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Central Excise - Case Laws
Showing 61 to 80 of 189 Records
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2003 (8) TMI 400 - CESTAT, MUMBAI
Adjudication - Jurisdiction ... ... ... ... ..... r, 1997. 2. emsp After hearing learned JDR and perusal of case records, I find that the impugned order has been passed on 5-1-1999 by the Commissioner (Appeals). Since the impugned order has been passed subsequent to the order allocating work among different Commissioners of appeals, it is clear that the impugned order has been passed without jurisdiction. As such, the same is set aside and remanded to the jurisdictional Commissioner (Appeals) to decide the case afresh. 3. emsp Appeal is allowed by way of remand.
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2003 (8) TMI 398 - CESTAT, NEW DELHI
Cenvat/Modvat - Penalty ... ... ... ... ..... d not have been based on the Tribunal rsquo s decision in Mansurpur Sugar Mills case. What was held in that case was that the process of manufacture of sugar commenced with unloading of cane. There is nothing in the Tribunal rsquo s judgment to indicate that the process of manufacture of sugar commenced with unloading of cane at the weigh bridge site. What is discernible, on the other hand, from the judgment is that the process of manufacture commenced with unloading of cane in the factory premises. In the circumstances, there appears to be no justification in the ld. Counsel rsquo s plea for vacating the penalty. Nevertheless, it needs to be considered that the quantum of penalty should match the offence alleged in the show cause notice and found by the quasi judicial authorities. I have examined the facts and circumstances of the present case, and I am of the view that a lesser penalty can match the offence. The penalty is reduced to Rs. 15,000/-. The appeal is disposed of.
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2003 (8) TMI 397 - CESTAT, NEW DELHI
Classification ... ... ... ... ..... Oil rsquo . Further, the Adjudicating Authority has also referred to Notification No. 75/84 in which both the terms ldquo Residual Fuel Oil rdquo and ldquo Heavy Petroleum Stock rdquo have been used and has given the finding that RFO and HPS are different Nomenclature used not only by the Appellants, but the law makers also. We do not find any substance in this argument. Notification No. 75/84, in our view, provides a concessional rate of duty Rs. 147.10 per M.T. in respect of Residual Fuel Oil falling under Tariff Item 11A of the Old Central Excise Tariff without any condition or intended use. This rate of duty is applicable to all residual fuel oils including Heavy Petroleum Stock. If heavy petroleum stock failing under Item 11A is ldquo intended for use as feed stock in the manufacture of fertilizers rdquo , it attracts Nil rate of duty. This does not go to suggest that HPS is not a residual fuel oil. Accordingly, we set aside the impugned order and allow all the appeals.
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2003 (8) TMI 396 - CESTAT, BANGALORE
Appeal by department - Limitation ... ... ... ... ..... pursuit of the issue. 8. emsp it is evident from the events that the issue has been processed displaying alacrity but not in a casual manner. 9. emsp the department feels that there is strong case on merits and will succeed in appeal if appeal is admitted. 10. emsp the delay at various stages has since been explained in explicit manner as required under the law, it is urged that the Hon rsquo ble Tribunal may be pleased not to construe the issue of condonation of delay strictly with pedantic stand. She also explained the cause for delay in filing the appeal. 2. emsp On considering the submissions made by both sides and taking into consideration the explanation given by the DR, we are of the view that this is a fit case to condone the delay. Accordingly, the delay is hereby condoned. 3. emsp The Counsel appearing for the Respondents submitted that similar appeals were filed by the Revenue. He requested that all the cases may be posted together. Considered. Ordered accordingly.
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2003 (8) TMI 395 - CESTAT, NEW DELHI
Valuation - Captive consumption ... ... ... ... ..... the Central Excise Act is available, there is no need to go to Section 4(1)(b) or take recourse to the valuation rules. This issue has been settled by a number of decisions of this Tribunal and finally by the Apex Court in the case of Ashok Leyland Ltd. v. CCE, Madras reported in 2002 (146) E.L.T. 503. The appellant has no case that apart from the sale to the Defence Department it has any other sale to other dealers charging a different price. Under these circumstances, we find no merit in the matter. The appeal, therefore, stands dismissed.
