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Case Laws
Showing 141 to 160 of 568 Records
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2003 (10) TMI 558 - CESTAT, NEW DELHI
Abatement of duty ... ... ... ... ..... the sides. Rule 96ZQ(7)(g) provides that ldquo Where the claim for abatement by the independent processor is for a period of one month or more, he shall not be required to pay duty for that period in advance rdquo . It has not been disputed by the Revenue that the appellants have filed the abatement claim for the period from 23-10-2000 to 1-2-2001. The stenter was sealed on 23-10-2000 and the seal was broken on 1-2-2001. It is thus apparent that the factory was closed for a period which is more than one month. In such circumstances, the provisions of Clause (g) will be applicable. There is no requirement of reading the period of one month as the calendar month as has been done by the Commissioner (Appeals) in the impugned order. Once the factory is closed for a period of one month or more, the provisions of the said clause will be applicable. Accordingly, we allow the appeal. rdquo 5. emsp Following the ratio of the said decision, we allow the appeal filed by the appellants.
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2003 (10) TMI 557 - CESTAT, NEW DELHI
Benefit of exemption under Notification No. 67/95-C.E. available. ... ... ... ... ..... Fertilizers and Chemicals and have also been used within the factory of production the benefit of Notification No. 67/95 will be available to such pipes. This was the view expressed by the Tribunal in the case of Treveni Engg. and Industries Ltd. v. CCE, Allahabad - 2001 (136) E.L.T. 617 (T) 2000 (36) RLT 619 (CEGAT), wherein Gen Sets were assembled and erected by Treveni Engg. and Industries Ltd. at the site of their customer the Tribunal has held that these Gen Set had been used within the factory of production and the requirement of the Notification is not that the capital goods have to be used by the same customer in his factory. The Tribunal has, therefore, allowed the benefit of Notification No. 67/95-C.E. Thus benefit of Notification No. 67/95 is available to the pipes and fittings fabricated in the present matters also. As the entire duty is exempt under Notification No. 67/95 no penalty is imposable on any one of the Appellants. We, therefore, allow all the appeals.
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2003 (10) TMI 556 - CESTAT, MUMBAI
Cenvat/Modvat - Capital goods ... ... ... ... ..... n the said case inasmuch as it was noted by the Tribunal that since the disputed items were not having any nexus with bringing about change in any substance the credit was not available. 3. emsp In the instant case, the items viz. Spectrophotometer, Digital Weighing scale, and Plastic Strapping machine have a direct nexus in the chain of various processes leading to emergence of a completely manufactured product. Therefore, the said goods get qualified to be considered as ldquo capital goods rdquo in terms of the definition contained in Rule 57A. 4. emsp In this connection, I would also like to place reliance on the concept of capital goods as clarified by the CEGAT Larger Bench judgment in the case of Jawahar Mills Ltd. v. CCE, Coimbatore reported in 1999 (108) E.L.T. 47 (Tri.). The aforesaid goods would accordingly qualify to be ldquo capital goods rdquo being of the category of the plant and machinery as held by the Tribunal. 5. emsp Revenue appeal is accordingly rejected.
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2003 (10) TMI 555 - CESTAT, NEW DELHI
Cenvat/Modvat - Capital goods and inputs ... ... ... ... ..... annot be utilised for payment of Additional Excise duty. We also do not agree with the findings of the Commissioner (Appeals) that the credit of Basic Excise duty paid on inputs cannot be used for making payment of Additional Duties of Excise in absence of any restriction put in Notification No. 24/94(N.T.), dated 20-5-1994. The proviso to Notification only puts the restriction on the use of Additional Duty of Excise under Sec. 3 of the Additional Duties of Excise (Textile and Textile Articles) Act, 1978 and the Additional Duties of Excise (Goods of Special Importance) Act, 1957 to be used only towards payment of duty of Excise leviable under the respective Acts. In absence of any restriction on the use of credit of Basic Excise Duty, it cannot be sustained that the same cannot be used towards payment of Additional Duties of Excise under both the Textile and Textile Articles and Goods of Special Importance Act. We, therefore, set aside the impugned order and allow the appeal.
