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Case Laws
Showing 81 to 100 of 280 Records
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1997 (6) TMI 212 - CEGAT, NEW DELHI
Modvat - Capital goods ... ... ... ... ..... whole process carried out continuously. 2. emsp The lower Appellate authority has held that the disputed item was covered by Clause 1(c) of the Explanation to Rule 57Q by treating them in the nature of weigh bridges and it is against this finding, that the Revenue has filed the present appeal on the ground that weigh bridges are different and distinct from weighing machines. 3. emsp While agreeing with the department that weighing machines cannot be equated with weigh bridges, I find that the disputed item is covered by clause 1(b) (sic) of the Explanation to Rule 57Q as the Electronic Weighing machines can be regarded as components or accessories of the bottling plant which in turn, are admittedly of producing goods viz. cold drinks and therefore, the credit is available to the respondents on this item. In the result, I hold that the respondents are entitled to the benefit of credit of Rs. 4,333/- on Electronic weighing machines. The appeal is disposed of in the above terms.
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1997 (6) TMI 211 - CEGAT, MUMBAI
Remand - Natural justice ... ... ... ... ..... was, in fact, promised to them during the personal hearing. The ld. DR pointed out that there may be difficulty for the Commissioner to ensure presence of witnesses to be cross-examined after such a lapse of time since the events in the case has been in the year 1992. Having regard to this submission, we direct that the appellants should co-operate in the culmination of the de novo adjudication within the reasonable time. The witnesses will have to be summoned by the department and if their presence cannot be ensured because of the practical difficulties, the appellants may be intimated of it and in such circumstances, the appellants should come forward and make their submissions before the Commissioner personally for cross-examining the witnesses whose presence is made available to them. If the appellants do not respond within the reasonable time the Commissioner is at liberty to proceed in the de novo consideration. 5. emsp Appeals are allowed by remand in the above terms.
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1997 (6) TMI 210 - CEGAT, MADRAS
Natural justice ... ... ... ... ..... for all buyers. In the circumstances, it does not appear probable that this factor had, to any extent, depressed or otherwise affected the price charged. That being so, there was no extra consideration received, over and above the declared price. The lower authorities failed to consider any one of these aspects while finding that the price has to be loaded to the extent of the notional interest. The finding is accordingly set aside. 5. emsp The issue therefore has to be examined after taking into consideration what has been held above by the Hon rsquo ble Supreme Court, Hon rsquo ble Madras High Court and the Tribunal. The ld. lower authority rsquo s orders therefore in the circumstances cannot be considered as proper and the same are set aside and the matters remanded to the said authority for de novo consideration and decision after allowing the appellants an opportunity of hearing and in the light of our observations above. 6. emsp Appeals are therefore allowed by remand.
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1997 (6) TMI 209 - CEGAT, MADRAS
Stay/Dispensation of pre-deposit ... ... ... ... ..... e across the bar by the Dy. General Manager of the appellants company. We at the same time take note of the fact that the appellants are engaged in export efforts. Taking into consideration, therefore the totality of the facts and circumstances of the case, we are of the view that ends of justice would be served if the appellants are called upon to make a pre-deposit of Rs. 60.00 lacs (Rupees Sixty lacs) towards duty on or before 30-7-1997 and report compliance on or before 31-7-1997 subject to which pre-deposit of the balance of duty and the interest demanded would stand dispensed with and their recovery stayed pending appeal. Ordered accordingly. We also direct the appellants to make a pre-deposit of Rs. 5 lacs (Rupees Five lacs) towards penalty, by the above date, subject to which pre-deposit of the balance amount of penalty would stand dispensed with and its recovery stayed during the pendency of the appeal. The matter will be called on 31-7-1997 for reporting compliance.
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1997 (6) TMI 208 - CEGAT, MADRAS
Stay/Dispensation of pre-deposit - Valuation - Penalty ... ... ... ... ..... -1997 and report compliance by 31-7-1997 subject to which pre-deposit of the balance amount would stand dispensed and the recovery thereof stayed pending appeal. 6. emsp So far as M/s. Dolphin Motors are concerned, we find that the modalities of the sale which were adopted by the appellant companies, while in fact no sale as such prima facie were effected to them, they became a willing party as buyer of the goods to the modus operandi used for evading duty. In the circumstances, we hold that the lower authority has rightly held them to be liable to penalty. In the circumstances, we hold that ends of justice would be served if M/s. Dolphin Motors are asked to make a pre-deposit of Rs. 5.00 lakhs (Rupees five lakhs) on or before 30-7-1997 and report compliance by 31-7-1997. Ordered accordingly, subject to the above pre-deposit of the balance amount shall stand dispensed with and its recovery stayed pending appeal. The matter will be called on 31-7-1997 for reporting compliance.
