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Showing 101 to 120 of 266 Records
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1993 (8) TMI 176 - CEGAT, NEW DELHI
... ... ... ... ..... odity from lsquo Polyester Fibre rsquo . The above argument though highly ingenuous and prima facie plausible has no legs to stand upon since the extract relied upon by the learned consultant is itself entitled lsquo Polyester Fibres rsquo and further the classification of Polyester fibre into lsquo Four Forms of Polyester rsquo itself says that lsquo Polyester Fibre rsquo is produced and marked in four basic forms and one of these in the basic form is lsquo staple rsquo which is defined as ldquo fibre rdquo . (Emphasis supplied) ldquo In short, controlled length cut from continuous filament rdquo . The Notification extends to lsquo Articles other than Polyester Fibre rsquo . It is well settled that the terms used in the Tariff have to be given their normal trade parlance meaning. Obviously Staple fibre (made of Polyester) is a form of Polyester fibre. There is no warrant to give any restricted meaning to the term Polyester fibre. The appeal is without merits and is rejected.
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1993 (8) TMI 175 - CEGAT, BOMBAY
Reference to High Court ... ... ... ... ..... nvoking larger period of limitation for alleged fraud or suppression and consequent penal liability, to the highest executive officer of the Department in the field. This is obviously with a view to preventing frivolous allegations against bona fide assessees, being made by all and sundry at the lower level. Is it not expected of this Cell under Member (Judicial and Legal) to scrutinise such orders from this point of view as well, so as to give timely directions to the field officers and departmental representatives for halting such unreasonable litigations carried on by the field officers? 5. These are some of the questions, which we have asked ourselves and we find no answer in the present scheme. We would therefore deem it proper to direct the Registry to send a copy of this order to the Member (Judicial and Legal) in the Central Board of Excise and Customs, New Delhi with the fond hope that answers to these questions could be found, if not now, but at least for posterity.
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1993 (8) TMI 174 - CEGAT, NEW DELHI
Appeal Additional evidence ... ... ... ... ..... ficient time and was equipped with huge machinery to investigate the matter in detail during the adjudicating proceedings. The general principle is that the Appellate Court should not travel outside the record of the lower court and cannot take any evidence in the appeal. Rule 23 of CEGAT (Procedure) Rules is an exception and that exception should be exercised sparely and judiciously. The Supreme Court held in State of U.P. v. M.L. Shrivasthava (AIR 1957 SC 912) that additional evidence should not be permitted to be produced to enable a party to fill up a lacuna, especially the party could have produced such evidence before the lower authority but failed to do so without sufficient cause for the same and same view was affirmed in the case of Jain Exports Pvt. Ltd. 1993 (66) E.L.T. 537 (SC) . 5. In view of the above observations and concurring with the arguments advanced by the appellant rsquo s Counsel, the miscellaneous application filed by the department is hereby rejected.
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1993 (8) TMI 173 - CEGAT, MADRAS
Stay/Dispensation of pre-deposit ... ... ... ... ..... amount of over Rs. 2 crores, we hold that the ends of justice would be met in case the applicants rsquo company is called upon to pre-deposit a sum of Rs. 10,00,000 (Rs. Ten lakhs) towards the duty subject to which pre-deposit of the balance of duty and penalty shall stand dispensed with and recovery of the same pending appeal is stayed. We order accordingly. Taking into account the facts and circumstances of the case, we also order that on the applicants Shri S.V. Ratnam and Shri Sunkavalli Sithapati pre-depositing an amount of Rs. 25,000 (Rs. Twenty-five thousand) and Rs. 10,000 (Rs. Ten thousand) respectively towards penalty, the pre-deposit of balance of penalty shall stand dispensed with and recovery of the same stayed pending appeals. The pre-deposits should be made on or before 29th October, 1993 and compliance reported by that date failing which appropriate orders under the law shall be passed. The matter will be called on 29th October, 1993 for reporting compliance.
