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Showing 421 to 440 of 497 Records

2005 (6) TMI 103

Issues:
1. Admissibility of capital goods credit under Rule 57Q for cement used in construction of civil foundation.
2. Admissibility of capital goods credit for Tooth Points component of Hydraulic Excavator used outside the factory.
3. Eligibility of 20 mm Rod material for capital goods credit.

Analysis:

1. The first issue pertains to the admissibility of capital goods credit under Rule 57Q for cement used in the construction of civil foundation. The Tribunal considered previous decisions and ruled in favor of the respondents, citing that Modvat credit was previously allowed for cement in a similar case. The Tribunal preferred the decision of the Chennai Bench over other Benches, ultimately dismissing the appeal of the Revenue.

2. Moving on to the second issue regarding the Tooth Points component of the Hydraulic Excavator used outside the factory, the Tribunal found that Rule 57Q did not permit Modvat credit on capital goods used outside the factory during the relevant period. Citing the Supreme Court's decision in a related case, the Tribunal concluded that the benefit of Modvat credit was not applicable to the Tooth Points component.

3. Lastly, the issue of the eligibility of 20 mm Rod material for capital goods credit was addressed. The Tribunal held that structural materials like Steel Rods, including the 20 mm Rod material used in the fabrication of a new cement mill, were eligible for capital goods credit under Rule 57Q. Despite the Department's appeal to the Apex Court, as there was no stay on the Tribunal's order, the benefit of capital goods credit was deemed admissible for the 20 mm Rod material.

In conclusion, the Tribunal allowed capital goods credit for cement and the 20 mm Rod material but denied such credit for the Tooth Points component. Therefore, Appeal Nos. E/583 to 585/2004 were partly allowed based on the specific eligibility criteria outlined for each item.
2005 (6) TMI 102

Issues:
1. Appeal against Final Order No. 821/2004 for penalty under Section 112 of the Customs Act, 1962.
2. Lack of communication leading to the appellant's unawareness of the appeal filed by the Revenue.
3. Request for recalling the Final Order due to incomplete consideration of the situation.

Analysis:
1. The case involved two applications against Final Order No. 821/2004, dated 26-2-2004, concerning a show cause notice for irregularity against M/s. Hindustan Tobacco Co. Ltd., proposing a penalty under Section 112 of the Customs Act, 1962. The Commissioner dropped the proceedings, prompting the Revenue to appeal to the Tribunal. The Tribunal allowed the Revenue's appeal, leading to a ROM filed by the Revenue due to the absence of a specific finding on the imposition of a penalty in the Final Order.

2. The appellant filed a ROM stating their lack of awareness regarding the Revenue's appeal, as they did not receive any communication from the Department about the appeal or the hearing before the Tribunal. They emphasized their inability to represent their case adequately and requested the Tribunal to recall the Final Order based on the incomplete consideration of the situation.

3. Upon reviewing the case records and confirming that the notice of hearing was sent to the appellant, albeit without acknowledgment, the Tribunal acknowledged the lack of awareness on the part of M/s. Hindustan Tobacco Co. Ltd. regarding the Revenue's appeal. In the interest of justice, the Tribunal decided to recall the Final Order No. 821/2004, dated 26-2-2004. Consequently, the ROM filed by the Revenue was deemed infructuous, and the matter was scheduled for final hearing on 8th July, 2005.
2005 (6) TMI 100

The appeal relates to eligibility of concessional duty for imported CD-R Blank. The benefit under the Notification is only for recorded media, not unrecorded media. The impugned order extending the benefit is set aside, and the appeal of the Revenue is allowed.
2005 (6) TMI 97

Issues Involved:
1. Whether the E3 unit should be considered an EPCG unit from 6-10-2001.
2. Applicability of Notification 125/84-CE for goods clandestinely removed from E3.
3. Proper computation of duty on clearances made from E3.
4. Correct valuation of the impugned goods.
5. Whether duties can be demanded under both Customs Act and Central Excise Act.
6. Duty demand on pre-forms.
7. Duty on raw materials under Notification 53/97-Cus.
8. Justification of penalties imposed on the company and individuals.
9. Confiscation of capital goods under Section 111(o) of the Customs Act.

