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Case Laws
Showing 221 to 240 of 631 Records
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2000 (8) TMI 586 - CEGAT, MUMBAI
Classification ... ... ... ... ..... 2505 refers to plaster with a basis of calcium sulphate. A plaster with a basis of calcium sulphate would necessarily contain something other than calcium sulphate. If the object were to include in the heading only plaster of paris, it would not be necessary to speak of plaster with a ldquo basis rdquo of calcium sulphate. In this context part of the heading necessarily includes the addition of some other goods to the calcium sulphate. Hence the fact of mixture of some quantity of asbestos with calcium sulphate will not attract Note 2 to Chapter 25, because the content of the heading requires an interpretation contrary to the note. 4. emsp Apart from this heading 6807 produced by the department would clearly not apply to the goods. Plaster is stated to be in the form of powder. Heading 6807 will only cover article other than those elsewhere specified. The powder would not be an article within the meaning of the note. 5. emsp The appeal is allowed and impugned order set aside.
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2000 (8) TMI 577 - CEGAT, NEW DELHI
Benefit of Notification No. 202/88-C.E. not available. ... ... ... ... ..... he rails, sleepers, wheels have been included in the Notification subsequently. Learned Advocate has relied upon the decision in the case of Digamber Foundry and Others v. CCE, Kanpur, final order Nos. 1063-1066/2000-B, dated 29th May, 2000, in which the demand was held to be time-barred following the ratio of the decision of the Tribunal in the case of Vivek Rerolling Mills (supra), on account of departmental practice to treat such used and rejected railway materials as angle, shapes and sections. The position in the present matters has changed in view of amendment of the Notification No. 202/88 by Notification No. 30/92 that the presumption was about treating the used and rejected railway material as angle, shapes and sections and not about the duty-paid character of the materials. In these appeals the issue involved is about the duty-paid nature of the inputs. This point was not argued by the Revenue in Digamber Foundry case. In view of this all the 3 appeals are rejected.
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2000 (8) TMI 576 - CEGAT, MUMBAI
Tiles - Glazed tiles - Broken glazed tiles are not excisable - Valuation ... ... ... ... ..... he show cause notice was that the assessees manufactured certain machines for captive consumption. This information was gained by the audited report. The auditor placed the expenditure on this account under the capital expenditure. Before the Commissioner and before us also the claim made is that the machinery was attached to the earth and could not be called as goods. We find little merit in this plea. The description given in the audit report does not suggest embedded state. Since the financial accounts are not documents required to be submitted to the department the claim of the appellants that there was no suppression also has no merit. It has to be held that the duty amounting to Rs. 68,922.70 was correctly demanded and confirmed. 9. emsp Except for duty amounting to Rs. 68,922.70 the appeal succeeds and is allowed with consequential relief. The penalty imposed upon the appellants is remitted. The orders of confiscation of the plant and machinery etc. are also set aside.
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2000 (8) TMI 575 - CEGAT, MUMBAI
Adjudication - Adjournment - Natural justice ... ... ... ... ..... , no waiver of personal hearing has been made. Under the circumstances, we have no other alternative, but to set aside the impugned order. 7. emsp Shri Patil cited certain decisions viz. Calcutta High Court rsquo s judgment in the case of Seth Enterprises Pvt. Ltd. - 1996 (88) E.L.T. 652 and another of the Tribunal rsquo s (Single Member) judgment in the case of Sagar Dyeing and Ptg. Mills P. Ltd. and Anr. - 1999 (34) RLT 350. 8. emsp We are of the view that the preposition of law profounded in these cases does not require any authority. In view of the above, we set aside the impugned order and remand the matters back to the Adjudicating Authority who shall allow the appellants to file their reply as well as offer personal hearing. We show our displeasure in the conduct of the appellants in not replying to the show cause notice in time. The appellants are directed to take swift steps to file the reply to the show cause notice. 9. emsp Stay applications also stand disposed of.
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2000 (8) TMI 574 - CEGAT, NEW DELHI
Manufacture - Confiscation and penalty ... ... ... ... ..... lause under Section 111 of the Act was sought to be invoked for confiscating the goods. Moreover, there is no finding in the order of the adjudicating authority as to the foreign origin of the goods. The first and foremost requirement for holding goods to be confiscated under Section 111 is a finding that the goods are of foreign origin. Such finding is lacking in the impugned order. We are, therefore, unable to sustain the order of confiscation passed by learned Commissioner under Section 111 of the Customs Act. This being so, there is no question of sustaining the penalty imposed under Section 112 of the Act. In the result, the order of confiscation along with imposition of redemption fine in lieu of confiscation and the order of penalty imposed by the adjudicating authority under the provisions of the Customs Act are set aside. 8. emsp The appeal is allowed in part as above. 9. emsp The operative part of this order has already been pronounced in the open court on 7-6-2000.
