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Case Laws
Showing 81 to 100 of 390 Records
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2000 (4) TMI 719 - CEGAT, MUMBAI
Adjudication - Natural justice - Test Report - Chemical Examiner Report ... ... ... ... ..... mmissioner has proceeded to determine the quantum of differential duty payable when the show cause notice dated 2-1-1997 on classification has not been pro shy ceeded upon in the appropriate manner. We also find that the opinion of the chemical examiners was not taken into account in appro shy priate manner. These three defects render the verdict arrived at by the learned Commissioner in the impugned orders as unsustainable. On these grounds the appeal is allowed and the proceedings are remitted back to the Commis shy sioner who shall first cause proper analysis to be made by the chemical experts and give a copy thereof to the assessees. He shall then direct them to appear before him to hear their submissions in respect of all the five show cause notices. He shall also pay attention to the existence of the trade notice and the pronouncements made by the Supreme Court in regard to their binding effect and then pass a well reasoned speaking order on merits. Ordered accordingly.
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2000 (4) TMI 700 - CEGAT, NEW DELHI
Reference application - Limitation ... ... ... ... ..... He refers to Section 35G proviso wherein the Tribunal had been given the power to condone the delay not exceeding 30 days. In the instant case, he submits that admittedly the delay is of 32 days. He therefore submits that the application merits outright rejection. 3. emsp We have heard ld. DR. There is a request for adjournment from the Counsel of the applicant. However, on perusal of the application for condonation of delay, we find that the admitted position is that the delay is of 32 days. We have also perused Section 35G. We find that there is no provision to condone the delay exceeding 30 days. In the circumstances, we reject the application for condonation of delay. Consequently the Reference Application is also rejected.
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2000 (4) TMI 699 - CEGAT, KOLKATA
... ...
... ... ..... ed by the learned Consultant for the respondents in the case of Supreme Laces v. Collector of Customs reported in 1992 (60) E.L.T. 442 (Tribunal) which is to the effect that burden to prove the charge of under-valuation is on the Revenue. In the Grounds of Appeal, the Revenue has not given any evidence of any contemporaneous imports of higher value. On the contrary, they have agitated that the importers have not placed any evidence to the effect that identical/similar goods were passed at the invoice value during the material period. As such, the Revenue has prayed that the value fixed under Rule 8 of the Valuation Rules was correct. We are not convinced with the above agruments of the Revenue. The onus is upon the Revenue to produce evidence for establishing under-valuation on the part of the importers. As such, we do not find any merits in the Revenue rsquo s appeal and reject the same. Cross objection filed by the respondent firm also stands disposed of in the above terms.
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2000 (4) TMI 695 - CEGAT, MUMBAI
Stay/Dispensation of pre-deposit ... ... ... ... ..... ty 1. C/Stay-2508-B/99-Bom C/1045-V/99-Mum GSECL 11,87,20,902 11,87,20,902 2,62,00,000 2. C/Stay-2519-V/99-Bom C/1059-V/99-Bom Vijai Industries Nil 35,00,000 3. C/Stay-2522-V/99-Bom C/1062-V/99-Bom Alpine Chemicals 27,23,230 27,23,230 4. C/Stay-2515-V/99-Bom C/1058-V/99-Bom GSICL Nil 40,00,000 5. C/Stay-2525-V/99-Bom C/1065-V/99-Bom Alpine Chemicals Nil 8,00,000 6. C/Stay-2523-V/99-Bom C/1063-V/99-Bom R. Seventilal 1,73,35,057 1,73,35,057 7. C/Stay-2524-V/99-Bom C/1064-V/99-Bom R. Seventilal 35,25,628 35,25,628 8. C/Stay-2526-V/99-Bom C/1066-V/99-Bom Aangi Export 34,56,223 34,56,223 5,50,000 9. C/Stay-2520-V/99-Bom C/1060-V/99-Bom Gira Enterprises 26,74,966 26,74,966 10. C/Stay-252-V/Bom C/1061-V/99-Bom RSI Limited 92,95,625 92,95,625 11. C/Stay-2513-V/99-Bom C/1057-V/99-Bom ESTC India Ltd. 1,09,76,317 1,09,76,317 12. C/Stay-2509-V/99-Bom C/1046-V/99-Bom Adani Exports Ltd. 2,97,16,921 2,97,16,921 13. C/Stay-2472/99-Bom C/1035-V/99-Bom Wavin India Ltd. 1,58,26,414 1,58,26,414
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2000 (4) TMI 693 - CEGAT, NEW DELHI
... ...
