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Case Laws
Showing 61 to 80 of 312 Records
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1998 (5) TMI 286
Classification ... ... ... ... ..... pondent is that the presence of substances specified in the note shall not affect its classification under Heading 4001 or 4002 provided that such rubber retain its essential character as a raw material. Once the report of test indicated that the goods of compounded rubber it was then for the respondent to show that they were not compounded rubber and that the product continued to the characteristics of raw material. There is no attempt to show this. No evidence has been produced before us or before anyone else in support of this point which is therefore considered as substantial. 7. emsp The goods were rightly classified under Heading 4005 and therefore the benefit of notification which is limited to goods classifiable under Heading 4001 will not apply. 8. emsp We allow the Department s appeals, set aside the order of the Collector (Appeals) deciding classification in appeal and setting aside the duty demanded in E/4040/89-C and restore the orders of the Assistant Collector.
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1998 (5) TMI 274
SSI Exemption - Value of clearances ... ... ... ... ..... of Central Excise, Mumbai-I in the present impugned order has denied them the exemption as unsubstantiated. 2. emsp Shri S.N. Parikh, the ld. Counsel for the appellants submitted that the same issue for the different period has been decided by the Delhi Bench of the Tribunal in their case vide Final Order Nos. 106 and 107/98-C, dated 22-1-1998, where in the Tribunal had set aside the impugned order denying the exemption and remanded the matter for fresh adjudication for determining the eligibility of the appellants to exemption under Notification No. 77/83. Since the present matter is related on the same issue, after hearing the ld. DR Shri S.V. Singh, we also set aside the impugned order and remand the case to the Addl. Commissioner for readjudication afresh for determining the eligibility to exemption under Notification 77/83 of the appellant herein bearing in mind the direction in the final order noted above in the case of the same appellants. 3. emsp Remanded accordingly.
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1998 (5) TMI 273
Demand - Show cause notice not specified the amount of duty ... ... ... ... ..... no parameters of the duty demand were spelt out except to calling upon the assessee to pay duty for the period 7-11-1992 onwards, such is not the case, with the show-cause notice, with which we are concerned. On the other hand the Tribunal decision in the case of IBP Company supra, on merits covers the issue against the Appellant. The Tribunal held that admittedly the final product manufactured by the Appellant did not suffer any duty and that such duty free clearance taken, be it for any reason, the question of allowing them the modvat credit on the inputs, the Tribunal held, would not arise. This was the position prior to 1-3-1992 for which the Tribunal order is relied upon. Present period also prior to 1-3-1992 therefore applying the ratio of the Tribunal decision we hold that the duty demand as covered by three AR3A mentioned in the show cause notice is sustainable and to that extent orders of the lower authorities is upheld. The appeal is disposed of in the above terms.
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1998 (5) TMI 266
Modvat - Duty paying documents ... ... ... ... ..... ved by this order the revenue has filed the captioned appeal before us. 3. emsp We have heard the submissions of Sh. Sanjiv Srivastava learned JDR for the appellant Commissioner and Sh. R. Nambirajan, the learned Advocate for the respondents. We have also seen and perused the case law cited by both sides, especially the decision of this Tribunal in the case of Collector of Central Excise, Kanpur v. M/s. Mercury Confectioners and Allied products contained in Final Order No. A/839 dated 16-10-1997 and in the case of Pearl Industries v. Collector, Central Excise, Kanpur reported in 1998 (98) E.L.T. 745 (Tribunal) 1997 (23) RLT 83. In all these orders Tribunal held that the Modvat Credit has rightly been taken on the strength of invoices issued by the Indian Oil Corporation, Mathura Refinery as manufacturer under Rule 52A and Rule 173G. We donot see any reason to disagree with this view of the Tribunal. In the circumstances the impugned order is upheld and the appeal is rejected.
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1998 (5) TMI 262
... ...
... ... ..... defective goods received from customer by manufacturer under Rule 57F(1)(ii) of the Central Excise Rules, 1944 treatable as scrap for purposes of Modvat credit. 4. emsp On the perusal of the decision in 1997 (93) E.L.T. 283 (Tribunal) it is seen that 1993 (68) E.L.T. 146 (Tribunal) in the case of Alcobex Metals Ltd. v. Collector of Central Excise is followed in coming to the above finding in para 5 of the Judgment. It is held that the defective goods cleared by customers under Rule 57F(1)(ii) received by the appellant under cover of gate pass on payment of duty and remelted and used as inputs in the manufacture of final products - Modvat credit was available on such inputs - the defective goods being used as inputs - and the defective goods cannot be considered as final product. In view of this position the impugned order has to be upheld. The finding of the Assistant Collector regarding the defective radiators is too vague. So the appeal cannot be allowed and it is rejected.
