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Showing 121 to 140 of 375 Records
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1995 (3) TMI 268 - CEGAT, NEW DELHI
Refund of duty paid “under protest” ... ... ... ... ..... valid protest prior to the introduction of Rule 233B and the procedure laid down under the said rule is inapplicable to payments of duty made prior to 1-6-1981. Further in the cases of Metro Ark v. Collector - 1990 (50) E.L.T. 133 and Collector v. Ashoka Leyland - 1987 (29) E.L.T. 530 the Appellate Tribunal has held that a protest once made will continue till the dispute is finally settled. In view of this settled position, the Collector (Appeals rsquo ) order that the payment of duty under protest is to be taken from 20-11-1980 cannot be dislodged on the ground that letter of protest has to be filed as prescribed in Rule 233B of Central Excise Rules. It appears, the Hon rsquo ble Bench has over-looked the fact that procedure of Rule 233B came into effect only from 1st June, 1981 and had not retrospective effect or applicability. The matter, therefore, needs reconsideration and rectification being contrary to a number of Tribunal rsquo s decisions and settled position of law.
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1995 (3) TMI 267 - CEGAT, NEW DELHI
Modvat credit not deniable merely because declaration not filed ... ... ... ... ..... lowing two issues 1. emsp Whether the demand of duty, raised may be reduced by allowing the modvat credit after verifying the duty paying documents prescribed under Rule 57G(ii). In ascertaining that the inputs used by the appellants are ldquo duty paid rdquo , the fact that the appellants have not filed any declaration under Rule 57G is not material for the purpose of disposing of this case. The benefit of modvat credit should not be denied merely on account of non-filing of declaration under Rule 57G or maintenance of RG-23A. 2. emsp The question of time bar is also open for arguments by both sides and both sides are at liberty to adduce evidence in support of their allegations/submissions. 4A. emsp Question of penalty will also be at large before the adjudicating authority having regard to the amount of duty payable by the appellants after allowing them the modvat credit and finding on time bar, if any. 5. In the light of the above directions, appeals is allowed by remand.
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1995 (3) TMI 266 - CEGAT, NEW DELHI
Iron and steel products ... ... ... ... ..... w cases, where marginal amount is shown as recoverable. However, we are of the view that even this amount is also not payable, as, we have held that the goods are exempted in the Notification in question. The ld. Advocates had pointed out that the judgments cited by the DRs did not pertain to demands raised under Proviso to Section 11A. We have gone through the same and we find this submission is correct, but we do not wish to give any finding on this aspect of the matter. 37. emsp In the light of our findings and following the ratio of the Tribunal rsquo s rulings in the case of Technological Systems, Chamundi Steels, Vivek Rerollings Mills and Saphire Steel, we hold that the appellants are entitled to the Modvat Credit, as claimed by them. 38. emsp We also find that there is no justification for imposing penalty in these appeals, as there has been no suppression or any intention to evade duty. 39. In the result, the impugned orders are set aside and the appeals are allowed.
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1995 (3) TMI 265 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... st that the ambit of the exemption notification is widened by including the goods classifiable under T.I. No. 90.02. The plain reading of the two tariff items and the exemption notification leaves no manner of doubt that the appellants are entitled to the benefit of exemption notification. In these circumstances, the decision of the learned Single Judge as well as the order passed by the Central Government cannot be sustained. It is required to be stated that identical orders were passed in respect of another bill of entry filed by the appellants and Writ Petition was filed to cover both the bills of entries. 3. emsp The ratio of the above judgment is applicable to the facts of the present case, and, applying it, we hold that the goods imported in this case are eligible for exemption under Notification No. 394-Cus., dated 2-8-1976. The appeals are accordingly allowed granting the alternative prayer for such exemption. The operative portion of the order was announced in Court.
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1995 (3) TMI 264 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... nt had been urged. We ... therefore distinguish this decision in the case before us. The respondent does not suggest that the ammonium chloride in question was sold or used as fertilizer. On the contrary, the classification list firmly says that the respondent did not consider it as fertilizer either for the purpose of manufacture or sale. The Circular No. 164/69, dated 11-6-1969 of the Central Board of Excise and Customs by which the respondent placed reliance, limits itself to ldquo fertilizer rdquo and in fact supports the Department rsquo s case by saying that ldquo fertilizer rdquo falling under 14HH when used for industrial purpose is liable to duty. 5. emsp In the result, we hold that ammonium chloride manufactured by the respondent had not been shown to be used in the manufacture of fertilizer and therefore will not be entitled to the benefit of the notification. The order of Collector (Appeals) is accordingly set aside and that of the Assistant Collector is restored.