Detailed Analysis:

1. EPCG Status of E3 Unit:
The appellants argued that the E3 unit should be deemed to be working under the EPCG scheme from 6-10-2001, the date of their application for conversion. However, the Tribunal rejected this contention, stating that an EPCG licence is necessary to be considered an EPCG unit. The Tribunal held that E3 remained an EOU until the EPCG licence was granted in 2003. Thus, all clearances from E3 during the disputed period should be treated as EOU clearances, attracting duty under proviso to Section 3(1) of the Central Excise Act.

2. Applicability of Notification 125/84-CE:
The appellants contended that goods clandestinely removed from E3 should be exempt from duty under Notification 125/84-CE. The Tribunal rejected this argument, citing the Larger Bench's decision in Himalya International, which held that duty is leviable on all goods manufactured in an EOU, whether or not allowed to be sold. The Tribunal emphasized that Notification 125/84 does not exempt goods removed without permission.

3. Computation of Duty on Clearances:
The appellants argued that the Commissioner erred in computing the duty, failing to consider effective rates under the Central Excise and Customs Tariff Acts. The Tribunal upheld the standard rate of duty prescribed under proviso to Section 3(1) of the Central Excise Act, as the conditions of Notification No. 2/95 were not satisfied.

4. Valuation of Impugned Goods:
The Tribunal upheld the Commissioner's method of adopting the transaction value shown on the central excise invoices for calculating the differential duty. The appellants' plea for adopting FOB value or contemporaneous import prices was rejected.

5. Demand of Duties Under Both Acts:
The Tribunal found that duties cannot be simultaneously demanded under the Customs Act and Central Excise Act. The duty demand on 6,35,626.7 kms of optical fibres was upheld, subject to granting credit for the duty already paid.

6. Duty on Pre-forms:
The Tribunal upheld the duty demand on 9913 kgs of pre-forms, rejecting the appellants' claim that only 2583 kgs were manufactured in E3. The Tribunal also upheld the valuation method and the application of the standard rate of duty.

7. Duty on Raw Materials:
The Tribunal set aside the duty demand on raw materials and remanded the matter to the Commissioner for a fresh decision after considering the appellants' contentions regarding the accounting of raw materials.

8. Penalties:
The Tribunal reduced the penalty under Section 11AC of the Central Excise Act to Rs. 84,33,38,000/-. Penalties imposed on individual employees under Rule 26 of the Central Excise Rules and Section 112(b) of the Customs Act were set aside, as their involvement was not sufficiently established.

9. Confiscation of Capital Goods:
The Tribunal upheld the confiscation of capital goods under Section 111(o) of the Customs Act, citing clear violations of Notification 53/97. However, the quantum of penalty was to be redetermined in light of the Tribunal's observations.

Conclusion:
The appeals were disposed of with specific directions regarding duty demands, penalties, and confiscation, providing relief in certain aspects while upholding significant portions of the Commissioner's order.
2005 (6) TMI 96

Issues:
1. Appeal against order-in-original of the Commissioner of Central Excise, Vadodara regarding a fire accident at a factory.
2. Whether the fire accident was due to natural cause or unavoidable accident.
3. Burden of proof on the appellant to establish the goods destroyed in the fire.

Analysis:
1. The appeal was filed against the order-in-original of the Commissioner of Central Excise, Vadodara, regarding a fire accident at the appellant's factory. Despite notice, the appellants did not appear for the hearing, citing lack of working staff and inability to trace the appeal paper book. The Commissioner observed that the fire was due to negligence of an employee, leading to the destruction of finished goods, and issued a demand notice for Central Excise duty amounting to Rs. 32,34,885.57.

2. The main issue was whether the fire accident was due to natural cause or an unavoidable accident. The Commissioner found negligence on the part of the appellant's employee for not switching off the lights, but no evidence was produced to support this claim. The Tribunal noted that the only evidence available suggested the fire was accidental. Citing precedents, the Tribunal held that the goods destroyed due to fire were covered under the Proviso to Rule 49(1) of the Central Excise Rules, as an unavoidable accident. The appellant had provided details of the destroyed goods, and the Department had no evidence to dispute the quantity.

