Mumbai Court October 2003 Judgments

Gharda Chemicals Ltd. Vs. Commissioner of Central Excise

Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai

Reported in: (2004)(167)ELT89Tri(Mum.)bai

2. The appeal relates to denial of Modvat credit to the tune of Rs. 1,69,302/- and imposition of penalty Rs. 15,000/- under Rule 173Q. The invoice issued by M/s. TRANSPECK India, the goods were purchased for their RATNAGIRI factory. However, the invoice was prepared in the name of head office. On noticing the discrepancy they got the invoice endorsed by the head office for Dombivili plant. The entire consignment was received in their Dombivili factory. So far as this ground is concerned, I find that the credit cannot be disallowed on the basis that the invoice is not in the name of the factory. The diversion of the entire consignment initially invoiced in the name of head office does not affect the entitlement of Modvat credit, the discrepancy is curable. The provision of Rule 57G(11) also take care of the situation of applying correction to such defects. There is no dispute as regards the duty payment on the inputs and their utilisation in the finished goods production. Therefore, th...

italia Ceramics Ltd., Shri Vs. Commissioner of Customs

Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai

1. The applications for waiver of pre-deposit arise out of the order of the Commissioner of Customs, Mumbai confirming duty demand of Rs. 1,07,84,690/- on Italia Ceramics Ltd. (out of the above amount Rs. 57,92,566/-stands paid at the time of provisional assessment and adjusted against the confirmed amount leaving balance duty of Rs. 49,92,124/-which is covered by the present application of the company) and imposing penalty of amount equal to duty on the importer under Section 114 A of the Customs Act and penalties of Rs. 10 lakhs and Rs. 5 lakhs respectively under Section 112 (a) & (b) of the Customs Act on Shri Pankaj Poddar, Managing Director and Shri Prafulla Gattani , Director-Marketing of the importer. The demand arises as a result of holding that the company had indulged in gross under-valuation of vitrified ceramic tiles imported by them under different Bills of Entry, and loading the value of tiles of various size as under:- 2. We have heard both sides. We find that the C...

Overseas Trading Corpn. Vs. Commissioner of Customs

Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai

Reported in: (2003)(158)ELT635Tri(Mum.)bai

1. After hearing both sides on 18-2-2002, this appeal was allowed and the order was pronounced in the Court on the same day. The reasons for the said decision are as under :- 2. In this case the consequential refund allowed by the Commissioner (Appeals) has been denied on the ground of unjust enrichment. It is the case of the appellants that in this case the raw-materials were imported for subsequent processing and exporting them to the foreign buyers as per the conditions in the EXIM policy and therefore, the question of unjust enrichment does not arise. They have also cited the following two decisions of the Tribunal in their support :-Associated Cement Companies Ltd. v. C.C.E., Jamshedpur - 2001 (130) E.L.T. 277 (Tri. - Kolkata).C.C.E., Patna v. Bhagwati Pd. Agarwall Engg. Works (P) Ltd. - 1998 (29)RLT477(CEGAT).Both these decisions support the claim of the appellants that bar of unjust enrichment cannot be applied when there is no change in the sale price of the final product and ...

Encee Dying and Printing Works Vs. Cce

Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai

Reported in: (2004)(166)ELT270Tri(Mum.)bai

2. Dispute relates to the Modvat credit of Rs. 79,300/-, in respect of Jet dying machines. The credit has been taken on the basis of original copy of invoice, which is not valid document for availing Modvat credit. The original authority has disallowed the credit on the following grounds :- i) They availed and utilised Modvat credit on the basis of original invoice even before making an application seeking permission. ii) The claim of loss of the duplicate copy in transit, as affirmed by an affidavit from the transporter was not adequate and no evidence was shown that the transporter had taken reasonable steps such as lodging a complaint with the police for the loss of precious documents which was essential.3. I note that, so far as the first ground is concerned, the rule does not require a prior permission. It is only in the event, the Assistant Commissioner is not satisfied about the loss in transit, then the credit can be denied. Therefore, this ground of rejection is without any m...

Schon Plastics (P) Ltd. Vs. Cce

Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai

Reported in: (2004)(175)ELT575Tri(Mum.)bai

2. The dispute in the appeal relates to admissibility of Modvat credit of Rs. 100519.92, taken on the basis of duty paying documents which were alleged to be not proper. The documents are subsidiary gate passes issued after 1.4.94. In the analysis of the Assistant Commissioner who confirmed the demand, it is mentioned that, subsidiary gate passes issued prior to 1.4.94 in respect of gate passed issued prior to 1.4.94 are valid documents in terms of provisions contained in Notification No. 16/941CE(NT). The subsidiary Gate passes, issued in the instant case relate to the gate passes issued before 1.4.94 but the subsidiary gate passes have been issued thereafter.3. In this connection, I find that, duty paid nature of the goods is not in dispute. The subsidiary gate passes has been issued on the basis of Original Gate Passes issued by M/s IPCL, by the Superintendent in charge of M/s IPCL. The said certificate, having been issued by the Range Superintendent even after 1.4.94 show that, ev...