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2003 (8) TMI 394 - CESTAT, MUMBAI
Modvat/Cenvat - Input - Packaging material - Appeal - New ground ... ... ... ... ..... ere is nothing in the rule making any such distinction and justifying denial of credit on packing which in the opinion of the department is not really necessary. I might incidentally mention that the materials that are cited before me does not lead to the conclusion that the cost of packing has not been included. The two invoices have been cited before me one, M0160 dated 2-12-1996 issued to Kanwar Plastic House, Delhi, and the other, M01765 dated 23-12-1996 issued to AM Trading Company, Mumbai. The unit price for the goods applied to both these parties the Texo Ultra fresh grade designed NL 37, and grade SS is the same in both cases. This does so that the Asstt. Commissioner contradicts with bringing his only customer special request for upcountry or export clearance. However, in the absence of such evidence, the appeal is still have to be allowed for the reason indicated above. Therefore except for the amount of Rs. 29,015 appeal is allowed and the impugned order set aside.
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2003 (8) TMI 393 - CESTAT, NEW DELHI
Smuggling - Proof - Origin of goods ... ... ... ... ..... he seized Ginger was not available in Nepal. For want of any corroborative evidence, no inference could be drawn that the goods imported were of Chinese origin. The alleged statements of the drivers of the trucks regarding the Chinese origin of the goods also did not carry any legal weightage, as the drivers could not possibly disclose the origin of the goods. They could not be termed as experts or the persons having personal knowledge about the origin of the goods. 6. emsp In view of the discussion made above and from the evidence brought on record, it does not stand proved that the goods imported were of Chinese origin. Therefore, neither the confiscation of the goods nor imposition of penalty on the appellants could be legally ordered. The impugned orders-in-original in all the three captioned appeals are set aside in toto against the present appellants only. The appeals of the appellants are allowed accordingly with consequential relief, if any, permissible under the law.
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2003 (8) TMI 392 - CESTAT, MUMBAI
Stay/Dispensation of pre-deposit ... ... ... ... ..... the department, the extended period of limitation can be invoked. Further in the case of Marmago Steel Ltd. v. Commissioner of C. Ex. and Cus. 2001 (137) E.L.T. 381 , the Tribunal had held that the Larger Bench judgment above cited will not apply when the department has conscious knowledge. In the case of Modipon Fibre Co. v. Commissioner of Central Excise 2001 (135) E.L.T. 1420 (Tri. - Del.) , the Tribunal has held that the extended period of limitation cannot be invoked for the period subsequent to acquisition of knowledge regarding manufacturing activities of the assessee, by the Revenue. In the light of the above decisions and the ratio of the Supreme Court in the case of Pushpam Pharmaceuticals Company (supra) which is prima facie applicable to the present case where there exists a conflict of decisions, we are of the view that the demand is prima facie barred by limitation and therefore waive pre-deposit of duty and penalty and stay recovery thereof pending the appeal.
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2003 (8) TMI 391 - CESTAT, NEW DELHI
Cenvat/Modvat - Delay in filing declaration ... ... ... ... ..... peal will not affect the ultimate outcome of that appeal of the respondents. 8. emsp Another argument of the Counsel that, silence on the part of the department should lead to an inference that the declaration filed by the respondents was accepted, in our view, is misconceived and cannot be accepted. There is no such provision in the Central Excise Act or Rules for raising such a presumption. 9. emsp In the light of the discussions detailed above, in our view, the impugned order appealed against deserves to be set aside and the matter must be sent back to the Commissioner (Appeals) for fresh decision on the points referred to above by both the sides. 10. emsp Consequently, the impugned order-in-appeal to the extent to which it has been challenged in this appeal by the Revenue, is set aside and the matter is sent back to the Commissioner (Appeals) for fresh decision after hearing both sides. 11. emsp In the above terms the appeal of the Revenue stands allowed by way of remand.
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2003 (8) TMI 389 - CESTAT, NEW DELHI
Cenvat/Modvat - Modvat on capital goods ... ... ... ... ..... the declaration. The Appellants have also filed an application for condonation of delay in filing the declaration as required under Rule 57T which provides that the Assistant Commissioner may on sufficient cause being shown allow the filing of declaration subsequently. It has also not been disputed by Revenue that the capital goods have been received in the factory and they have been used for producing the finished goods. The Board has also clarified vide Circular No. 181/15/96-CX., dated 7-3-96 that ldquo credit should not be denied merely on the ground that the declaration has been filed after the receipt of the capital goods. It should, however, be ensured that the proper declaration is filed by the manufacturer before taking credit of duty. rdquo In view of the fact that the capital goods had been received and the credit has been taken after filing the declaration, no penalty is imposable on the Appellants. I, therefore, set aside the impugned Order and allow the appeal.
