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Case Laws
Showing 121 to 140 of 437 Records
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1997 (3) TMI 344 - CEGAT, CALCUTTA
Rubber compound - Dutiability ... ... ... ... ..... ition of the excisable goods rsquo . It is also held by the Apex Court in the case of Ambalal Sarabhai Enterprises that it is the burden of the Revenue to prove the marketability of the product. It is not the burden of an assessee to prove the marketability. We find that the impugned order does not at all refer to any evidences whatsoever in that respect. Accordingly, we are of the view that the question of non-marketability of the goods raised by the appellants has not been disproved by the Revenue which they were required to prove. Accordingly, we hold that the product manufactured by the appellant on which duty is sought to be charged is not liable to duty. We allow the appeal of the appellants with consequential relief to them. 5. emsp In view of our decision on merits on the question of excisability of the manufactured goods, we are not inclined to enter into the question of limitation also raised by the learned advocate. 6. emsp Appeal is disposed of in the above terms.
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1997 (3) TMI 337 - CEGAT, CALCUTTA
... ...
... ... ..... durable in nature. But there is no evidence to show that there was any arrangement or understanding between the appellant on one hand and the buyers on the other that the containers returned will be accepted and the charges returned to the appellant. Therefore, a deduction claimed in this behalf cannot be allowed. The impugned Orders are set aside to the extent they rejected a part of the deductions claimed on account of Turn-over Tax and the charges for loading, unloading transportation and Insurance Charges and the case is remanded to the Jursidictional adjudicating authority for a fresh decision on these aspects, after giving an opportunity to the appellant to produce the necessary documentary evidence in proof of payment to the Government of the Turn-over Tax and of incurring of the expenditure for loading and unloading, transportation and insurance charges. It is made clear that in other aspects, the impugned Orders are confirmed. Appeals are allowed as indicated above.
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1997 (3) TMI 335 - CEGAT, CALCUTTA
Refund - Pre-deposit pending appeal ... ... ... ... ..... rity, is the same in both the cases. No differentiation can be made in cases of setting aside of Orders on merits. The Assistant Commissioner was not at all justified in denying the respondents in reaping the fruits of litigation which went in their favour at the first appellate stage, especially when the Order of the Commissioner (Appeals) was not challenged by the Department by way of filing of an appeal before the Tribunal. The argument raised on behalf of the Department that the Commissioner (Appeals rsquo ) Order did not show or authorise the party to take the Credit, does not find favour by me, as setting aside of the Order by itself amounts to allowing the parties to take the benefits arising out of such an Order and the absence of a specific and a clear direction to take the Credit deposited during the pendency of the appeal, is not required as such. 7. emsp In view of my discussions above, I do not find force in the appeal filed by the Department and reject the same.
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1997 (3) TMI 333 - COMMISSIONER OF CUSTOMS & CENTRAL EXCISE (APPEALS)
... ...
... ... ..... nt of expenses has to be calculated treating the disallowed amount for deduction as cum-duty price in terms of judgment of the Hon rsquo ble Supreme Court in case of U.O.I. v. M.R.F. Ltd. - 1995 (77) E.L.T. 433 (S.C.) as discussed at para 67. 18. emsp In the result, I hold that the cess on textile paid by the appellants is to be excluded from the sale price. The Trade discount may be allowed to be deducted provided it satisfies the test prescribed by the Hon rsquo ble Apex Court as discussed above. Trade Discount to wholesale dealer in respect of goods directly sold to retailer or any other person is allowable for deduction from the wholesale dealer to the appellants. In case of disallowance of any deduction, the value is to be treated as cum-duty price and duty would be worked out accordingly. The impugned order is set aside and remanded to the Asstt. Commissioner to decide afresh the issues discussed above by issue of a speaking order. The appeal is disposed of accordingly.
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1997 (3) TMI 332 - CEGAT, MUMBAI
Stay/Dispensation of pre-deposit - PLA ... ... ... ... ..... the management of the company which compelled him to take the credit, despite the lack of adequate balance in the P.L.A account. 4. emsp The claim of negligence prime facie fails for the reason that even TR6 challans have not been prepared and it was only when the department came to know to the facts that the company took action to (sic) the situation. I however find a prima facie case in favour of G. Hazara in the absence of evidence of any specific act committed by him. I therefore direct that on each of the first two applicants depositing Rs. 55,000/- within two months from today waiver of balance of penalty is granted and its recovery stayed. Compliance on 26-5-1997.
