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Central Excise - Case Laws
Showing 1 to 20 of 62 Records
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1991 (9) TMI 363
... ...
... ... ..... oppel to the prosecution. While rejecting that contention the Apex Court has held as follows In the instant case for the reasons already mentioned, we are unable to hold that the proceeding before the Collector of Customs is a criminal trial. From this it follows that the decision of the Collector does not amount to a verdict of acquittal in favour of accused Nos. 1 and 2. He further relied upon the ruling reported in MANU/PH/0252/1981 Arun Spinning Mills v. Collector. In it, it was held that departmental proceedings initiated before the proper Officer is not covered by "legal proceedings." It was also held that Judgment of the criminal Court does not operate as res judicata in proceedings before departmental officers. In view of the above reasons, I hold that the finding of the Appellate Collector relied upon by the petitioner is not a bar to the launching of this complaint and on that score it cannot be quashed. 8. In view of the above, the petition is dismissed.
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1991 (9) TMI 309
Classification ... ... ... ... ..... y MP High Court. There is no reason for us to take a different view from these rulings as well as the ruling given by Andhra Pradesh High Court in the case of Siri Pharma. The Revenue has also not indicated any ground for taking a different view from those expressed already by the Tribunal as well as by other High Courts noted above. 11. emsp In view of the evidence produced in regard to the manner in which the product is marketed as food and food supplement and the assessee rsquo s contention clarified by Trade Notice, HSN Notes, there is no reason to interfere with the order of the learned Collector. As rightly pointed out by the assessee rsquo s representative that mere use of colour scheme on the wrapper and marketed in the brand or trade name, would not be a feature to consider the product as a drug or P and P medicine. This by itself is not a ground for considering the product as P and P medicine. Therefore, we uphold the lower authorities order and dismiss this appeal.
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1991 (9) TMI 308
Precedent - Valuation - Notification 201/85-C.E. ... ... ... ... ..... bay High Court decision and give relief to the petitioner or (ii) that the respondent should ignore the judgment of the Bombay High Court and take a contrary view. In the event of the first course being followed the Excise authorities will be prevented from challenging the view taken by the Bombay High Court so far as the present petitioner is concerned because it will not be possible for the respondent to have this matter pursued further in any proceedings. In the other alternative, the result will be ignoring and acting contrary to the judgment of the Bombay High Court by the Tribunal under the Act which would not be consistent with the proper administration of justice but rather will be destructive of it. rdquo 8. emsp In view of the above discussion we very respectfully follow the judgment of the Bombay High Court in the case of G.T.C. Inds. and Another v. U.O.I. reported in 1986 (25) E.L.T. 925 and confirm the findings of the lower authorities. The appeals are dismissed.
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1991 (9) TMI 284
Classification ... ... ... ... ..... unal has negatived the claim of the Revenue and upheld that of the assessee. 3. emsp On hearing the ld. Counsel, Sh. Paresh Dave for appellants and Sh. Narasimha Murthy, ld. D.R. for the Revenue, we grant stay and take up the appeals for disposal as the issue of classification of paper based laminated sheets stands concluded by the Tribunal in its decisions cited (supra), the ratio of which is applicable to facts of the present case. The ld. D.R. would, however, reiterate the submission that the Department has challenged the correctness of Tribunal rsquo s decision before the Supreme Court. This, however, in our view, will not be a ground for us not to follow precedent decisions whose operation has not been shown to be stayed by the Supreme Court. Therefore, following the ratio of the precedent CEGAT decisions, the appeals are allowed with consequential relief subject to the aspect of limitation in the case of the refund claim of the appellants before the Assistant Collector.
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1991 (9) TMI 267
Manufacture ... ... ... ... ..... that the Tribunal has held that the powdered rubber is not a new product merely because no chemical reaction is involved in the process of crushing and that this is erroneous. This is a very narrow reading of the Tribunal rsquo s order. The Tribunal has not only given a finding that the powder is secured by a mere process of crushing but also that the crushed product was not a new product. This is essentially a finding of fact. We, therefore, dismiss the appeal. rdquo 1990 (45) E.L.T. A.67 It is, further, seen that the appellants in their reply to the show cause notice have specifically referred to Gujarat Reclaim and Rubber Products Ltd., being one of their competitors and that the method of producing the powder in the two units is the same. Therefore, in view of the Tribunal rsquo s decision that such an activity will not amount to manufacture, as upheld by the Supreme Court, we see lot of force in the appeal which is accordingly allowed and the impugned order is set aside.