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2000 (8) TMI 573 - CEGAT, MUMBAI
Demand - Adjustment - Refund claim ... ... ... ... ..... the assessable value. In that case, if the Asstt. Commissioner were to accept their case under Section 11B, he could direct adjustment of the sums outstanding before paying the remainder of the refund claim. But where the assessee did not even file the refund claim the Asstt. Commissioner could not adopt the logic of the assessee. On this ground, we find that the orders are proper. 4. emsp At this stage, Shri Parakh submits that out of the 3 invoices on which the differential duty was based, the last invoice dated 30-9-1996 refers to clearance of the basic machinery and not the spare parts. The differential duty of Rs. 2250/- is not lawfully payable. On perusal of the invoice, we find this claim to be correct. We also find that in the circumstances, there is no reason to imposition of penalty upon the assessee. 5. emsp We, therefore, allow the appeal in part. The differential duty payable by the assessee of Rs. 4750/- is confirmed and upheld. The penalty is remitted in full.
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2000 (8) TMI 572 - CEGAT, KOLKATA
Appeal - Implementation of order in favour of appellant ... ... ... ... ..... the value adopted by the Revenue at the time of seizure of the goods has to be returned. In the present case the department itself has valued the waste and scrap in question at the time of seizure at Rs. 9,09,200/-. It is not understood as to how such a high valued goods could be sold by the Revenue during the pendency of the appeal at such a lower rate which is almost 1/8 of the seizure value. Wrongful seizure and confiscation of the waste and scrap in question by the Revenue has already caused injury to the appellant and the Revenue cannot be allowed to do further injustice to the injured party, who is entitled to the value of the goods prevalent at the time of the seizure. As the Revenue has themselves valued the seized goods to the tune of Rs. 9,09,200/-, I direct the department to pay the balance amount of the value of the goods to the appellant within a period of two months from the date of receipt of the order. Miscellaneous application is thus allowed in above terms.
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2000 (8) TMI 571 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... g under CET sub-headings 7208.39 and 7208.40. 2. emsp We have carefully considered the rival submissions. We find that in the case of LML Ltd. v. Commissioner of Central Excise, Kanpur reported in 1997 (94) E.L.T. 273 (S.C.), the Apex Court considered the issue of classification of off-cuts of steel sheets used for manufacture of scooter parts and accessories. The Apex Court held that off-cuts which are the remaining portions of steel sheets, are not classifiable as waste and scrap of metal since they are not fit for recovery of metal, but are classifiable under Heading 72.10 of the Tariff as shapes. The ratio of the above decision is directly applicable to the present case. Following the ratio thereof, we hold that the goods in dispute are classifiable under Heading 72.10 and not under either of the Headings claimed by the assessee or upheld by the Revenue. In view of this, penalty imposed upon the appellant is set aside. 3. emsp The appeal is disposed of in the above terms.
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2000 (8) TMI 570 - CEGAT, MUMBAI
Show cause notice - Service of - Demand - Limitation ... ... ... ... ..... ve has not been able to rebut the contention raised by the applicant that the notice has not been served, such contention being emphasised by the affidavit filed. In addition, we find that the Commissioner does not indicate any basis for his view that the Modvat credit had been availed of in the manufacture. The benefit of the notification has already been extended and the goods cleared by the Department, which at the relevant time was indubitably aware of this condition in the notification. In that situation, some material would have to be shown that the earlier clearance accorded earlier was wrong. There is no material. There is also no material to show how the extended period contained in the proviso under Section 28(1) of the Act (which would have to be invoked, since goods were cleared in November, 1993 and the notice is dated July, 1993) would apply. 4. emsp For these reasons, we are not able to sustain the impugned order and therefore set it aside and allow the appeal.
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2000 (8) TMI 569 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... or cream only because it is used for shoes. The product is not corresponding to or resembling in character or use to polish or cream and as such cannot be classified under Sub-heading 3405.10 of CETA. Moreover, Heading 34.02 is a specific heading for the impugned product, being cleaning preparation and, therefore, it has to be classified under Sub-heading 3402.90. For this reason, the impugned product can also not be classified under Sub-heading 3405.40 as scouring preparation. The product in question is not a scouring preparation. According to H.S.N. Explanatory Notes scouring powder consists of mixture of very finely ground sand with sodium carbonate and soap and scouring pastes are obtained by binding these powders with, for example, a solution of waxes in a lubricating material. There is nothing on record that the product in question is such a product. Accordingly we do not find any reason to interfere with the impugned Order and reject the appeal filed by the Appellants.