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1995 (3) TMI 263 - CEGAT, NEW DELHI
Appeal - Signing of appeal - Appeal to be signed by the importer ... ... ... ... ..... east shall be a certified copy). 4. emsp A perusal of sub-rule (3) of Rule 6 shows that the appeal has to be filed in Form Nos. C.A. - 3 and C.A. - 4, as the case may be, respectively has to be signed by the person specified in sub-rule (2) of Rule 3. It is an admitted position that the goods were imported by Shri Shreyan Vora. Accordingly the appeal has to be signed by Shri Shreyan Vora in terms of sub-rule 2(a) of Rule 3 of Customs (Appeals) Rules, 1982. In the matter before us, the appeal has been signed by Shri Mitesh Sheth. He has got no locus standi to file and sign the appeal memo and as such, we hold that the appeal is invalid. The same is dismissed. During the course of arguments, Shri N. Ramanathan, learned consutant had stated that he proposes to file a fresh appeal by the correct signatory. It is open to the appellants to file a fresh appeal in accordance with law, if they so choose. In the result, the appeal is dismissed being invalid and not maintainable in law.
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1995 (3) TMI 262 - CEGAT, NEW DELHI
Appellate Tribunal ... ... ... ... ..... oth the sides before us, we find that this issue is covered by a precedent decision of the Tribunal in his Order No. E/03/94-B1, dated 28-12-1993 in the case of the very same appellants. In that order the Tribunal had followed the precedent decision of the Bench in the case of Jai Industries and Others v. Collector of Central Excise, reported in 1993 (68) E.L.T. 475. In the Jai Industries case the Tribunal had held that there is nothing in Notification 175/86 which makes it obligatory to avail the benefit of MODVAT Credit even if a declaration has been filed to that effect. The Tribunal held that the mere fact that the appellants paid duty at the concessional rate does not mean that they would be disentitled to the benefit of para a(ii) of the Notification. As has been held by the Tribunal in the appellants rsquo own case earlier, this judgment of the Tribunal in Jai Industries fully covers the present case. Following that ratio the present appeal is also accordingly allowed.
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1995 (3) TMI 261 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... the goods have been held as correctly classifiable under Tariff Heading 2102.10. The Tribunal after taking into account the submissions made by the appellants which have also been adopted by them in the present appeal held as under - ldquo After giving our serious thoughts to the contentions raised in the present case in the light of the facts and circumstances of the case, we agree with the Collector (Appeals) that the products of the appellants are not put up as medicaments, but are sold as a raw material for manufacture of such medicaments. We agree with the findings of the Collector (Appeals), as extracted above. Consequently, the appeal is dismissed. rdquo 5. emsp In view of the Tribunal rsquo s order extracted above we do not find any merit in the appeal filed by the appellants. We, therefore, confirm the findings of the Collector (Appeals) that Pharma Yeast manufactured by the appellants was classifiable under Tariff Heading 2102.10. The appeal is accordingly rejected.
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1995 (3) TMI 260 - CEGAT, NEW DELHI
Natural justice - Cross-examination ... ... ... ... ..... in the show cause notice from the Additional Collector rsquo s finding. The presence of a large number of video cassette recorders of the substantial quantity pre-recorded cassettes found in the factory in the shop lend credence to the Additional Collector rsquo s finding. The Assistant Collector rsquo s finding that the claim that 59 blank video cassettes were not entered in the RG 1 register because they were the previous day rsquo s production is an after-thought since it was not made immediately after seizure has also not been successfully challenged. The appellant has itself agreed that 132 erased cassettes had been recorded earlier. 6. emsp In the event we conclude that the demand for duty has been correctly confirmed as also order of confiscation and imposition of penalty. The redemption fine and the penalty are not seemed to be disproportionate to the gravity of the offence. In the circumstances, we confirm the order of the Additional Collector and reject the appeal.
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1995 (3) TMI 259 - CEGAT, NEW DELHI
Manufacture ... ... ... ... ..... duct having a distinct name, character and function has emerged. The bolts, nuts and washers each continue to serve the purpose for which it was manufactured. The respondent rsquo s claim that if the entire assembly is to be considered as one item, the goods should not be classifiable under Tariff Item 52 but under Tariff Item 68 is not entirely far-fetched. For if the goods cease to be fasteners, they would no longer be classifiable under Item 52. It is right when it says that the assembly of these three items cannot be used as it is, and each of these has to be separated before it can be used. In short, the position is that the bolts, nuts and washers each continue to be fasteners classifiable under Tariff Item 52. Since putting them together for the purpose of clearance and hence not manufracture, nor is there a claim that galvanising is a manufacture, the Collector was correct in his finding. 4. emsp We therefore confirm his order and reject the department rsquo s appeal.
