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Case Laws
Showing 81 to 100 of 292 Records
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1992 (1) TMI 232 - CEGAT, NEW DELHI
Rectification of mistake ... ... ... ... ..... ctive date on which a notification comes into effect has only dealing with submissions made before it. This question is not dealt with in the order of the Additional Collector against which the appeal was filed. Secondly, neither the appellants nor the department had relied on any evidence to indicate when the Government Press authorities who printed the notification in the Gazette made it available for sale to the public. The fact that it was available in the Excise Law Times in February was culled out by the Tribunal only to mention for sake of argument because the above-said journal is on an official document of the Government of India Press. In this view of the matter, in the absence of any evidence from the competent authority regarding the fact as to when the notification was made available to the public, it is not possible to hold that there is a mistake apparent arising from the Tribunal rsquo s order calling for rectification. The application is, therefore, rejected.
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1992 (1) TMI 231 - CEGAT, CALCUTTA
Confiscation of currency ... ... ... ... ..... no evidence that the goods was new or as to its value when it was new. The finding of the Collector (Appeals) is based on a mere assumption. On consideration of all the aspects, I allow this appeal, set aside the orders passed by the authorities below and direct that the seized goods shall be released to the appellant. That decision is applicable to the facts of this case. Therefore, when there was no allegation in the show cause notice and when there was no discussion in the Adjudication Order as to what is the provision of law violated by the appellants, the confiscation of the goods in question is not in accordance with law. The allegations in the show cause notice and the Adjudication Order are so vague that the impugned order cannot be supported. Accordingly, this appeal is allowed. The Cash seized in this case under Item No. 8 and the goods seized under Item Nos. 2 and 7 be returned to the appellants within a period of two months from the date of receipt of this order.
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1992 (1) TMI 230 - CEGAT, CALCUTTA
Reference to High Court - Extended period of limitation held by Tribunal to be not applicable
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1992 (1) TMI 229 - CEGAT, NEW DELHI
Demand - Limitation ... ... ... ... ..... eflected either in the gate passes or R.T. 12 returns submitted by them and finalised by the department. It was, therefore, a case of suppression of fact of excess recovery by the appellants. This is evident from the statement of facts mentioned in the order-in-original when it states - ldquo ..................on scrutiny of the bills and invoices, both to their customers, it was noticed by the Inspector of Central Excise incharge of the unit that they recovered Central Excise duty from their customer at the full rate i.e. 40 Adv. Thus they recovered more duty from their customers than they actually paid. The show cause notices would, therefore, fall within the terms of proviso to Rule 10 or Section 11A(1), as the case may be 4. In short, we do not find any merit in the appeal and it is rejected accordingly. Cross-objections are also dismissed as not maintainable, since the impugned order was wholly against the appellants and the department could have no grievance against it.
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1992 (1) TMI 228 - CEGAT, CALCUTTA
Confiscation - Burden of proof ... ... ... ... ..... lant. Even in the order the details of the statement of Shri Paul was not mentioned except by stating that he had denied it. Such an evidence cannot be relied on against the appellant. In that view of the matter, I hold that the Department has not discharged the burden cast on it to prove that the garments in question are smuggled goods. The decision relied on by the appellant reported in 1986 (26) E.L.T. 792 is squarely applicable to the facts of this case. Accordingly, this appeal is allowed. The goods in question are ordered to be returned to the appellant within two months from the date of receipt of this order. The penalty imposed on the appellant is also set aside. 5. As regards the Miscellaneous Application it can be said that it is for submission of additional evidence to strengthen the case of the appellant inasmuch as the goods in question were auctioned by the Customs and therefore, can easily be available in the open market. The Application is accordingly allowed.
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1992 (1) TMI 227 - CEGAT, NEW DELHI
Project Import ... ... ... ... ..... rity on the import licence or a recommendatory letter to that effect that led him to deny the benefit of Tariff Heading 84.66. 4.1. We also do not find anything in the Project Imports (Registration of Contract) Regulations, 1965 sub-regulation 3(a) and 3(c) to indicate that there must be an industrial licence necessarily from the DGTD before the benefit of Tariff Heading 84.66 could be given to an importer. Naturally where DGTD does not come into the picture at all as in this case on account of coffee industry, not being a scheduled industry, the question of production of an industrial licence does not arise. There is, however, evidence on record that Coffee Board as a sponsoring authority had recommended both to the ITC licence (should be ldquo authorities rdquo ndash Ed.) and the Customs authorities for allowing import as a project import for initial setting up of their unit at village Hebbale. We, therefore, do not find any merit in the appeal. It is dismissed accordingly.
