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Case Laws
Showing 81 to 100 of 259 Records
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1992 (8) TMI 198 - CEGAT, MADRAS
Modvat Credit admissible in respect of acetylene gas and graphite nipples, being consumable items
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1992 (8) TMI 197 - CEGAT, NEW DELHI
Stay/Dispensation of pre-deposit ... ... ... ... ..... he hearing of the appeal on merits we proceed to hear the appeal on merits. For due detailed reason given above, we set aside the impugned order and remand the matter to the Collector of Central Excise (Appeals) for de novo adjudication. While deciding the appeal afresh, he shall observe the principle of natural justice and also grant an opportunity of personal hearing. He shall also keep in mind the decision of the Supreme Court in the case of Indian Oxygen reported in 1988 (36) E.L.T. 723 and also the decision of the Tribunal in the case of Collector of Central Excise, Bangalore v. United Glass Works, 1989 (40) E.L.T. 488. Since the matter is very old, we direct that the Collector of Central Excise (Appeals) shall decide the matter within six months from the date of receipt of this order. In the result the stay applications are allowed, the appeals are also allowed by way of remand. Further we order that the Collector of Central Excise (Appeals) shall dispose of the appeal.
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1992 (8) TMI 196 - CEGAT, MADRAS
Stay/ Dispensation of pre-deposit ... ... ... ... ..... othing on record to indicate the same. All that has been alleged is that the appellant sold the goods to another person who ultimately used the goods for purposes other than the one specified in the notification under which the benefit of exemption has been extended. In a situation like this when no specific provision is there in the notification as to how the appellant was to ensure the sale of the goods or the use of the goods for the intended purpose as fertilisers and when he has not committed prima facie any act as a dealer to attract a violation in terms of the notification, the question of levy of a penalty would not arise. Further the question of the very levy of penalty in a situation like this in terms of Rule 209A of the Central Excise Rules, prima facie, would not arise. As it is, the wording of Rule 209A does not appear to cover the act of the sale by appellant and for that reason also, we hold that the penalty could not, prima facie, be levied on the petitioner.
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1992 (8) TMI 195 - CEGAT, MADRAS
Confiscation and penalty ... ... ... ... ..... pute that the gold/gold ornaments belong to his mother... rdquo Therefore, it is clear that the adjudicating authority has accepted the appellant rsquo s plea that the gold/ornaments belonged to his mother. It is not disputed before me that the appellant rsquo s mother was not proceeded against on any charge of contravention under the provisions of the Act. In such a situation and in the context of the admitted facts, the proviso to Sec. 71 of the Act extracted above would become directly applicable and, therefore, the gold would not be confiscable in terms of the same. In this view of the matter I have no other alternative except to set aside the order of confiscation. 5. Though Gold (Control) Act stands repealed as on date, I do not think any intervention is called for in regard to the quantum of penalty, since the same cannot be said to be either harsh and excessive. I, therefore, confirm the same in entirety, In the result the appeal stands disposed of in the above terms.
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1992 (8) TMI 194 - CEGAT, MADRAS
Demand - Limitation of six months inapplicable when assessment provisional ... ... ... ... ..... ice was not final but merely provisional. Indeed, the endorsement inserted in the invoice clearly sets out that the final bill would be preferred only after the decision of the Supreme Court. It is not in dispute that, both the appellants and the Department, were aware of the fact that the final price was dependent on the decision of the Supreme Court. It cannot be ignored that the Department could not have completed the assessment by taking into consideration any price in excess of the price fixed under the Price Control Order, and therefore, the mere fact that the assessment orders were final would not shut out the Department from claiming the additional duty. rdquo Likewise we hold that both the Department and the assessee knew that the benefit of Notification was available subject to the future contingency of whether the appellant exceeded Rs. 75 lakhs or not and therefore any assessment done earlier could not be taken as final. In view of the above we dismiss the appeal.
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1992 (8) TMI 193 - CEGAT, MADRAS
Refund - Res Judicata ... ... ... ... ..... owever, unfortunately the Department has been labouring under the impression that Respondents are to discharge the duty liability and since correct amount of duty has been collected from them no refund accrues to them. No doubt, the Collector (Appeals) has based his order holding the Respondents as the manufacturers but he has also taken note of the fact of payment of duty on the goods and has restricted the demand to the extent as indicated in his order extracted above. The Department rsquo s right for recovery flows from this order of the Collector (Appeals) and they cannot go beyond the terms of this order. The learned Collector (Appeals) in the order appealed against has, as pointed out by the learned Advocate for the Respondents, only sought to rectify the wrong which is sought to be perpetrated against the Respondent by making the demand which was beyond the purview of the authorities. In view of this I agree with my learned Brother in rejecting the Departmental appeal.
