Mumbai Court May 2005 Judgments

Commissioner of Customs (Ep) Vs. Ahmednagar Forgings Ltd.

Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai

Reported in: (2005)(188)ELT403Tri(Mum.)bai

1. This is a Revenue's appeal against the order of the Commissioner (Appeals) who in the impugned order held that the lower authority's order imposing penalty but not confiscating goods, is only of technical and academic interest, in view of the fact that duty has been paid on the excess quantity not declared along with the penalty imposed by the original lower authority. The Revenue holds that the undeclared goods are liable to confiscation under Section 111 of the Customs Act. The Commissioner's contention that the absence of such a finding in the Additional Commissioner's order is only of a technical nature is not correct. The Revenue argues that the goods should have been confiscated when they were imported without a proper declaration. The Commissioner seemed to have taken a view that since duty has been paid on the excess goods and penalties imposed have already deposited, no further purpose would be served by opening, the matter once again only for the purpose of confiscating t...

Forever Living Health Vs. Commissioner of Customs

Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai

Reported in: (2006)(193)ELT45Tri(Mum.)bai

1. Heard Ld. Sr. Advocate for the appellant & the D.R. for Revenue.Considered the matter and it is found: (a) Issue in classification under the Customs Tariff Act Schedule of entities - ALOE VERA GEL; ALOE VERA BERRY NECTAR ALOE VERA FOREVER FREEDOM. The importers claim the entities to be under Chapter Heading 20.09.80 & 20.09.90 respectively while Revenue classifies the same under 2106. (b) There are no test reports relied upon by the department. The perusal of the original order reveals the constituents to be as per the imports made - a. ALOE VERA GEL - A Vegetable Juice - Consisting of the Aloe Vera sap/juice. Addition of Apple and Cranberry Juices in miniscul quantities as detailed aforesaid. Addition of Orange Juice in miniscul quantites as detailed aforesaid. i. Reading of the notes to Chapter 20.09 & 21.06 reveal that juices, un-fermented & not containing spirits obtained generally by processing fresh healthy and ripe vegetables by mechanical means and the liqui...

Gmm Pfaundler Ltd. Vs. Commissioner of Central Excise

Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai

Reported in: (2005)(103)ECC77

1. The appellants are engaged in the manufacture of Glass Lined equipment and parts thereof falling under Chapter 84 of Central Excise Tariff Act, 1985. They filed a refund claim of Rs. 71,670 on 25.2.2000 on the ground that they had erroneously paid duty on Glass lined Jacketted Pan cleared under AR3A dated 5.12.99 to M/s. Protchem Industries (I) Ltd,. Pondicherry, which was 100% EOU and have provided CT 3 Certificate No. 067/99, dated 12.8.99 as issued by the Superintendent of Central Excise incharge of the buyers unit. In terms of Notification No. 1/14-C.E., dated 10.11.84, clearance to such unit was exempted from payment of duty. On the above basis, the appellants were issued a show cause notice proposing rejection of refund claim on merits as also on the point of unjust enrichment. The same was rejected by the adjudicating authority. On appeal against the above order, Commissioner (Appeals) rejected the same on the ground the purchase order does not contain any description of the...

Acero Fabrica Vs. the Commissioner of Central

Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai

Reported in: (2005)(191)ELT670Tri(Mum.)bai

1. The short issue involved in the present appeal is as to whether the appellants are entitled to take deemed credit in terms of the Notification No. 58/97, when the appropriate duty on the inputs has not been paid by the manufacturer.2. The said notification allows deemed credit in respect of the inputs purchased from the manufacturer of iron and steel, who have discharged duty liability under Section 3A (Compounded Levy) of the central Excise Act. The appellants claimed the deemed credit @ 12% in terms of the said notification. However, it was found that duty paid on the inputs was only to the extent of 13.388/- per month, which was not considered to be full discharge of duty. On the said ground, benefit of the deemed credit was proposed to be denied to the appellants.3. I find that the issue is no more res-integra and has been settled by Vikas Pipes v. Commissioner of Central Excise, Chandigarh-II, reported in 2003 (158 ELT 680 (P&H), wherein it was held that once there is a ce...

Eimco Elecon India Ltd. Vs. Commissioner of Central Excise

Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai

1. The appellant during the relevant period was availing modvat credit of duty paid on inputs used in the manufacture of the final products.For the said purpose, they filed a declaration in terms of provisions of Rule 57G giving the entire set of inputs and the final products.They were manufacturing two types of Loaders, one with the electrical machine and the other which was manually operated. Both types were being cleared by them on payment of duty out of the accumulated modvat credit.2. In respect of Rocker Shovel Loaders cleared on 30.09.92, they were issued a show cause notice on 19.07.97 alleging that electric motors and cables have not been used in the manufacture of the said loader, though the appellant has taken the credit on the same and utilised it for payment of duty on the said goods Accordingly, notice proposed recovery of Rs. 88,514/- under section 11A and disallowance of credit of identical amount under rule 57-I. The appellants contented that a consolidated credit acc...

