Mumbai Court January 2002 Judgments
Pankaj Petropack Pvt. Ltd. Vs. Commr. of C. Ex. and Cus., Vadodara
Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai
Decided on: Jan-31-2002
Reported in: (2002)LC116Tri(Mum.)bai
1. On hearing both sides on the stay application, I find that the issue being settled, the appeal can be taken up for disposal. This was done on granting wavier of pre-deposit of duty of Rs. 5,88,295.38 and penalty of Rs. 1,00,000/-.3. The assessee were supplying certain goods the GSFC under contract.The buyers later reduced unit value of the goods with retrospective effect. Therefore, the total income was reduced. The burden of duty however, remained at the earlier higher price. For clearances made in October, 1992, the assessee took Suo motu credit of Rs. 2,13,361.80 reflecting the excess duty paid. This credit was denied on the ground that the assessee could not take such credit on their own. The principle of undue unjust enrichment was also invoked.4. I find that where the assessee realised that excess duty had been wrongly paid by them, the legal method was to seek refund from the department. The department thereafter would examine the validity of the claim and then either great ...
Tag this Judgment!Raj Prakash Chemicals Ltd. Vs. Commissioner of C. Ex.
Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai
Decided on: Jan-31-2002
Reported in: (2003)(155)ELT379Tri(Mum.)bai
1. This application seeks to correct an error claimed to be apparent on the record in the Tribunal's order under reference. In that order, the Tribunal had held that the money credit available by Notification 231/87, as it stood on 1-3-1989, prior to its amendment on 20-3-1990, would not be available on the ethyl alcohol used by the appellant in the manufacture of ethyl acrylate. It noted that the notification, as it stood at the relevant time, made the money credit available if ethyl alcohol is used in the manufacture of ethyl acrylate classifiable under Heading 39.06 of the tariff. The amending notification amended entry 33 (relating to ethyl acrylate) by making it available to ethyl acrylate falling under Heading 29.16 or Heading 39.06. It could not, therefore, be said that, it correct an error and was therefore clarificatory in nature and retrospective in application.2. The contention in the application before us is that ethyl acrylate is a monomer and therefore cannot be classifi...
Tag this Judgment!Surelia Engg. Works Vs. Commissioner of Cus. and C. Ex.,
Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai
Decided on: Jan-31-2002
Reported in: (2002)(144)ELT208Tri(Mum.)bai
1. The question for consideration in this appeal is the classification of goods manufactured by the appellant, which are described as "palm oil mill machinery". It sought classification of the goods under Heading 8437.00 of the tariff. The department was of the view that the goods are classifiable under Heading 8479.19 as "oil expeller". A notice was accordingly issued to the manufacturer. Adjudicating on the notice, the Assistant Collector, whose order was confirmed by the Commissioner (Appeals), confirmed the proposal in the notice. Hence, this appeal.2. The appellant is absent and unrepresented despite notice. We have read the submissions and other papers, and heard the departmental representative.Laxmi Vijay Brass & Iron Works v. CCE - 1995 (78) E.L.T. 325, the Tribunal has held that the oil expeller is not a machine used in the milling industry and hence not entitled to classification under Heading 8437.00 and that it is correctly classifiable as machinery for the working and...
Tag this Judgment!thermax Ltd. Vs. Commissioner of Central Excise,
Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai
Decided on: Jan-31-2002
Reported in: (2002)(144)ELT403Tri(Mum.)bai
1. A sum of Rs. 2,86,00,850/- and penalty of Rs. 2,89,55,303/- are required to be deposited by Thermax. Penalties under Rule 209A of Rs. 35,000/- and Rs. 25,000/- and required to be deposited by R.P.Pargaonkar and G.B. Khade, its employees.2. The demand and the penalty are based on a finding of the Commissioner that, by applying the provisions of Rule 57CC, the applicant was required to pay 8% of the sale price of boilers which were exempted from duty, which it manufactured by utilising exempted inputs. Counsel for the applicant does not deny the fact of such use of exempted inputs but says, that in such a situation, the Board has itself provided that such credit taken incorrectly is to be recovered under the provisions of Rule 57-I. It had already debited the credit that it took prior to clearance and therefore nothing more is required to be paid.3. The Counsel for the applicant bases his reliance upon a circular of the Board dated 16-10-2001 reproduced in 2001 (133) E.L.T. T32. This...
Tag this Judgment!Anjaleem Enterprises P. Ltd. Vs. Commissioner of C. Ex.
Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai
Decided on: Jan-31-2002
Reported in: (2001)(137)ELT1190Tri(Mum.)bai
1. The order of the Commissioner (Appeals) impugned in this appeal confirms the Deputy Commissioner's order. The Deputy Commissioner in that order had held that the appellant was required to pay duty on the capital goods in its 100% export oriented unit at the value arrived at by depreciation subject to over all limits. He has not indicated this limit but ordered that the assessee should file a bill of entry for ex bonding which should be assessed in accordance with this direction. In that situation, the question of deposit of any amount will not arise.Apart from the fact that duty has not been quantified, the goods are still in the bonded warehouse of the applicant and are subject to control by the Customs department.3. This being the case, the letter dated 1-10-2001 of the jurisdictional Superintendent issued to the applicant threatening action under law, if the applicant refuses to pay Rs. 20.67 lakhs confirmed in the Deputy Commissioner's order of 29-4-1998, is not to be given eff...