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1992 (8) TMI 192 - CEGAT, MADRAS
Stay/ Dispensation of pre-deposit ... ... ... ... ..... ion regarding the use of brand name and disentitlement of the benefit of Notification No. 175/86 by virtue of the use of the brand name, is only to take care of the cases where a person owning the brand name in manufacturing the goods in India is not entitled to the benefit of Notification No. 175/86 and in case somebody else uses this brand name he also would be disentitled to the benefit of the notification. Therefore, unless the brand name owner himself is in India and is himself not entitled to the benefit of notification, then alone the notification in question would come into force. In this view of the matter the appellant rsquo s prayer for waiver of pre-deposit has to be allowed and ordered accordingly rdquo . Following the ratio of the above decision and on prima facie ground in the facts and circumstances of this case we grant waiver of pre-deposit of the duty and the penalty pending appeal and also grant stay of recovery of the amount in question in pending appeal.
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1992 (8) TMI 191 - CEGAT, NEW DELHI
... ...
... ... ..... ndertaking given by the appellants in terms of the interim order of the Bombay High Court as aforesaid. 6. We have considered the submissions. It is an admitted fact on the record that the Revenue has classified the imported goods under Item 68. We uphold the classification under Item 68 as not challenged and therefore, following the ratio of the judgments rendered by this Tribunal in the case of Griffon Laboratories Pvt. Ltd. and Umedica Laboratories (P) Ltd., supra, we allow the appeal with consequential relief to the appellants. Since they have already availed the benefit of proforma credit under Rule 56A of the Central Excise Rules, we direct that the refund flowing out of the present order be adjusted against the said proforma credit already availed under the bank guarantee and undertaking. After adjustment, the bank guarantee so furnished by the appellants shall stand discharged and the undertaking shall also stand released. 7. The appeal stands disposed of accordingly.
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1992 (8) TMI 190 - CEGAT, NEW DELHI
Dutiability ... ... ... ... ..... oyed during testing should be liable to pay duty. 4. When the case was called, none appeared on behalf of the respondents. We heard Shri A.K. Singhal, learned JDR. 5. Admittedly, the testing is essential for making the goods marketable. In the absence of testing, the goods cannot be sold and, therefore, they cannot be removed. Under Rules 9 and 49 the duty liability arises when the goods are removed from the factory or removed for export or utilised as such in the factory or utilised in the manufacture of another commodity in the factory. In other words under Rules 9 and 49 if the goods are utilised as such in the factory, they are liable to pay duty. In the instant case, the Collector held that using the poles for the purpose of testing so as to make them marketable cannot be said utilisation within the factory. We, therefore, agree with the views expressed by the Collector and see no reason to interfere with his order. The department rsquo s appeal is dismissed accordingly.
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1992 (8) TMI 189 - CEGAT, CALCUTTA
Confiscation and Penalty ... ... ... ... ..... the essential ingredients of export denotes and connotes the taking out of India all the goods in question. It was held by their Lordships that taking connotes a movement of the goods with intention to move the goods out of India. It was again stressed by their Lordships that the movement could as well be within the territory of India. But there should be movement of the goods. Otherwise, the very concept of taking out will have no meaning. 8. Applying the above-said principles to the facts of this case it is clearly seen that the goods were still in the custody of the appellants and nothing was done with respect to the goods to take the same out of India. Even if the allegations are accepted, it amounts only to a preparation. In such circumstances, there is no attempt which is proved in this case. Accordingly, the confiscation of the goods as well as the imposition of the personal penalty are not in accordance with the law. The appeal is allowed with consequential benefits.
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1992 (8) TMI 188 - CEGAT, CALCUTTA
Stay/Dispensation of prior deposit ... ... ... ... ..... nly the manufacturers of the containers, which were marketed with the brand name of the product which was to be filled up by the customers. 5. We have considered the submissions. We are inclined to agree with the submission made by Shri Das that the scope of the expression lsquo brand name rsquo has to be harmoniously arrived at by considering para-7 and Explanation VIII together. Since the scope of the expression lsquo brand name rsquo has been defined in the Explanation and the specified goods referred to therein would be the goods having a link with the brand name, which in the present case undoubtedly refers to cement and not the bags themselves, the plea for grant of stay would be fully merited. This, coupled with the plea of hardship would justify the grant of stay. We order accordingly. The department shall not take steps to recover the disputed amounts during the pendency of this appeal. 6. The Registry is directed to transfer the appeal to Special Bench for disposal.
