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Showing 201 to 220 of 301 Records
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2002 (6) TMI 140 - CEGAT, BANGALORE
Demand - Clandestine removal ... ... ... ... ..... , Carbon dioxide being purchased and utilised in the manufacture of the final product during the period in dispute is required. There is no such corroborative evidence in the present case. There is also no evidence regarding higher electricity consumption. There is also no evidence of receipt of extra sales proceeds of goods clandestinely manufactured or removed. We, therefore, uphold the dropping of the demand of Rs. 4,72,51,048/- ..... . 4. We have carefully considered the matter. We find that the Commissioner has given a categorical finding that in order to substantiate the clandestine removal, evidence should be shown to establish their actual consumption of inputs, etc. In the facts and circumstances of the case and taking in to consideration of the fact that categorical finding has been given by the Commissioner and in view of the case law referred to above, we do not find any infirmity in the impugned order. Accordingly the appeal filed by the Department is dismissed.
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2002 (6) TMI 138 - CEGAT, MUMBAI
SSI Exemption - Demand - Limitation ... ... ... ... ..... r v. Christine Holden (India) Pvt. Ltd. 1999 (113) E.L.T. 591 (T) 1998 (28) RLT 619 and Emkay Invest Pvt. Ltd. v. Commissioner 2000 (124) E.L.T. 741 (T) - 1998 (28) RLT 36 which have taken the view that the presence of brand name of another person would not disentitle the goods to the exemption. Perhaps it could be argued that the basis for this decision such as prominent of marks is questionable. The fact however remains that the respondents would have reasonably believed that, in the light of the exemption available, they were not required to pay duty. The intention to evade duty requires before the proviso to sub section (1) of Section 11A can be invoked, therefore cannot be said to be present. The notice is dated 18-8-2000 invoking the larger period of limitation for clearance made between November 1998 and August 1999 and that there was no basis for invoking the extended period. 8. The penalty therefore also cannot be imposed. 9. The appeals are disposed of accordingly.
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2002 (6) TMI 136 - CEGAT, MUMBAI
Valuation (Central Excise) - Inspection charges ... ... ... ... ..... rictly as per specification and our drawings. We may, at our discretion, post necessary technical personnel for inspection and checking. 5. This condition clearly casts a duty on the respondent to inspect the goods to ensure their quality. It also stands to reason that the appellant would, in order to ensure comply with the standard of quality that was prescribed by the buyer, inspect the goods. The alternative, that a manufacturer will not ensure that the goods that he presents to his customer are of the quality that the customer wants, leaving it wholly to the customer to satisfy himself the quality lies in the face of commercial reality. No manufacturer would be so careless as to take such a stand. In any event, if the department sought to include the charges on account of third party inspection to the value, it was up to it to prove that there was no prior inspection. This, in our view, has not been done. 6. We therefore allow the appeal and set aside the impugned order.
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2002 (6) TMI 134 - CEGAT, CHENNAI
Valuation (Customs) - Second hand machinery - Enhancement of value ... ... ... ... ..... Rules . Further, the same authority on page 14 last portion has recorded a finding that I find that there is no warrant for me to accept the declared price . At the most it can be said that the original authority has not very categorically discarded the transaction value before proceeding to determine the value under Rule 8 of the CVR read with Section 14 of the Customs Act, 1962. We however, find force in the submission of the respondents that the original authority was not right in accepting or rejecting the Chartered Engineer s certificate in part. In view of our above discussion, we are of the considered opinion that the lower appellate authority has rightly held that the original authority was not right in choosing to determine the value under Rule 8 of the CVR read with Section 14 of the Customs Act, 1962, in the facts and circumstances of this case. We, therefore, find no infirmity in the impugned order and accordingly we uphold the same and reject the Revenue appeal.