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1992 (1) TMI 226 - CEGAT, CALCUTTA
Demand - Proforma Credit ... ... ... ... ..... short was used for the manufacture of excess quantity of 2500 tonnes of Super Phosphate. It is not the case of the department that this excess of 2500 M.T. of Super Phosphate was not there. 9. In this respect, the Appellate Collector holds as follows - ldquo The plea of the appellant is that 900 tonnes of Rock Phosphate has been used in the manufacture of excess quantity of 2500 tonnes of Super Phosphate. This plea to all intents and purposes appear to be conjecture and is by no means certain. rdquo 10. But this observation is not tenable. The department has not disputed about this excess production of 2500 tonnes. No investigation is made to contradict this plea of appellants. The Assistant Collector has not at all dealt with this aspect of the case. In such circumstances the benefit of doubt should go to the appellants. Accordingly, we extend the benefit of doubt to the appellants and set aside the demand of Rs. 63,900/- and penalty of Rs. 250/-. The appeal is thus allowed.
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1992 (1) TMI 225 - CEGAT, NEW DELHI
Valuation- Invoice ... ... ... ... ..... s have been contending that they negotiated with the supplier and got the price reduced. The reasoning of the Collector is that the price was reduced because of the special relationship between the importer and the foreign supplier who looking into their long term interest agreed to supply the goods at a rate lower than the quotation/proforma invoice price, and therefore the invoice price is influenced by the special relationship. There is a fallacy in the reasoning of the Collector. Negotiations are a part of ordinary commercial dealings and on account of that it does not become extra-commercial consideration. Therefore, the order of the Collector cannot be substantiated in the absence of contemporary imports at higher prices. The judgment of the Supreme Court relied upon by Shri Satish Kumar is not relevant as in the said case the importers themselves relied upon a quotation in support of their price. We, therefore, allow the appeal and set aside the order of the Collector.
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1992 (1) TMI 224 - CEGAT, NEW DELHI
Cess also leviable on imported goods ... ... ... ... ..... on 3(1) of the Customs Tariff Act which provides for liability to duty (as additional duty) equal to excise duty for the time being leviable on a like article, if produced or manufactured in India. In other words, the basis for the charge, in the case of imported goods, arises from Section 3(1) of the Customs Tariff Act. It is only for ascertaining whether any duty of excise is leviable on like article produced or manufactured in India that one has to refer to the law or laws which provide for such a levy that the Textile Committee Act has to be looked into to determine the quantum of such levy. In these circumstances, the mechanism for collection of the duty under the Textile Committee Act for the goods manufactured in India, is not at all relevant in the case of imported goods. Thus, the contention of Dr. Gowri Shankar fails in the case of imported goods. 17. I agree with learned brother Shri S.L. Peeran that the department rsquo s appeal succeeds and is therefore, allowed.
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1992 (1) TMI 223 - CEGAT, BOMBAY
... ...
... ... ..... fixed taking a lenient view. rdquo 6. In the context of the aforesaid finding, when the Department is satisfied about the fact of export of the goods by other collateral evidences viz. shipping bills and invoices, non-performance in effecting the export without following the AR 4 procedure boils down to a technical infringement and they cannot take away the substantive benefit of export without payment of duty under bond. In this view of the matter, we set aside the order of demand. As regards the penalty, once it is established that no part of the custard powder was diverted for home consumption and there was no intention of evading duty, penalty can be justified only for non fulfilment of statutory obligation cast on the appellants. In this view of the matter, we reduce the penalty from Rs. 50,000/- to Rs. 2,000/- (Rupees two thousand only). Appeal is disposed of in the above terms. Since the appeal itself is disposed of, stay application does not survive for consideration.