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1997 (3) TMI 331 - COMMISSIONER OF CUSTOMS & CENTRAL EXCISE (APPEALS)
Modvat - Wastage ... ... ... ... ..... ge of inputs was found by the visiting officers. Department has also not charged the appellants that since wastage of inputs could not be used for manufacture of final products they should reverse the credit. The case of the department is based on surmise and conjectures that wastage/broken packaging materials which could not be properly accounted for, the appellants had over written such wastages after removing inputs clandestinely. No evidence in corroboration was cited by the department to show that appellant had removed the inputs secretly. This also does not sound logical as the inputs/packaging materials were meant for finished products viz. Perfumed Oil and Dant Manjan. There would be no benefits in clearing the packaging material as such there will be bigger profit in clearing the finished material in packed condition. Appellant, however, must pay duty on the unaccounted for wastage material which appellant has not been able to explain. Appeal disposed of accordingly.
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1997 (3) TMI 327 - CEGAT, MUMBAI
Benefit under Notification No. 178/88-C.E. allowed.
... ... ... ... ..... t be denied that in this case the assessee is entitled to the benefit of the notification. 16. emsp It has been held in the case of Bama Metal Industries (supra) that the use of small quantity of zinc or brass in the manufacture of end product being a technological necessity is required to be accepted for grant of the exemption. We respectfully follow the said decision. It is to be mentioned here that the Tribunal in another case of Siotia Metal Industries (supra) had followed the decision of the Tribunal in Bama Metal Industries case. Hence, following the decision of the said two cases we have to accept the case of the assessee appellants and reject the case of the department as the arguments of the department have been rejected by the Tribunal earlier in the above said cases. 17. emsp Hence, in our view the appeal of the assessee is allowed, setting aside the Order-in-Original dated 13-10-1995 passed by the adjudicating authority. Consequential relief, if any, is to follow.
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1997 (3) TMI 326 - CEGAT, NEW DELHI
Modvat - Deemed credit ... ... ... ... ..... see had availed of the benefit of the deemed credit on the old and used scrap of iron and steel purchased from the market, the Modvat credit had been taken wrongly. It is further seen that the Excise officers had physically verified the scrap and had found that the scrap in question was in the nature of used and discarded items of iron and steel. 10. emsp The appellants had contended that in addition to kabaris scrap, wagon cuttings, turnings and borings etc., they had also received mild steel skull. We find that it has also been received from the kabaris and there is no evidence on record that at any stage any Central Excise duty had been paid thereon. 11. emsp Taking all the relevant facts on record into consideration, we do not agree with the view taken by the ld. Collector of Central Excise (Appeals), New Delhi, we set aside the same and as a result the order passed by the Assistant Collector of Central Excise, Ghaziabad is restored. The appeal of Revenue is thus allowed.
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1997 (3) TMI 323 - CEGAT, CALCUTTA
... ...
... ... ..... e product is not entitled to the benefit of the said notification. 3. emsp We have heard both sides. This question, we are of the view, can be resolved by a reference to the Drug Controller. The matter is, therefore, fit for remand to the original authority who shall make a detailed reference to the Drug Controller regarding the contents of entire composition of the said ointment and seek a clarification from him whether the content of Terpineol in the said ointment acts as an active ingredient or not. If the Drug Controller is found to be in affirmative then the product of DAC would not be entitled to the benefit of said notification. If, however, Drug Controller states that Terpineol in the said DAC does not act as an active ingredient, then the appellants herein would be entitled to the benefit of the said notification. Hence we remand the matter to the original authority for de novo adjudication in the light of our aforesaid observations. Appeal is thus allowed by remand.
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1997 (3) TMI 322 - CEGAT, CALCUTTA
Modvat - Demand - Limitation ... ... ... ... ..... i K.K. Biswas for two reasons - (i) emsp no doubt the Tariff Heading is 84.83 or 84.55 but the words ldquo Proof Machined Forging Article rdquo clearly indicate the nature of the article brought in by them as inputs. The very expression ldquo Proof Machined rdquo indicates that it is not as yet a part of machineries. It is merely a forged article up to the stage of ldquo Proof Machined rdquo . It has to be further machined to make it a part of machineries. (ii) emsp It is also not denied by the Revenue that the appellants herein have undertaken the machining in their factory on such ldquo Proof Machined Forging Article rdquo . I therefore, of the view, that there is no discrepancy between their declaration under Rule 57G and what has been actually brought by them. Merely on these small discrepancies by way of headings of the various inputs credit cannot be disallowed. Accordingly, I set aside the impugned order and allow the appeal with consequential relief to the appellants.