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1992 (8) TMI 187 - CEGAT, MADRAS
Modvat Credit ... ... ... ... ..... to be used in the apparatus i.e. the Heat Exchanger. It does not in any way directly participate in the manufacturing process as in the case of Mercury and Aluminum sheets used as cathodes nor it gets consumed while performing the function relatable to the manufacturing process as in the case of Pyrometric Cones cited supra. The material used is like refrigerated gas used in the refrigeration system which may be required to provide the required temperature, the use of the material has to be taken to be for making an apparatus functional like refrigeration gas in a refrigerator or refrigeration system to perform the desired function of maintaining temperature. The use of the same in our view cannot be taken to be in or in relation to manufacture of the end-product but for making the manufacturing apparatus functional. In this view of the matter the appeal has to be rejected. 6. The cross objection is in the nature of comments and is therefore dismissed as misconceived in law.
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1992 (8) TMI 186 - CEGAT, MADRAS
Modvat Credit ... ... ... ... ..... to be used in the apparatus i.e. the Heat Exchanger. It does not in any way directly participate in the manufacturing process as in the case of Mercury and Aluminum sheets used as cathodes nor it gets consumed while performing the function relatable to the manufacturing process as in the case of Pyrometric Cones cited supra. The material used is like refrigerated gas used in the refrigeration system which may be required to provide the required temperature, the use of the material has to be taken to be for making an apparatus functional like refrigeration gas in a refrigerator or refrigeration system to perform the desired function of maintaining temperature. The use of the same in our view cannot be taken to be in or in relation to manufacture of the end-product but for making the manufacturing apparatus functional. In this view of the matter the appeal has to be rejected. 6. The cross objection is in the nature of comments and is therefore dismissed as misconceived in law.
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1992 (8) TMI 185 - CEGAT, NEW DELHI
... ...
... ... ..... tion to the Tribunal in the matters of appeals pending before it and simultaneously amended the grounds of appeals in the two appeals filed by the department before the Tribunal. We do not find that there was any justification on the part of the Asstt. Collector to reject the refund claims arising out of the orders-in-appeal passed by the Collector of Central Excise (Appeals) which have been challenged before the Tribunal in appeals filed by the department and those appeals are still pending in the Tribunal. Effect of the order dated 30-1-1992 passed by the Asstt. Collector is to make the very appeals infructuous and puts the respondents at a disadvantage in as much as it drags them into another round of litigation via the Collector (Appeals) and to the Tribunal upwards. The order dated 30-1-1992 passed by the Assistant Collector is, therefore, untenable and hence we have no hesitation in quashing it. Department is, however, at liberty to move in the matters according to law.
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1992 (8) TMI 184 - BEFORE THE COLLECTOR OF CENTRAL EXCISE (APPEALS)
Exemption to S.S.I. Unit ... ... ... ... ..... ion No. 175/86 to the same manufacturer in the preceding financial year 1990-91. Therefore, the condition of Para 4(b) is satisfied and the benefit under this provision would be available to the appellants during the financial year under dispute. Needless to say, however that the fact that the appellants would be entitled for the benefit of Para 4(b) would not imply automatically that they would be eligible for the benefit of Notification No. 175/86 as a whole. The benefit of this Notification would be available to them if all other relevant conditions thereof are fulfilled by the appellants. 5. In view of the above, I annul the orders of the Asstt. Collector in both the cases and order that the benefit of Para 4(b) and of the Notification No, 175/86, dated 1-3-1986 as a whole be extended to the appellants if all other relevant conditions of this Notification are fulfilled by them during the period under dispute. The two appeals are disposed of accordingly on the above lines.