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1992 (1) TMI 222 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... Textile fabrics, reinforced with metal of a kind commonly used in machinery or plant the metal thread (bare metal, wire twisted or gimped with textile yarn etc.) may, for example, be incorporated during weaving (in particular, as warp) or introduced between plies of the material . The item is not a hose piping as in a hose the water has to be transmitted from within a tube while in this case, this material is placed over the machine rubber roller and the function is that of dampening from one roller to another roller and for evenly moistur-ing the printing plate of the machine. Therefore, the contention that the item acts as a dampening material commonly used in offset printing machine has to be accepted. 10. By reading the whole material on record and also by perusing the literature and function of the imported item, it is very clear that it falls within the Heading 59.16/17 of the Customs Tariff Act, 1975. The appellants, claim is allowed with consequential relief, if any.
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1992 (1) TMI 221 - CEGAT, CALCUTTA
Show Cause Notice - Evidence ... ... ... ... ..... n the show cause notice it is not mentioned at which spot the interception of the goods took place. On all these grounds the appellant is to be given the benefit of doubt and we hold that the department has failed to prove that the truck in question was used by the appellant for transport of goods to Nepal. Therefore, the attempt to export of the goods in question through the appellant rsquo s truck not having been established, the truck is not liable for confiscation. In that view of the matter, as per Point No. (i), we hold that the confiscation order is not in accordance with law and the same is hereby set aside. 15. In view of the above findings, we hold that the Department has failed to prove that the appellant had attempted to export the goods and, therefore, the imposition of penalty of Rs. 10,000/- under Section 114 of the Customs Act is not in order and we set aside the same. The appeal is accordingly allowed. The appellant is entitled for the consequential benefits.
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1992 (1) TMI 220 - CEGAT, NEW DELHI
Redemption fine ... ... ... ... ..... or considered by it, it will not be a question arising out of its order, notwithstanding that it may arise on the finding given by it as it was held by the Supreme Court in C.I. T. v. Scindia Steam Navigation Company Limited, (AIR 1961 S.C. 1633). In the present case neither arguments advanced with reference to Section 111(d) that confiscation is absolute irrespective of the mens rea nor Tribunal interpreted Section 111(d) whether intention is essential or not in confiscation or redemption fine but held redemption fine is not necessary by taking overall facts and circumstances in the case and particularly bona fide conduct of the party. Since my findings were based on material placed on records, I do not feel any point of law arises out of such order and there is no necessity to refer these questions as no point of law is involved as it was rightly argued by the respondents rsquo counsel. In the view I have taken the reference application filed by revenue is hereby dismissed.
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1992 (1) TMI 219 - CEGAT, NEW DELHI
Remand - Powers of Tribunal ... ... ... ... ..... is necessary to see whether the orders of the lower authorities have been passed after complying with the principles of natural justice and if so, whether all facts were taken into consideration before passing the order. The present appeal relates to classification of goods which has to be correctly determined by the Assistant Collector in accordance with Rule 173B, and in doing so, he has disregarded the principle that since he did not want to accept the classification proposed by the appellant in the classification list, it was obligatory on his part to set out the grounds for not accepting it in the show cause notice. Since this has not been done, it is a fit case for referring the matter back to the Assistant Collector for a fresh decision in accordance with law. Accordingly, we set aside the orders of lower authorities without going into the merits of the matter and remand the case to the Assistant Collector for fresh adjudication. Thus, the appeal is allowed by remand.
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1992 (1) TMI 218 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... ed for re-treading a tyre does not require any further curing. It is bonded to the tyre carcass using a cushion gum compound and during this process only the cushion gum is getting cured and not the tread. We consider this explanation to be acceptable because, according to the well-accepted principles of interpretation of statutes, no words of the notification are rendered redundant in placing this interpretation on it and it is interpreted in its ordinary, natural and grammatical sense. This is in conformity with the observations of the Madras High Court in the case of Witco Match Works v. Union of India -1983 (12) E.L.T. 345. 33. In this view of the matter, the ldquo product, in question, is eligible for exemption under Notification 47/76-C.E., dt. 9-3-1976, as amended by Notification 193/80-C.E., dt. 8-12-1980. The orders of the lower authorities are set aside and the appeal is allowed with consequential relief, if any, while upholding the classification under Item 16A(2).