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1997 (6) TMI 207 - CEGAT, NEW DELHI
... ...
... ... ..... t Modvat credit shall be admissible to the appellants. 5. emsp Insofar as Alfa Alumina is concerned, we find that this item is used in the process of manufacture of POY and Polyester Flat Yarn. We note that this item is in the form of sand and is used in filtering. Use of this item is akin to use of wire mesh and fed in the process of manufacture of paper and paper boards. We note that Alfa Alumina is like consumable inasmuch as it not only performs as a filtering medium but also removes the impurities in hot polymer. We also note that Alfa Alumina is replaced from time to time. We find that it does not fall under the exclusion category under the explanation in Rule 57A. In the circumstances, we hold that Alfa Alumina is an input and shall be entitled to Modvat credit of duty. 6. emsp In view of the above findings, the Appeal is allowed and the Order imposing penalty is also set aside. Consequential relief, if any, shall be admissible to the applicants in accordance with law.
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1997 (6) TMI 206 - CEGAT, MUMBAI
Refund - Provisional assessment ... ... ... ... ..... as been upheld in the order in appeal. 4. emsp We find on consideration of the evidence on records that the appellants also admits that the assessment of the goods was provisional pending the test result of the product. It is well-settled that when the assessment is provisional for one purpose that remains provisional for all other purposes. Any refund of excess duty or any payment of short paid duty will have to follow and crystallise only on finalisation of the provisional assessment. At the material time when the refund application was filed, the admitted position is that the assessment is provisional. In such a view of the matter, we see no reason to interfere with the impugned order and the appeal is rejected.
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1997 (6) TMI 205 - CEGAT, NEW DELHI
Valuation - Modvat element ... ... ... ... ..... t was not one of the admissible deductions and therefore the concept of transaction value has no place in the scheme of Section 4 of the Central Excise Act, 1944. 3. emsp An identical controversy in relation to the appellant came up for consideration before the Tribunal in Appeal No. E/1/92-A disposed of by Final Order No. 90/94-A 1995 (75) E.L.T. 131 (Tribunal) . In that order, the Tribunal after discussing the legal position held that reduction of the price to the extent Modvat credit availed was justified and deduction thereto has to be allowed. We followed this decision in another appeal relating to the present assessee, namely, E/2893/89-A disposed of on 2-6-1997. Thus it is seen that the legal position is settled so far as the Tribunal is concerned and the position is that where contract provided for price less Modvat element, the assessable value should also reflect the price agreed to in the contract. We, therefore, set aside the impugned orders and allow the appeals.
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1997 (6) TMI 204 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... ect of five appeals and the impugned order in respect of those appeals has already been set aside. He submits that the ratio of the order of the Tribunal in the case of Calcutta Steel Industries and that of the order passed in respect of the assessee rsquo s appeals against the impugned order by Final Order Nos. E/939-943/97-B should also be applied. 3. emsp Ld. DR reiterates the departmental findings. 4. emsp We have carefully considered the submissions. The issue has already been decided by the Tribunal in the case of Calcutta Steel Industries and the revenue appeals before the Apex Court have already been dismissed. As five of the appeals in the impugned order has already been set aside, it is but proper that these appeals be also disposed of in the ratio of Calcutta Steel Industries and that of the Final Order Nos. E/939-943/97-B, dated 10-6-1997. Respectfully follow the ratio of the said judgment, the assessee rsquo s appeals are allowed and revenue appeals are rejected.
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1997 (6) TMI 203 - CEGAT, MUMBAI
Stay/Dispensation of pre-deposit ... ... ... ... ..... t was, therefore, pleaded that the denial of Modvat credit under Rule 57Q is not in order. 3. emsp Shri Gurdeep Singh, the ld. DR, for the revenue refers to the reasoning in the impugned order to say that when the materials are used in structures which are in the nature of immovable property, the question of availing Modvat credit on inputs would not arise. 4. emsp We have carefully considered the submissions. The issue is very much arguable and we are not satisfied that this is a fit case for dispensing with the pre-deposit. Therefore, in terms of Section 35F of the Central Excise Act, 1944, we direct that the applicants should freeze the Modvat amount as demanded in the impugned order in their capital goods Modvat account and should not utilise it till the disposal of the appeal and subject to this condition, pre-deposit of the penalty amount is dispensed with and recovery is stayed. 5. emsp The matter will be listed for ascertaining compliance with this order on 14-7-1997.