... ... ..... in relation to the services rendered prior to the manufacture, we are not in a position to deal with the issue in a proper manner. To find out whether it is includible in the assessable value or not, there must be a factual finding regarding the stage at which these service charges were recovered and to what they related. The reply given by the manufacturer to the show cause notice does not make many sense in this regard either. In such a situation, the only course that is now open is to remit the matter regarding the includability of the technical service charges in the assessable value of the goods for specific finding by the adjudicating authority. The adjudicating authority should render a clear finding regarding the nature of the receipt of technical service charges after affording reasonable opportunity of being heard to the manufacturer. The order passed by the appellate authority in this regard alone is varied and the matter is remitted to the adjudicating authority.
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2000 (4) TMI 691 - COMMISSIONER OF CENTRAL EXCISE & CUSTOMS (APPEALS)
Kar Vivadh Samadhan Scheme - Tax arrears ... ... ... ... ..... by the Department, this did not become a part of the tax arrears and naturally the assessee had no occasion to include the same in their application for settlement. Even otherwise the Designated Authority was expected to scrutinize the impugned order alongwith the application of the respondent filed under KVSS before issuing the certificate of settlement. It is therefore to be taken that the issue of certificate of settlement was a conscious decision of the Designated Authority. Therefore, as per the K.V.S. Scheme read with the High Court rsquo s Order and Ministry rsquo s letter F. No. 275/48/98-CX. 8A, dated 8-12-1998, the matter stands settled and there was no scope to file the review appeal almost after 10 months of the issue of certificate of settlement. Therefore, without going into the merits of the case, on this ground alone, I find that the appeal is not maintainable under the law. 23. emsp In view of above, I reject the Department rsquo s appeal as non-maintainable.
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2000 (4) TMI 689 - CEGAT, NEW DELHI
Demand - Limitation ... ... ... ... ..... All the other decisions cited and relied upon by both sides do not specifically cover this point and if some decision even if it covers the point partly cannot be taken into account in view of the specific judgment and ruling of the Apex Court. In the present case before us we find that there were two classification lists. In one list for a particular period provisional assessment was requested for and since the Hon rsquo ble Apex Court has held that obviously the assessments upto the date of finalisation of the classification list are provisional, therefore, we hold that the assessments under both the classification lists were provisional. In this view of the matter since we have held that assessments were provisional, therefore, the time limit for issuing SCN for demanding duty shall be counted from 14-5-93. Thus the demand is not time barred. In these circumstances, the impugned order is set aside and the appeal is allowed with consequential relief in accordance with law.
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2000 (4) TMI 688 - CEGAT, NEW DELHI
Remission of duty - Modvat ... ... ... ... ..... under Sub-rule (1) shall be utilised towards payment of duty of excise leviable on the final products, whether under the Act or under any other Act, as may be specified in the notification issued under sub-rule (1) and subject to the provisions of this Section and the conditions and restrictions, if any, specified in the said notification. It would thus be clear that once credit of duty has been taken on the inputs, this credit cannot be used for any purpose other than for payment of duty on the final product or on the inputs itself if they are removed. We note that taking of credit of duty on inputs is in the form of depositing cash in PLA. This cash deposit is with the manufacturer and can be utilised only for payment of duty on the final product. In the instant case the amount remains unutilised and therefore, must remain as credit balance in the account and if utilised must be recovered from the assessee/manufacturer. 8. emsp The appeal is disposed of in the above terms.