Commissioner of Customs Vs. Bardanwala Plastics

Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai

Reported in: (2005)(191)ELT669Tri(Mum.)bai

1. Being aggrieved with the order passed by Commissioner (Appeals), revenue has filed the present appeal.2. The question to be decided in the present appeal is as to whether the finished products returned by the respondent's customer on account of some being defective, can be treated as inputs for the purpose of taking credit of duty under erstwhile rule 57A of the Central Excise Act, 1944 particularly in view of the fact of declaration made under Rule 57G by the respondents and duly received by the revenue.3. The appellate authority has, after following the Larger Bench decision in the case of Tin Manufacturing Company reported in 2000 (119) ELT 290 & Hindalco Industries Ltd reported in 2000 (119) ELT 711 has granted benefit to the respondents. He has also specifically observed that the appellant has also filed the declaration under provision of 57G declaring the defective HDPE/PP Bags & Fabrics as inputs. The revenue's grievance is that such final product cannot be converted...

V.V.F. Ltd. Vs. Commissioner of Central Excise

Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai

Reported in: (2005)(188)ELT519Tri(Mum.)bai

1. The issue for determination in these two appeals which are heard together and disposed of by this common order is the classification of 'Tetmosol' soap manufactured by the appellants herein - whether under CET sub-heading 3401.11 as "soap, other than for toilet use, whether or not containing medicament or disinfectant" as claimed by the assessee or under CET sub-heading 3401.19 as "other soaps" as held by the Revenue authorities. In Appeal No. E/337/02 covering the period September, 1998 to September, 1999, demand of Rs. 54,55,922/- has been confirmed on the basis of classification under CET sub-heading 3401.19 and penalty of equal amount under Section 11AC of the Central Excise Act has been imposed, and in Appeal No. E/4026/02 covering the period Oct. 1999 to Feb. 2000, demand of Rs. 19,81,658/- has been confirmed on the same basis and penalty of Rs. 3 lakhs has been imposed under Rule 173Q of the Central Excise Rules. An additional issue for decision in Appeal No. E/337/02, is wh...

Ahmednagar Forgings Limited and Vs. the Commissioner of Central

Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai

1. These appeals arose out of the order of the Commissioner (Appeals), who in the impugned order confirmed the duty demand for Rs. 8,82,288/- but reduced the penalty to Rs. 6,00,000/- under Section 11AC imposed on the appellant company and also reduced penalty to Rs. 1,50,000/- on its Sr. Manager Accounts.2. The appellants are manufacturers of excisable goods namely Steel Forgings and Automobile parts. The inputs are sent out to their job-worker for further manufacture of finished goods i.e. automobile parts. During the processes, certain waste and scrap was generated. The appellants determine that such waste/scrap constituted on an average 3% of the total weight of the inputs that were sent out and discharged duty on such scrap accordingly. The department after scrutinizing found that the wastage calculated by the appellants is less than he actual weight of scrap. differential duty has been calculated to be Rs. 8,82,228/-. The appellants agreed that differential duty is payable and v...

Asia Pacific Fund Inc. Vs. Deputy Commissioner of Income Tax

Court: Income Tax Appellate Tribunal ITAT Mumbai

Reported in: (2005)96TTJ(Mum.)548

1. The limited issue that we are required to adjudicate in this appeal is whether or not, the CIT(A) was justified in upholding the AO's action of declining to rectify the rate at which the interest income is taxed in India in the hands of this American company. The, assessee's contention is that in the hands of the assessee, this income is taxable @ 15 per cent in terms of Article 11(2) of the India USA DTAA [Notification No. 990(E), dt. 20th Nov., 1990; 187 ITR (St) 102], and therefore, taxing the same @ 20 per cent in the impugned intimation under Section 143(1)(a) constitutes a mistake apparent from the records which the AO ought to have rectified under Section 154. The AO's justification for his inertia is that in the computation sheet attached to the IT return, the assessee itself claimed the tax rate on interest at 15 per cent. There cannot be a mistake, according to the AO, in accepting assessee's own computation of income.2. In the rectification petition dt. 21st Aug., 1997, ...

Pudumjee Pulp and Paper Mills Ltd. Vs. Commissioner of Central Excise

Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai

Reported in: (2005)(188)ELT52Tri(Mum.)bai

1. After hearing both sides and considering that the test reports for the impugned varieties of paper entitle the eligibility to benefit of exemption Notification 138/86 as amended since this notification is available to all sorts of paper falling under Chapter 48 of CETA, 1985.The demands as made cannot be upheld and are required to be set aside.2. The alternate submission of the assessments being ordered provisional further five varieties based on Commissioner decision will be not available to levy duty since that decision was for three varieties out of the five and Tribunal vide its decision dated 31-5-2000 has not upheld that view of classification by the Commissioner Boards instructions relied therein could not be shown to us....