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1998 (5) TMI 260
Modvat credit ... ... ... ... ..... of the recovered octanol would be available as credit. This appeal questions the legality and propriety of this finding. 2. emsp The ground of appeal is that credit could not have been permitted in the absence of declaration under Rule 57G classifying the product as input. This ground was reiterated by the departmental representative. Respondent is absent. 3. emsp When the assessee cleared the final product without payment of duty the question of its filing declaration of taking Modvat credit did not arise. Subsequently, however, department involves that the final product is which would follow that the benefit of the Modvat credit which the assessee was under the impression was required to claim would have to be extended. In such situation, the declaration under Rule 57G earlier would not have been filed. Such absence therefore, would not come in the way of Modvat credit being taken. We, therefore, see no reason to interfere with the impugned order. 4. emsp Appeal dismissed.
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1998 (5) TMI 258
... ...
... ... ..... buyers who made the payment within 2 days, respondent gave the same discount to other buyers also who did not satisfy the condition. On this ground the Assistant Collector directed deduction of cash discount to be allowed only in case where it was actually passed on. The Collector (Appeals) allowed deduction of cash discount on the ground that it was known to the buyers. This order is being challenged by the department. 3. emsp According to Shri K. Srivastava, SDR since cash discount was given even to buyers who did not make payment within 2 days, it would not be admissible for deduction. We do not agree with the submission. Once it is shown that the scheme of cash discount was known to the trade and it was admissible to all buyers who satisfy the condition, it would be admissible deduction. The fact that the respondent had in some cases granted discount even to those who did not satisfy the condition would not render the discount inadmissible. We find no ground to interfere.
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1998 (5) TMI 256
Export - Benefit of Notification No. 175/86-C.E. not available - Valuation - Penalty ... ... ... ... ..... ter to the adjudicating authority for determining the value of clearances after allowing the aforesaid deductions on adducing of evidence by the appellants, after they are given an opportunity to examine the documents in the possession of the Revenue or by producing of any other evidence in their possession. 7. emsp As regards the penalty, we find sufficient force in the plea of the appellants rsquo representative that they were under a bona fide belief that if the goods had not paid Excise Duty, they would be charged the Customs Duty by the Customs (Preventive). Consequently, we are of the view that the penalty, in the facts and circumstances of the case, is not warranted. Hence we set aside the penalty of Rs. 10,000.00 (Rupees ten thousand) only. The matter is, however, remanded as aforesaid for determining the quantum of duty on the value of clearances of goods exported to Nepal. Appeal is thus allowed by remand in the aforesaid terms after we set aside the impugned Order.
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1998 (5) TMI 255
Refund - Limitation ... ... ... ... ..... age 11 confines, which is without protest. So this shows there is no protest for 3207.90 classification of glass frit. There is no specific protest in paying duty in any document, as discussed above. Rule 233B is an enabling provision regarding protest, which is not in consistent with Section 11B of Central Excise Act. Section 11B only says when there is due protest, limitation is not applicable. As discussed above Rule 233B is not complied. Assistant Commissioner has rejected the refund claim on the ground that the case of the Appellant is not consistent. The impugned order has approached the case in the proper perspective. The refund claim is clearly time barred. Protection under Section 11B of Central Excise Act is not available to the Appellant, for the reasons discussed above. The point raised is answered in the Negative. Hence I pass the following order. ORDER For the reasons discussed above, the appeal cannot be allowed, and it is rejected. Impugned order is confirmed.
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1998 (5) TMI 254
Aluminium - Benefit of exemption under Notification No. 180/88-C.E. available.
... ... ... ... ..... ns of the appellants are well founded. The cases cited by the appellants have settled the position that the expressions ldquo appropriate amount of duty rdquo or ldquo has already been paid rdquo would mean only duty that ought to have been paid or contracted to be paid. Where such duty in terms of an exemption notification is lsquo Nil rsquo , the goods cleared without payment of duty have to be treated as duty paid goods. Further, we observe from entries against Sl. No. 3 of the Table to Notification 180/88, below column No. (4) the rate of duty shown for the goods described as ldquo Aluminium waste and scrap rdquo below Column (3) and classified under sub-heading 76.02 is lsquo Nil rsquo . 6. emsp Having regard to the said entry and the ratio of the case law referred to above, we accept the submissions made from the side of the appellants and allow this Appeal. 7. emsp Impugned order is in the result set aside and consequential benefits allowed to the appellants under law.