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1997 (3) TMI 321 - CEGAT, NEW DELHI
Demand - Short levy arising out of change of classification ... ... ... ... ..... alt Act, 1944 even with reference to the change of classification or price list approved. But in the recent case Bhiwani Textile Mills referred to above the Supreme Court following the ratio of the Collector of Central Excise v. Rajasthan Spg. and Wvg. Mills Ltd. 1995 (75) E.L.T. 36 (S.C.) and Union of India and Others v. Madhumilan Syntex Pvt. Ltd., reported in 1988 (35) E.L.T. 349 (S.C.) held that in respect of classification demand for short levy and on account of change in classification is enforceable from the date of show cause notice proposing revision of classification and not for earlier period. Since the Supreme Court has taken this view, following the ratio of the decisions, we hold that the demand for short levy on account of change in classification is enforceable from 23-11-1987 since show cause notice dated 23-11-1987 was the first show cause notice issued for proposing to change the earlier classification. With this view, the appeal is disposed of accordingly.
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1997 (3) TMI 320 - CEGAT, MUMBAI
Stay/Dispensation of pre-deposit - Penalty ... ... ... ... ..... 96-Bom M/s. Rajshree Silk Mills 17,000 21. E/Stay-1302/96-Bom E/2568/96-Bom M/s. Dhiraj and Co. 20,000 22. E/Stay-1303/96-Bom E/2569/96-Bom M/s. Sweety Prints 27,000 23. E/Stay-1304/96-Bom E/2570/96-Bom M/s. Roop International 20,000 24. E/Stay-1305/96-Bom E/2571/96-Bom M/s. Harish Textile 30,000 25. E/275/97-Bom M/s. Roopchand Nandwani 1,00,000 2. emsp Shri Willingdon Christian, the ld. Counsel for the applicants submitted that they have also deposited a sum of Rs. 14,50,000/- towards duty and that the balance duty amount is being deposited. Applicants would only pray for waiver of penalty amounts. 3. emsp We have heard Shri Gurdeep Singh, the ld. DR for the respondent. In view of the submissions made before us, we direct that the balance duty amount be paid within fortnight from today, if not already paid. On such compliance, we grant waiver of the penalty amounts and stay its recovery pending disposal of the appeal. The stay applications are disposed of in the above terms.
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1997 (3) TMI 319 - CEGAT, NEW DELHI
Import - Duty liability - Demand - Limitation - Penalty on the Principal ... ... ... ... ..... tion 112 of the Customs Act, without citing sub-section (a) or (b) thereof, this question was considered in the latter judgment by the Madras High Court. The ingredients had not been specifically set out in the show cause notice in the said case. Such is not the position in the present case. The nature of offence had been spelt out in the show cause notice and the appellants were under no disability to make their defence submissions because of the show cause notice. We, therefore, reject the plea. 19. emsp To sum up we pass the following orders partially allowing the appeal on the aspect of valuation and drawback - (1) emsp Differential duty is payable on 84 chassis, as indicated in paragraph 15 above. (2) emsp Duty on 100 Chassis to be paid on the value indicated in paragraph 15 above. (3) emsp Drawback to be paid on the Chassis, export of which is established by the appellants as indicated in paragraph 15 above. (4) emsp The penalty imposed on both the appellants is upheld.
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1997 (3) TMI 318 - CEGAT, CALCUTTA
Appeal - Limitation ... ... ... ... ..... ght to be denied. On the other hand, the respondents herein by their written submissions have relied on two judgments of the Tribunal namely - (i) emsp Collector of Central Excise v. Avery India Ltd. reported in 1991 (56) E.L.T. 790 (CAL. CEGAT) (ii) emsp Larsen and Toubro Ltd. v. Collector of Central Excise reported in 1993 (63) E.L.T. 126 (CEGAT, Madras). 5. emsp We have carefully considered the submissions of the learned JDR in the course of hearing and we have also taken into account the written submissions of the respondents herein. We have also gone through the judgment of the respondents in their own case in Madras, CEGAT. We are satisfied that Acetylene Gas is used captively in the manufacture of further product or in relation to the manufacture of industrial machinery. It is, therefore, clearly an input. Hence the benefit of Notification No. 217/86-C.E. cannot be denied to the Acetylene Gas used for the aforesaid purpose. Hence the appeal of the Revenue is dismissed.
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1997 (3) TMI 317 - CEGAT, CALCUTTA
... ...
... ... ..... ount, we agree with the Revenue that if a discount is subject to fulfilment of the conditions and if the conditions are not complied with, discount is inadmissible. But it has not been stated by the revenue categorically that discount herein is subject to a condition and that condition has not been fulfilled in the present case. Nevertheless, we observe that the impugned order also makes its finding subject to establishing that the grant is by practice, contract etc. and is identifiable with the trade discount allowed at the time and place of delivery of the goods. We do not find anything wrong in the impugned order. Even considering the second ground, the lower appellate authority has already held that discount is to be allowed subject to fulfilment of some conditions. In other words, we do not find any substance in the appeal of the Revenue. They should follow the directions given in the impugned order given by the lower appellate authority. Appeal is, therefore, dismissed.