Tag this Judgment!Commr. of C. Ex., Mumbai-iv Vs. Century Textiles and Indus. Ltd.
Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai
Decided on: Jan-31-2002
Reported in: (2002)(142)ELT645Tri(Mum.)bai
1. This appeal from Revenue was argued by Shri Shaikh, DR. The respondent was represented by Shri V. Sridharan, Advocate.2. The respondents manufactured cotton yarn. Part of the yarn is rewound in other forms such as cone. Part of the yarn is utilised for manufacture of fabrics. The respondents were declaring the value of the yarn used for captive consumption on the basis of cost of production at the spindle stage. Proceedings were initiated to recover differential duty on the ground that the cost of the yarn sold after re-rolling in other form should be made the basis for calculation of the duty on yarn captively consumed. The Asstt. Commissioner approved the practice of cost construction with margin of profit as adopted and ruled that the yarn sold by the assessees could not be called as 'comparable goods' when examining the yarn captively consumed. An application was filed under Section 35E of the Central Excise Act before the Commissioner (Appeals). The Commissioner (Appeals) foun...
Tag this Judgment!Texchem Vs. Commissioner of Central Excise
Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai
Decided on: Jan-31-2002
Reported in: (2002)(145)ELT646Tri(Mum.)bai
1. Duty of Rs. 4,33,78,244/- has been demanded and penalty of Rs. 4.19 crores are required to be deposited.2. The applicant obtains various goods mainly textile chemicals classifiable in various headings in Chapters 28, 32, 34, 35, 38 & 39 of the tariff, in drums which bear no markings whatsoever other than serial numbers. It affixes on them its name and address preceded by the word "consignor". It does not indicate the nature of the product. Duty has been demanded on the ground that, by application of the relevant rules and notes in the chapter (for e.g. note 10 to Chapter 28), this activity amounts to labelling which is deemed to be manufacture.3. Counsel for the applicant relies upon the decision of the Tribunal in Ammonia Supply Co. v. CCE - 2001 (131) E.L.T. 626 in support of the proposition that mere labelling alone will not amount to manufacture.It is only goods which are repacked from bulk to retail containers and then labelling which are the results of manufacture.4. The ...
Tag this Judgment!Nishiland Park Ltd. Vs. Commissioner of Customs, Nhava
Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai
Decided on: Jan-31-2002
Reported in: (2002)(142)ELT174Tri(Mum.)bai
1. The question for consideration in this appeal is the classification of goods imported by Nishiland Park Limited, described as 'go-karts'.The importer claimed their classification both for the purpose of assessment of duty and Import Trade Control under Heading 95.08 of the Customs Tariff and corresponding heading of the Import Policy. The department was of the view that the goods were more correctly classifiable under Heading 87.03 for both these purpose. Heading 87.03 at the relevant time read: "motor cars and other motor vehicles principally designed for transport of persons (other than those of Heading 87.02), including station wagons and racing cars." Heading 95.08 read : "roundabout swings, shooting galleries and other fairground amusements; travelling circuses, travelling menageries and travelling theatres". Issue of written notice having been waived by the importer who was orally communicated this view, he was heard by the Commissioner, who passed orders confirming the propo...
Tag this Judgment!Lokhandwala Hotels Pvt. Ltd. Vs. Commissioner of Central Excise,
Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai
Decided on: Jan-31-2002
Reported in: (2002)(81)ECC293
1. The application is for waiver of deposit of duty of Rs. 10.47 lakhs and penalty of equivalent amount.2. The duty has been demanded on the ground that the cost of the glass panes which the applicant obtained from the market for fitment into the windows that it manufactured form part of the assessable value of these windows.3. The contention of the Counsel for the applicant is that windows and window frames are complete by themselves without the glass. He further contends, in the alternative, that the duty paid on the glass by its manufacturers would be available as Modvat credit for the duty now demanded. The rate of duty on the glass is higher than on windows.4. The departmental representative reiterates the reasoning in the impugned order.5. Even if we assume that the windows are not complete with the window frames, the contention that the duty paid on the glass would be available as credit towards payment of duty on the windows is prima facie is sound and has to be accepted.6. Ac...
Tag this Judgment!Asea Brown Boveri Ltd. Vs. Commissioner of C. Ex.,
Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai
Decided on: Jan-31-2002
Reported in: (2002)(143)ELT87Tri(Mum.)bai
1. M/s. Asea Brown Boveri Ltd. (hereinafter referred to as M/s. ABB) are inter alia engaged in the activity of engineering and construction services of power plants. M/s. GVK Industries (hereinafter referred to as M/s. GVK) are engaged in the production of electricity at their power plant in East Godavari District, Andhra Pradesh. M/s. GVK had entered into an agreement with M/s. ABB, Germany, parent company of the appellant, in August, 1994, for supply of requisite plant and machinery for setting up of 235 MW combined cycle electric power plant in Andhra Pradesh and had also simultaneously entered into an agreement with M/s.ABB for erection and commissioning of power project at the project site of M/s. GVK. M/s. GVK thereafter executed a Memorandum of Understanding with M/s. APSEB for supply of power generated at the plant.Concessional customs duty certificate for import of plant and machinery along with essential spares for the power plant was granted by the Ministry of Power, Govern...
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