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2003 (8) TMI 388 - COMMISSIONER OF CENTRAL EXCISE (APPEALS), CHENNAI
Production capacity based duty ... ... ... ... ..... cator imposing an equivalent amount of Rupees seven and a half lakhs as penalty apart from interest at the rate of 18 . 2. emsp I have searched in vain through the case records as to what prompted the lower adjudicator to deliver such a harsh verdict. Even the game of sin must be played by rules. The use of power is a privilege, the misuse of power is a perversion. To quote Charles Caleb Coton ldquo Power will intoxicate the best hearts. as wine the strongest heads. No man is wise enough nor good enough to be trusted with unlimited power. rdquo 3. emsp What cannot be substantiated cannot be sustained. The penalty imposed is a total abandonment of even the pretence of fairness. 4. emsp Penalty set aside. 5. emsp Appeal Allowed.
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2003 (8) TMI 387 - CESTAT, NEW DELHI
Production capacity based duty - Composition payment - Appeal to Appellate Tribunal - Grounds - Departmental clarifications
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2003 (8) TMI 378 - CESTAT, MUMBAI
Refund - Unjust enrichment - Natural justice ... ... ... ... ..... e held against them and they were not called upon to produce any evidence to establish that they had not passed on the duty burden to their customers. In view of the above and also noting that appellants have stated that the correct classification of the product in dispute has been settled in their favour by Tribunal rsquo s order No. 375/96/WZB, dated 28-1-1997 1999 (114) E.L.T. 239 (T) and also noting their submission that duty was paid under protest, we set aside the impugned order and remand the case to the jurisdictional Assistant Commissioner/Deputy Commissioner, for de novo adjudication in accordance with law after extending a reasonable opportunity to the appellants to produce evidence regarding not passing on of the duty burden to their customers. It is open to the appellants to raise all pleas including the plea that the classification of the product has been held to be under CETA sub-heading 8716.00 as claimed by them. In the result the appeal is allowed by remand.
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2003 (8) TMI 377 - CESTAT, BANGALORE
Valuation - Deduction ... ... ... ... ..... ide on what constituted an arrangement for the return of the packing. In the present case there was not a single instance of return of packing. The facts were thus at variance with the note on the invoice, and indicated that there was actually no arrangement for the return of the packing and the note on the invoice was made only with a view to claim reduction of value for excise purposes. rdquo This conflict of views, induces us to refer the matter to the Hon rsquo ble President, to constitute a Larger Bench, to resolve this important question of law on this issue which is being framed as follows ldquo Whether for determining deductions claimed on durable and returnable packaging under Section 4(4)(d)(i) of Section 4 of the Central Excise Act, 1944 as it existed earlier, the lsquo arrangement rsquo of returnability could be examined and looked into and was required to be substantiated for its existence in fact or not in view of the conflicting decisions on the subject rdquo .
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2003 (8) TMI 375 - CESTAT, MUMBAI
Modvat/Cenvat - Modvat on capital goods - Intermediary goods ... ... ... ... ..... ral interpretation of the law, these cutters would not qualify. Similarly the humidifier and digital counter used to control humidity required for knitting cotton fabric and to ensure the length of the knitted fabric which is used as the base of the leather cloth would not be entitled to the credit as at the relevant time cotton fabric was not notified under Rule 57Q as an intermediate product. 3. emsp The remaining goods however are in my opinion clearly entitled to credit. The summary that has been furnished by the counsel for the appellant shows that they were used either in processes leading to the manufacture of leather cloth or for such purposes as trimming the edges of the cloth in rolls to ensure uniformity after it emerged or to inspect it for quality. By application of the ratio of the judgment of the Supreme Court in CCE v. Jawahar Mills Ltd., 2001 (132) E.L.T. 3, the goods would clearly qualify. 4. emsp Appeal E/2223 and 2225/98 allowed in part. E/2224/98 allowed.
