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Case Laws
Showing 81 to 100 of 197 Records
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1990 (5) TMI 130
Fertilizers - Exemption ... ... ... ... ..... ea. The ammonia re-generated after decomposition of molten urea is a new product, attracting fresh excise duty. rdquo Following the ratio of that decision we hold that ammonia which was removed to melamine plant for use in the manufacture of molten urea for the production of melamine was not eligible for exemption under Notification No. 145/71-C.E. As regards observation made by the Tribunal in the said decision about the regenerated ammonia sent back to lsquo Horten rsquo s Sphere rsquo , used for manufacture of fertilizers falling under Tariff Item 14HH being eligible for exemption under Notification No. 145/71-C.E. dated 26-7-1971, it is not relevant to the issue, and we are of the opinion that, with or without such observation, the ammonia used in the manufacture of molten urea for the production of melamine was not eligible for exemption under Notification No. 145/71-C.E. 7. With the above observations we uphold the impugned order and accordingly the appeal is dismissed.
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1990 (5) TMI 129
Refund on returned goods ... ... ... ... ..... returned goods should themselves be reprocessed or remanufactured into new goods without losing their identity. The objection taken by the Collector (Appeals) in his impugned order that Rule 173L is applicable to only remanufacture involving only the returned goods and it rules out the mixing up of the same with fresh raw material cannot be supported as the said Rule does not lay down such a requirement. His finding that under the said Rule only bricks can be remade from bricks and mortars remade from mortars goes against the finding of the Tribunal in the case reported in 1984 (17) E.L.T. 161 in the case of the same appellants, as already pointed out by us earlier. The applicants rsquo plea that the Rule 173L does not restrict the benefit available thereunder to the cases where the returned materials are used alone for being manufactured into materials of the same is acceptable. Accordingly, we allow the appeals. The appellants would be entitled to the consequential reliefs.
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1990 (5) TMI 128
MODVAT Credit ... ... ... ... ..... y structures, handgloves and shoes for safety. Laboratory glassware for laboratory use.... locomotive spares etc. Cement itself is being claimed the benefit for internal use. What can be permitted for Modvat benefit under Rule 57A of the Central Excise Rules are goods used in or in relation to manufacture subject to exclusions like machinery etc. Goods required for maintenance of structures, equipment and machinery are not eligible inputs. They are used in relation to maintenance and repair of the machinery, equipment and not used in relation to the manufacture of the final products. Goods used for mining of limestone or maintenance of mining machinery or equipment or for transport are likewise ineligible for the benefit of Modvat credit. The order in appeal does not disclose any infirmity in regard to the denial of Modvat credit on such goods. We accordingly reject the appeal. The operative part of the order was announced in the court when the appeal was heard on 17-04-1990.
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1990 (5) TMI 127
Refund - Protest ... ... ... ... ..... g against the levy or paying under protest. The letter of the company clearly showed that all possible contentions which could be raised against the levy of duty were raised. The Court observed that if this could not be said to be a protest, one fails to understand what else it could be. The letter will reveal that the appellant was not accepting the liability without protest, It was, therefore, held by the Court that the letter was in the nature of protest and accordingly the question of limitation did not arise for refund of duty. 7. The ratio laid down in the above said judgment of the Hon rsquo ble Supreme Court would squarely apply to the facts and circumstances of the present case. We accordingly allow the appeal and set aside that part of the Order-in-Appeal whereby the rejection of the refund claim had been upheld on the ground that the Gate Passes did not carry the endorsement ldquo Under Protest rdquo . The appellants would be entitled to the consequential benefits.
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1990 (5) TMI 126
Remission of duty ... ... ... ... ..... prescribed suitable conditions for disposal of this molasses, which is found to be unfit for marketing or for consumption. Second proviso referred to above could be applicable in this case. The Collector has considered this case only in the context of first proviso to Rule 49(1). If the goods have become unmarketable or unfit for consumption for any reason, the Collector is bound to consider the request for duty remission prescribing such conditions as may be considered necessary for disposal of such goods. We find that the Collector has not done this but confirmed the demand for duty on goods, which are claimed as not fit for marketing. We, therefore, set aside the order of the Collector but remand the case back to him for considering the request of the appellants for permitting destruction of the quantity stored in the pucca pit No. 2 claimed to be unfit for marketing and pass orders in accordance with law. 6. The appeal is disposed of in the light of the above directions.
