Mumbai Court February 2004 Judgments

Dgp Hinoday Industries Limited Vs. Commissioner of Central Excise

Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai

Reported in: (2004)(167)ELT454Tri(Mum.)bai

1. Heard both sides. The appellants are aggrieved by the demand of interest under Section 11AA of the Central Excise Act, 1944 for the period from 26/08/1995, 3 months after the Finance Bill, 1995 received ascent of the President introducing the said Section 11AA. It is the case of the appellants that the disputed period of duty demand was May 1990 to November 1990 and the Show Cause Notices were issued in November 1990 and March 1991, which were adjudicated confirming the demand in October 1993. The demanded duty amount has been paid by the appellants on 22/07/1998.2. It is being contended by the appellants that in their case the classification list was provisionally approved initially which was finally approved on 22/01/1993. They further claim that for Interest to be payable under Section 11AA, the duty demand has to be determined under Section 11A and no such determination under Section 11A can be made before finalization of the provisional assessment in view of the fact that the ...

Commissioner of Central Excise Vs. Radhaballabh Silk Mills Pvt. Ltd.

Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai

Reported in: (2004)(169)ELT165Tri(Mum.)bai

1. Revenue has filed this appeal contending that the letter dt.04.09.2001 was not a decision or an order envisaged under Section 35A to call for a cognizance by CCE (Appeals) to have passed an order in detail and arrive at a classification of the product. They have termed this letter to he a 'communication letter' and not an appealable order.The Ld. DR relies upon a catena of decisions and submits that this letter was consequent to exercise of power vested in the proper officer under 2^nd proviso to Rule 9B enabling the said officer to direct and resort to a provisional assessment and no appeal would lie against such communication.2. The Ld. Advocate on the other hand contends that a reading of the letter in question reveals that if (sic) is a classification of the entity to be made in a particular manner and this impugnes and determines rights and liabilities, which as per the tests laid down by the Hon'ble Supreme Court in the case of Jaswant Sugar Mills Ltd. v.Lakshmi Chand {1963 S...

Rafik Mansuri, A.M. Jamsa and ErIn Vs. Commissioner of Customs

Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai

1. All the three appeals arise out of a common order and are hence heard together and disposed of by this common order.2. The facts of the case are that Shri A.M. Jamsa was the Managing Director of M/s. Erin Pharmaceuticals (I) Pvt. Ltd.; Rafik Mansuri was the Power of Attorney holder for his wife, Mrs. Abeda Mansuri, who was the Director in the company. One Shri Tarun Dhanani approached Shri Rafik Mansuri, proposing that an advance licence be obtained in the name of the company, all the concerned papers were signed by Shri A.M.Jamsa at the behest of Shri Mansuri and as per his own statement he was aware of the false claim made in securing the advance licence.Subsequently imports were made in the name of me company, goods were seized by the customs authorities; since the licence was obtained by fraud, goods was confiscated under Section 111(d) of the Customs Act and penalties were imposed on Shri Tarun Dhanani and the three appellants before us. Appeals were filed before the Tribunal ...

Commissioner of Customs and Vs. Swan Beauties Pvt. Ltd.

Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai

Reported in: (2004)(169)ELT278Tri(Mum.)bai

1. The respondents herein are engaged in the manufacture of cosmetics and toilet preparations falling under Chapter Heading 33.04 and 33.05 of the Schedule to the CETA, 1985. They had entered into an agreement with M/s. Laboratories Gamier (India) Ltd., for whom they manufacture the goods and supply them. The goods were cleared to M/s. Laboratories Gamier (India) Limited at a price lower than the sale price at which Laboratories Gamier (India) Limited was selling the goods to their customers. Show cause notices raising demands of Rs. 84,38,960/-and Rs. 78,20,428/- were issued on the sole ground that the price at which the respondents have agreed to sell their products to M/s. Laboratories Gamier (India) Limited was very low compared to the selling price of Laboratories Gamier (India) Limited and proposing to treat the selling price of Laboratories Gamier (India) Limited as the assessable value for the goods cleared by the respondents, for the purpose of Section 4 of the Central Excise...

The Commissioner of Customs and Vs. Indian Seamless Metal Tubes Ltd.

Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai

1. The Revenue appeal is directed against the impugned order-in-appeal passed by the Commissioner (Appeals) whereby the extension of credit to "thermofluid oil" and "Hydraulic oil" is contested on the ground that these are not in the category of either lubricant, greases, cutting oil and coolants. The functions of thermofluid oil is as heat transfer agent and not as the lubricant and the hydraulic oil is a media for transmission of force in the functioning of the respective machinery.Also, it can not be treated as an accessory or component part of a machine as held by the Commissioner (Appeals) in his findings.3. The appellants have placed reliance on the CEGAT judgments reported in 2000 (120) ELT 250 (Tri.LB) in the case of Tamilnadu Petro Products Ltd., Vs. Collector of Central Excise, Madras, wherein modvat credit in respect of heat transfer oil is held as eligible input for modvat credit under Rule 57A of the Central Excise rules, 1944. So far as the hydraulic oil is concerned the...