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1993 (8) TMI 172 - CEGAT, NEW DELHI
Stay/Dispensation of pre-deposit ... ... ... ... ..... residential premises or otherwise and Rs. 1 lakh were in any case recovered from his house premise. Therefore, in my opinion, while there is no strong prima facie case in favour of the applicant, the balance of convenience is in his favour. 30. Looking to the totality of the facts and circumstances and noting the above aspects in particular, I consider that it would be more appropriate to waive the pre-deposit of the penalty amount in question. I, therefore agree with the conclusion of Hon rsquo ble Member (Judicial) in waiving the pre-deposit of the amount for the purposes of hearing the appeal. It is note worthy that the Hon rsquo ble Member (Judicial) has specifically mentioned that the ldquo requirement of the pre-deposit is dispensed with for hearing the appeal rdquo and has not passed any order regarding stay of recovery. Sd/- (S.K. Bhatnagar) Vice President 30-7-1993 31. In accordance with the majority decision the pre-deposit of penalty in this case is dispensed with.
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1993 (8) TMI 171 - CEGAT, MADRAS
... ... ... ... ..... be falling under the nomenclature Designer rsquo s Kit. The authorities should investigate as to how the importers were able to lull the appraisers and Assistant Collectors into believing that what they had imported could be taken to be covered by the item Designer rsquo s Kits. The import of Designer rsquo s Kits under the Policy has been allowed to take care of the export needs of the specific industry and there has been a gross misuse of the licences and it is not understandable how the goods of the type imported could have been allowed to be imported against the licences when the description of the licences clearly envisages the import of the goods in kit rsquo s form required for the use of the industry dealing with the goods exported. Precious foreign exchange which was required to be utilised for the export efforts has been mis-utilised for importing apparently non-essential items from the point of view of the economic requirements of the country at the relevant time.
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1993 (8) TMI 170 - CEGAT, NEW DELHI
Removal of goods ... ... ... ... ..... the Section 4 of the Provisional Collection of Taxes Act makes budget provisions applicable from the mid-night following the budget day in both eventualities inasmuch as its clause 1 says that ldquo a declared provision shall have the force of law immediately on the expiry of the day on which the Bill containing it is introduced rdquo and these provisions are applicable in all cases where ldquo it is expedient to amend the law providing for the immediate effect for a limited period of provisions in bills relating to the imposition or increase of duties of customs or excise rdquo . 7. In case of Indian Explosives, the Tribunal has tried to read in harmony the provisions of the Rule 224 and those of the Provisional Collection of Taxes Act and the ratio will apply to the cases of new imposts as well as those of increase of duties of customs or excise. Hence respectfully following the ratio of the above order of the Tribunal, we set aside the impugned order and accept the appeal.
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1993 (8) TMI 169 - CEGAT, NEW DELHI
Exemption to SSI Units ... ... ... ... ..... der to afford their buyers the opportunity of availing of higher credit of duty, remains in the realm of conjecture in the absence of any finding in the impugned orders that any buyer actually availed of higher credit as per Rule 57B read with para 5 of Notification 175/86 and, therefore, the allegation remains unsubstantiated. In view of our decision on the merits of the matters, we see no need to record any finding on limitation in the above appeals of M/s. Rotex Manufacturers and Engg. (Guj.) P. Ltd. 6. In the light of the above discussion we hold that the appellants are eligible to the benefit of exemption in terms of Clause a(ii) of Notification 175/86 dated 1-3-1986. As a result we set aside the duty demand and penalty in all the cases and allow the appeals with consequential relief if any due to the appellants, and respondents in the case of CCE, Pune v. M/s. Unique Enterprises (Appeal No. E/176/92) and the cross objection (No. E/Cross/438/92-B1 in E/176/92-B1) abates.
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1993 (8) TMI 168 - BOMBAY HIGH COURT
Bank Guarantee - Encashment ... ... ... ... ..... w of the earlier orders passed by this Court till Supreme Court issues clarification. 4. Accordingly, Motion is made absolute and Prothonotary is directed to forthwith encash the Bank guarantee and pay the amount of duty due to the Government of India. The Prothonotary is directed to withhold the amount of interest accrued on the fixed deposit receipt or the Bank guarantees, as the case may be till the clarification is secured by the Government of India from Supreme Court. The Prothonotary should carry out this order not only in the present matter, but also in respect of all matters arising out of the judgment of Supreme Court and in which payment is to be made to Union of India. The Prothonotary is also directed to make the payment out of the cash deposit, if any, made by the processors. Dr. Chandrachud at this stage applies for stay of operation of this order. Prayer refused. The Prothonotary shall pay the amount forthwith. The petitioners shall pay the costs of the Motion.