3. The burden of proof was on the appellant to establish the quantity of goods destroyed in the fire and claim remission of duty under the Proviso to Rule 49. The Revenue argued negligence on the part of the appellant for not having fire fighting equipment and failing to provide a Survey Report. However, the Tribunal found no merit in these arguments and held that the appellants were entitled to remission of duty under the Proviso to Rule 49(1) of the Central Excise Rules. The appeal was allowed with consequent relief granted to the appellants.
2005 (6) TMI 95

Issues:
1. Contemporaneous import of identical goods at a higher value.
2. Determination of under valuation based on comparison of invoices.
3. Right of the department to re-open assessment within the statutory time limit.
4. Comparison of transaction value with value declared by the importer.
5. Genuineness of the value of imported goods.

Analysis:
The case involved two appeals filed by the Revenue against the Order-in-Appeal passed by the Commissioner of Customs & Central Excise. The respondents imported a textile machine from Japan, and the lower authority confirmed a demand based on a contemporaneous import of identical goods at a higher value. The Commissioner (Appeals) found no evidence that the declared price was not genuine, citing the manufacturer's invoice and payment records. The Commissioner also referred to the Supreme Court's decision in Basant Industries, emphasizing that mere comparison of invoices is not conclusive for determining under valuation.

The Revenue contested the Order-in-Appeal on several grounds. Firstly, they argued that the imports were contemporaneous based on the dates of the Bill of Entry. Secondly, they asserted the department's right to re-open assessment within the statutory time limit. Thirdly, they highlighted the comparison of transaction values and distinguished the case from Basant Industries. During the hearing, the Revenue was represented by Smt. R. Bhagya Devi, while no one appeared on behalf of the respondents.

After carefully reviewing the case records, the Appellate Tribunal found no reason to doubt the genuineness of the imported goods' value. The Tribunal noted the production of the manufacturer's invoice and proper remittances through a banking channel. Consequently, the Tribunal rejected the Revenue's appeals, concluding that there was no merit in their arguments. The decision was dictated and pronounced in open court.
2005 (6) TMI 93

Issues:
1. Seizure of finished goods without proper accountal in RG 1 Register.
2. Uncancelled invoice and non-furnishing of D3 intimation.
3. Confiscation of goods, imposition of penalties under Rules 173Q and 210.

Analysis:

1. The officers found finished goods valued at about Rs. 7.3 lakhs in the Quality Control Room without proper accountal in RG 1 Register. The seized goods were released provisionally to the appellants on execution of bond and production of cash security. The Department issued a show-cause notice proposing to confiscate the seized goods under Rule 173Q and to impose penalties under Rules 173Q and 210. The original authority confiscated the goods with a Redemption Fine of Rs. 1 lakh and imposed a penalty of Rs. 17,000 on the party. The appeal filed against this decision was rejected by the Commissioner (Appeals).

2. The appellants argued that the goods seized had not reached the RG1 stage and were not liable for confiscation. They also explained that the uncancelled invoice was due to unavoidable circumstances, such as the unavailability of staff to cancel the invoice on time. Regarding the goods returned by the customer, the appellants admitted the failure to give D3 intimation but claimed no intention to evade duty as the recast goods were cleared with duty payment. The Tribunal found substance in the appellants' contention that the seized goods had not reached the RG1 stage, making their confiscation unsustainable. The Tribunal also noted confusion in the show-cause notice and the imposition of a composite penalty under two independent penal provisions, which was deemed unsustainable in law.

3. The Tribunal observed that the seized goods had not reached the required RG1 stage for confiscation. It was noted that Rule 210, a residual penal provision, was invoked without clear justification. The confusion in the show-cause notice and the imposition of a composite penalty under two separate provisions were found to be legally unsustainable. Consequently, the Tribunal set aside the impugned order and allowed the appeal.

This detailed analysis of the judgment addresses the issues of seizure of goods without proper accountal, uncancelled invoice, and non-furnishing of D3 intimation, along with the confiscation of goods and imposition of penalties under relevant rules.
2005 (6) TMI 92

Classification under CSH 2618.00 - demands - Process of manufacture - whether on carrying on the process of grinding, the Granulated Blast Furnace Slag (GBS) would bring into existence a new product viz. Ground Granulated Blast Furnace Slag (GGBS) - HELD THAT:- We find that the activity of mere grinding of GBS to bring into existence GGBS would not amount to a process of manufacture. There is no chemical change nor does it change the character of the slag. The slag remains slag and, therefore, the finding given by the Commissioner, without examining the ratio of 23 judgments cited by the assessee, is not justified and not correct in law. Mere physical change will not bring into existence a different commodity. The change should bring a change in the name and character and use of the commodity as held by the Apex Court in a large number of judgments.