Bhor Industries Vs. Commissioner of Central Excise

Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai

Reported in: (2004)(167)ELT192Tri(Mum.)bai

1. The appellants are manufacturers of PVC, insulation tapes. The Central Excise officer gathered intelligence that huge stock of the said goods were lying in the appellants factory ready for dispatch without payment of duty. They visited the factory and found 259315 reels of PVC insulated tapes not accounted in R.G.1. The officers seized the goods. The Panchanama says that the seized goods are defective/deformed reels. It is the contention of the appellants that the defective reels were not received in RG 1 as they were not marketable unless a salvage operation is done. It has been their practice that they sent the defective reels for salvaging under Rule 57F (3), to an outside party, get back the salvage tape along with the waste, pack the one that is marketable, enter it in RG1 and remove it on payment of duty.2. The Commissioner confiscated the seized goods on the ground that the goods were not accounted in RG.1. She rejected the plea of the appellant that the reason for not accou...

Accra Pac (India) Pvt. Ltd. Vs. Commissioner of Cus. and C. Ex.

Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai

Reported in: (2004)(167)ELT514Tri(Mum.)bai

1. The stay application for waiver of pre-deposit of duty of Rs. 57,62,125/- and an equal amount of penalty and stay of operation of the order arose out of this order Commissioner of Central Excise, Daman.2. The facts are that the appellant manufactures goods falling under Chapter 33 of Central Excise Tariff Act, 1985. The goods are subjected to MRP based assessment under Section 4A of Central Excise Act. The appellants showed the MRP two prices, one higher than the other, score off the higher one, retained the lower price, paid duty on the lower price and cleared the goods. The department's contention is that in accordance with explanation 2(a) to Section 4A of Central Excise Act, duty should have been paid on the higher MRP, when two MRPs, are shown on the pack irrespective of the fact that the higher one was scored off. It appears that there were CBEC instruction that even when the higher MRP were scored off that the scored off MRP should be adopted for the purpose of assessment.4....

Commissioner of Cus. and C. Ex. Vs. Sohum Industries Pvt. Ltd.

Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai

Reported in: (2004)(166)ELT322Tri(Mum.)bai

1. The application for condonation of delay of 56 days in preferring the above appeal is allowed in view of the explanation contained in the application namely that the delay was due to cadre re-structure....

Rapco Vs. Commissioner of Customs

Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai

Reported in: (2004)(167)ELT182Tri(Mum.)bai

1. The appellants imported 27 units of High Pressure cleaners and sought clearance under OGL. The Commissioner (Appeal) while rejecting the appellants' appeal before him confirmed the lower authority' finding that the goods under import are consumer goods and require an import licence as per para 156 (A) Part II of 92-97 Policy.2. The appellants plea is that the Department cleared the same goods under OGL when the present appellant imported them at Bombay Air Cargo Unit; that several other importers cleared the goods under OGL; that the goods are classified under Chapter 8424.30 of Customs Tariff which is a chapter for machines; that the lower authorities laid too much emphasis on the catalogue of the product indicating that the appliance can be used around the house; that in fact the appliance has industrial uses as well such as sandblasting etc; that the imported goods are machines and not consumer goods; that the appliance is such that it can not be used inside a house because of t...

Commissioner of Customs Vs. T.C. Healthcare

Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai

Reported in: (2004)(166)ELT432Tri(Mum.)bai

1. The issue for decision in this appeal is whether caps, rods, brush for mascara can be imported only under an import licence or are freely importable without a licence by an actual user like the respondents herein.2. We have heard both sides. We find that in the case of the same importer vide order No. C-II/3153/WZB/2003, dated 3-12-2003 the Tribunal has held that plastic caps for bottles containing cosmetics were not ready for use and hence not consumer goods as defined in the policy because they require further processing before satisfying human needs. The Tribunal held that the goods in question were freely importable without a licence and rejected the Revenue's appeal relying upon an earlier order in the case of CC v. Charisma Cosmetics Pvt.Ltd., Order No. C-III/780/WZB/2003, dated 5-5-2003 [2003 (161) E.L.T.182 (T)] wherein it was held that stoppers, lids and caps for nail polish and lipstick containers could be imported without a specific licence by actual users relying upon I...