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2003 (10) TMI 554 - CESTAT, NEW DELHI
Appeal to Appellate Tribunal ... ... ... ... ..... duty short-levied and a penalty of Rs. 16,53,012/- and interest. We find merit in the contention of the appellant that in the facts of the present case the Commissioner (Appeals) could not have directed pre-deposit as a condition for hearing the appeal. Therefore, we set aside the order impugned. The learned DR brought to our notice a decision of the Supreme Court in CCE, Chandigarh v. Smithkline Beecham Co. Health C. Ltd. - 2003 (157) E.L.T. 497 (S.C.) 2003 (58) RLT 479 (S.C.) where it has been held that when the only question before the Tribunal was whether pre-deposit was required or not. The Tribunal should not have gone into the merits and decided the appeal. In the light of the above decision, we remand the matter to the Commissioner (Appeals) for fresh consideration of the appeal on merit without insisting on pre-deposit. The appellant will be granted an opportunity of being heard. Final orders will be issued within three months from the date of receipt of this order.
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2003 (10) TMI 553 - CESTAT, MUMBAI
Stay/Dispensation of pre-deposit - Cenvat/Modvat on inputs ... ... ... ... ..... ed the credit under Rule 57H(7) read with Rule 57F(17). Since the appellants have switched over to Compounded Levy Scheme and not to a scheme of exemption from payment of duty under Central Excise Act, prima facie demands and penalties as confirmed cannot be upheld. These issues are to be determined at the final hearing. At this stage, it is felt to be a fit case to grant full waiver of pre-deposit of duty and penalty required under Section 35F of the Central Excise Act, 1944 pending the hearing of appeal and grant stay of recovery thereof. 4. emsp Stay applications stand disposed off in above terms.
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2003 (10) TMI 552 - CESTAT, MUMBAI
Cenvat/Modvat - Duty paying documents - Demand - Limitation ... ... ... ... ..... e does not impute any such knowledge to the appellant. Although the notice does not contain existence of facts of sub-rule (2) of Rule 57-I, justify invoking the extended period. All it says that the assessee failed to take all reasonable steps. It is not clear what reasonable steps other than identifying the manufacturer, the appellant was expected to take. It could not be expected to go beyond the dealer of the manufacturer and verify in each case the details of the transaction between the manufacturer and the dealer. This is not provided for in the rule. It is also humanly impossible to do so. Credit cannot be taken within a reasonable period in this manner. It is also to be noted that none of the statement of the dealers or from the assessee rsquo s own employee have shown that the assessee took credit knowing that duty had not been paid on the goods. The extended period of limitation therefore could not have been invoked. 4. emsp Appeal allowed. Impugned order set aside.
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2003 (10) TMI 551 - CESTAT, NEW DELHI
Cenvat/Modvat - Modvat on capital goods ... ... ... ... ..... son for condonation of the delay. According to the Commissioner (Appeals), no reason needs to be disclosed. In this situation, any interference by the Commissioner (Appeals) in the decision of the lower authority is certainly unwarranted. Counsel rsquo s contention that an appellate authority cannot substitute its discretion for that exercised by a lower adjudicating authority has not been successfully contested before me. The Asstt. Commissioner s order of condonation of delay of declaration has to be restored and, consequently, the question whether the assessee is entitled to Modvat credit on the capital goods requires to be dealt with on merits. As we have already noted, there is no dispute, anywhere in the impugned proceedings, regarding the eligibility of the capital goods for Modvat credit. Consequently, the appellants are entitled to the credit. 7. emsp The impugned order is set aside and the appeal is allowed. Order dictated and pronounced in open Court on 23-10-2003.
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2003 (10) TMI 550 - CESTAT, MUMBAI
Cenvat/Modvat - Inputs ... ... ... ... ..... truction of a furnace is unacceptable. The bricks were in fact lining of the furnace which is used for making ferro alloys which are the assessee rsquo s final product. They cannot be made without melting metal in the furnace. The decision of the Larger Bench of this Tribunal in Union Carbide India Ltd. v. CCE - 1996 (86) E.L.T. 613 has held that parts of machinery do not fall with the exclusion clause of the explanation under Rule 57A(1). The ratio of this decision will apply. 3. emsp Appeal dismissed.