In the case of Iswar Grinding Mills v. CCE [1999 (8) TMI 387 - CEGAT, CALCUTTA] wherein crushing/powdering of tobacco leaves first manually and then with power aided crushing/grinding machine to form tobacco flakes/powder has been held to be not a process of manufacture. Likewise, the judgment of Alchemie Pvt. Ltd. v. CCE [1999 (8) TMI 380 - CEGAT, MUMBAI] wherein it has been held that Concentrate spent liquor/wash containing 4 to 6% caustic soda obtained by concentration of 16-18% after removing impurities has been held to be not a new product and the process has been held to be not a process of manufacture.

In the present case, there is no change in the character nor in its use and hence the ratio of the judgments cited by the Sr. Counsel would apply to the facts of the case. The impugned order is not correct and legal and hence the same is set aside by allowing the appeal with consequential relief, if any.
2005 (6) TMI 91

Issues:
Penalty imposed on appellants for irregular availment of Modvat credit while maintaining depreciation claim under Income-tax Act.

Analysis:
The appellants took Modvat credit on capital goods in 1995-96 without claiming depreciation under the Income-tax Act. The assessing authority allowed depreciation in the income-tax return after deducting the Modvat credit. The Central Excise authority disallowed the credit, but the Commissioner (Appeals) allowed it. The appellants recredited the amount in their Modvat account after a favorable decision. However, they did not withdraw their depreciation claim immediately. After an audit revealed the irregularity, they sought to withdraw the depreciation claim. A show cause notice was issued proposing to disallow the credit and impose a penalty for contravention of rules. The original authority disallowed the credit and imposed a penalty of Rs. 4 lakhs. The first appellate authority allowed the credit but upheld the penalty.

The appellant challenged the penalty citing relevant case laws. The crucial issue was whether the appellants committed an offense by enjoying Modvat credit while maintaining the depreciation claim. The appellant's conduct between 1998 and 1999 was under scrutiny to determine if the penalty was justified.

The Tribunal analyzed the case law and provisions related to penalties for irregular availment of credit. It was noted that where the demand of duty was set aside or the proposal for credit recovery was withdrawn, no penalty was imposed. The Tribunal upheld the consistent view that when the demand of duty was dropped, no penal provision could survive. The facts of a similar case supported the decision to vacate the penalty imposed on the appellants.

Ultimately, the Tribunal set aside the penalty imposed on the appellants and allowed the appeal.
2005 (6) TMI 89

Issues: Valuation of export goods, DEPB claim, Overvaluation of goods

In the judgment by the Appellate Tribunal CESTAT, Mumbai, the Revenue filed appeals against the Commissioner (Appeals), Mumbai's order regarding the valuation of export goods, specifically 100% Cotton Knitted T-Shirts under DEPB. The respondent declared the FOB value and PMV for the goods, and the original adjudicating authority found the declared value fair but restricted the DEPB claim to 50% of the PMV. The Revenue contended that the FOB price was misdeclared and that the goods were overvalued. However, the Tribunal noted that no evidence supported the Revenue's claim of overvaluation, as similar T-Shirts had been exported at the same price previously without objections. Both the Commissioner (Appeals) and the lower authority had restricted the DEPB claim to 50% of the PMV, but the Tribunal emphasized that this restriction did not prove the absence of overvaluation. Despite this, the Tribunal upheld the Commissioner's order, stating that there was no evidence of overvaluation for the impugned goods and that the DEPB would be restricted to 50% of the PMV declared. Consequently, the Tribunal rejected the Revenue's appeals based on the lack of evidence supporting the claim of overvaluation.
2005 (6) TMI 84

Issues:
1. Rectification of mistake in dismissing appeal by Tribunal.
2. Classification of goods under Heading 9017.30.
3. Time bar for demand of Rs. 12,01,228.
4. Allegations of suppression of facts by the importer.
5. Assessment and examination of goods by Customs Officers.

Issue 1: Rectification of mistake in dismissing appeal by Tribunal
The Revenue filed appeals against an order passed by the Commissioner of Customs, which were dismissed by the Tribunal. Subsequently, the Revenue filed an application for rectification of the order, which was also rejected. The High Court held that there was a mistake in dismissing the appeal based on the settlement under KVSS. The High Court directed that the Tribunal's order be vacated, and the appeal of the Revenue be restored for final disposal.

