrue to the manufacturer/exporter by making it obligatory for the manufacturer applicant to give satisfactory evidence to the effect that Modvat credit had not been availed of and utilised on the inputs used for the manufacture of export products, on the strength of which export, the replenishment imports free of duty would be claimed. Thus, the responsibility to ensure that the benefit is not taken twice, rests on the Import Trade Control Authorities and not on the Central Excise Authorities. It is correctly argued by the appellants that the concerned rule has no such in-built provision. 6. emsp What the jurisdictional authority has done is to deny the first benefit where the machinery to avoid double benefit requires stoppage of the second benefit. 7. emsp The impugned order does not survive. Both lower orders are set aside. The Assistant Commissioner is directed to consider the claim on merits after hearing the assessee. 8. emsp Appeal allowed by way of remand.
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1998 (10) TMI 252 - CEGAT, NEW DELHI
Valuation - Captive consumption of same goods ... ... ... ... ..... als No. E/3180/93-A they have also contended that the demand was time barred prior to 29-10-1992 as the show cause notice was received by them on 30-4-1993. There is no substance in their submission as the demand under Section 11-A(1) of the Central Excise Act has to be issued within six months from the relevant date. Sub-section (3) to Section 11A defines relevant date according to which relevant date means, in case where a periodical return is to be filed, the date on which return is so filed or the last date on which such return is to be filed. As the said return (RT-12) is required to be filed by 5th of the succeeding month i.e. 5th November in this case in respect of October, 1992, the show cause notice was well within the time limit of six months as stipulated in Section 11A(1) of the Act as also admittedly show cause notice was received by the appellants on 30-4-1993. 7. emsp In view of these facts and circumstances we uphold the impugned orders and reject the appeals.
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1998 (10) TMI 250 - CEGAT, MUMBAI
Stay/Dispensation of pre-deposit - Broth ... ... ... ... ..... also stated that as far as the decision reported in 1996 (87) E.L.T. 267 is concerned the facts are entirely different. He relies on the observations of the Tribunal in paragraph 13 on the said argument. As far as DA for proceeding mentioned by the learned Counsel during the argument is concerned, there is no declaration made by the BIFR in terms of Section 16 of the relevant Act. 4. emsp We have considered the rival submissions. The fact whether particular product is marketable or not has to be looked in depth and it is difficult to come to any conclusion at prima facie stage. We cannot come to any conclusion about the prima facie case. The balance sheet as on 1996-97 is concerned it shows a lot of loss, viz. Rs. 111/- crores. To safeguard the revenue we direct that the appellants may take Rs. 1.50 crores within two months from the date of receipt of this order. On such payment being made, there will be waiver of payment of remaining sum of the amounts and stay the recovery.
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1998 (10) TMI 249 - CEGAT, MUMBAI
Confiscation of goods - Misdeclaration ... ... ... ... ..... t the bankers for the actual importers. 5. emsp I have considered the rival submissions. 6. emsp The finding given by the Collector (Appeals), in my view, cannot be questioned. It is true that there has been a mis-declaration, viz, that what was contained in the invoice is different from what is the weight of the goods imported. The splitting up of the goods into two packets of 6700 cts. and 6295 cts. was done by the supplier M/s. Argyle Diamond with whom the importer did not have any contract but only the seller, viz, M/s. Sunraj Gems had contract with the supplier. The bank of the supplier, viz, Ant-werpse Diamantbank n.v. by its letter dated 18-11-1992 clinches the issue that there has been a mistake committed at the port of shipment for which there is no evidence to implicate the importer. 7. emsp I am therefore constrained to hold that the facts of the case do not warrant interference with the impugned order passed by the Collector (Appeals). 8. emsp Appeal is dismissed.
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1998 (10) TMI 248 - CEGAT, MUMBAI
Rectification of mistake ... ... ... ... ..... re being no change in any of the other variables, that the wholesale price would go up to the extent of the duty. That has not happened. Wholesale prices remained the same. Therefore, any extra burden caused by the duty has been absorbed by the assessee and had not been passed on. rdquo (Emphasis supplied) The departmental representative is right when she says that, in view of this last sentence the issue has virtually been decided and the Assistant Collector to whom the matter had been remanded will not have the freedom to determine whether the incidence of duty has been passed or not. 3. emsp The matter was remanded to the Assistant Collector to decide, having regard to the wholesale price prior to subsequent imposition of duty, as such details were not available. The sentence emphasis referred in the above extract may be treated as deleted from it. It is hereby clarified that the Assistant Collector is at liberty to decide the matter without being found these observations.
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1998 (10) TMI 247 - CEGAT, MUMBAI
Modvat - Declaration ... ... ... ... ..... being taken on an input which was not declared. Advocate for the appellant says that he will be able to demonstrate before the Commissioner that the departmental officers were aware of the fact that steel was being received as an input and credit taken on it. Having regard to the facts of this case and also the fact that credit taken on steel is kept in balance and unutilised, I accept this suggestion, for which there was no strong opposition from the Departmental Representative. The Commissioner shall after giving reasonable opportunity to the appellant with regard to this and pass orders on this commodity according to law. 5. emsp The charge in the notice is that the goods were not clearly declared. Having regard to the period in question shortly after the Modvat procedure introduced and it had not yet settled down, it is not the case that there was a deliberate attempt to take credit without declaring the inputs and I set aside the penalty. 6. emsp Appeal allowed in part.