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1997 (3) TMI 316 - CEGAT, CALCUTTA
... ...
... ... ..... nded Tariff Item 33, whereby the Tariff item was read to include regulator along with fan with effect from 18-6-1977. No such situation is existing in these cases. Apart from that, he submits that the impugned order was based on the Order-in-Appeal dated 13-3-1985 and when that Order-in-Appeal had been set aside in Tribunal rsquo s Final Order No. 554/96-A, dated 30-1-1996, the impugned order in these cases also falls. 5. emsp We have carefully considered the submissions of both sides. We agree with the submissions of the learned Consultant, Shri R.N. Sen. In view of the fact that the very basis of the impugned order has been set aside by the Tribunal vide its Final Order No. 554/96-A, dated 30-1-1996 (supra), the entire impugned order falls. Consequently, we set aside the impugned order and allow the appeals. We may mention at this stage that the Judgment in the case of Khaitan Fans relied upon by the learned SDR, has no relevancy in the facts and circumstances of the cases.
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1997 (3) TMI 315 - CEGAT, MUMBAI
Packing material ... ... ... ... ..... of marketing these are packed in boxes known as the matchboxes. When a number of such boxes are packed in the goods under consideration, therefore, it would, in our view, be incorrect to say that these are used only to pack the container, the boxes and not the matches themselves. It is common practice in excise to consider primary and secondary packing i.e. packing which is essential to put the goods in the market and further packing in order to protect the goods from damage in transit. Therefore, the use of the word ldquo matchsticks rdquo (not matchboxes) in Heading 4819.11 does not justify the conclusion that the goods cannot be used to pack matchsticks. If the term match boxes were used in the heading it could be argued that it would be empty boxes and not the container matchboxes. The contention that it is only the sticks that would be considered for packing is unduly restricting and cannot be accepted. Appeal therefore succeeds on this ground. Impugned order set aside.
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1997 (3) TMI 314 - COMMISSIONER OF CUSTOMS & CENTRAL EXCISE
... ...
... ... ..... crates the Apex Court has held in the case of Indian Oxygen - 1988 (36) E.L.T. 730 (Tribunal) that collection for rental for durable was an ancillary or allied venture having no relationship with activity of manufacture and such rental charges can not be included in the assessable value. Recently the Tribunal in 1997 (89) E.L.T. 553 followed this decision of the Apex Court. Moreover reading of the adjudicating order shows that adjudicating authority has given cogent reasons for allowing Modvat credits on glass bottles and plastic crates. It is also observed that some of grounds raised in appeal were not part of the show cause notice and anything beyond the show cause notice cannot be taken at Appellate stage. 4. emsp In view of the above and the Order-in-Appeal No. 357/97, dated 10-3-1997 passed by me in the similar type of appeal in another case, I, see no reason to interfere with the order passed by the adjudicating authority. The appeal filed by the department is rejected.
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1997 (3) TMI 313 - CEGAT, MADRAS
Modvat - Capital goods ... ... ... ... ..... e circumstances, dismiss the appeal. rdquo 6. emsp We observe that the learned lower authority has not taken into consideration the process of manufacture of the notified finished product as accepted vis-a-vis the use of the generator. What has to be considered is the integrality of the process of manufacture in the context of the definition of the input of the capital goods as given in the Central Excise Rules in this regard. Therefore, the findings are required to be entered as regards the use of the item vis-a-vis process of manufacture for the purpose of eligibility to the Modvat credit. The learned lower authority has not examined the issue in depth and he did not have the benefit of the decision of the Tribunal referred supra. In the above view of the matter, the matter has to be re-examined afresh in the light of the above. The order of the lower authority is, therefore, set aside and the matter remanded for de novo consideration and decision in the light of the above.
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1997 (3) TMI 312 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... from the BTN entries. We consider that this decision had no applicability to the goods before us. In the case of Indian Metals and Ferro Alloys Ltd., Cuttack v. Collector of Central Excise, Bhubaneshwar - 1991 (51) E.L.T. 165 (S.C.) 1990 (2) SCALE 231 at page 1109, the matter related to the classification of poles. In his order-in-appeal dated 28-2-1981, the Member, Central Board of Excise and Customs had observed that the bent tubes or pipes remained tubes and pipes notwithstanding the bending process. He had referred to BTN Explanatory Notes that the coiled tubing was classifiable under Heading No. 73.18. As we see from the product literature, the goods in question were not the coiled tubing but tubular steel coils. They were not tubing. They had lost the character of tubing and were specific identifiable part of the superheaters, economisers etc. 15. emsp In view of the above discussion, we do not find any merit in this appeal and the same is rejected. Ordered accordingly.
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