Mumbai Court February 2004 Judgments

Shri Shantilal M. JaIn and Shri Vs. Commissioner of Central Excise

Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai

1. Heard both sides, Shri G.N.Srinivasan, learned advocate appearing for the appellants challenges the seizure and confiscation of the impugned gold and primarily relies on the ratio of the following two decisions of the Tribunal:-S.K.Chains v. Commissioner of Customs (Prev.)/ Mumbai -2001(127) ELT 415 (Tri.Mum.) 2) S.C.Dey and B.N.Sil & Co. v. Commissioner of Customs (Prev. ), Calcutta 1998 (100) ELT 87 (Tribunal) He contends that the Gold (Control) Act is no longer in force, import of gold has since been liberalized and fineness of the gold alone is not enough to establish that the impugned gold was smuggled. He also relies on the decision of the Hon'ble Delhi High Court in the case of Daga Corporation Pvt. Ltd., New Delhi v. Union of India and Ors. -1983 ELT 2142 (Del.) 2. Shri Bidhan Chandra, learned J.D.R. supports the impugned order and relies on the following case laws:-- i) State of Gujarat v. Shri Mohantal Jitamaijl Porwal and Ors. - 1987 (29) ELT 483 (S.C.) ii) Y. Janard...

Apcotex Lattices Ltd. and B.V. Vs. Commissioner of Customs and

Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai

1. These appeals arose out of the order of the Commissioner of Central Excise Mumbai who in the impugned order demanded/confirmed the duties as mentioned in his order on the company, imposed penalties under Section 11AC, interest under Section 11AB and also imposed a penalty on the factory manager of the company under Rule 209A of the Central Excise Rules.2. Briefly stated the officers of Central Excise visited the factory on 27.9.1996 and took the physical stock of the finished goods. Certain finished goods where the Central Excise duty involved is Rs. 3,467/- were found short compared to the balance in the RG1. Subsequent investigation revealed that the appellants availed credit of Rs. 9,24,602/- under Rule 57Q and simultaneously claimed depreciation on the capital goods involved under Section 32 of the Income-tax Act, 1961. It was also revealed that the appellant was manufacturing a product by name S.R. 500 in the form of granules. This product was packed in 20 kilo bag. Upon weigh...

Dharamsi Morarji Chemical Vs. Commissioner of C. Ex.

Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai

Reported in: (2004)(167)ELT154Tri(Mum.)bai

1. The instant appeal relates to demand of duty raised against the appellants with reference to the despatch of consignments initially received from their original customers on the grounds of being defective. In some cases the customers had refused to take delivery and returned the consignments due to lack of space. In these circumstances the appellants had to find new customers and divert the consignments to the subsequent customers after due intimation of receipt of goods in the factory or addressing the letter to the Range Superintendent about cancellation of the original invoice and issue of fresh invoice in favour of the new customer. It was specially stressed that/ on account of termination of facility of endorsement of invoices (GPls) after 1-4-94, there was no alternate procedure to cover this situation. The appellants have pleaded that, it is only on account of their representation to the Board, the Board have issued a Circular No.113/24/95-Central Excise, dated 4-4-95 amendi...

Linc Pen and Plastics Ltd. Vs. Commissioner of Customs

Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai

Reported in: (2004)(168)ELT287Tri(Mum.)bai

1. The appellants had imported Machinery under E.P.C.G. Scheme. The machines were despatched, in an old and used Marine Steel Container for which no additional price was charged. While the clearance of the machines is not in doubt, the container was confiscated and a redemption fine of Rs. 35,000/- was imposed along with a penalty of Rs. 10,000/- which was released on payment of fine of Rs. 15,000/- and Rs. 3,000/- respectively by the Commissioner (Appeals), who upheld the liability for confiscation of the old and used marine steel container under the provisions of para 29 of the Export Import Policy 1992-97 which stipulated that second hand goods except capital goods required an import licence. Duty was determined after valuing it as Rs. 75,000/- Hence this appeal.2. After hearing both sides, and considering the issues, it is found that: (a) the Bill of Entry declared three Palettes contained in an old and used Marine Steel Container. Palettes, themselves, are the form in which machi...

Abhideep Chemicals Pvt. Ltd. Vs. Commissioner of Central Excise

Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai

1. In the instant appeal the dispute relates to denial of credit of duty paid on the capital goods on the basis of duty paid by the supplier on the "Auto clave" (capital goods) which were cleared from the premises of the supplier after carrying out repairs. In the order-in-original it has been held that the invoice issued by a "repairer" is not a valid duty-paying document. Consequently the duty demand of Rs. 48,590/- was confined against the appellants and penalty of Rs. 4,000/- imposed. On appeal, Commissioner (Appeals) set aside the penalty but confirmed the denial of modvat. The order of the Commissioner (Appeals) is under challenge in the instant appeal.3. The short issue involved in this appeal is as to whether or not the duty paid on the "Autoclave" which was admittedly a repaired unit could be permitted. It is obvious that the supplier had cleared the said machine on payment of duty. It is therefore clear that the supplier was a manufacturer of the said goods as there is no ex...