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1991 (9) TMI 242
Coal Tar Pitch and Blends of Pitch not entitled to benefit of exemption under Notification No. 121/62-C.E.
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1991 (9) TMI 233
Words & Phrases ... ... ... ... ..... emsp The decision of the Tribunal in Herdillia Chemicals case (supra) is also not applicable to the present appeals because the points to be decided by us is not on whose behalf the goods were manufactured. 27. emsp Certain other facts which were placed before us in the form of an affidavit of Shri S.A. Ranganathan, Dy. Manager (Legal) of the appellant company also go to support the basic conclusion that after exclusion of the areas from their ground plans, the boilers units were no longer within the factory premises of the three sugar mills. We agree with the conclusions of Collector of Central Excise, Coimbatore who has recorded detailed findings on these questions in paragraphs 10-12 (Appeals No. 2542/87-D) and paragraphs 11-13 (Appeal No. 2543/87-D) of the two impugned orders. 28. emsp The amounts of duty demanded in the three impugned orders have not been disputed in the appeals. The appeals fail for detailed reasons recorded above and all them are, therefore, rejected.
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1991 (9) TMI 225
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... ... ..... i, Member (T) . - I observe that the manner of utilisation of the credit allowed in respect of inputs is set out under Rule 57F. There is no provision in the said Rule for utilisation of the credit for payment of duty in respect of the goods which had already been cleared before the Scheme came into force. Under the MODVAT Scheme, the MODVAT Credit taken in RG 23A Part II is not like a money in the hands of the importer. The credit is only allowed to be set off for the purpose of payment of duty in respect of specified end products in respect of which the appellants have filed a declaration. In the present case it is not the case of the appellant that their finished product were entitled to the benefit of Modvat credit in respect of the inputs which were used. Even otherwise in the absence of any provision for retrospective application for utilisation of the MODVAT credit, the question of allowing the appellant rsquo s plea does not arise. The appeal is, therefore, dismissed.
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1991 (9) TMI 224
Refund - Protest - Payment of duty under protest ... ... ... ... ..... (Appeals) that the bona fide of the appellants in filing the letter of protest before the Supdt. is open to doubt, is not supported by factual position as indicated above. 6. emsp Filing of the letter of protest before the Superintendent simultaneously with the filing of the revised classification list, which was approved by the Assistant Collector has to be construed as substantial compliance of the requirement for the purposes of Rule 233B. Even factual position does not indicate that the letter of protest was manipulated subsequently to get the benefit of saving of limitation. In the circumstances, we are of the view that the lower authorities were not justified in dismissing the letter of protest as not saving the limitation. We, therefore, set aside the orders of the authorities below but remand the case back to the Assistant Collector for consideration of their claims on merits and pass orders in accordance with the law. 7. All the appeals are allowed by way of remand.
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1991 (9) TMI 223
Refund of duty on duty paid goods ... ... ... ... ..... y. Here however is not the case for refund of duty amount. The duty is already paid at the first removal, and that was the correct stage for payment of duty. The amount paid as duty at the second removal stage was actually on excess payment, and the doctrine of unjust enrichment, even assuming to be applicable to the refunds granted under the Excise Act, could not stand attracted here. 11. Taking all the factors into consideration, the case of the appellants would fall within the purview of Rule 173H, so far as receipt and retention of the machine in the premises is concerned. As per the said provision, the appellants could have removed the same without payment of duty and as such duty paid second time has to be taken as the excess duty liable to be refunded as per the general provisions. The claim filed is within six months from the date of payment. 12. The appeal is therefore allowed. The order rejecting the claim is set aside, and the refund claimed is directed to be paid.
