Mumbai Court May 2005 Judgments

R.C.F. Ltd. Vs. Commissioner of Customs

Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai

Reported in: (2005)(189)ELT215Tri(Mum.)bai

1. M/s. Rashtriya Chemical and Fertilizers imported a consignment of "Muriate of Potash" and sought its clearance from Customs under the exempted rate of Table at Sr. No 48 in Table of Notification 11/97 which reads as"48 31 Muriate of potash, for use as manure or for NIL" the production of Complex fertilizers.The Commissioner of Customs relying upon Encyclopedia of Chemical Technology by Kirk Othmar 2nd Edition Vol. 9 and observing that the test report of the Customs Lab reported the import to be in form of white crystalline powder composed of Potassium Chloride purity 99.7% was not muriate of Potash as declared and claimed since % of Potassium Chloride as the contents could be - and therefore the import was of Potassium Chloride Industrial Grade and Muriate of Potash should be flotation grade only and thus it was classified under heading 3104.20 read with 31042001 of HSN where import was to be only through MMTC. Therefore liability to confiscation under 111(d) and 11(m) and penalty ...

Commissioner of C. Ex. Vs. Pidilite Industries Ltd.

Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai

1. After hearing both sides and considering that earlier a show cause notice was issued alleging clandestine non-duty paid removal of excisable goods in the Aluminium tubes found short and subsequent to the explanation given of these Aluminum Tubes having been removed as waste and scrap resulting due to wastage in manufacture and input credit having been availed, present notice proceedings of recovery of credit availed in such tubes were initiated. (i) Damaged tubes were of no use/marketability and could not be classified as waste/scrap. (iii) Damaged tubes were refuse and relied upon the Tribunal decision in the case Preston v. CCE, Rajkot to order no warrant of Modvat Reversal. (i) Tubes have been used for filling up final product on high speed machines and same tubes get damaged which are cleared as Waste/Scrap at Rs. 45 per kg. (ii) Damaged tubes are not accounted in RG-1 or in RT 12 or reported into the department. (iii) Benefit of decision in M/s. Syndet and Chemical Ind. Ltd. i...

Pepsico India Holdings Ltd. Vs. Commissionr of Central Excise

Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai

Reported in: (2005)(187)ELT382Tri(Mum.)bai

1.1 The appellants are, inter alia, engaged in the manufacture of aerated water and had started production in the month of May 1995 at the factory situated at Naroda.1.2 They filed price declarations declaring the price of aerated water sold to eh wholesale dealers for the purpose of determination of assessable value. From this price, the appellants had deducted the freight expenses at equalized rate of Rs. 4.55 per crate, turnover tax at the equalized rate of around Rs. 1.70 per crate. Apart from this the appellants have also claimed deduction @ Rs. 2/- per crate towards the discount extended by them to the wholesale dealers.1.3 By the impugned Order-in-Original passed by Commissioner of Central Excise, the following demands have been confirmed : a) Rs. 2,70,645/- being the demand on freight amount collected in excess of the actual freight expenses incurred; b) Rs. 13,16,214/- on the ground that the appellants have wrongly claimed deduction towards discount @ Rs. 2/- per crate and al...

Nice Paper Mills Ltd. Vs. Commissioner of Central Excise

Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai

1. Both the appeals, one filed by the appellant and other by revenue are being taken up together for disposal in as much as they arise out of the same order of the Commissioner.2. Originally, benefit of Modvat credit in respect of the capital goods was denied by the Assistant Commissioner on the ground that the appellants has already availed depreciation from Income Tax authorities. During the appeal before Commissioner (Appeals), appellant contented that subsequently they had filed revised return wherein depreciation earlier claimed was withdrawn. The revised returns for the relevant period were approved by the Income Tax authorities.Commissioner (Appeals) while taking note of the above contention of the appellant, allowed the benefit for the period 2001-2002, but denied the same for the financial year 2000-2001. The appellant is in appeal against that part of the order, which has denied the benefit on the ground that the appellate authority has misread and misinterpreted the depreci...

Krcd (i) Pvt. Ltd. Vs. Commissioner of Central Excise

Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai

Reported in: (2005)(188)ELT91Tri(Mum.)bai

1. After hearing both sides and considering the matter it transpire that the main appeal could be disposed at this stage. Therefore after waiver of pre-deposit the appeal is taken up for disposal.2. A perusal of the order reveals that royalty additions at 55% are loaded by the Commissioner. However the basis of arriving at this figure of 55% does not appear from the order to be sustained on any acceptable logic. The plea of the ld. DR that the appellants did not produce the Balance Sheets of their suppliers cannot be a cause to load values arbitrarily. The officers had all the powers of summon, search to obtain the documents required. That can be now exercised, if required, in the remand which we propose to order since orders on arbitrary acts cannot be sustained.3. Order set aside and appeal allowed as Remand to the adjudicator keeping all issues open to both sides to re-determine in de novo proceedings. Application also stand disposed....