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2002 (6) TMI 132 - CEGAT, MUMBAI
Custom House Agents Licence - Suspension of ... ... ... ... ..... the present case, the enquiry had commenced on 18-9-2000 and the order of suspension was issued on 8-8-2001. When the enquiry under Regulation 23 is undertaken, on completion of the enquiry, orders could be made either for suspension or revocation under Regulation 23. But while the enquiry is in progress, the ld. Commissioner chose to use his powers under Regulation 21 to place the licence under suspension. In similar circumstances, in the cited case of N.D. Oza and Sons, the Tribunal observed that any delay in completion of enquiry against CHA is detrimental to his commercial interest. We note that in that case also the charges were similar as in the case before us. In that case, the Tribunal observing that the enquiry was under way chose to set aside the order of suspension. Adopting the logic in that decision, we allow the appeal and revoke the order of suspension. It is expected that the Customs House would proceed to conclude the enquiry instituted under Regulation 23.
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2002 (6) TMI 131 - CEGAT, NEW DELHI
Production capacity based duty - Abatement of duty ... ... ... ... ..... alloy steel during any continuous period of not less than seven days and wishes to claim abatement , the abatement will be allowed. In this case, the appellants are claiming the abatement for a total period of eight days of closure but in view of the provisions of the rules they have been held to be eligible for abatement only for six days. The actual period of closure of the unit is however, for a continuous period of more than seven days. This clause will not operate against them resulting in denial of abatement for less than seven days. Similarly, for the claim of abatement from 21-4-98 to 29-4-98, the appellants filed the intimation on 22-4-98. Following the same arguments, they would be entitled to the benefit of abatement for a total period of seven days viz. from 22-4-98 to 28-4-98. Consequently, the appeal is allowed to the extent as discussed by setting aside the impugned order passed by the Commissioner. The appellants shall be entitled to the consequential relief.
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2002 (6) TMI 130 - CEGAT, CHENNAI
Modvat/Cenvat - Modvat on capital goods ... ... ... ... ..... er may be set aside, which pertains to denial of Modvat credit on the above mentioned items and Modvat credit is required to be allowed in view of all the judgments rendered by the ld. Consultant. 3. However, ld. DR Shri C. Mani, reiterated the findings recorded by the ld. Commissioner in the impugned order. 4. I heard both sides. On a careful consideration of the submissions made by the ld. Consultant, I am fully satisfied that all these items are covered by various judgments rendered by the Tribunal, as well as the judgment rendered in the case of CCE, Coimbatore v. Jawahar Mills Ltd. (supra) by the Apex Court and Modvat credit could not be denied to them. I, therefore, respectfully following the law laid down by various judgments, cited by the ld. Consultant, allow the appeal filed by the appellant by setting aside that the portion of the order by which he was denied Modvat credit on the capital goods mentioned above, with consequential relief if any. Ordered accordingly.
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2002 (6) TMI 127 - CEGAT, NEW DELHI
Modvat/Cenvat - Modvat on capital goods ... ... ... ... ..... No. 1 to 4 of the table below Rule 57Q. 4. I have considered the submissions of both the sides. It has been the contention of the Appellant from the beginning that all the impugned items were used by them for repairing the machines installed in their factory and used for manufacturing their final product. Following the ratio of the decisions relied upon by the learned Advocate, I hold that the Modvat credit under Rule 57Q is available to the Appellants in respect of the impugned items used for repairing the machines installed in their factory and used for manufacture of final product. However, the Modvat credit in respect of hot rolled and annealed SS sheets is not available as these are used for fabricating the reactor tank which is not specified capital goods. I, therefore, upheld the impugned Order as far as it disallows the credit in respect of hot rolled and annealed SS Sheets used in the fabrication of reactor tanks. All the appeals are disposed of in the above terms.