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2000 (4) TMI 687 - CEGAT, NEW DELHI
Stay petition - Maintainability of ... ... ... ... ..... type of furnace that was used by the appellants has been finally decided as lsquo Pusher rsquo type. Appellants are not to question the type of furnace before any authority in view of the categorical finding entered by the High Court. 4. emsp The main grievance canvassed before us by the learned Counsel representing the appellants is that the quantum of duty payable by the appellants has not been fixed by the Commissioner. Without fixing the quantum of duty payable by the appellant, according to the learned Counsel, authorities were not justified in taking any coercive step for realising any amount. It is true that no order quantifying the duty liability of the appellants is produced before us in these proceedings. As the duty liability has not been quantified, we are not in a position to stay the proceedings wherein any amount is sought to be recovered from the appellants. 5. emsp In this view of the matter, the stay petitions are ill-conceived. The petitions are dismissed.
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2000 (4) TMI 685 - CEGAT, KOLKATA
Hub with blades known as ‘Blade Assembly’ ... ... ... ... ..... uo s Order Nos. 124-125/93 by which the Tribunal had held that fans and blade of gear would be treated as electric fans classifiable under erstwhile T.I. 33(2) of the C. Ex. Tariff. Appellants had also pleaded that the said order of the Tribunal has been challenged by them before the Supreme Court. However as the stay of operation of the impugned order was not granted by the Hon rsquo ble Supreme Court the adjudication was done following the said order. 3. emsp Now we find that appeals filed by M/s. Paharpur Cooling Towers before the Hon rsquo ble Supreme Court of India have been allowed and the Tribunal rsquo s order has been set aside. It has been held that hub with blades known as lsquo Blade Assembly rsquo was not an electric fan as assessable under Tariff Item 33(2) of the CETA. As the issue is now decided in favour of the appellants by the Hon rsquo ble Supreme Court, we set aside the impugned order and allow both the appeals with consequential relief to the appellants.
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2000 (4) TMI 684 - CEGAT, KOLKATA
Stay/Dispensation of pre-deposit - Adjudication order ... ... ... ... ..... g of the impugned order. Inasmuch as the same was not done, impugned order suffers from violation of principle of natural justice. In this view, we set aside the impugned order and remand the matters to the Commissioner of Customs for de novo decision with direction that the Fax letter dated 29-7-1999 be disclosed to the appellants, they be given an opportunity to put forth their defence in respect of the said letter. With these observations, all the appeals are allowed by way of remand. 5. emsp However, we make it clear as the gold bars in question already stand released to the appellants in terms of Hon ble High Court s Order, subject to deposit of duty and a part of penalty, the amount so deposited in terms of High Court s Order, would continue to remain deposited with the Department till the final adjudication by the Commissioner. The appellants are also directed to keep the bond already executed by them alive during the pendency of the proceeding before the Commissioner.
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2000 (4) TMI 682 - CEGAT, KOLKATA
Cess - Appellate Order - Jurisdiction ... ... ... ... ..... used captively for the manufacture of other jute manufactures after 1-10-1984. The findings of the appellate authority to the effect that rule 3 of New Cess Rules, 1984 are ldquo patently repugnant to the provisions of section of New Cess Act rdquo are beyond his jurisdiction. It was not open to the Asstt. Commissioner to hold so, being creature of the Act under which the rules are made. As the issue is already settled in favour of the appellants after 1-10-1984. However, the period involved in the present appeal is from September 1984 to February 1994. The period prior to 1-10-1984 would be covered by the Supreme Court rsquo s judgment in the case of Baranagar Jute Factory and the appellants would be liable to pay cess in respect of the captively consumed jute twines and jute yarns. As such we confirm the demand of cess for the period prior to 1-10-1984 and set aside the same for the period after 1-10-1984. The quantification may be done by the authorities below accordingly.