Sheth Developers Pvt. Ltd. Vs. Cc (imp)

Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai

1. After hearing for some time it transpires that the appeal itself could be disposed after waiver of pre-deposit, the appeal is taken up for disposal.2. Appellants complain they were not given a hearing. The Ld. DR reads para 6 of the impugned order of the original authority which indicates that a hearing was granted but the appellants never came for the hearing nor sent any reply to the notice. The Learned Counsel reads para 7 of that very order which records - "7. I have gone through the facts and records of the case and the submissions made by the Importer ..." Which indicates, either non application of mind, or hearing to the phantom importer, since it is recorded in that very order that no reply was made nor the importers appeared. How they made submissions then? 3. The orders, therefore, are set aside and matter remanded to original authority with direction to rehear the appellant after he serves them another copy of the notice and thereafter determine all issues afresh.Appeal ...

Excel Industries Ltd. Vs. Commissioner of Central Excise

Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai

Reported in: (2005)(187)ELT216Tri(Mum.)bai

1. Appearing in support of the miscellaneous application, Shri D.D.Gwalani, Id. Advocate submits that the notice of hearing was not sent to their address at Jogeshwari, which was given by them against Sr. No.6 of EA 3 form. Instead the same was sent to their factory address at Andheri. The factory was closed and as such it seems that hearing notice has not been taken care of. It has happened in the past also when the same was diverted to their Jogeshwari address. However, in the instant case, notice was not received by them at all at Jogeshwari. In view of this explanation, I restore the appeal inasmuch as there seems to be a mistake on the part of the registry.2. The short issue involved in the present appeal is denial of Modvat credit in respect of the capital goods i.e. Nitrogen generating plant under the provisions of Rule 57Q on the ground that the same is used in the manufacture of Nitrogen gas which is further used in the manufacture of chemical. The revenue's contention is tha...

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

Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai

Reported in: (2005)(189)ELT169Tri(Mum.)bai

1. Instant appeals are filed by an assessee operating as an 100% EOU under the Central Excise Act manufacturing gray MMF and twisted yarn from indigeneous/Imported raw material obtained, and its Director, against the order of Commissioner who has confirmed Customs duty of Rs. 11,64,313/- with penalty of equivalent amount under Section 114A along with demand of interest and a penalty of Rs. 5 lakhs under Section 112(b) of the Customs Act, 1962.1.2 Enquires were made pursuant to an intelligence that the appellant had sold imported yarn instead of using the same in the EOU, detailed scrutiny revealed a shortage which could not be accounted satisfactorily and the assessee agreed & admitted and duty of Rs. 11,64,313/- on yarn sold on cash basis was paid by TR6 on 2-2-2000 & 16-5-2000; a notice was issued proposing appropriation of this duty payments and penalties which results in these appeals.1.3 After hearing both sides and considering the material on record it is found - (b) The...

Althaf Shoes Pvt. Ltd. Vs. Commissioner of Customs

Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai

Reported in: (2005)(188)ELT504Tri(Mum.)bai

1. A BMW model X530; car was imported, 'Homologation Certificate' as required vide ITC PN 4 (PE-2001) 1997-2002 dt 31.3.2001 was not produced. The car was therefore ordered to be confiscated under section 111(d) and penalty under section 112(a) of the Central Act 1962 was imposed. Hence this appeal.2. ITC PN 4 (RE-2001) 1997-2002 dt 31.3.2001 which provides for the import of a new car, interalia, stipulates the condition "(c) Whoever being an importer or dealer in the motor vehicles who imports or offers to import a new vehicle into India shall, i) at the time of the importation, have valid certification of compliance as per the provisions of Rule 126 of Central Motor Vehicle, Rule (CMVR) 1989, for the vehicle model being imported, issued by any of the testing agencies specified in the said rule; ii) be responsible for all the provision arranged by the manufacture as per rule 122 and 138 of CMVR 1989 and for issuing form 22 of CMVR (e) The provisions of this notification will not appl...

M.J. Pharmaceuticals Vs. Cce

Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai

1. After hearing both sides and considering that the issue in this case is interpretation of rule 6 and consequent recovery of 8% as prescribed under that rule when common inputs are used in or for manufacture of dutiable and duty exempt products covered by a notification not relating to exemption to availability of credit has since been settled by the Bangalore Bench of this Tribunal vide its order in the case of appeal no. E/948/2003 in the case of Andhra Pradesh Paper Mills Ltd. [2004-TIOL-1056-CESTAT-BANG] in favour of no such reversals called.Relying upon this decision especially para 3 thereof and for those very reasons this appeal is to be allowed.2. The case of Albert David Ltd. v. CCE, 2003 (151) ELT 443 (Tri-Del) where the Civil Appeal filed by assessee stands dismissed by the Apex Court, 2003 (157) ELT A81, relied upon by the D.R will not held the Revenue's case, since that decision was as regards the treatment of credit availed on inputs lying in stock when the final produ...