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1998 (5) TMI 253
SSI Exemption - Brand name - Demand - Limitation ... ... ... ... ..... value only if it is shown to have influenced the pricing of the product. This argument is well founded and needs to be accepted as it is in line with the settled law. The Department in this case has not shown that there has been any depression of price of the product charged to any extent because of the advance received. This demand is hence set aside. 9. emsp The other charges regarding breach of Central Excise Rules in relation to the goods under confiscation are established by satisfactory evidence and hence the order of confiscation of the goods and penalty on the Appellants is sustainable. However, as regards the quantum of penalty on the Appellants, having regard to the facts and circumstances of the case, we reduce the penalty from Rs. One lakh to Rs. 50,000/- in the case of Appellants Precision Scales, and in respect of Appellants Avery India the penalty is reduced from Rs. 50,000/- to Rs. 25,000/-. 10. emsp The appeals are accordingly disposed of in the above terms.
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1998 (5) TMI 252
Classification ... ... ... ... ..... tioned above. 22. emsp Legally also as we have seen that Bombay and Allahabad High Courts judgments are a good guide to hold that only the oil directly extracted or recovered from a plant or plant organ could be called V.N.E. Oil and this is also the common understanding about V.N.E. Oil, whereas acid oil is the result of further treatment of V.N.E. Oil and cannot be equated with or considered to be a vegetable oil. 23. emsp In view of this position, in my opinion, the Tribunal rsquo s order(s) in the case of Kusum Product (and others which have followed the ratio thereof) is based on an incorrect appreciation of the relevant aspects of the matter. The error goes to the root of the case and is required to be rectified. 24. emsp Hence, the matter is referred to the Larger Bench for resolution of the issue. 25. emsp It is ordered accordingly, and the matter is submitted to the Hon rsquo ble President (Vice President I/C) for constituting a Larger Bench and refer the case to it.
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1998 (5) TMI 246
Modvat - Duty paying document ... ... ... ... ..... Rule 57GG. The rule empowers the Board to prescribe the details of the invoices but does not empower the Board to import the provisions of another rule into this rule. The powers under sub-rule (4) have been exercised in issuing the Notification No. 23/95-C.E. (N.T.) wherein details have been described. I find, on perusal of the sub-rule (4) as also the language of the circular that the direction of incorporating the provisions of sub-rule (3) of Rule 52A was beyond the power vested by sub-rule (4) of Rule 57GG. That is why, perhaps, it was thought necessary to introduce sub-rule (4)(a) at the later stage. 7. emsp Since the circular lacked the authority of law and since the sales depots were not either the manufacture or a warehouse and since no specific directions were given under Rule 57GG as to which copy of the invoices qualified for taking Modvat credit, I find that the Collector was correct in the stand taken by him. The appeal from the Revenue is accordingly dismissed.
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1998 (5) TMI 245
Adjudication - Jurisdiction ... ... ... ... ..... and notifications in the instant case cover two well defined, different spheres. Notifications no doubt in the instant case cover the particular aspect with which we are concerned. In these circumstances the notifications will have precedence. 10. emsp We find that with the issue of these circulars, CBEC have administratively limited the powers of Assistant Collector and that exceeding these powers cannot be treated as legal infirmity. Exceeding these powers will at best be administrative irregularity. 11. emsp In view of the above findings, we hold that the orders passed by the Assistant Collector do not suffer from any legal infirmity. Since the Commissioner (Appeals) did not consider the appeals on merits, we remand the appeals to the Commissioner (Appeals) for considering these appeals on merits after giving the respondents an opportunity of being heard in person and pass appropriate orders in accordance with law. 11. emsp In the result, the appeals are allowed by remand.
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1998 (5) TMI 244
... ...
... ... ..... relied upon the Allahabad High Court judgment in the case of Super Cassettes Industries Ltd. v. U.O.I. - 1997 (94) E.L.T. 302 (All.) where the High Court has held that even in such cases Rule 57C barring Modvat credit when the final product is exempted will come into play. 3. emsp On a consideration of the submissions, we find that a specific contention was raised before the Allahabad High Court that when the credit was taken and when the final product was not exempted and it is only subsequently it became exempted, Rule 57C was not attracted. The High Court, however, repelled the contention observing that this contention is not correct and held that whole scheme is in respect of excisable goods and, therefore, if the product is exempted from excise duty from a particular date the Modvat credit taken in respect of inputs which are in stock has to be reversed. Following the High Court judgment, we see no reason to interfere with the impugned order. 4. emsp Appeal is rejected.