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1992 (8) TMI 183 - CEGAT, NEW DELHI
Food products - Miscellaneous Edible Preparations ... ... ... ... ..... d restricted meaning, as given by lower authorities. It is well settled that the interpretation of the notification should not be done in such a way as to make the notification otiose or nugatory. So long as the plain meaning of the words could lead to interpretation to include varieties of unbleached paper and mill wrapper being one such, the benefit cannot be denied to the appellant. The appellants have submitted that the department has not disputed the bagasse content being not less than 75 . In that event the benefit of the notification in question cannot be denied to the appellants. However, there is no evidence placed before us to give our findings thereto. Therefore, the matter is remanded for determining the bagasse content and to grant the relief as per the terms of the notification. A reading of the above rulings confirms our findings and taking into consideration all the facts and circumstances, we are inclined to allow the appeal with consequential relief, if any.
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1992 (8) TMI 182 - CEGAT, NEW DELHI
Import control ... ... ... ... ..... when read with Explanation I is clearly meant to exempt soles for sponge rubber chappals where chappals are defined to mean soles to be attached to the foot with thongs. When such is the wording of the notification, it may be inappropriate to widen its coverage to soles for plastic chappals by having recourse to the trade parlance. In the result, it is held that EVA Unit soles imported in this case will not qualify for exemption under Notification No. 49/86. In this view of the matter, the order proposed by the learned Member (T) is concurred with. 21. The papers are returned to the Registry of Special Bench lsquo D rsquo for being listed before the Bench for issuing the final order. FINAL ORDER In the light of the majority opinion, it is held that EVA Unit Soles imported in this case do not qualify for exemption under Notification No. 49/86. The Departmental appeal is accordingly partly allowed. Dated 27-8-1992. (N.K. Bajpai) (S.V. Maruthi) Technical Member Judicial Member
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1992 (8) TMI 181 - BEFORE THE COLLECTOR OF CUSTOMS & CENTRAL EXCISE (
Modvat Credit ... ... ... ... ..... namely GP 363 dated 19-1-1987 of Award Packagings, Bombay-13 for the same product gives the classification as 4818.13. Similarly in respect of Ephedrine HCL the gate pass No. 241, dated 9-2-1990 of Supra Chemicals, Rabale 400701 gives the tariff classification as 2939.90. Malladi Drugs and Pharmaceuticals Ltd., Ranipet, Tamil Nadu have also classified the said product under sub-heading 2939.90 as is evident from the copy of the gate pass No. 382, dated 19-9-1990. Micro Crystalline cellulose have been classified under sub-heading 3912.90 as seen from copy of gate pass No. 152 dated 24-1-1991 of M/s. N.B. Enterpreneurs, Nagpur and the classification indicated is 3912.90. In view of the above documentary evidence, it is very clear that the appellant cannot be denied the modvat credit because of the difference in the tariff classification in some of the input gate passes. Accordingly, I set aside the impugned order and allow this appeal with consequential relief to the appellant.
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1992 (8) TMI 180 - CEGAT, NEW DELHI
Rectification of Mistake ... ... ... ... ..... d that the question of eligibility to Notification No. 182/82 as well as Notification No. 149/82 had been considered and dealt with by the Assistant Collector while disposing of the refund claim vide Order-in-Original dated 27-4-1986 and with the passing of the order by Collector (Appeals) thereon, the two orders had merged and that was the matter which was before the Tribunal for consideration. Therefore, there is no infirmity in the Tribunal traversing the aspect of eligibility to the notification in its order. Both the Members have given a finding of that on merits the order passed by the lower authorities was correct in law. The Member (Judicial) had in terms agreed with the Member (Technical) on this aspect expressly. In such a situation and in the light of the discussion in the Hon rsquo ble Member (Judicial) rsquo s order above, it has to be held that there is no mistake apparent on the face of the record in the impugned order of the Tribunal calling for rectification.
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1992 (8) TMI 179 - CEGAT, NEW DELHI
Notification ... ... ... ... ..... the Notifications 1/90 and 2/90 were issued and the admitted position is that these notifications were made available for public sale only subsequently on 11-1-1990. In such a situation, the ratio of the decision of this Bench of the Tribunal cited (Supra) on identical question with reference to the very same notifications becomes applicable to facts of the present case. The decision of this Bench in the above case is in line with several decisions of the Tribunal on the same lines following Supreme Court as well as Bombay and Madras High Court decisions as in its decision in the case of Shilibans International v. Collector of Customs, reported in 1989 (42) E.L.T. 632 (Tribunal). Therefore, applying the ratio of precedent decisions since in this case the Notifications 1/90 and 2/90 became available to public only on 11-1-1990 the demand for differential duty on the consignments assessed to duty cleared prior to that date is not sustainable. The appeal is accordingly allowed.
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