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2003 (10) TMI 549 - CESTAT, NEW DELHI
Natural justice - Cross-examination ... ... ... ... ..... also admitted the fact that the excess goods were cleared and deposited the duty in respect of the excess goods cleared from the factory. He was again summoned on 4-4-2000 by the Revenue Authority where on that day also he admitted the clearances of the excess goods against cash payment. 8. emsp This fact is admitted by the appellants that Shri D.K. Mishra, Commercial Manager has not retracted from his statement. In this situation when a senior officer like Commercial Manager admitted the entries made in the loose slip also admitted the fact that the excess goods were cleared without payment of duty. Mere denial of cross-examination does not call for any interference in the impugned order. Shri D.K. Mishra is the Commercial Manager of the appellants being employee of their company, the appellants could produce him before the adjudicating authority. In the absence of any retraction by Shri D.K. Mishra, I find no merit in the argument of the appellants. The appeal is dismissed.
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2003 (10) TMI 548 - CESTAT, MUMBAI
Cenvat/Modvat - Duty paying documents ... ... ... ... ..... t of the duty shown to have been paid on the invoice. However, this very aspect have been considered by the Circular No. 96/7/95 CX., dated 13-2-95 issued by the Board to facilitate the claim made in the procedure to sort out problems that arose to gate pass relating to the invoice and credit being taken on invoice issued on dealers. While dealing with transit sale the board circular provides that an invoice issued by manufacturer under Rule 52A which contained in addition to the prescribed details, showing the consignee to be the end user as the registered person name and address on account of whose instruction goods have been disposed will be valid for taking credit. The invoice in question under consideration shows the consignee to be the appellant Walia Engineering Associates Pvt. Ltd., Ahmedabad, i.e. customer who placed the order on Manhar Trading Corporation. In my view, this paragraph of the Board Circular would apply to the facts in this case. 4. emsp Appeal allowed.
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2003 (10) TMI 547 - CESTAT, MUMBAI
Cenvat/Modvat - Inputs ... ... ... ... ..... rounds that no declaration was filed for the above said item. (b) emsp When end-use of the said inputs and duty paying nature is not questioned, then declaration as filed for ldquo L-Ring HDPE Barrels rdquo and ldquo HDPE Barrels Closed Mouth rdquo would cover the words ldquo Empty Plastic Containers rdquo and ldquo Narrow mouth caping containers rdquo , as found declared on invoices received. The views of the lower authority to the contrary cannot be upheld. 2. emsp The Modvat credit eligibility is upheld and the appeal is allowed.
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2003 (10) TMI 546 - CESTAT, MUMBAI
Cenvat/Modvat - Duty paying document ... ... ... ... ..... The representative of the respondent is not able to explain how many copies were issued by the dealer. His contention that, subsequent to taking credit, the invoices has been rubber stamped ldquo duplicate copy for transporter rdquo and therefore credit can be taken is unacceptable. It is the status of the document when credit was taken that is to be considered ignoring the amendment to it subsequently. The rules are clear that credit could not be taken on the basis of duplicate except in the circumstances specified therein. The decision of the Tribunal in CCE v. Evis Electronics - 2000 (117) E.L.T. 571 is the authority for the proposition that requirement of law in this regard has to be complied with in substance. This is not having shown to have been done, allowing the credit was not in order. 3. emsp Appeal allowed. The order of the Commissioner (Appeals) is set aside and the order of the Additional Commissioner insofar as it relates to the invoice in question is restored.
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2003 (10) TMI 545 - CESTAT, MUMBAI
Penalty - Cenvat/Modvat - Non-compliance of Modvat Rules - Demand - Clandestine removal of modvatable inputs
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2003 (10) TMI 544 - CESTAT, MUMBAI
Stay/Dispensation of pre-deposit ... ... ... ... ..... of the High Court order. He fairly agrees that the above plea was not taken before the Bench at the time of stay hearing and as such was not taken into consideration by the Bench at the time of passing of the order. In view of the above, Shri Jain prays that the said stay order be modified. 3. emsp On the last date of hearing ld. JDR for the Revenue has sought time to verify as to whether the amount of Rs. 11.74 crores for which the Bank Guarantee was given by the appellants, includes duty demand of Rs. 1.54 crores or not. On matter being called today, Shri A. Chopra appearing for the Revenue informs us that the Bank Guarantee covers the disputed amount of duty in the present case. 4. emsp In view of the above facts, we modify the stay order and dispense with the condition of pre-deposit. However, it is made clear that the bank guarantee would be kept alive during the pendency of the proceedings before the Tribunal. 5. emsp Miscellaneous application is allowed in above terms.