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2000 (4) TMI 681 - CEGAT, KOLKATA
SSI Exemption not deniable for non-observance of excise formalities ... ... ... ... ..... e appellants are also not disputing the clearance figures. As such, the dispute only revolves around the calculation of duty to be paid by the appellants. Whereas the Department has calculated the duty on the entire clearance figures, the appellants are claiming that the same should be re-calculated after giving them the benefit of Notification No. 1/93 in respect of first clearance of Rs. 30.00 lakhs and thereafter, it should be calculated at the concessional rate of duty by treating the clearances as cum-duty clearances. We fully agree with the submissions of the appellants. We, however, make it clear at this point that the job work undertaken by the appellants would be treated as their own manufacture and their own clearances in accordance with law. Accordingly, in view of our above observations, we direct the Assistant Commissioner to decide the case afresh, after affording an opportunity for personal hearing to the appellants. The appeal is thus allowed by way of remand.
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2000 (4) TMI 678 - CEGAT, MUMBAI
Bagasse obtained from the sugarcane directly by simple mechanical process of crushing ... ... ... ... ..... proposed by the Conference of Collectors of Central Excise that rice husk is an agricultural waste and a boiler designed to fire rice husk is a device for converting waste material. It is to be noted that the Board rsquo s circular shows that the Conference of Collectors concluded that the rice husk, wood waste, bagasse can be considered to be agricultural waste. We note that rice husk arises in the course of milling of rice which is mainly carried out as an industrial process. No doubt, some rice husk may be obtained by hand pounding paddy but this is also true of bagasse. Some part of bagasse comes into being at the hands of the sugarcane juice seller. It is therefore fair to put rice husk and bagasse on the same footing for the purposes of the notification and hold that a boiler which utilizes bagasse is as much a device for converting agricultural waste material as a boiler that utilizes rice husk. 5. emsp Accordingly we see no reason to interfere and dismiss the appeal.
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2000 (4) TMI 671 - CEGAT, MUMBAI
Stay/Dispensation of pre-deposit - Fabrics ... ... ... ... ..... 52, when prima facie they are clearly classifiable under Heading 59 would have led to the belief in the applicant rsquo s mind that the goods were not classifiable under Heading 59. The fact that the Tribunal rsquo s decision cited itself has taken the view that such goods are not classifiable under Heading 59, unless they are processed, show that more than one considered view was possible. Further, we are not aware of the provisions of law that the end use of the fabrics has to be described in the declaration and the alleged suppression by the applicant has to be considered from this aspect. The fact that the Commissioner (Appeals) in his order passed in 1998 has held identical goods manufactured by the applicant to be classifiable under Heading 54 on the ground that Note 7(a) to Chapter 59 excludes its classification, who support the applicant rsquo s case on limitation. 7. emsp Accordingly, we waive deposit of the duty demanded and penalty imposed, and stay their recovery.
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2000 (4) TMI 670 - CEGAT, NEW DELHI
Adjudication - Evidence - Adjudication - Speaking order ... ... ... ... ..... of examining relevant material relating to consumption of electricity, raw material etc. during the relevant period. Further, the opinion given by the experts relating to production capacity of the appellants at the relevant time also does not appear to have been considered. An expert opinion cannot be dismissed unless contrary expert opinion is seen and examined. Case law relating to the various legal questions raised by the appellants on the basis of decided cases have also to be given due consideration. 13. emsp Since we find that the aforesaid questions have not been addressed by the Commissioner in the impugned order, in our view, the appropriate course will be to remand the matter for fresh adjudication by the Commissioner. The Commissioner shall on de novo readjudication record the reasons for accepting or not accepting the detailed submissions made by the appellants both on questions of fact, evidence and case law. 14. emsp Appeal allowed by remand in the above terms.