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1995 (3) TMI 258 - CEGAT, MADRAS
Modvat Credit ... ... ... ... ..... as by the Bombay Bench in Collector of Central Excise v. Bharat Containers Pvt. Ltd. mdash (1990(48) E.L.T. 520 (Tribunal) . The Tribunal held thus - (Para 5). ldquo When the credit has been taken wrongly or it is in excess of the eligibility, it is a case of erroneous credit, which can be recovered by a demand. Such demand cannot go beyond the purview of the statutory provisions of Section 11A of the Central Excises and Salt Act, 1944. Even if Rule 57-I is sought to be invoked, it is to be read with the provisions of Section 11A, which is the statutory provision for recovery of any duty- either short-levy or non-levy or duty taken erroneously as proforma or Modvat Credit rdquo . I fully agree with the reasoning of the Tribunal. In view of the above, as mentioned by us, we hold that the reasonable time for the purpose of taking the Modvat Credit, in case the same was not taken immediately on receipt of the inputs, would be six months. The appeal is allowed in the above terms.
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1995 (3) TMI 257 - CEGAT, NEW DELHI
Reference to High Court ... ... ... ... ..... h law. The applicant has also stated that he is poor and that he could not send his counsel to argue the case before the Tribunal. It is also to be noted that while the Rule in question provides for the dismissal of the appeal for default of appearance, under which provision the orders under reference had been passed, it also provides that where an appeal had been dismissed for default and the appellant appears afterwards and satisfies the Tribunal that there was sufficient cause for his non-appearance when the appeal was called for hearing, the Tribunal shall make an order setting aside the dismissal and restore the appeal. In the circumstances of the case, it will be open to the applicant to make such an application for restoration of the appeal which had been dismissed and to satisfy the Tribunal that there was sufficient cause for his non-appearance when the appeal was called for hearing. In view of this, we are dismissing the Reference Application filed by the appellant.
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1995 (3) TMI 256 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... 01 mentions ldquo grinding wheels and the like, ... for grinding, sharpening, polishing, trimming, cutting, ... rdquo and that sub-heading 10 is specific for grinding wheels and the like, and parts thereof, is correct. The use of the expression ldquo the like rdquo in sub-heading 10 makes it clear that it is not wheels used for grinding alone which would fall under the sub-heading, and that similar products would also be covered. The H.S.N. groups together wheels, discs, etc. used for grinding, cutting, etc. It has therefore to be concluded that the H.S.N. notes and the Central Excise Tariff consider grinding and cutting wheels to be like goods. The goods in question would therefore be most specifically covered under sub-heading 10. 5. emsp The appellant rsquo s claim that its request for referring the matter to technical experts was not considered obviously has no force. Classification is a matter for the customs authorities to decide. 6. In the result we dismiss the appeal.
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1995 (3) TMI 255 - MADRAS HIGH COURT
Natural justice - Res judicata - Constructive res judicata ... ... ... ... ..... ere conditional orders of waiver of pre-deposit has been made, we do not find any patent error of law or perversity of approach in them and therefore we do not propose to interfere with the orders depicting conditional deposit except modifying the same having regard to the pendency of the Writ Petitions all along in this Court, so as to enable the petitioners to comply with the conditional orders of the Tribunal by granting four weeks rsquo time from this date. It is open to the petitioners to comply with, within a period of four weeks the conditional orders relating to the waiver of the pre-deposit and thereupon move the Tribunal for disposal of their appeals on merits and in accordance with law. 22. emsp Except this modification, the orders impugned in these Writ Petitions do not call for any interference in our hands. The Writ Petitions therefore fail and shall accordingly stand dismissed. However, on the facts and circumstances of the case there will be no order to costs.