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2003 (8) TMI 373 - CESTAT, MUMBAI
Stay/Dispensation of pre-deposit ... ... ... ... ..... ima facie case in their favour inasmuch as they have not been able to fulfil the requirement of the remand order. Accordingly we are of the view that the appellant should be put to some condition of pre-deposit. 6. emsp The appellants have also contended financial hardship. We have perused the annual report for the year 2001-2002 produced on record by the appellant and find that the appellant had sufficient cash and bank balance as on 31-3-2002 and it cannot be said that they would be at financial difficulties in depositing a part amount of duty. We also note that they have claimed depreciation to the extent of Rs. 4158.24 lakhs. As such, taking all the above factors into consideration, we direct the appellant to deposit Rs. 30 lakhs within a period of two months from today and report compliance on 26-9-2003. Subject to deposit of the amount of duty, we dispense with the condition of deposit of balance amount of duty and entire amount of penalty and stay the recovery thereof.
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2003 (8) TMI 372 - CESTAT, MUMBAI
Appeal to Appellate Tribunal - Jurisdiction ... ... ... ... ..... ing to goods exported without payment of duty. 2. emsp Thus, the Tribunal rsquo s order, having been passed in ignorance of the law, cannot be upheld, even though neither side pointed this out, when the appeal was decided. 3. emsp The order under reference is accordingly recalled and the appeal ordered to be returned to the appellant.
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2003 (8) TMI 370 - CESTAT, NEW DELHI
Penalty - Cenvat/Modvat - Modvat on capital goods ... ... ... ... ..... the declaration. The Appellants have also filed an application for condonation of delay in filing the declaration as required under Rule 57T which provides that the Assistant Commissioner may on sufficient cause being shown allow the filing of declaration subsequently. It has also not been disputed by Revenue that the capital goods have been received in the factory and they have been used for producing the finished goods. The Board has also clarified vide Circular No. 181/15/96-CX., dated 7-3-96 that ldquo credit should not be denied merely on the ground that the declaration has been filed after the receipt of the capital goods. It should, however, be ensured that the proper declaration is filed by the manufacturer before taking credit of duty. rdquo In view of the fact that the capital goods had been received and the credit has been taken after filing the declaration, no penalty is imposable on the Appellants. I, therefore, set aside the impugned Order and allow the appeal.
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2003 (8) TMI 369 - CESTAT, MUMBAI
Words and Phrases ... ... ... ... ..... T. 84. 3. emsp The issue is already covered by the decision of this Tribunal in Ranbaxy Laboratories Ltd v. C.C.E., 1999 (81) E.C.R. 485. In that decision, the Tribunal, after considering the notification, said that ldquo on the language of the notification read in the light of Section 4(4)(d)(ii) of the Act, it is clear that the excise duty liable to be deducted for determination of assessable value would be not only excise duty under the Central Excise Act, 1944 but also special excise duty under the relevant Finance Act rdquo . The judgment of the Supreme Court that the departmental representative relies upon is not relevant to the issue. The Court held in that the exemption contained in Notification 123/74 applies only to basic excise duty payable because it referred to duty. The Court came to the conclusion, after considering Rule 8(1) of the Rules, the expression used in the explanation is amount of excise duty without specifying any enactment. 4. emsp Appeal dismissed.
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2003 (8) TMI 348 - CESTAT, NEW DELHI
Appeal - Condonation of delay ... ... ... ... ..... sequently his own sickness. We, therefore, found that the Applicants had satisfactorily explained the delay in filing the appeals. The decisions relied upon by the learned Senior Departmental Representative are not applicable to the facts of the present matter as in the case of Navpad Textiles Indus. the departure of excise clerk does not mean that the entire affairs of the Company came to stand still. Similarly, in the case of Jaswant Steel, it was only the Managing Director of the Appellant who was ill. In view of these facts, the Tribunal held that the steps to file the Appeal could have been taken by other three persons including his son, who was also Director dealing with day to day affairs of the Company. In the present matter, the Applicants have assigned the work to a Consultant who on account of his daughter rsquo s illness could not file the Appeal in time. We, therefore, condone the delay in filing the Appeal and post all the stay petitions for hearing on 2-9-2003.
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