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2000 (8) TMI 568 - CEGAT, CHENNAI
Appeal - Limitation ... ... ... ... ..... which certified that Shri Anil Kumar was suffering liver trouble and underwent treatment from 4-2-1999 to 2-1-2000. The learned Counsel has filed another certificate from the Doctor who has prescribed Liv-52 for the treatment and indicated that the appellant had only loss of appetite as illness. The certificate does not indicate that the appellant was bed-ridden and unable to move out and attend to his regular activities. No affidavit has also been filed stating that the appellant was critically ill and was totally crippled which disabled him from filing the appeal. No sufficient reason has been furnished to condone the delay. The certificate states that he was suffering from only loss of appetite and the doctor has prescribed only vitamins. Therefore, the reason given is not sufficient to condone the delay in filing the appeal. The COD application for condonation of delay of 200 days is therefore rejected. As a result, the stay application and the appeal also stand rejected.
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2000 (8) TMI 567 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... ny cases, including the decision in Sealol Hindustan Ltd., supra, and Plastic Craft Industries, supra, relied upon by the ld. Advocate for the Appellants. The Board also clarified vide letter F. No 145/12/87-CX4, dated. 18-3-88 that Ice trays, freezer doors, etc. would be classified under Heading No. 84.18 as parts of refrigerator. The Board, however, classified butter box under Chapter 39 as it was not solely designed for use with refrigerator. Accordingly we hold that applying Rule 2(b) to Section XVI, hoses in question are appropriately classifiable along with vacuum cleaner under Heading No. 85.09 of the Tariff. We also agree with the ld. Advocate that no penalty under Section 11 AC of the Central Excise Act is imposable merely on the ground that the Appellants changed the classification of the impugned goods in the classification list filed by them. In any case, as we are allowing the appeal on merit, the question of imposing penalty and charging interest does not arise.
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2000 (8) TMI 566 - CEGAT, MUMBAI
Exemption under notification to a product specifically described in the Tariff Entry ... ... ... ... ..... fective from 1-3-1988. At Sr. No. 1, phosphorus sulfochloride had been shown as benefitting from Notification No. 43/88. A further entry shows manufacture of insecticides etc. including pesticidies. The entry at Sr. No. 1 specifically claims exemption in terms of Notification which permitted duty free clearance when used in a particular product. It is not denied that the use was not in that class of product but was in another product. Therefore, it does not become a defence for the assessee in claiming the limitation. 13. emsp Shri Gunasekharan also claimed that RT 12 assessments had been finalized. If in the classification list a wrong benefit is taken and the fact of benefit having been wrongly taken is known only to the assessee, the fact that the RT 12 have been finalised would not come to the rescue of the assessee. We find no force in the argument on the ground of limitation. 14. emsp In the result we find that the impugned order is sustainable. The appeal is dismissed.
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2000 (8) TMI 565 - CEGAT, CHENNAI
Auxiliary duty - Exemption - Ovens - Baking ovens - Appeal - Additional ground ... ... ... ... ..... was only on the ground that even parts of oven were eligible for the exemption from auxiliary duty under relevant Notification as amended. We find no merits in the submissions made before us that even if the classification made by the lower authorities is not challenged the imported goods are oven and should be granted the benefit of the Notification. We find that we cannot take up an issue which was not before the lower authorities and therefore we find that when the goods have been accepted by the appellants themselves and by the lower authorities to be classifiable as parts of oven and that classification was not challenged, we have no material to classify it as ovens under 8514.30, we cannot read the Notification 139/90 as amended to cover exemption to parts of oven and therefore we find no infirmity in the order of the Collector (Appeals) and we uphold the same and find no reason to admit the present appeal. 5. emsp In view of our above findings, the appeal is rejected.
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2000 (8) TMI 564 - ALLAHABAD HIGH COURT
Writ jurisdiction ... ... ... ... ..... tally contrary to the description given in the shipping bill. Similar discrepancy was found in other constrained also as mentioned in details in para 13 of the counter affidavit in para 16 it is stated that premises of M/s. Sukukar Chemical Ltd. and agent to Leather Components Ltd. were searched but no records or files were found. There samples from the said cartons were also taken and sealed the pance has (sic) inquiries were made as head office of the petitioner which revealed that this firm does not exist at the above address. In para 17 of the counter affidavit it is stated that certain irregularities regarding certain bills have been found for huge amounts. Since proceedings are pending regard in this matter we are not inclined to interfere in writ jurisdiction. Moreover we are satisfied that the petitioner has not come with clear hands in view of the various allegations in the counter affidavit. Thus there is no force in this petition and the writ petition is dismissed.