Maneesh Pharmaceuticals P. Ltd. Vs. Commissioner of C. Ex.

Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai

Reported in: (2004)(163)ELT365Tri(Mum.)bai

1. Heard both sides. These three appeals are against the same impugned order and involves the question as to whether for the purpose of Notification No. 48/77-C.E., dated 1-4-1977, goods exported under bond can be considered as duty paid clearances. The learned Advocate for the appellants states that the lower authorities have included exports under claim for rebate as duty paid clearances and claims that in view of the decision in the case of HPCL v. CCE - 1995 (77) E.L.T. 256 (S.C.), export under bond and export under claim for rebate have to be treated at par. He also cites the case of N.B. Sanjana, Assistant Collector of Central Excise, Bombay and Ors. v. The Elphinstone Spinning & Weaving Mills Co. Ltd. - 1978 (2) E.L.T. (J 399), where it is held that duty paid means duty ought to have been paid. It is his claim that the goods exported under bond have to be treated as duty paid since the duty required to be paid is nil. We have also heard Shri R.P. Pardeshi, learned J.D.R.2. ...

Evergreen Synthetics Pvt. Ltd. Vs. Commissioner of Customs and

Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai

Reported in: (2004)(177)ELT325Tri(Mum.)bai

1. The applications for waiver of pre-deposit of duties and penalties confirmed and upheld in separate impugned orders arise out of the orders of the Commissioner of Central Excise (Appeals), Surat. The issue in dispute is as to what is the applicable rate of duty to DTA sales made against foreign exchange in terms of Para 9.10 of the relevant Exim Policy. The benefit of Notification 13/98-CE dated 02/06/1998 has been denied to the applicants on the ground that their clearances to DTA against payment of foreign exchange was in terms of Para 9.10 of the Exim Policy while Clause (b) of the notification would cover only clearances made in terms of either para 9.9b or 9.20 of the Exim Policy.2. On hearing both sides we find that identical issues have come up before the Tribunal in the case of Virlon Textile Mills v. CCE, Mumbai - II 2002 (139) ELT 371 in the context of Notification 2/95. The Tribunal has held that sales to DTA against foreign exchange would be treated on the same footing ...

Shakti Enterprise Vs. Commissioner of Customs

Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai

Reported in: (2004)(175)ELT822Tri(Mum.)bai

1. The applicant is a Custom House Agent, a licence holder issued under Custom House Agents Licensing Regulations, 1984 (hereinafter referred to as "CHALR, 1984"). The licence was revoked by an order dated 1.8.2003 against which the present application has been filed.2. It appears that certain investigations were conducted by Customs authorities at Kandla into an export of a consignment declared to be fancy dupattas which were attempted to be exported by one M/s.Siddhnath Shipping, Kandla, whose proprietor Shri Shailesh B. Bhagat was also the power of attorney holder of the present applicant M/s.Shakti Enterprise CHA is a sole proprietary concern of Shri Kishore Bhagat residing at Mumbai. Consequent to the investigations made that the goods declared were not correct in description and quantities, the same were seized and investigation conducted under the Customs Act.Action under CHALR, 1984 was initiated against the present applicants.Their licence was suspended under Regulation 21(2)...

H.J. Patil Ssk Ltd. Vs. Commissioner of Central Excise

Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai

Reported in: (2004)(163)ELT173Tri(Mum.)bai

1. Heard both sides and perused the case records, we find that the penalty has been imposed under Rule 25 of the Central Excise Rules which does not authorize imposition of penalty for nonpayment of additional duty under the Sugar Export Promotion Act 1958. As such the penalties imposed are set aside. The appeal is allowed as above.2. Our order as above was pronounced in the Court on the date of hearing on 10-4-2003....

Premier Automobiles Ltd. Vs. Commissioner of Customs and

Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai

Jyoti Balasundaram, Member (J) 1. The above appeals arise out of the order of the Commissioner of Central Excise (Appeals), Pune upholding the order-in-original of the Assistant Commissioner, who had adjudicated 10 show cause notices raising a total demand of Rs. 17,90,010,37 confirming the demands raised under several notices. The issue in dispute is whether notional interest on advances taken by the appellants from all their buyers for whom the goods are specially made according to specifications, is required to be included in the assessable value of machine tools manufactured and cleared by the appellants. The period in dispute ranges from September, 1992 to February, 1996 (details of the show cause notices are to be found in the annexure to this order).2. We have heard both sides. We find that although the authorities below have held that there is a nexus between the taking of the advances and the price of the goods, there is no material on record to establish that the price of th...