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1995 (3) TMI 254 - CEGAT, NEW DELHI
Manufacturer ... ... ... ... ..... to be manufacturer rsquo . These facts are not shown to exist, and the Respondent, therefore, cannot be considered to be a manufacturer. 5. emsp We are also not able to appreciate the argument that Notification No. 119/75 would not apply to this case. While the Notification speaks of manufacturing process, the term manufacture rsquo has to be construed as it has been interpreted by the Hon rsquo ble Supreme Court in various judgments. The essence of manufacture is that a new different commodity having a distinct name, character and use must emerge. The claim that for the Notification to apply to a manufacturing process, the article that emerges as a result of the process should not be distinguishable from the article which is subjected to the process is self-contradictory. If the identity of the article does not change, no manufacture would have taken place and the process in question would not be a manufacturing process. The appeal, therefore, has no merit and is dismissed.
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1995 (3) TMI 253 - CEGAT, BOMBAY
Demand - Modvat credit ... ... ... ... ..... 2 returns, when the Deptt. had seen the gate passes with such description. Hence I am of the view that merely because the item is not declared, it would amount to suppression, especially when two items of ferro alloys declared are classified under the same Tariff Heading and inputs silicon manganese is also an eligible input. Non-declaration is only on account of either the ignorance or on account of the Modvat scheme being new to them. Moreover, failure to declare this input cannot amount to suppression with an intention to evade duty, because if they had declared it, they would have got the benefit in any case, because the item is eligible for Modvat credit. Hence the extended period cannot be invoked. The demand is therefore not sustainable on the ground of time bar. 4. emsp Since no mala fide motive can be attributed, their non-declaration of the silicon manganese, which is an eligible input under modvat scheme, penalty is also not justified. I therefore allow the appeal.
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1995 (3) TMI 252 - CEGAT, NEW DELHI
Appeal - Hearing ... ... ... ... ..... ty to cause appearance before the Hon rsquo ble Bench on account of her being out of town. rdquo Ld. SDR, Shri Sachdeva, opposes the prayer. 2. emsp Considered. Admittedly the Ld. counsel was having the prior intimation of the date of hearing for today. Why she would be out of town has also not been stated. Under these circumstances, we dismiss the appeal for default of appearance under Rule 20 of the CEGAT (Procedure) Rules, 1982.
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1995 (3) TMI 251 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... de of different materials and the relevant rule for the same is interpretative rule 3(b). What has been imported is not something which has been made of a mixture of carbon with something else, but a composite article which consists of a carbon layer, zinc sheet and a lamination of paper carrying the electrolyte. The plea for applying interpretative rule 2(b) is, therefore, not acceptable. Goods have, therefore, to be classified with reference to interpretative rule 3. It is seen that the goods have not been described nor they are understood as carbon electrodes, and a more specific item for this is under heading 85.03 which covers primary cells and parts thereof. What has been imported in fact is more or less a complete cell without the jacket and this can be considered as a component part of the primary cell. 5. emsp The ratio of the above finding squarely applies to the facts of the present case and applying that ratio, we reject the appeals and uphold the impugned orders.
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1995 (3) TMI 250 - CEGAT, NEW DELHI
Modvat credit ... ... ... ... ..... as perfume rsquo classifiable under Chapter sub-heading 3303.00, Modvat credit has been taken classifying the input under sub-heading 3302.90. It observed that when the declaration described the goods as perfume rsquo and the description on the gate passes also conforms to this, the difference in tariff classification ought not debar the appellants from taking the credit. The ratio of this decision would apply to the present cases. Which pounds and bars are differently classifiable under various headings of the tariff. The tariff classification is not always in the hands of the assessee. There is no finding that the inputs on which the duty has been paid have not been used in the manufacture of the finished product. In these circumstances, I am of the view that just because the correct tariff sub-heading was not mentioned in some of the cases, is not enough ground to disallow the Modvat credit. I, therefore, confirm the order of the Collector (Appeals) and reject the appeals.
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1995 (3) TMI 249 - CEGAT, MADRAS
Confiscation ... ... ... ... ..... authorities have clearly shown that the value of the appellants rsquo goods was lower than that of similar goods contemporaneously imported. The appellants without demur accepted the value fixed by the learned lower authority. The appellants have, therefore, to take the consequences of the under valuation and consequently the order of the learned lower authority confiscating the goods under Section 111(m), therefore, has to be upheld. 9. emsp Taking into consideration the facts and circumstances of the case, we hold the redemption fine as fixed cannot be considered as high and, therefore, calls for no reduction. No case as such has also been made out for reduction of the redemption fine. Taking, however, the totality of the circumstances of the case and the pleas made, we hold that the ends of justice would be served if the penalty levied is reduced to Rs. 1,00,000 (Rs. one lakh) and we order accordingly. 10. But for the above modification the appeals are otherwise dismissed.
............
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