Issue 2: Classification of goods under Heading 9017.30
The Revenue challenged the dropping of a demand of Rs. 12,01,228 by the Commissioner on the grounds of time bar and suppression of facts by the importer. The Revenue argued that the goods were wrongly classified as universal measuring instruments instead of under Heading 9017.30, as per the Explanatory Notes to HSN. The Tribunal found that there was a mistake on the part of the Customs Officers in the assessment of the goods, and the importer cannot be held liable for suppression of facts.

Issue 3: Time bar for demand of Rs. 12,01,228
The Commissioner had dropped the demand of Rs. 12,01,228 on the grounds of time bar, invoking the proviso to Section 28. However, the Tribunal found that there was no evidence of collusion or willful misstatement by the importers to evade duty. The extended period of five years for recovery of dues was held to be inapplicable.

Issue 4: Allegations of suppression of facts by the importer
The Revenue alleged suppression of facts by the importer in declaring the goods as universal measuring instruments/digimatic electronic instruments instead of micrometers. However, the Tribunal found that the Customs Officers had assessed the goods themselves and found no evidence of collusion or deliberate withholding of information by the importers.

Issue 5: Assessment and examination of goods by Customs Officers
The Customs Officers assessed and examined the goods, finding them to be as per the description in the invoice. Any mistakes in the assessment were attributed to the Customs Officers, and not to the importer. The Tribunal upheld the Commissioner's decision in dropping the demand for imports made under the disputed Bill of Entry.

In conclusion, the Tribunal rejected the appeal of the Revenue, upholding the Commissioner's decision regarding the classification of goods and the dropping of the demand, based on the assessment and examination conducted by the Customs Officers.
2005 (6) TMI 82

Issues:
Cenvat credit denial based on duty payment on capital goods by the supplier; Interpretation of Section 3 of the Central Excise Act for credit availability; Justification of penalty imposition on the appellants.

Analysis:
The case involved the denial of Cenvat credit amounting to Rs. 2,37,104/- to the appellants by lower authorities due to duty payment issues on capital goods by the supplier. The appellants purchased machines from M/s. Vairava Textiles Ltd. (VTL), who had acquired them from the manufacturer. While M/s. VTL reversed Modvat credit by 50% of the duty paid on the goods, the appellants claimed the full duty amount as credit. The main contention was whether the duty paid by the manufacturer or the supplier is available as credit under Section 3 of the Central Excise Act. The Tribunal examined the invoices and noted that M/s. VTL had only paid 50% of the duty. Consequently, the appellants were entitled to credit only to this extent, as per the invoices. The lower authorities' decision to uphold credit availability based on the supplier's payment was affirmed.

Regarding the penalty imposed on the appellants, the Tribunal found no intention on their part to illegally avail Cenvat credit. It was evident that the appellants believed they were entitled to the full duty credit paid by the manufacturer. Therefore, the penalty was deemed unjustified and set aside. The impugned order was modified accordingly, with the Tribunal disposing of the appeal in the mentioned terms. The operative part of the order was pronounced on a specific date.
2005 (6) TMI 81

Issues Involved:
1. Classification of Tensile Steel Strappings.
2. Determination of whether the processes involved constituted "manufacture."
3. Applicability of extended period of limitation under Section 11A.
4. Entitlement to Modvat credit.

Detailed Analysis:

1. Classification of Tensile Steel Strappings:

The primary issue was whether the tensile steel strappings manufactured by the assessee should be classified under sub-heading 7211.31 as "cold rolled strips" or under sub-heading 7308.90 as "other articles of iron or steel." The Tribunal initially classified the goods under 7308.90, but the Supreme Court remanded the case for reconsideration, emphasizing the need to address the limitation period and Modvat credit issues.

The Tribunal found that "box strappings" are a type of cold rolled steel strip used in industrial packaging. The Indian Standard Specification (IS:5872:1990) for cold rolled steel strips includes "box strappings," indicating that they are not distinct articles but specific grades of cold rolled strips. Therefore, the Tribunal concluded that the tensile steel strappings should be classified under sub-heading 7211.31, not 7308.90.