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1993 (8) TMI 167 - CEGAT, NEW DELHI
Classification of goods ... ... ... ... ..... sions of Section 11A of CESA envisage an implied power to review the classification for the earlier period and to demand duty short-levied for the past six months or five years as the case may be vide the decision in Bawa Potteries case - reported in 1978 (2) E.L.T. (J 168) (Del.). 4. In terms of Supreme Court decision in the case of Padmini Products, 1989 (43) E.L.T. 195 (S.C.) where there was a scope for doubt regarding classification in view of Trade notices issued, the demand had to be restricted to past six months prior to the date of SCN. The present case also is squarely covered by the above decision, since in this case there was a Tariff Advice in favour of the classification claimed by the assessee which was subsequently changed, and the demand is restricted to six months prior to Show Cause Notice. 5. On this view of the matter the request for grant of refund to the buyer of the assessee is not required to be considered. The appeal is without merits and is rejected.
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1993 (8) TMI 166 - CEGAT, CALCUTTA
Valuation on the basis of invoice price in cases of frequent fluctations of market price of goods
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1993 (8) TMI 165 - CEGAT, NEW DELHI
Classification list when filed ... ... ... ... ..... able to be set aside on this ground alone. 16. Similarly since the Collector (Appeals) while passing the impugned order had neither noticed these gross irregularities on the part of the Assistant Collector nor taken all the submissions of the appellant into account and has not recorded any finding on the aspect of time bar and other relevant aspects, the impugned order-in-appeal, dated 31-1-1989 is also liable to be set aside on this ground alone. 17. The Assistant Collector rsquo s order does not refer to any catalogue or technical literature. The Order of Collector (Appeals) does refer to some catalogue produced at the time of hearing but has not quoted anything therefrom. The appellants have also not produced the manufacturers rsquo catalogue or any technical literature before us to enable us to record any specific finding on the merits of the case. As both the impugned orders suffer from serious infirmities, hence they are set aside as already announced in the open court.
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1993 (8) TMI 164 - CEGAT, NEW DELHI
Duty paid character of goods ... ... ... ... ..... cture of the subject goods shall be presumed to be duty-paid. 6. Considered. 7. From the record, we find that it is an admitted position that the appellants are the manufacturer of plywood and used the Urea, purchased by them from the open market, in the manufacture of resin, that is to say, for industrial use. The authorities below have confirmed the demand on the ground that the appellants failed to prove that the Urea so purchased by them from the open market was duty-paid. This reasoning of the authorities below runs counter to the law laid down by the Courts, as aforesaid. Thus, following the ratio of the decision rendered in the case of Calcutta Paper Mills Manufacturers Co. v. Customs, Excise and Gold (Control) Appellate Tribunal, supra, and M/s. Vapson Products and Another v. Union of India and Others, supra, we set aside the impugned Orders passed by the authorities below and allow all the appeals with consequential relief to the appellants, if any, according to law.
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1993 (8) TMI 163 - CEGAT, NEW DELHI
Remand when relevant evidence produced before Tribunal for the first time ... ... ... ... ..... in the subsequent decisions with reference to the new tariff either of Sulphur Sludge in the case of South India Viscose Ltd. v. Collector of Central Excise - 1992 (57) E.L.T. 142 or of Carbide Sludge in the case of Collector of Central Excise, Hyderabad v. M/s. Indian Oxygen Ltd., as per its order 387/91-C, dated 26-4-1991, the Tribunal has held that it is only a waste and not excisable goods without going into the issue of marketability. With respect, that too in the facts and circumstances, we are of the view that this issue requires thorough examination. Since detailed examination is required with reference to name, character, use of the product and also on marketability, we are remanding the matter to the Collector (Appeals) to examine the issue afresh in the light of above observations. The Collector is directed to pass an appropriate order in accordance with law after providing an opportunity to the respondents. 5. Thus, these two appeals are allowed by way of remand.