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1997 (6) TMI 202 - CEGAT, NEW DELHI
Fabrication - Dutiability - Marketability ... ... ... ... ..... to be goods rsquo because excise duty is leviable only on the goods rsquo manufactured. Looking into the marketability aspect we find that in the instant case Iron and Steel angles were being cut into different sizes, holes were being drilled into it to fit nuts and bolts. Looking into this aspect as to whether these goods are generally marketed or marketed in the case of the appellant, we find that these goods are not generally marketed nor any evidence was brought on record to prove that the appellant was selling these items to any one. Actually these goods are not bought and sold in the market also. Since the product was not being marketed nor it was generally marketed as such therefore it was not goods and since it was not goods rsquo there is no question of its classification or levy of duty. In the circumstances the impugned order is set aside and the appeal is allowed. 4. emsp Consequential relief if any, shall be admissible to the appellants in accordance to the law.
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1997 (6) TMI 201 - CEGAT, MADRAS
Appeal - Limitation - Delay in filing appeal ... ... ... ... ..... in a given case there was indeed sudden handicap of shortage of staff and on account of the manner in which the department fills up the vacancies etc., the matter could not be handled expeditiously for filing the appeal within the stipulated period as prescribed in the statute. No facts in this regard have been placed before us. Without laying any basis, therefore, the plea of the revenue that a liberal view should be taken and that the terms sufficient cause should be treated as an elastic expression cannot be entertained. We observe, the concept of elasticity would only apply where a circumstance is made out and a plea in that regard is made. In the present case no such circumstance has been made out based on any facts and, therefore, in our view the department has failed to show sufficient cause for condoning the delay in question. 5. emsp We, therefore, dismiss the condonation of delay application. Inasmuch as the delay has not been condoned, the appeal is also dismissed.
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1997 (6) TMI 200 - CEGAT, MUMBAI
Reference to High Court - Evidence ... ... ... ... ..... are not covered by any notification under Section 123 of the Customs Act, or provisions of Chapter IV-A are not invoked and the burden lies heavily on the Department to prove the illicit nature of the import and the reasoning further go to show Tribunal rsquo s conclusion that Respondents case gets further strength by the fact that the goods in questions were permissible to be imported under OGL and to that extent the obligation caused on Department is even more. It is in this context that the observation relating to OGL import and confiscation appearing in the order has to be seen. Apart from the above, a perusal of the application and the submissions made would show that the exercise required is one of reappreciation of evidence, which is not permissible in a reference application. Therefore, it is held that no point of law requiring reference to the Hon rsquo ble High Court arises out of the impugned order of the Tribunal. The reference applications are therefore rejected.
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1997 (6) TMI 199 - CEGAT, NEW DELHI
Modvat - Duty paying documents when received subsequently ... ... ... ... ..... a fact that the certificate had been issued by the concerned Superintendent of Central Excise and it has to be assumed that before issuing the certificate, he was satisfied about the genuineness of the documents and the eligibilty for the Modvat credit. 7. emsp As there was no allegation about the mis-utilisation of the credit, I consider that the demand of duty in this case was not proper. However, it is also a fact that all the requirements of the Trade Notice relied upon by the appellants had not been complied with and that the goods have moved under the cover of the Bills on which there was no reference to the import documents. In view of these irregularities I consider that the imposition of penalty of Rs. 5,000/- was justified and I confirm that part of the order which relates to the imposition of penalty. 8. emsp In view of above discussion, the appeal is allowed in so far as the demand of duty is concerned. The penalty of Rs. 5,000/- is confirmed. Ordered accordingly.
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1997 (6) TMI 198 - CEGAT, NEW DELHI
Manufacture ... ... ... ... ..... the fabrication of steel structurals does not amount to manufacture. 6. emsp In respect of cement blocks it is not disputed by the Revenue that the cement blocks were fabricated at the building site during the period 1-3-1986 to 30-4-1988. The Central Govt. vide Notification No. 57/89-N.T.-C.E. dated 20-11-1989 issued under Section 11C of the Central Excises and Salt Act, 1944 notified that the duty of excise on building material falling within Chapter 68 of the Schedule to the Central Excise Tariff Act manufactured at the site of construction of building and used at such site was not being levied during the period commencing on 28-2-1986 and ending with 31-10-1988. In the present case the cement blocks were fabricated at site and used in the construction of godowns and stores between 28-2-1986 to 31-10-1986. Therefore they are covered under the Notification and are not liable for duty. In view of the above discussion the impugned order is set aside and the appeal is allowed.