2. Determination of Whether the Processes Involved Constituted "Manufacture":

The Tribunal examined whether the processes undertaken by the assessee-decoiling, slitting, pin hole detecting, side trimming, deburring, cutting, welding, heating, painting, waxing-constituted "manufacture" under Section 2(f) of the Central Excise Act. The Tribunal concluded that these processes transformed the cold rolled steel strips into a distinct product with enhanced characteristics suitable for industrial packaging. Thus, the processes amounted to "manufacture," bringing the product within the purview of excise duty.

3. Applicability of Extended Period of Limitation under Section 11A:

The show cause notice was issued on 8th April 1987 for the period from 1st March 1986 to 19th February 1987. The Tribunal noted that the nature of the manufacturing process was known to the Department from the beginning, and there was no evidence of fraud, collusion, wilful misstatement, or suppression of facts by the assessee. Therefore, the extended period of limitation of five years could not be invoked. The Tribunal held that the show cause notice was valid only for the period within six months from the relevant date, i.e., from 1st October 1986 to 19th February 1987.

4. Entitlement to Modvat Credit:

The Tribunal acknowledged that the assessee was entitled to claim Modvat credit for the duty paid on cold rolled steel strips used as raw material for manufacturing box strappings. The adjudicating authority was directed to calculate the Modvat credit as per the rules and adjust it against the duty payable by the assessee.

Conclusion:

The Tribunal set aside the impugned order of the Collector of Central Excise and remitted the matter for recalculating and recovering the excise duty for the goods removed during the valid period. The Tribunal emphasized that the box strappings should be classified under sub-heading 7211.31 and that the processes involved constituted "manufacture." The assessee was also entitled to Modvat credit for the duty paid on the raw materials used.
2005 (6) TMI 79

Valuation of Physician's Samples for free distribution among Doctors through Medical Representatives - Method to be followed - HELD THAT:- Rule 6(b)(i) is the method of valuation on the basis of the price of comparable goods. The Commissioner (Appeals) has given 3 reasons for holding that the physician's samples and the goods cleared for wholesale trade are not comparable. Moreover, the Hon'ble Supreme Court, in the of CCE, Meerut v. Universal Glass Ltd. [2005 (3) TMI 122 - SUPREME COURT] by the learned respondent, has held that comparable goods under Rule 6(b) should be as far as possible identical goods. Moreover, the CESTAT in Sun Pharmaceuticals [2004 (12) TMI 501 - CESTAT, MUMBAI], has held that the value of physician's sample in smaller pack cannot be increased pro rata to price of commercial pack by applying Rule 4 of the erstwhile CE Valuation Rules. In the same case, valuation of smaller pack by applying Rule 6(b)(ii) was upheld. Even though, Revenue in its appeal relied on two decisions of the CEGAT, we are of the view that the physician's samples and the goods cleared on wholesale cannot be considered as comparable goods in view of the Supreme Court's decision that comparable goods should be as far as possible identical goods.

The Commissioner (Appeals) has reached his conclusions on sound reasoning. Therefore, we do not find any reason to interfere with the impugned order. The Revenue's appeal is rejected.
2005 (6) TMI 77

Issues:
- Interpretation of warehousing period under Customs Act, 1962
- Entitlement to refund of excess interest paid
- Unjust enrichment and documentary evidence requirement for refund claim

Interpretation of warehousing period under Customs Act, 1962:
The appellants warehoused imported capital goods before an amendment reduced the warehousing period from three years to one year. The High Court determined that the one-year period applied to them. The Supreme Court upheld this decision, ordering interest payment at 12% p.a. till the refund of excess amount. The appellants claimed a refund of Rs. 81,49,624.50, comprising excess interest and 12% interest on the excess amount. The Original Authority initially rejected the claim due to lack of evidence on unjust enrichment. The de novo adjudication sanctioned a refund of Rs. 59,89,260/-, including excess interest and interest @ 12% till 31-5-96. The appellants contended they were entitled to interest from 1-6-96 to 17-8-98.

Entitlement to refund of excess interest paid:
The appellants argued that they were entitled to the refund due to a huge loss on the sale of capital goods and the amount shown in the Balance Sheet as receivables from the department. They highlighted discrepancies in the Original Authority's decision to credit the refund to the Consumer Welfare Fund. The Adjudicating Authority only considered evidence of no unjust enrichment during de novo adjudication. The Tribunal found that the appellants had provided relevant documents even during the initial claim for refund. The Commissioner (Appeals) upheld the decision to restrict interest payment till 31-5-96, which the Tribunal deemed incorrect. The Tribunal allowed the appeal, granting interest from 1-6-96 to 17-8-98 in line with the Supreme Court decision.