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1992 (1) TMI 217 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... refund claims for the period prior to 16-3-1988 are barred by limitation. 18. In the result, I answer the aforesaid question as follows ldquo That the refund is admissible from the period from 16-3-1988 to 1-6-1988 under Rule 11B (Should be Section 11B - Editor) of the Central Excises and Salt Act, 1944, and the claims for the periods prior to 16-3-1988 are barred by limitation, as held by the Member (Technical). rdquo (G.P. Agarwal) Member (J) 2-12-1991 FINAL ORDER Per K.S. Venkataramani, Member (T) . - In the light of the majority decision the appeal is disposed and it is held that the paper based laminated sheets are correctly classified under Chapter 48 C.E.T.A., 1985 and it is also held that the refund is admissible only for the period from 16-3-1988 under Section 11B of Central Excises and Salt Act, 1944 and the claim for the period prior to 16-3-1988 is barred by limitation. (K.S. Venkataramani) Member (Technical) (Jyoti Balasundaram) Member (Judicial) Dated 2-1-1992
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1992 (1) TMI 216 - BOMBAY HIGH COURT
Prosecution - Show Cause Notice for prosecution ... ... ... ... ..... he I.P.C. The show-cause notice unfortunately, apart from these offences, includes offences punishable under Sections 419, 420 and 388 of the I.P.C. It is obvious that the show-cause notice travels beyond the direction given by the Division Bench and consequently, while making notice absolute, is required to be restricted only to those offences which are referred to in the judgment. 4. Accordingly, show-cause notice is made partly absolute and the Prothonotary and Senior Master is directed to launch prosecution against Kumar Prabhulal Shah in appropriate criminal court for having committed offences punishable under Sections 193,209,210 and 468 read with 471 of I.P.C. The Prothonotary and Senior Master is entitled to take assistance of an experienced lawyer for drafting the complaint and lodging it in appropriate criminal court. 5. The show-cause notice issued to Kumar Prabhulal Shah to explain why action under the Contempt of Courts Act should not be taken, stands discharged.
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1992 (1) TMI 215 - CEGAT, NEW DELHI
MODVAT Credit ... ... ... ... ..... ommon understanding of the term lsquo appliance rsquo , I am of the view that lsquo Silicone Spray rsquo which is in the nature of chemical cannot be deemed as an lsquo appliance rsquo or lsquo equipment rsquo which are excluded from the purview of the MODVAT scheme in terms of the lsquo Explanation rsquo to the Notification No. 217/86. In a number of decisions of the Tribunal it has been held that for availing MODVAT it is not necessary that the input should form a part of the final product. For these reasons and also for the reason that use of lsquo Silicone Spray rsquo on the moulds during the injection moulding adds to the output of the machine and improves the quality of the moulded product, it has to be held that it is an input used in the manufacture of the final product. 9. In view of the above discussion and on the ratio of the Tribunal rsquo s decision quoted above the impugned orders are set aside and appeals are allowed with consequential relief to the appellants.
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1992 (1) TMI 214 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... sion of the Tribunal, we do not find any merit in the Revenue rsquo s contention that the products are hoops/strips. We are of the view that the products in dispute are iron and steel products of stainless steel roughly shaped by rolling and steel not elsewhere specified (commonly known as patta/patti - cold-rolled or hot rolled). In the result, the above-captioned matters are decided in favour of the assessee. The Revenue Authorities are directed to give consequential effect to this order. In the result, the Revenue rsquo s appeals are dismissed. Assessee rsquo s appeals are allowed. 5. In view of the above discussion we follow our earlier decision and hold that Pattas/Pattis viz. Pieces roughly shaped by rolling or forging of iron or steel assessed under 26AA(ia) for the period 1st August 1983 and Tariff Item 25(8) after 1st August, 1983, of the erstwhile tariff. In the result, the appeals filed by the Revenue are dismissed and the appeals filed by the assessee are allowed.
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1992 (1) TMI 213 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... manufacture of soap is done out of rice bran oil but the entire process is not carried out by the assessee itself (rice bran fatty acid used by the assessee in the manufacture of soap was obtained from pre-treatment of rice bran oil in assessee rsquo s factory elsewhere). The Supreme Court held that the benefit of Notification which grants a concessional rate of duty to soap containing particular percentage of rice bran oil was available. The Tribunal rsquo s decision in the case of Eagle Flask (supra) does not discuss the aspect of inbuilt discrimination among articles of plastic in Notification 132/86 which is what has been discussed in para 20 above. 29. In the light of the above discussion and for the reasons already recorded by my learned brother I agree that the articles of plastics manufactured by the appellants are not covered by Sl. No. 38 of Notification 132/86.I agree with the conclusions reached in paragraph 23 of the order recorded by learned Member (Technical).
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