Gujrat Narmada Fertilizers Co. Vs. Commissioner of Central Excise

Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai

Reported in: (2004)(176)ELT200Tri(Mum.)bai

1. Brief facts of the case are that the appellants are engaged in the manufacture of fertilizers, chemicals and PCB and are availing the facility of modvat/cenvat credit. They are using LSHS (Low Sulphur Heavy Stock) as feed stock for manufacture of fertilizers. A part of LSHS is also used in the generation of steam and electricity. The steam generated is being used in the manufacture of fertilizer and the industrial products and the balance is being used for generation of electricity in their captive power plant. Portion of electricity so generated is supplied to the township and to Gujrat Electricity Board (GEB) outside the factory. However, duty is paid on LSHS which is used for production of industrial products and generation of steam and availing modvat/cenvat credit of duty paid on LSHS. It was alleged that the appellants are required to reverse credit taken on LSHS on that quantity which is utilised in producing the quantity of electricity used in township as well as the quanti...

Shri Rajendra Rolling Mills Vs. Commissioner of Central Excise

Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai

Reported in: (2004)(167)ELT533Tri(Mum.)bai

1. The appeal is directed against the impugned order passed by the Commissioner (A), who confirmed the order of the Asstt. Commissioner rejecting the appellant's refund claim for Rs. 43,455/- out of the total claim of Rs. 72,000/-. The aforesaid amount was paid under the scheme of compounded levy towards discharge of duty liability for the months Sept 95 to Nov. 95. The payment was made on TR6 challans dated 22.8.95, 28.9.95 and 14.11.96. On account of disconnection of electric supply, there was no production and hence the refund of the amounts deposited was sought. The refund claim was filed on 11.6.96 hence out of the total amount of Rs. 72,000/- the claim for Rs. 43,455/- was held as time barred.3. The Commissioner (A), quoting the provisions of Section 11B, held that, the claim ought to have been filed within 6 months. In the absence of any payment under protest the claim was held as barred by limitations contained in Section 11B. Hence the Commissioner (A) also rejected the claim...

Commissioner of Customs Vs. Essar Steel Ltd.

Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai

Reported in: (2004)(168)ELT374Tri(Mum.)bai

1. This is Revenue's appeal directed against the order-in-appeal passed by the Commissioner (Appeals) whereby the appeal of the respondents against the order-in-original passed by the Assistant Commissioner was allowed. In the order-in-original on applying the provisions of Section 48 of the Customs Act, 1962 it was held that since the respondents had failed to file a Bill of Entry for home consumption within 30 days from the date of receipt of the material they were liable to penalty, under Section 117 of the Act. Consequently penalty of Rs. 7,000/- was imposed (Rs. 1,000/- for each transhipment permit consignment). The adjudication was done ex parte.2. On appeal the Commissioner (Appeals) set aside the said order-in-original. Hence the instant appeal to the Tribunal by the Revenue.4. In the appeal memorandum it is contended that failure to file a Bill of Entry within 30 days tantamounts to violation of the provisions of Section 48 of the Customs Act and consequently, the importers a...

Patodia Syntex Ltd. Vs. Commissioner of Customs

Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai

Reported in: (2004)(176)ELT189Tri(Mum.)bai

1. The instant appeal is directed against the impugned order passed by the Commissioner of Customs, whereby the appellant's request for conversion of Drawback. Shipping Bills, into DEEC Shipping Bills was rejected.3. The impugned order of the Commissioner, which was filed by the appellant along with the appeal memorandum, was merely a communication from the Assistant Commissioner to the appellants conveying Commissioner's orders rejecting the request of conversion. The learned DR has obtained a copy of the note recorded in the file containing the grounds for rejection and produced the same during the hearing. These are reproduced below:- (1) Shipping bills are both dated 29.7.96 and 21.8.96 whereas the application is made on 8.1.97. (2) Import against advance licences against which the said shipping bills are sought had already taken place. (3) Since it was not due to error or lack of communications between the exporter and the CHA, conversion does not appear to be admissible.It has b...

Chaitan M. Maniar Vs. State of Maharashtra and anr.

Court: Mumbai

Reported in: IV(2004)BC584; 2004CriLJ2343; 2004(2)MhLj1035

Ranjana Desai, J.1. These two criminal writ petitions can be conveniently disposed of by a common judgment as the facts involved in these two petitions are similar and the law points involved are identical. Both the petitions are filed by the same petitioner. The decision in Criminal writ Petition No. 548 of 1998 will decide the fate of Criminal Writ Petition No. 549 of 1998.2. The facts, on the basis of which Criminal writ Petition No. 548 of 1998 came to be filed may be shortly stated. The petitioner is an advocate enrolled in the Bar Council of Maharashtra and he is also a Solicitor and a Member of the Bombay Incorporated Law Society since 1965. He is a partner in the firm Messrs Crawford Bayley & Co., Solicitors & Advocates. He is fully engaged in the practice of the profession of law with the said firm since over three decades. In this petition, the petitioner has inter alia prayed that the proceedings arising out of Criminal Case No. 206/S of 1998 pending before the Metropolitan ...