Unjust enrichment and documentary evidence requirement for refund claim:
The Tribunal analyzed the evidence provided by the appellants, including Balance Sheet entries indicating amounts refundable to the department. They referenced previous Tribunal decisions supporting the appellants' position on unjust enrichment. Despite the Original Authority's claim of lack of evidence, the Tribunal found that the appellants had substantiated their claim for refund even during the initial proceedings. The Tribunal disagreed with the Commissioner (Appeals) and concluded that the appellants were entitled to interest beyond 31-5-96. The appeal was allowed with consequential relief, emphasizing the appellants' right to interest payment in accordance with the Supreme Court decision.
2005 (6) TMI 74

The Appellate Tribunal CESTAT, Mumbai ruled that the recovery under Section 11D for a surcharge on lubricating oil cannot be upheld. The tribunal also stated that penalty and interest provisions cannot be upheld. The decision was influenced by a previous case involving Bharat Petroleum Corporation Ltd. The impugned order was set aside and the appeal was allowed.
2005 (6) TMI 73

Issues:
Classification of "Pressure Pan with Lid" and "Pressure Pan without Lid" under Central Excise Rules, 1944.

Analysis:
The appeals were filed by the Revenue against an order of the Commissioner (Appeals) regarding the classification of "Pressure Pan with Lid" and "Pressure Pan without Lid" under the Central Excise Rules, 1944. The respondents had claimed exemption under Notification No. 41/94-C.E., dated 1-3-1994, for these products. The original authority classified "Pressure Pan with Lid" as a Pressure Cooker and held that Central Excise Duty was leviable at 10% ad valorem. The Commissioner (Appeals) partially allowed the appeals, classifying "Pressure Pan with Lid" and "Pressure Pan without Lid" as kitchen articles covered by the notification. The Revenue challenged this decision, arguing that the items should be classified as Pressure Cooker and its parts, respectively.

Upon examination of samples and arguments from both sides, the Tribunal considered whether the items should be classified based on functional or commercial identity tests. The Revenue contended that "Pressure Pan with Lid" should be treated as a Pressure Cooker due to its functionality, while the respondents argued for a commercial identity classification. The Tribunal observed that the items, when assembled, functioned as a Pressure Cooker, leading to their classification as such under the Trade Parlance Test established by the Supreme Court. Consequently, the benefit of 'nil' rate of duty under the notification was not applicable to these items.

In conclusion, the Tribunal upheld the Revenue's appeals, classifying "Pressure Pan with Lid" and "Pressure Pan without Lid" as a Pressure Cooker and its part, respectively, under the Central Excise Rules, 1944. The decision was based on the Trade Parlance Test and commercial identity considerations, leading to the denial of the exemption claimed by the respondents.
2005 (6) TMI 72

Issues: Classification of goods under Chapter 30, Marketability of products, Suppression of facts, CENVAT credit availability, Longer period invocation

The judgment involves appeals against an OIA passed by the Commissioner of Central Excise Delhi-I. The appellants, manufacturing ayurvedic medicaments, were directed to take Central Excise registration at their factories in Dehradun and New Delhi. The dispute arose when the Commissioner classified the products under Chapter Heading 3003.39, which the appellants contested. The appellants argued that the goods were not marketable as they were semi-finished and could not be sold due to legal restrictions. They also claimed that any duty payable at the Delhi factory would be subsumed as credit at the Bangalore factory, indicating no intention to evade duty. The appellants contended that there was no suppression of facts, and therefore, the extended period could not be invoked.

The Tribunal found that the Commissioner's classification under Chapter 30 went beyond the scope of the show cause notice, rendering the OIA liable to be set aside on this ground alone. Regarding the merits, the Tribunal agreed with the appellants that the products were intermediary goods, not marketable in their current form due to legal restrictions. The Tribunal also noted that CENVAT credit would offset any duty payable at the Delhi factory, indicating no intention to evade duty. The Tribunal held that the appellants had not suppressed any facts to evade duty, and as such, the OIA could not be sustained. Referring to relevant case laws and a Board Circular, the Tribunal concluded that the goods were not excisable as they were not marketable in their current form. The Tribunal also found no justification for invoking a longer period. Consequently, the appeal was allowed with any consequential relief.