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1990 (5) TMI 125
Classification ... ... ... ... ..... dy been pointed out by the Collector (Appeals). This will have preference to Heading 84.45/48 which is generally for machine tools for working metal or metal carbides, stones etc.- and as viewed by the department, the Rule 3(a) of the interpretative rules which provides preference to specific description over a general description, governs this classification. Therefore, the correct classification of the Gang Saw Blades would be under heading 82.01/04 and the reference to the case law by the Ld. Advocate in 1987 (30) E.L.T. 961 (Tri.) about the classification of the Gang Saw Blades under heading 84.45/48 is only in relation to an observation for the purpose of applying the basic customs duty, because in that case the issue involved is the liability for the countervailing duty. Therefore, it cannot be stated that the Tribunal in that case had given a specific finding on the classification under the Customs Tariff. In effect, therefore, the appeal has no merits and is rejected.
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1990 (5) TMI 124
Abandoned goods ... ... ... ... ..... iew of the matter the respondent would not be entitled to the relief for the above reasons. 5. I, therefore, on consideration of the entire materials on record hold that the reasoning of the lower appellate authority that the right under Sec. 23 of the Act can be worked out de hors the provisions and bar of limitation under Sec. 27 of the Act, is not legally correct. In this view of the matter I set aside the order passed by the lower appellate authority holding that the orders passed by both the authorities are non est in the eye of law and allow the appeal of the Department. Before parting this appeal, I make it clear that it is still open to the respondent to move the authorities at this stage for the return of the amount which is not duty but paid under a bona fide mistake and the amount collected by the authorities, admittedly not a duty under the Act. Since the amount involved is very small, it is open to the authorities to take an administrative decision of this issue.
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1990 (5) TMI 123
Modvat Credit ... ... ... ... ..... taken the view that this item can be regarded as input and is eligible for exemption under Notification 201/79. Hence we are fortified that in the liberalised context of Modvat Rules without restriction of usage as raw material or component, there is no jurisdiction for denying the Modvat credit in regard to this item. Accordingly, while allowing the appeal filed by M/s. Gujarat Alkalies and Chemicals Ltd., we dismiss the appeal filed by the Collector of Central Excise, Vadodara. rdquo 5. Therefore, on the basis of the ratio of the aforesaid rulings we hold that the input in question with which we are concerned in this case, would be eligible for Modvat credit under the Modvat Rules. Since on merits we find that the input is entitled to Modvat credit, we do not feel called upon to go into the question with reference to the applicability of bar of limitation. In this view of the matter we dismiss the appeal of the Department and allow the cross-objection. Ordered accordingly.
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1990 (5) TMI 122
Valuation - Packing of durable and nature ... ... ... ... ..... t cannot be said that the packing is returnable by the buyer to the assessee unless there is an arrangement between them that it shall be returned. Here in the present case if is not the contention of the petitioner that there was any such arrangement for return of the packing by the wholesale buyers to the petitioner nor is there any evidence to that effect. The Excise Authorities were, therefore, right in not excluding the cost of packing in determination of the assessable value of the goods. The Special Leave Petition will, therefore, stand rejected. In the present case, the appellants have not established that there was an arrangement between them and their customers to return the durable packings by their customers to them. In the circumstances, following the aforesaid judgment of the Hon rsquo ble Supreme Court, we hold that the cost of packings, in this case was correctly included in the assessable value. We, therefore, uphold the impugned order and dismiss the appeal.
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1990 (5) TMI 121
... ...
... ... ..... out any prior or contemporaneous correspondence with the supplier. While we shall not agree with learned JDR that omission of lsquo 115 rsquo indicates a change in the model without any evidence to that effect, we are inclined to agree that correspondence regarding notice of damage and subsequent repairs does ensue normally. This correspondence becomes important in establishing the identity of the goods imported, exported and re-exported. We are unable to understand the reasons for not bringing such correspondence on record. Nor was any explanation furnished by the Id. consultant on non-production of the correspondence. In the absence of correspondence between the appellants and the supplier brought on record, we are of the view that omission of the number lsquo 115 rsquo is not without significance. The importer/appellants have not been able to establish the identity of the goods for which the burden lies on them. 6. In view of the foregoing discussion, we reject the appeal.