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2002 (6) TMI 126 - CEGAT, NEW DELHI
Modvat/Cenvat ... ... ... ... ..... rom the date of the certificate and not the Bill of Entry under which the goods were initially cleared. Obviously, the certificate will be required to be obtained and produced only in such case where the triplicate copy of the Bill of Entry covering the goods has been lost in transit. For obtaining such certificate from the proper officer of Customs at the port of importation in the event of loss of triplicate copy of the Bill of Entry is going to take some time and in such an event, if the contention of the department is accepted, the very purpose of prescribing such certificate as a modvatable documents would be lost. It is not the case of the Revenue that the appellants have taken the Modvat credit beyond a period of six months from the date of issue of the certificate viz. 28-5-1999. In view of these facts, therefore, it cannot be argued that the respondents have violated the provisions of Rule 57G(6)(b) of Central Excise Rules, 1944. The Revenue appeal is thus rejected.
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2002 (6) TMI 125 - CEGAT, COURT NO. I, NEW DELHI
Valuation (Customs) - Limitation ... ... ... ... ..... duty is, therefore, clearly not sustainable. For these reasons alone, the demand in respect of 6 out of 7 imports have to fail on the ground. In respect of imports under Bill of Entry No. 000165, dated 18-9-98 also the revision of prices suffers as from several flaws. There was no comparable price in respect of several models. Therefore, there was no reasonable basis for revising their prices. In respect of the other items also the comparable prices were available only in respect of one importer. The revision of prices also has been carried out without making available the invoices relating to the imported goods to the appellant. In these circumstances, we are of the opinion that this is not a fit case for demand of differential duty on the ground of under valuation of the goods. Since the duty demand is not sustainable, the penalties also cannot be sustained. 8. In the light of what has been stated above, the appeals are allowed with consequential relief to the appellants.
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2002 (6) TMI 123 - CEGAT, MUMBAI
Valuation (Central Excise) - Job work ... ... ... ... ..... ocessing charges which includes expenses plus profit for the purposes of determining excise value and the cost of raw material supplied by M/s. Britannia Biscuits will have to be included in addition to appellants manufacturing cost and profit. 6. In the present case the appellants were paying duty in view of the decision of the Hon ble Supreme Court in the case of Ujagar Prints Etc. Etc. v. Union of India (supra) which is not disputed by the Revenue. The Commissioner in the impugned order held that the facts of the case are more akin to the facts of the case of M/s. Pawan Biscuits Company P. Ltd., held by the Tribunal. The judgment of the Tribunal in the case of M/s. Pawan Biscuits Company is set aside by the Hon ble Supreme Court, therefore, the demand based on the decision of the Tribunal in the case of M/s. Pawan Biscuits Company (P) Ltd. v. Union of India (supra) is not sustainable, hence set aside. Consequently, penalties are also set aside and the appeals are allowed.
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2002 (6) TMI 122 - CEGAT, NEW DELHI
Modvat/Cenvat - Modvat on capital goods ... ... ... ... ..... imbatore v. Jawahar Mills Ltd. 2001 (132) E.L.T. 3 (S.C.) wherein it has been held that the definition of capital goods given in Explanation to Rule 57Q is very wide and if any, of the item enumerated in Explanation 1(a) is used for any purpose mentioned therein for the manufacture of the final products, it would satisfy the test of capital goods. The Supreme Court laid down the test that use will determine whether the item qualifies or not to be capital goods. In the present matter, it has not been disputed by the Department that the air conditioner is used for controlling and conditioning surrounding air temperature with a view to manufacture final product of the appellants. In view of this it cannot be said that the air conditioner is not used in the production of the final product of the Appellants. The air-conditioner as well as components of the air conditioner are thus eligible capital goods and Modvat credit is available to the Appellants. The Appeal is thus allowed.