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1991 (9) TMI 221
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... ... ..... duty of excise payable by an assessee which is liable to be deducted from the cum-duty price realised by an assessee from its customers. In that view, the duty payable by the appellant after taking into consideration the effect of Notification 198/76 only will have to be abated from the cum-duty price for arriving at the assessable value in terms of Section 4 of the Act. The judgment of Delhi High Court in the case of Modi Rubber Limited is no longer a valid law, in view of the change in legal position made by Act 14 of 1982 mentioned supra. Reliance placed by the learned Sr. D.R. on the citations mentioned above is correct. The latest judgment of Bombay High Court relied upon by the learned Sr. D.R. in the case of TELCO mentioned supra is a very exhaustive judgment dealing, with the entire case laws as it was before the amendment of section 4 and that judgment was rendered after the amendment of Section 4. Following respectfully the aforesaid decision, we dismiss the appeal.
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1991 (9) TMI 220
Valuation - Secondary packing ... ... ... ... ..... Section 4 of the Act. It is by now well settled 1985 (22) E.L.T. 159 (Trib.) Oswal Agro Mill Ltd., that whatever deductions are admissible from the gross sale price under Section 4 of the Act have also to be allowed under exemption Notification No. 120/75-C.E. while determining the assessable value of the goods. We also find that both the lower authorities have also held that the cost of wooden box was not includible in the assessable value. We agree with the conclusion of the lower authorities. rdquo 5. Since the electric water heaters in question were being supplied to the dealers in the local wholesale market in polythene packing and the additional dealwood packing was provided only for ensuring the safety of the goods during long distance transportation on the ratio of the Tribunal rsquo s decision quoted above it has to be held that the cost of the secondary dealwood packing was not includible in the assessable value of the goods 6. Accordingly, the appeal is dismissed.
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1991 (9) TMI 219
Seizure - Clearance without payment of duty ... ... ... ... ..... opinion has been taken on record. Apart from this, the respondents have a good case when they assert that the goods are cleared as scrap under the physical supervision of the Central Excise Officers themselves. We observe that there is no allegation either in the show-cause notice or in the original authority rsquo s order that the Range Officers in any way colluded or connived with the first respondent in giving clearance to the goods. The respondents are again on firm ground when they say that if there was any provision for cutting or hammering the goods the department ought to have carried out themselves without allowing the clearance. We notice at this stage that no copy of such an instruction has been brought on record by the department in its appeal memo nor during the course of hearing. To our mind the entire seizure was unwarranted in the facts and circumstances of this case. Accordingly, we have no hesitation in dismissing the appeals. They are dismissed accordingly.
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1991 (9) TMI 218
Classification ... ... ... ... ..... bserved that High Pressure Connectors meant for lubricating purposes were classifiable under Item 52 as lsquo nuts rsquo and not under Item 68 as integral parts of diesel engine pipes. If the principles dealt with in these decisions are applied to foundation bolts, it would appear that the goods are performing the function of fastening the machinery of material handling equipment to the foundation and they are known by the name of lsquo foundation bolts rsquo . The fact that they are used captively and not sold is also not material in view of the decision in the Plasmac Machine case (supra). The ratio of the Supreme Court decision in the Calcutta Steel Industries case as well as in Bhor Industries case (supra) that it is for the Department to prove that the goods are excisable and pass the common parlance test had been fully discharged by the authorities. In these circumstances, the respondents herein do not have a case and the Department rsquo s appeal is therefore, allowed.
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1991 (9) TMI 217
Proforma Credit - Special Excise duty ... ... ... ... ..... is no legal authority provided for in the notification under Rule 56A, which refers only to basic duty, additional excise duty and additional duty of customs. All these duties referred to in Rule 56A are of permanent nature, which have been taken cognisance of in the Rule 56A itself. Special excise duty is levied on year to year basis through Finance Act every year and hence the requisite authority is required to be looked into the relevant provisions of the Finance Act read with the Notifications issued relating to exemption of special excise duty. We find that Notification No. 131/85 dated 24-5-1988 issued in regard to special excise duty makes it clear that wherever input exemption is provided for in respect of basic duty, similar benefit is also available for special excise duty. In view of this legal authority available, Rule 56A which provides for input relief for basic duty is also available for special excise duty. Hence we allow the appeal with consequential relief.