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1990 (5) TMI 120
olypropylene ... ... ... ... ..... t the notification does not specify the sub-heading but only requires that the goods should fall within Chapter 39 of Customs Tariff Act, of which there is no doubt. The manufacturer rsquo s literature further shows, rdquo VESTOLEN. P 6522 is polypropylene of high molecular weight and reduced crystallinity. Therefore, since the goods fall within Chapter 39 of Customs Tariff Act, 1975, since they are manufactured and marketed as polypropylene, and since even according to the Department the goods fall under Heading 39.02 of Customs Tariff Act, ldquo Polymers of propylene or of other olefins, in primary forms, rdquo only the sub-heading being different, it will be reasonable to conclude that the goods VESTOLEN. P 6522 and 6502 will also be eligible for the exemption under Notification 227/76. In this context the appellants rsquo reliance on case law (1990) 26 ECC 98 (SB) is well founded. In the circumstances there is a lot of substance in the appeal which is accordingly allowed.
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1990 (5) TMI 119
Manufacture - Paper ... ... ... ... ..... er bench that the Indian Standard Institution had issued different specifications for each type of paper including a different specification for bituminised waterproof paper. The Tribunal had thereafter concluded that judged by the ratio of the decision laid down by the Supreme Court in the Empire Industries case, the process of bituminisation of kraft paper would also amount to manufacture of a new excisable commodity i.e. bituminised paper, the process of bituminisation being carried out in order to impart additional qualities such as strength and impermeability to water. The Tribunal rsquo s decision had not come up for consideration before the Hon rsquo ble High Court of Bombay in their decisions in 1988 (16) ECR 54 Bom. and 1988 (16) ECR 321 relied upon by the appellants. Therefore, in view of the 5-Member Bench decision, which we are bound to follow, we see no reason to interfere with the orders passed by the Collector (Appeals) and the appeals are accordingly rejected.
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1990 (5) TMI 118
Stay - Pre-deposit of duty or penalty ... ... ... ... ..... enue. A simple perusal of the same shows that stay can only be granted in those cases where the decision order relates to any duty demanded in respect of the goods which are not under the control of customs authorities or any penalty has been levied under the Act. In the matter before us no duty or penalty is payable and the goods are under the control of the customs authorities, and as such, we are accepting the arguments of the Ld. JDR that provisions of Section 129E are not applicable. We are of the view that the facts and circumstances of the case do not justify the exercise of inherent powers. Accordingly, we reject both the stay applications. 6. During the course of arguments Shri Agarwala, Ld. Advocate had made a prayer for the grant of early hearing. As the goods are of fire-fighting equipment, in the interest of justice, we order early hearing and the matter will be heard on merits on 18-6-1990. Since both the parties are present no notices of hearing need be issued.
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1990 (5) TMI 117
Rectification of mistake ... ... ... ... ..... ion. In the case of M/s. Maharana Mills (Private) Ltd. v. The Income-Tax Officer, Porbandar reported in AIR 1959 SC 881/36 ITR 350, the Hon rsquo ble Supreme Court had held that rdquo The words used in S. 35 are ldquo apparent from the record rdquo and the record does not mean only the order of assessment but it comprises all proceedings on which the assessment order is based and the Income-Tax Officer is entitled for the purpose of exercising his jurisdiction under S. 35 to look into the whole evidence and the law applicable to ascertain whether there was an error. 5. In view of the decisions cited by the learned advocate, we are of the view that rectification order was also a part of the proceedings in the assessment and so limitation for rectification order had to be counted from that date. Accordingly, we hold that ROM application is maintainable from an order passed rectifying a mistake, as the original order passed gets merged in the order passed rectifying the mistake.
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1990 (5) TMI 116
Exemption to S.S.I. units - Value of clearances ... ... ... ... ..... Avatar has produced some invoices, then also, the value of the column, in question, cannot be arrived at on the basis of such invoices unless it is established that they had same components and specifications. It is obvious that there can be such columns of different sizes, components and specifications, and naturally, the value would vary on the basis of these factors. So, the conclusion arrived at by the Collector is not justified. In that case, it cannot be said that investment made by the appellants in machinery and plant exceeds the limit of Rs. 20 lakhs. So, it cannot be said that the appellants had committed violation of any condition of the notifications, in question, and were not entitled to the benefit of exemption under the notifications, in question, whereby, small scale units are covered. 20. In light of the above discussion, we pass the following final order bull The appeals are allowed and impugned order is set aside with consequential relief to the appellants.