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1997 (6) TMI 197 - CEGAT, MUMBAI
Classification ... ... ... ... ..... or of Central Excise v. Bowreah Cotton Mills Co. Ltd. - 1997 (92) E.L.T. 8 (S.C.). 3. emsp We have heard Shri S.V. Singh the ld. DR. On perusal of the Supreme Court decision in that case also classification of similar blended yarn was considered, and the Supreme Court has upheld the Tribunal decision that such yarn would be correctly classifiable under residuary Tariff Item 68 covering the goods not elsewhere specified in the Tariff and will not fall under Item 18-III(ii) or under Tariff Item 18-E. The ratio of the above decision is applicable to the facts of the present case and we also note that it was an alternate plea in this case by the appellants before the lower authority that the blended yarn would in the alternative be classifiable under Item 68 CET. Applying the ratio of the Supreme Court decision the impugned order is set aside and the appeal is disposed of, holding that the blended yarn be classified under Item 68 CET. Consequential relief if any according to law.
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1997 (6) TMI 196 - CEGAT, MUMBAI
... ...
... ... ..... at what was received was tin plate and plate was different from sheets. Heading 72.12 makes no such distinction and sub-heading 20 contains the word ldquo plated rdquo . What emerges from these discussions, is that it was not unreasonable in the circumstances for the assessee that declared the goods as tin plate and such a declaration was valid for purposes of Modvat credit even if we assume that classification was under sub-heading 7212.30. There are decisions of this Tribunal that credit should not be denied only on account of incorrect classification. ldquo Tin plate rdquo specified in the declaration was sufficient to inform the department of the nature of the product. It is, therefore, not necessary to go into the finer aspects of classification. I am of the view that the inputs on which appellant had taken credit were covered by the description given in the declaration credit, therefore could not be denied on this score. 3. emsp Appeal allowed. Impugned order set aside.
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1997 (6) TMI 195 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... t specified in the notification, exemption of duty under Notification No. 153/86 would not be admissible. 5. emsp In regard to auxiliary duty, the position is, however, different. Notification 313/86 under S. No. 11 exempts the goods specified in Col. 3 and classifiable under Chapter Heading 84. Under S. No. 11 of this notification goods classifiable under Heading 8414.90 are mentioned. Heading 8414.90 refers to parts. These parts are parts of the Heading 8414. In other words notification grants exemption for auxiliary duty to parts of air or other gas compressors. Exemption to parts is not given with reference to the type of compressors. 6. emsp For the reasons mentioned hereinbefore, we hold that impugned goods are not entitled to exemption to basic duty but are eligible partial exemption to auxiliary duty under Notification 313/86. Accordingly we modify the order of Collector (Appeals) to the extent indicated above. Revenue appeal is accordingly disposed of in above terms.
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1997 (6) TMI 194 - CEGAT, MADRAS
Appeal - Limitation - Delay in filing appeal ... ... ... ... ..... ance the Hon rsquo ble Supreme Court felt that the delay in filing the appeal involving the same issue should have been condoned. Here the question of finality having been reached does not arise. All that has happened is that the Commissioner (Appeals) in a similar matter has chosen to remand the matter to the original authority. Likewise the case of MST Katiji also does not help the appellants as statue provides that there should be sufficient cause and a basis for that should exit. Once a basis exists, the liberal interpretation can be given as the same constituting sufficient cause. In the present case no basis as such exists. We also observe, in that case the delay involved was only 4 days. 14. emsp In the above view of the matter, therefore, we hold that the appellant rsquo s prayer for condonation of the delay cannot be acceded to. We, therefore, dismiss the Condonation of Delay application. 15. emsp Inasmuch as the delay is not condoned, the appeals are also dismissed.
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1997 (6) TMI 193 - CEGAT, NEW DELHI
Tea - CTC tea ... ... ... ... ..... the parameters of the said rule. It may be that the permission was revoked subsequently but during the pendency of the permission to operate under the rule, the appellants were perfectly within their right to clear the goods without payment of duty. The subsequent revocation of the permission cannot operate against the interest of the assessee. Nor do we find any merit in the Collector rsquo s belief that in view of the wrong availment of the said rule, duty had to be paid again on the said goods. We find that the orders, confirming the demand made in the impugned orders do not sustain. At the same time we take congnizance of the plea made by the learned Departmental Representative that there is nothing in the evidence to show the dates on which the duties were paid by the processing factory and the quantum thereof. We, therefore, set aside the order of the Collector and allow these appeals. The Assistant Collector is a liberty to verify the fact and the quantum of duty paid.
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