In summary, the judgment addressed the classification of goods, marketability of products, suppression of facts, availability of CENVAT credit, and the invocation of a longer period. The Tribunal set aside the OIA due to the incorrect classification under Chapter 30 and ruled in favor of the appellants, holding that the goods were not excisable as they were not marketable in their current form and any duty payable would be offset by CENVAT credit.
2005 (6) TMI 68

Issues Involved: Appeal against Order-in-Original disallowing Cenvat credit for 100% E.O.U., imposition of penalties u/r Central Excise Rules, 2001/2002.

Summary:
The appellants, a 100% E.O.U., filed appeals against the Order-in-Original disallowing Cenvat credit under Rule 17 of the Central Excise Rules, 2001-2002. The Commissioner demanded duty and imposed penalties on the appellants and the General Manager. The appellants challenged these findings.

The appellants expressed their intention to avail Cenvat credit after the introduction of Cenvat Credit Rules, 2001. The Revenue issued a show cause notice for disallowing the credit under Rule 17. The Commissioner disallowed the credit, demanded duty, and imposed penalties on the appellants and the General Manager.

The appellants contended that there was no specific prohibition on taking Cenvat credit for 100% E.O.U. under the new rules. They requested the Bench to set aside the Commissioner's order.

The Revenue argued that Rule 17 required a 100% E.O.U. unit to pay duty through account current when clearing to Domestic Tariff Area (DTA). They claimed that the Order-in-Original was legal and requested the Bench to uphold it.

After considering the arguments, it was found that the appellants had informed the Department of their intention to take Cenvat credit, and there was no contumacious conduct warranting penalties. However, as per Rule 17, a 100% E.O.U. should pay duty through account current, not Cenvat credit. Therefore, the demand for duty was confirmed, penalties were set aside, but interest under Section 11AB was upheld.

The appeals were disposed of with the above terms on 16-6-2005.
2005 (6) TMI 67

Issues: Premature enforcement of bank guarantee by Deputy Commissioner, Stay of Deputy Commissioner's proceedings, Jurisdiction of the two-Member Bench, Interim relief under Rule 41 of CESTAT (Procedure) Rules, 1982

In this judgment by the Appellate Tribunal CESTAT, CHENNAI, the matter pertains to an appeal against Order-in-Original No. 4/2005 dated 23-2-2005 of the Commissioner of Central Excise, Pondicherry. The appellant received the impugned order on 12-4-2005 and filed the appeal on 18-5-2005, within the statutory period of 3 months for filing an appeal, which would expire on 12-7-2005. However, the Deputy Commissioner of Central Excise, Division-II, Pondicherry prematurely issued a letter dated 17-6-2005 to the appellant's bankers seeking to enforce a bank guarantee dated 14-8-2002 against the appellants for recovering the dues adjudged under the said order. The Tribunal, noting the premature action of the Deputy Commissioner, granted a stay of the enforcement proceedings for the ends of justice, following the precedent set in ARS Metals Ltd. v. CCE, Chennai - 2004 (174) E.L.T. 74 (Tri.-Chennai).

The amount of duty demanded under the Order-in-Original exceeds Rs. two crores, falling within the jurisdiction of a two-Member Bench. However, at the time, there was no such Bench available to handle the matter. Despite this, the Tribunal, in line with the ARS Metals Ltd. case, decided to grant interim relief to the appellants under Rule 41 of the CESTAT (Procedure) Rules, 1982 until the regular Bench could take up the case. The Tribunal, after hearing the learned DR and considering the circumstances, ordered a stay on the Deputy Commissioner's proceedings for enforcing the bank guarantee until further orders. The application for early hearing of the regular stay application was directed to be posted before the Division Bench once it became available. The order was to be executed immediately.

Overall, the judgment addresses the issues of premature enforcement of a bank guarantee by the Deputy Commissioner, the grant of stay on the enforcement proceedings, the jurisdictional challenge due to the absence of a two-Member Bench, and the provision of interim relief under Rule 41 of the CESTAT (Procedure) Rules, 1982 to ensure justice is served until the regular Bench can handle the matter effectively.