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1990 (5) TMI 115
Manufacture - Every process is not manufacture ... ... ... ... ..... pe or substance of a commodity would not by itself lead to the conclusion that a new article has been manufactured. Further this view was reaffirmed by the Supreme Court in the case of Collector of Central Excise v. Jayant Oil Mills Pvt. Ltd. (supra) wherein it was held that ldquo All processes need not be manufacture. It must be such a process which transforms an old article into lsquo goods rsquo and changes its identity and use. By the process, which can be considered to be manufacture, a new identifiable goods, in the sense known in the market as such must come into being. rdquo Following the ratio of the decision of the Apex Court we hold that Department was not justified in levying the tax on reprocessed commodity as a new identifiable goods in the present case. In the view we have taken, we are dismissing this appeal on merits without going into the limitation aspect. 7. In the result we uphold the impugned order and the appeal filed by the Revenue is hereby dismissed.
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1990 (5) TMI 114
Jurisdiction to issue show cause notice ... ... ... ... ..... Directorate of A.E. or DRI and thereby they have been appointed in that particular Directorate only. So, it can be seen from these appointments that the Directorates of A.E. and DRI were treated as separate entities and officers were appointed separately in both the Directorates and they were appointed in specific Directorate only. Otherwise, the officer concerned could have been appointed as an officer, in D.A.E./D.R.I. In light of the above discussion, we are of the view that the show cause notices in all the above appeals signed by the Assistant Director (AE) were without jurisdiction and so were invalid. As show cause notices were invalid, the adjudication proceedings following thereon were also rendered invalid. So, we pass the following final order All these appeals are allowed and impugned orders are set aside with consequential relief to the appellants, if any. The Central Excise authorities will be at liberty to issue fresh show cause notices, if otherwise possible.
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1990 (5) TMI 113
Classification ... ... ... ... ..... A must be the immediate result of refining of crude petroleum rdquo . This is the ratio laid down by the High Court in that case. It is not an obitor. This ratio has been followed by this Tribunal in the case of Nav Bharat Enterprises (supra). No contrary judgment has been brought to our notice. In the circumstances, we have to follow the ratio of that judgment. In the present case, the respondents rsquo products ethylene, propylene and butadiene were not derived directly from the crude petroleum, but the same were obtained from raw naptha - purchased from the oil refineries. In terms of the ratio of the above judgment, the respondents rsquo products would not fall under Tariff Item 11-AA(2), but would be classifiable under Tariff Item 68 as contended by the Revenue. Consequently, the exemption under Notification No. 276/67-C.E. dated 21-12-1967 was not admissible. 9. In the light of the foregoing discussions, we allow the appeal of the Revenue and dismiss the cross-objection
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1990 (5) TMI 112
Res Judicata Stay/Dispensation of prior deposit ... ... ... ... ..... E.L.T. 679 (S.C.). Here it may be also added that as extracted above the Apex Court in its Order dated 30-11-1984 passed in Civil Appeal No. 4327 of 1984 filed by the appellants against the Stay Order dated 25-5-1984 passed by the Tribunal had expressly stated that ldquo it was for the Tribunal to lay down the conditions on which waiver of pre-deposit and stay of realization should be granted and any failure to comply with the conditions must entail dismissal of the appeal. (Emphasis ours). 11. Since before dismissal of the appeal we have already issued a show cause notice to the appellants to show cause as to why the appeal be not dismissed for non-compliance and heard them also and find no reason to modify our Stay Order dated 25-5-1984, we have no alternative but to dismiss the appeal for non-compliance of the Stay Order dated 25-5-1984 under Section 35F of the Central Excises and Salt Act, 1944. We order accordingly. 12. In the result the appeal is dismissed as aforesaid.
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1990 (5) TMI 111
Demand - Limitation ... ... ... ... ..... -A of the Act. As we have seen above, the department cannot be said to have been kept in the dark about the product, and there were also circumstances to suggest that there was scope for the appellants to believe that the goods produced by them would be eligible for exemption. In these circumstances, the Collector rsquo s finding that the appellants had suppressed details of the specification of their product, and on that ground to invoke the longer period, is not sustainable. In the result, as the appellants have made a case on limitation and the demand in this case being well beyond six months, and in the absence of material to prove suppression of facts, we hold that the demand is hit by limitation. In this view of the matter, we do not feel called upon to go into the merits of the case. The Collector rsquo s order is, therefore, set aside on the grounds that the demand for duty being beyond six months without any grounds for invoking the longer period is not maintainable.
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