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1998 (5) TMI 243
Classification ... ... ... ... ..... on. 12. emsp The Accessories (Condition) Rules, 1963 provides that such accessory, parts and implements are compulsorily supplied along with that article and are to be classified at the same rate as that article. In the present case, there is no evidence on record to show that computer work station are its peripherals and populated PCB are compulsorily supplied by the manufacturers as accessory along with spectrometer. 13. emsp In view of the above discussions we find that computer work station along with peripherals and populated PCB are not accessory to the spectrometer. Heading 8471 of the Customs Tariff includes ldquo Automatic data processing machines and units thereof.... rdquo and Heading 8473.30 includes ldquo Parts and accessories of machines of Heading No. 84.71 rdquo . Therefore, we do not find any infirmity in the impugned order in respect of classification of the computer work station and in respect of populated PCB. In view of the above, the appeal is dismissed.
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1998 (5) TMI 242
Modvat - Declaration ... ... ... ... ..... this requirement in the present matter as they have filed a declaration in October, 1993 declaring Poly butylene Terephthalate as their inputs for the manufacture of butyleneTerephthalate. Merely because input was described in the imported papers under the Trade Mark of the supplier it can not be said that the declaration was not filed by the assessee. They have also shown the reasons for changing classification under Customs Tariff Act. The Deptt. does not dispute that the sub-heading 3907.80 of the Central Excise Tariff which is in respect of the input in question was not finding place in Customs Tariff Act and accordingly they have to classify in the heading applicable to other polyesters. Moreover, it has been constant approach of this Tribunal not to deny the benefit of Modvat credit merely because Tariff classification was different in the declaration filed under Rule 57G and Tariff classification mentioned in the duty paying document. Accordingly the appeal is allowed.
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1998 (5) TMI 241
SSI Exemption - Value of clearances - Confiscation of goods and building, land etc ... ... ... ... ..... in marketable form. In this view of the matter, we hold that the goods were not in a condition to be marketed as such recording in RG 1 register at that stage was not necessary. 13. emsp Insofar as the demand of duty and confirmation thereof on the goods found valued at Rs. 2,45,700/- was concerned, no satisfactory explanation was given in respect of the goods, we therefore, confirm the demand of Rs. 2,074.80. 14. emsp In view of the above findings, the order of confiscation of the goods found in excess and the order of confiscation of building, land etc. is set aside. 15. emsp Insofar as the imposition of penalty is concerned, we note that certain stocks were found short which was not properly explained. We therefore, reduce the penalty to Rs. 10,000/- (Rupees Ten Thousand only). But for the above modifications, the impugned order is upheld and the appeals are disposed of accordingly. Consequential relief, if any, will be admissible to the appellants in accordance with law.
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1998 (5) TMI 240
... ...
... ... ..... use of the finding that the input was in the nature of bazaar scrap which has not suffered any duty and therefore it is clearly recognisable as non duty paid, which is a condition which will bar deemed credit facility under the deemed credit order. However, we find that the ground of appeal taken by the department in the present appeal before us, it appears that against the impugned order of the Commissioner (Appeals) is totally with reference to the proviso (2) to Rule 57H and the condition of the inputs should not have suffered duty prior to 31-3-1986. But this was not at all the issue in the show cause notice and the lower authorities has not at all dealt with this aspect of the case. In such a situation the department is precluded from raising this ground before the Tribunal challenging the order of the Commissioner (Appeals) who did not have occasion to go into this aspect when he passed the impugned order. Therefore we find no substance in the appeal and it is rejected.
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1998 (5) TMI 239
Import - Computers - Polynest grading and marking system ... ... ... ... ..... pital goods, their import in terms of this para was permissible. The Additional Collector has relied upon the fact that the provisions of para 195 of the 1990-1993 Policy, requires the registered manufacturer exporter to intimate the licensing authority according to the procedure prescribed of, he wishes to import capital goods in terms of sub-para (1) of para 195 which was permitted. This is the paragraph that was referred to in a clarification of the Chief Controller of Import and Export, which is referred to in his order. A copy was not made available by either side. However, the licence was issued within the 1988-91 Policy and was specifically made subject to the conditions in that Policy. The flexibility portion was certified in the licence specifically subject to the conditions of paras 177 and 177A of that Policy being followed. Recourse to the 1993 Policy therefore was not permissible. Import was therefore permissible. 9. emsp Appeal allowed. Impugned order set aside.
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