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1991 (9) TMI 214
MODVAT Credit ... ... ... ... ..... Hon rsquo ble Tribunal in the case of M/s. Anil Starch Products Ltd., reported at 1990 (49) E.L.T. 525 wherein it was held that in case of by-products carrying NIL rate of duty, Rule 57D has to be applied and the duty credit taken on the inputs used in the by-product cannot be varied or reduced. It is only in the case of final products which are chargeable to NIL rate of duty that the duty credit cannot be extended by virtue of Rule 57C. The main issue, therefore, to be decided is whether the product in question is a final product or a by-product/waste. In so far as the present case is concerned, the plastic waste doesn rsquo t constitute final product and therefore, Rule 57C is not applicable in this case. In view of the clear provisions of Rule 57D the Modvat credit cannot be denied on the ground that the part of the duty paid inputs are contained in the plastic waste. 4. The appeal is therefore, admitted and the order passed by the Assistant Collector is hereby set aside.
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1991 (9) TMI 213
MODVAT credit ... ... ... ... ..... ackaging materials would signify that they are not same as package, but irrespective of this question, the issue is comprehensively in favour of the respondents. Likewise, there is no merit in the contention that the fact that in the blasting operations, these slurry explosives along with the packets/lay flat tubings get burnt up, does not alter the position that these tubes/lay flat tubings remain in the nature of containers/packing materials. These points have been adequately covered in the Order-in-Appeal passed by the Collector (Appeals), which we should say, is a very well reasoned one, taking note of the actual process of manufacture and the legal provisions relating to the availment of modvat credit. 8. For the foregoing reasons, we see no merit in the appeals which we accordingly dismiss. In the process, the Cross Objection filed by the respondents, which is only in the nature of containing their comments on the contentions raised in the appeal, also gets disposed of.
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1991 (9) TMI 212
Refund claim ... ... ... ... ..... xclude the relevant date and start the period of limitation of six months from the following day. The point raised in the appeal before us that the date of computation can never be by excluding 29-2-1988, has got no legal basis. Similarly, nothing much turns on the argument that since the Act specifically provides the relevant date which in the present case is the date of payment of duty, i.e. date of debit in the P.L.A., the Limitation Act cannot be made applicable. The fact that the relevant date has been defined in the Central Excises and Salt Act does not affect a general principle as to how to compute the period of limitation. The provisions of the Limitation Act and the General Clauses Act are to be applied for interpreting certain general situations like the period of limitation prescribed under any act. In view of the above circumstances, the decision of the Collector of Central Excise (Appeals) cannot be faulted. We, therefore, uphold the same and dismiss the appeal.
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1991 (9) TMI 208
MODVAT Credit ... ... ... ... ..... arances of the same under the said sub-rule. The appellant rsquo s plea in regard to the findings of the Collector (Appeals) that as in the case of aluminium scrap covered by Board rsquo s clarification, the removal of copper scrap without payment of duty should be allowed, is not acceptable in the present case. The instruction issued by the Board by giving a liberal interpretation to the provisions of Rule 57F(4)(b) can be considered as the instruction by the Government of India for the purpose of duty free clearances and can be taken to be applicable only to removal of Aluminium Scrap. Admittedly no such instructions have been issued under Rule 57F(4)(b) by the Central Government or the Board in regard to the removal of Copper scrap under the Modvat Scheme. We, therefore, hold that the order of the learned Collector (Appeals) is not maintainable in law and set aside the same and uphold the duty demand as ordered by the learned original authority in his order dated 2-1-1989.
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1991 (9) TMI 205
Appellants charged with clandestine manufacture of goods ... ... ... ... ..... ence of opinion in arriving at the conclusion and in view of the majority opinion whether would it not amount to a shifting of burden from Department to the party, is a question of law which requires to be referred to the High Court for the opinion. Further whether Tribunal would have come to the same conclusion in the absence of plaint presented by the applicants is also a point to be considered. Therefore, question No. 4 being a question of law arises out of the order of the Tribunal and requires to be referred. Since we feel the question No. 4 is to be reformulated, we refer the following reformulated question to the Hon rsquo ble High Court for its considered opinion - ldquo Whether the Tribunal is justified in the facts and circumstances of the case in arriving at the conclusion that goods were clandestinely manufactured by the appellants on the basis of stock verification by Bank officials or/and on the basis of pleadings filed before the Court in the Civil proceedings?
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