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2003 (10) TMI 543 - CESTAT, MUMBAI
Stay/Dispensation of pre-deposit - Valuation ... ... ... ... ..... ible manner of valuation, resorted to by the Talasari unit. 6. emsp After considering the material on record and the submissions made, we find a lot of force in the contention made by the ld. Advocate. The decision on appropriate valuation is required to be settled at the final hearing. However, from the chart as prepared and brought on record by the appellants, we notice that both the units i.e. at Talasari and Daman have paid considerable amounts of duty from PLA that was not required to be paid at Daman unit, if the Talasari unit had discharged the duty on valuation now being determined. We, therefore, find that in the facts of this case complete waiver of pre-deposit requirements under Section 35F of all the amounts as determined, is called for. We order accordingly and direct that the recoveries of the amount so determined are not to be enforced, pending the hearing of these appeals. The matter to be listed in due course. 7. emsp Stay applications allowed in above terms.
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2003 (10) TMI 542 - CESTAT, MUMBAI
Stay/Dispensation of pre-deposit - Penalty ... ... ... ... ..... ioner has confirmed duty to be payable by the exporter and imposed penalty on the applicant. 3. emsp We have heard both sides. 4. emsp Rule 26 makes liable to penalty any person who acquires possession or in any way concerned with transporting, removed or otherwise dealing with the manner specified in it. It is prima facie difficult to say that the provision of these rules will apply to a manufacturer of excisable goods. Prima facie it is intended to apply to persons who deals with excisable goods after obtaining them from a manufacturer. In any event, for penalty to be imposed, the person covered must know or must have reason to believe that the goods are liable to confiscation. The order does not show when the applicant sold the goods to the buyer, it knew or had reason to believe that he would not export them. The requirement of mens rea contained in the rule has prima facie not been complied with. 5. emsp Accordingly, we waive deposit of the penalty and stay its recovery.
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2003 (10) TMI 541 - CESTAT, MUMBAI
Demand and penalty - Valuation ... ... ... ... ..... was raised and confirmed under Section 11A. 4. emsp We are not concerned here with the applicability of Section 11D as neither the Show Cause notice nor the order invokes that. As regards the duty confirmed under Section 11A, we find that the issue is squarely covered by the above referred decisions of the Tribunal. The judgment in the case of Castrol India Ltd. also has the seal of approval of the Honourable Supreme Court in as much as the appeal filed by the Commissioner has been dismissed. As such by applying the ratio of above decisions, we set aside the impugned order as far as the same relates to the balance amount of Rs. 80.74 lakhs (approximately) which remains unpaid. As the appellant had already paid the demand for the period 1-3-1999 onwards and are not disputing the same, we confirm the same. 5. emsp In view of the fact that we have set aside the major portion of the demand and we do not find in justification for imposition of penalty. The same is also set aside.
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2003 (10) TMI 540 - CESTAT, NEW DELHI
Cenvat/Modvat - Duty paying documents ... ... ... ... ..... paying document or any other discrepancy is a curable defect in the duty-paying document. As long as duty paying nature of the inputs and its utilization in the manufacture of finished goods is not in dispute, which is apparently so, in this case, the credit of duty cannot be denied. Corresponding PLA entries showing the duty paid against the invoices has also been certified. Accordingly, prima facie, the credit appears to be admissible to the appellants. 6. emsp Ld. DR however, submits that this matter is required to be determined by the Commissioner (Appeals). 7. emsp Accordingly, I allow the appeal of the appellants by way of de novo remand to the Commissioner (Appeals), who shall pass appropriate orders after considering the invoices as admissible documents and determine the eligibility of the credit after affording the appellants reasonable opportunity to plead their case and pass orders thereon in accordance with the law. The appeal is allowed by way of de novo remand.
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2003 (10) TMI 539 - CESTAT, NEW DELHI
Stay/Dispensation of pre-deposit - Valuation ... ... ... ... ..... ed. 2. emsp In the light of the authoritative pronouncements, prima facie, we are of the view that value of bought out items cannot be added to the value of BSM, BTS and BSC manufactured by the appellant and supplied to BSNL. As far as value of BSM, BSC and BTS are concerned, we find that in view of Note 6 of Chapter 85 states that the software has to be separately assessed under Heading 85.24. The finding of the Commissioner as regards inclusion of the value of the software is, therefore, prima facie not acceptable. 3. emsp In the light of the above, we are inclined to grant exemption from pre-deposit. There will be stay of recovery of demand. The appeal to come up for hearing on 27-11-2003.
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