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2002 (6) TMI 120 - CEGAT, NEW DELHI
Modvat/Cenvat - Demand - Limitation - Penalty ... ... ... ... ..... Mere fact of reversal of Credit before issue of show cause notice will not wipe out the offence of taking the credit without receipt of goods. It has been held by the Apex Court in the case of Zunjarrao Bhikaji Nagarkar v. UOI, 1999 (112) E.L.T. 772 (S.C.) that It is difficult to accept the argument of the appellant that levy of penalty is discretionary. It is only the amount of penalty which is discretionary . Further the Supreme Court has held in Gujarat Travancore Agency v. C.I.T. - 1989 (42) E.L.T. 350 (S.C.) that unless there is something in the language of the statute indicating the need to establish the element of mens rea, it is generally sufficient to prove that a default in complying with the statute has occurred . However, the fact of reversing Modvat credit immediately on being pointed out by the Officers will certainly have an impact on the quantum of penalty. I, therefore, reduce the penalty from Rs. 1 lakh to Rs. 40,000/-. 6. The Appeal is thus allowed partly.
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2002 (6) TMI 119 - CEGAT, NEW DELHI
Production capacity based duty ... ... ... ... ..... 73 (S.C.) 2000 (38) RLT 1 (S.C.) . 5. I find that the issue involved in the present Appeal is squarely covered by the decision of the Tribunal in the case of Malviya Steel Ltd. (supra) wherein the Tribunal observed that the judgment in the Venus Casting Pvt. Ltd. was given only on the subject of determination of Production Capacity of a Mill under Rule 96ZP(3) read with Section 3A(4) of the Act and the Hon ble Supreme Court has observed that once an assessee exercised his option of paying duty under Rule 96ZP(3), he cannot go back to the provisions of Section 3A(4) which provided payment of duty on actual production capacity. The Tribunal held that This judgment no where refers to the provisions under the proviso to Section 3A(2) , The Tribunal, therefore, held in Malviya Steel case benefit of abatement from payment of duty for the period of closing of mill is available under Section 3A(2). Following the ratio of the said decision, I allow the Appeal filed by the Appellants.
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2002 (6) TMI 117 - CEGAT, NEW DELHI
Modvat/Cenvat - Confiscation and penalty - Accountal of goods - Demand ... ... ... ... ..... med against the company, appellants No. 1, but the demand of interest of this amount is not justiciable, keeping in view the facts and circumstances of the case and we set aside the same. 15.No provision of the Central Excise Act or Rules, had been mentioned while imposing penalties for the various amounts as detailed above on appellants No. 2 to 4 in the impugned order. Even otherwise, no specific role has been attributed to them for the clandestine removal of the goods or substitution of the goods in place of imported goods. Therefore, penalties imposed on these appellants cannot be also sustained and are set aside. 16.In view of the discussion made above, the impugned order of the Commissioner except for the confirmation of duty of Rs. 3,920/- and imposition of penalty of Rs. 2,000/- under Rule 226 of the Rules, is set aside against the appellants. 17.The appeals of the appellants accordingly stand partly allowed with consequential relief if any, permissible under the law.
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2002 (6) TMI 115 - CEGAT, BANGALORE
Demand - Clandestine removal ... ... ... ... ..... td. 2000 (121) E.L.T. 650 (Trib) wherein the Tribunal had also held that in the absence of any evidence of surreptitious removal the demand of alleged duty not paid, is unsustainable. In the case of Deepak Tandon 2000 (126) E.L.T. 1079 (Trib.) , it was held that when no discrepancies in stock takings were noticed it was difficult to sustain the charge of clandestine removal. In the case of K. Harinath Gupta 1994 (71) E.L.T. 980 , on a totality of evidence the Tribunal concluded that there was a grave suspicion and since the proceedings being penal in nature, the onus of proof of clandestine removal was squarely on the Department. We rely on these decisions to hold that the material on record does not substantiate clandestine production and or removal and therefore there could be no case or cause for imposition of duty and penalties as determined by the lower authority. 5.In view of our findings, the order is set aside and appeals allowed with consequential benefit as per law.