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2000 (4) TMI 668 - CEGAT, KOLKATA
Modvat - Demand - Limitation ... ... ... ... ..... regularised after verification by the Assistant Collector. In the instant case, due verification of inputs was done by the Superintendent at the instance of Assistant Collector and appropriate endorsement to that effect was also made in RG 23A Part II. We also take note of the decision of Northern Bench of the Tribunal in Aqueous Victuals Ltd. v. Collector of Central Excise, Kanpur reported in 1996 (84) E.L.T. 366 (Tribunal) wherein it was held availment of Modvat credit, in anticipation of the permission sought under Rule 57H ibid, was in order. In the present case, the appellant did apply for permission to avail Modvat credit without making a mention of the relevant rule. We consider this as a technical lapse which should not disqualify the appellant from availment of Modvat credit. 6. emsp In view of the above findings, we are inclined to set aside the order impugned. Accordingly, we do so. 7. emsp In fine, the appeal is allowed with consequential relief to the appellant.
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2000 (4) TMI 667 - CEGAT, NEW DELHI
Modvat on capital goods ... ... ... ... ..... filler parts in cement plant were held to be eligible to capital goods credit, I extend Modvat credit under Rule 57Q to this item. (6) emsp Pump Spares These are spares for water pumps which are used for supplying water to the dye house. Polyester tops and wool tops are subjected to a series of chemical processes in the dye house and the pump ensures uninterrupted supply of water and hence it performs a crucial role in the processing of fibre. Since it is used for production of final products, the spares for the pumps are eligible to capital goods credit under Rule 57Q. 3. emsp In the result, I hold that Modvat credit is not admissible on Extra Equipment and Truing machine while credit is admissible on the remaining four items in dispute. The credit disallowed on the two items is stated to be approximately Rs. 22,000/-. Therefore, I reduce the penalty proportionately to Rs. 5,000/- from Rs. 50,000/- imposed by the lower Appellate Authority. The appeal is thus partly allowed.
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2000 (4) TMI 666 - CEGAT, KOLKATA
Valuation - Free supply - Modvat - Penalty ... ... ... ... ..... 993 placed on record by the appellants, the quantum of duty paid by the Railways on the inputs comes to around Rs. 11,46,518 /-. 3. emsp We have also heard Shri R.K.Roy, ld. JDR. 4. emsp On merits the issue is no more res integra and is decided against the appellants. However, we observe that the appellants are entilled to the modvat credit of duty paid on the items supplied by the Railways free of cost. As such we set aside the impugned order and remand the matter with directions that the appellants claim into quantum of duty paid on the inputs be looked into by the adjudicating authority and the resultant demand be quantified accordingly. 5. emsp As we find that there was no negligence either on the part of the Railways or on the part of the appellants and the issue at the relevant time was not free from doubt, there is no justification for imposition of personal penalty of Rs. 10,000/- on the appellants. The same is accordingly set aside. Appeal disposed of in above terms.
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2000 (4) TMI 664 - CEGAT, NEW DELHI
Demand - Rate of duty ... ... ... ... ..... ate. 3. emsp We find that it is not a case where the rate of duty has undergone a change. The goods were received on payment of duty and were removed on reversal of the Modvat credit. It appears that there was a mistake in extending the benefit of Notification No. 59/90-C.E. in the hands of the manufacturers of the brake linings. We do not consider that that would come in the way of the present respondents to clear the goods on reversal of the credit which they have taken. Although, there is deeming friction under Rule 57-F, but it is only in so far as the rate of duty is concerned. The benefit of the exemption notification, already extended to the manufacturers, is not an issue for our consideration. 4. emsp Keeping in view the facts and circumstances of this case and keeping in view the observations of the appellate authority, we find no material has been placed before us to disturb his findings. As a result, the appeal filed by the Revenue is rejected. Ordered accordingly.
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