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1998 (10) TMI 246 - CEGAT, NEW DELHI
Appeal to Tribunal ... ... ... ... ..... ult of holding that activity carried out by them amounts to manufacture is raising of the duty demand over Rs. 14 lakhs and imposing of penalty of Rs. 15,00,000/- which is the subject matter of separate appeal before the Commissioner of Central Excise (Appeals), Bhopal. For all these reasons the applicant prays that the appeal may be heard early. Ld. D.R. while contending the decision of the Tribunal and High Court are in the context of the old Tariff fairly leaves the matter to the decision of the Bench. 2. emsp We are satisfied for the reasons advanced by the applicants that this is a fit case for granting early hearing and accordingly allow the application and fix the appeal for hearing on 6-1-1999.
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1998 (10) TMI 245 - CEGAT, MUMBAI
Gold control - Stamping purity of the gold on ornaments ... ... ... ... ..... d was rendered liable to confiscation on any act of omission or commission of a person. Section 30 required a licensed dealer to stamp every ornament made, manufactured or prepared by him certifying the purity of the gold. Section 71 would enable confiscation of gold where any provisions of the said Act were contravened. The requirement under Section 30 was that of stamping. It is not the case of the department that the ornaments were not stamped. The situation where the purity was lower than that was stamped, was not covered under the provisions of this Act at the material time. In other words, the variation in purity could not be termed to be contravention of Section 30. Consequently, the gold so wrongly stamped could not be confiscated under Section 71 and therefore, no penalty could be imposed under Section 74 of the Act. In the situation, the impugned order does not survive in so far as it relates to the present appellant. The appeal is allowed with consequential relief.
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1998 (10) TMI 244 - CEGAT, MUMBAI
Confiscation of goods - Penalty on job worker ... ... ... ... ..... of the Commissioner and remanded the matter and determination after considering the contention raised on behalf of the Climax that it was entitled to Modvat credit of duty paid on the inputs used for the manufacture. In that de novo order dated 24-6-1995 the Commissioner has confirmed the demand for duty of Climax but allowed to be adjusted against it an amount of Modvat credit (due) which was in excess of the duty demanded, refrained from imposing any penalty on the ground that the duty was adjusted against the Modvat credit. It would follow from this that no penalty could be imposed on the appellant before us who was alleged to have abetted Climax Synthetics in the offence. It would also follow that the confiscation ordered of goods in the appellants possession on the ground that they were cleared by Climax Synthetics without payment of duty is not sustainable. Accordingly we allow the appeal, set aside the order confiscating the goods and imposing penalty on the appellant.
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1998 (10) TMI 243 - CEGAT, MUMBAI
Demand - Inputs sent to job worker for manufacture of intermediate product ... ... ... ... ..... the appellants herein. For the manufacture of any goods on job work basis the same would not be entitled for small scale exemption unless the principal manufacturer himself is entitled to small scale industries exemption. Even if the job work is otherwise entitled for the small scale exemption it mainly speaks of small scale exemption only. It does not specifically state that the principal manufacturer, i.e. the supplier of the raw material is disentitled to Modvat charges. The approach of the Collector in this regard is totally devoid of merits. The observation of the Collector that in respect of bought out items no Excise formalities is aspect of evasion of duty is wrong in law inasmuch as the job worker is a manufacturer of the intermediate product, viz. hollow screws which is used as a component part of the final product injector. 9. emsp Hence, in our view, appeal is accepted and order passed by the Collector is set aside. Appeal allowed with consequential relief if any.
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1998 (10) TMI 242 - CEGAT, MUMBAI
... ...
... ... ..... tion Department. The Appellants have admitted in their reply that any breakage occurring in transit from the storage place to the plant, will not be eligible for Modvat credit i.e. before taking the bottles for using in the production. They have stated further they have not used credits on account of such breakages and such breakages having not occurred. In this view of the matter, if, in fact no breakages occurred prior to the filling stage, there is no need to re-work the demand as ordered in the Collector rsquo s order. The eligibility to Modvat credit of the bottles broken at the filling operation stage has been upheld by the above cited two decisions of the Tribunal wherein it has been held that such breakages will be covered by Rule 57D of the Central Excise Rules, regarding Modvat credit as credit of duty contained in input emerging as waste after being put to use in the intended manufacturing process Therefore the impugned order is set aside and the appeal is allowed.
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1998 (10) TMI 241 - CEGAT, NEW DELHI
Organic chemicals - Confiscation and redemption fine ... ... ... ... ..... lassification lists or price list. In view of these facts the penalty is imposable on them and we find that the Additional Commissioner had only imposed penalty of Rs. 20,000/- which cannot be considered to be on the higher side, considering the amount of goods already cleared by them without payment of duty and for other violations. We also find that the Additional Collector himself has observed in the impugned order that Modvat credit availed in respect of raw materials 2-Ethyl Hexanol was not required to be reversed if the same was used in the manufacture of recovered octanol. He had only directed the Divisional Assistant Commissioner to look into the matter regarding the shortage of quantity of 2-Ethyl Hexanol and to take appropriate action. There is no infirmity in giving such instruction by the Additional Commissioner. In the light of the facts and circumstances we do not find any reason to interfere with the impugned order and reject the appeal filed by the appellants.
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1998 (10) TMI 240 - CEGAT, MUMBAI
Revision/Review - Import trade control ... ... ... ... ..... ms classification, had been given after a perusal of the catalogue relating to the Max staplers which inter alia indicated use of the staplers for packaging use at home and in industries. The other contention in this regard is that the goods cannot be allowed clearance against licences produced as the appellants are traders and not providers of services with capital goods. As against this, it is noted that the additional licences produced have not been shown to have any actual user condition. In the result, on the merits of the case, we hold that the release of the goods against additional licences was in line with the appellate decision of the Board, which had come to be accepted by the Collector, and the factum of the use of staplers for packing purposes in garment industry also finds support in the Madras High Court judgment supra. In such a view of the matter, the impugned order of the Collector (Appeals) is unsustainable on merits also. The appeals are therefore allowed.
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