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2002 (6) TMI 113 - CEGAT, MUMBAI
Valuation (Central Excise) ... ... ... ... ..... S system. The learned Departmental Representative also cites judgment reproduced in 1994 (71) E.L.T. 508 in support of his argument. We find that this was considered by the Tribunal in the cited judgment of A.Z. Electronics and was not adopted. 4. In the Jeetex Engineering Ltd. s case the Tribunal had mentioned that the price would not be included where the batteries were not supplied from the manufacturer s factory and were directly installed at the Customers premises. Shri Umashankar stated that such distinction was made only on the ground of commercial expediency and that the result was the same where batteries were supplied from the manufacturer s premises or were supplied to the buyers premises from the other source. We find this argument not acceptable since the Tribunal in the earlier cited judgment had made the decision on this ground. 5. Adopting the Logic of Order No. 1060 of 11-6-2002 referred to above, this appeal is allowed with consequential relief, as per law.
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2002 (6) TMI 111 - CEGAT, COURT NO. II, NEW DELHI
SSI Exemption - Brand name - Demand - Penalty ... ... ... ... ..... Shri Rajesh Kumar who deposed that the entire work with regard to what goods were to be manufactured and whom they were to be sold to was looked after by Pradeep Khanna. According to the said statement Pradeep Khanna was also looking after appointment of employees, purchase of raw materials and all reports were being submitted to him. Shri Subhash Oberai also deposed in his statement dated 23-9-98 that Pradeep Khanna was the actual controlling person of the affairs of Thermotech. This is further evident from the statement dated 3-7-98 of Shri Pradeep Khanna himself. He appeared before the Excise Officer on behalf of his wife Mrs. Neera Khanna in response to summons dated 29-6-98 issued to her, to tender his statements under Section 14 of the Central Excise Act. This act itself goes to show that he was conducting the affairs of M/s. Thermotech. A penalty of Rs. 5 lakhs imposed on him is quite reasonable and the same is upheld. Both the appeals are disposed of in above terms.
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2002 (6) TMI 110 - CEGAT, COURT NO. IV, NEW DELHI
Paper and paperboard ... ... ... ... ..... lso referred to the Circular No. 28/89, dated 17-4-89 wherein the Board has opined that the benefit of notification could be extended to any factory set up as a substantial expansion or otherwise provided the same is independent of the existing factory in all respects. The facts in the present matter are entirely different from the facts in the Birla Jute Industries case. In the case of Gujarat Aluminium Extrusion there were two different entities namely, Gujarat Castings Corporation and Gujarat Aluminium Extrusion (P) Ltd. In the case of Vardhman Spg. and Gen. Mills Ltd. factual position was that the appellants had bifurcated their units into two units and there were two independent factories separated by a boundary wall and having a separate registration under the Factories Act. Similarly in the case of Agrawal Rolling Mills two units were separated by a boundary wall. Accordingly we find no infirmity in the impugned Order and we reject the appeals filed by the appellants.
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2002 (6) TMI 108 - CEGAT, NEW DELHI
Modvat/Cenvat - Capital goods ... ... ... ... ..... und, MS angles and tor steel used in the construction of building for housing furnace are not capital goods as per the definition given in Rule 57Q. 3. I have considered the submissions of both the sides. It is not in dispute that the impugned steel channels and steel sheets were used in Chimneys for DG sets. DG sets falls under Chapter 85 of the Central Excise Tariff which is specified as capital goods in the table below Rule 57Q of the Central Excise Rules. As per S. No. 5 of the said table, spares and accessories of the goods specified against S. Nos. 1 to 4 in the table are also capital goods. As the Chimney is used as an accessory of the DG sets, the Modvat credit cannot be denied in respect of steel channels and sheets which have been used in manufacture of Chimney. The appellant will be eligible for inputs credit as the impugned goods have been used in the manufacture of chimney, which is a capital goods. I therefore, set aside the impugned order and allow the Appeal.
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