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2000 (8) TMI 563 - CEGAT, MUMBAI
Modvat - Declaration ... ... ... ... ..... essee that failure to describe the final product in terms of the particular brand or trade name would not justify denying the credit and set aside the Asstt. Collector rsquo s order. Hence appeal by the department. 2. emsp The ground in the appeal that failure to describe the final product is not condonable offence is irrelevant to the facts of this case. There is no denial that the final product has been correctly described by the assessee. The contention of the assessee, noted by the Collector (Appeals), that the classification list itself described the goods in terms identical to those described in the Rule 57G i.e. lighting, fitting and parts thereof and that this list has been approved is significant. If the description was good enough for classification, I fail to see why it was not enough for the purpose of Modvat credit. There is no requirement in law that it should be in terms of brand name or trade name. I therefore see no reason to interfere and dismiss the appeal.
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2000 (8) TMI 562 - CEGAT, MUMBAI
Appeal by Department ... ... ... ... ..... nd proper as provided under Section 35B(1) of the Central Excise Act. The Supreme Court in the case of Rohit Pulp and Paper Mills, 1998 (101) E.L.T. 5 has held that the words are mandatory. Failure to provide the same in the authorisation is fatal to the appeal. Hence, the appeal of the department is dismissed.
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2000 (8) TMI 561 - CEGAT, CHENNAI
Classification ... ... ... ... ..... d 12-2-1999 set aside the Commissioner (Appeals) rsquo order and allowed the appeal by granting benefit of the above said Notification. He also produced copy of the said order and prays for a similar order in the present appeal. 3. emsp Heard ld. DR, Shri S. Kannan who reiterates the departmental contention. 4. emsp On a careful consideration of the submission, we notice that one of the appeal arising from the impugned Order-in-Appeal has already been decided by the Tribunal in Final Order No. 2615/99, dated 13-10-1999 and the Tribunal has held that the item in question is required to be classified under Chapter Heading 73 and the benefit of Notification No. 202/88 is required to be extended. Another proceeding against the same appellant was also set aside by Final Order Nos. 340 to 341/99, dated 12-2-1999 on the same issue. Therefore, respectfully following the ratio of these judgments, the impugned order is set aside and the appeal allowed with consequential relief, if any.
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2000 (8) TMI 560 - CEGAT, CHENNAI
Production capacity based duty - Annual capacity of production ... ... ... ... ..... ) is not to be included in the dimension of the Hot air chamber of the Stenter. (b) that explanation to this effect inserted by the Govt. of India by Notification No. 14/20 CE (NT), dated 1-3-2000 is to be applied with retrospective effect. 11. emsp In view of the noted above, it has acquired finality in these two decisions extracted above, we are of the considered view that there is no need to remand the matter back for re-consideration by the lower authority thereby only increasing his work. Therefore, applying the ratio of our decisions noted above, we are of the considered opinion that since these galleries are not to be included in the dimension of the Hot Air Chamber of the Stenter, therefore irrespective of the period of dispute, the orders impugned need to be set aside and the appeals are allowed with consequential relief if any as per law. Ordered accordingly. rdquo 6. emsp Following the ratio of the above judgment, the impugned order is set aside and appeal allowed.
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2000 (8) TMI 559 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... ldquo filter cloth rdquo . One of the goods considered in their own case reported in 1993 (49) ECR 147 was ldquo grey canvas cloth rdquo . We have also noted that the latter decision was relied on by learned Collector of Central Excise in passing the order under challenge in these appeals. 12. emsp In view of the conflict of views taken by different Two-Member Benches of the Tribunal on the classification of the product in question, we direct the Registry to place the matter before the Hon rsquo ble President for constituting a Larger Bench to decide the following issue - ldquo Whether the product of M/s. Simplex Mills Private Limited (Appellants in E/4413/93-D) viz. ldquo filter cloth/grey coarse canvas rdquo is classifiable under Chapter Heading 52.05 of the Schedule to the Central Excise Tariff Act, 1985 as claimed by the assessees or under Chapter Heading 59.09 of the said Schedule as claimed by the Revenue in relation to the period of dispute (1-9-89 to 30-11-91). rdquo
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