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1993 (8) TMI 162 - CEGAT, BOMBAY
Manufacturer - Job work ... ... ... ... ..... id by them to M/s. Mac Electronics and they are not party to the fraud of illegal removal. Moreover, in the context of the Apex Court decisions in the cases of Kerala Electricity Board and Ujagar Prints, so long as it is established that the job worker is not a dummy and when the contract is for job work to be done by an independent unit, that job worker should be considered to be a manufacturer. In this case, there is no whisper of allegation that M/s. Mac Electronics are a dummy unit or a division of M/s. Telerad. The Collector rsquo s conclusion that M/s. Mac Electronics are a hired labourer cannot be accepted in view of the Apex Court decisions. I, therefore, allow the appeal and set aside the order of demand on M/s. Telerad treating them as a manufacturer and also set aside the penalty imposed on them. 6. As regards the goods ordered confiscation and kept in their safe custody, the Department is at liberty to take over the goods and deal with them in accordance with law.
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1993 (8) TMI 161 - CEGAT, CALCUTTA
Seized goods - Return of ... ... ... ... ..... ket value of the goods. In this particular case, instead of contract price the equivalent price available is the price which was ascertained by the department itself at the time of seizure of the goods. On the same analogy of the principles laid down by their Lordships of the Supreme Court in the above-said decision, we hold that in the facts and circumstances of this case, the market price is to be determined as the price of the goods in question which was determined by the department at the time of seizure itself, which is a sum of Rs. 1,66,170. Relying on the above-said decision, we hold that in the facts and circumstances of this case, it can safely be accepted that the value determined by the authority itself represents the market value of the goods on the date of the order which comes to about Rs. 90,000/-. Accordingly, we order that the department shall pay this value of Rs. 90,000/- to the appellant within a period of two months from the date of receipt of this order.
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1993 (8) TMI 160 - CEGAT, NEW DELHI
S.S.I. Exemption ... ... ... ... ..... rchandise Marks Rules is that the class of goods described in S. No. 11 are totally different. The ld. Counsel has not shown as to how mixer/grinder would fall in any of the items specified in S. No. 11 extracted above. The item mixer/grinder would certainly be an electrical household equipment. The other items shown alongwith like cooking, refrigerating, drying, geysers etc. would all be in like-nature goods. M/s. MAL had been manufacturing mixer/grinder and they had been using this brand name lsquo MTTASO rsquo in the same style and fashion. It follows that they had also a clear understanding that the brand name lsquo MITASO rsquo registered by them was also for their goods mixer/grinder. Therefore, there is no merit in the pleas raised by the ld. Senior Counsel and it requires to be rejected. The ratio of the rulings in M/s. Thio Pharma (ibid) would clearly apply to the facts and circumstances of this case. In the result, the impugned order is set aside and appeal allowed.
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1993 (8) TMI 159 - CEGAT, MADRAS
Exemption to S.S.I. Units ... ... ... ... ..... ip concern by 4 of the partners of the appellants rsquo firm about the time when the appellants were about to exceed the exemption limit. It does not appeal to reason that a partnership concern would carve out another partnership to set up a rival to their products. In the background of the facts of this case we hold that in the absence of any evidence that any goods had been arranged to be manufactured by M/s. Universal Conveyors on their own account and the activity regarding the same was carried out at a place different from the appellants rsquo unit, the learned lower authority rsquo s order holding the appellants as the manufacturer of the goods in question is maintainable in law and the duty has been rightly demanded from them. Taking into consideration the totality of the facts and circumstances of the case and the quantum of duty involved, we hold that the ends of justice would be served if the penalty is reduced to Rs. 10,000 (Rs. Ten thousand) and order accordingly.
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1993 (8) TMI 158 - CEGAT, BOMBAY
Refund - Duty paid under protest ... ... ... ... ..... cannot take away the benefit of the letter of protest filed with the department as early as on 2-11-1985. The letter of protest is a mandatory requirement and the endorsement on the various documents is only of a procedural nature. This is the view we have taken, following the ratio of the decision of the Bombay High Court in the case of M/s. Roche Products -1991 (51) E.L.T. 238. Hence the view taken by the Collector (Appeals) does not call for interference. Moreover, the view taken by the Collector (Appeals) holding the assessment to be provisional, till the approval of the classification list, also finds support from the decision of the Apex court in the case of Samrat International (P) Ltd. v. Collector - 1992 (58) E.L.T. 561 (S.C.). Hence we dismiss the appeal. As regards Shri Mondal rsquo s plea of applying the amended Section 11B, the issue now brought forth is not the issue covered by the appeal. It is for the authorities to deal with the claim in accordance with law.
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1993 (8) TMI 157 - BOMBAY HIGH COURT
Demurrage charges ... ... ... ... ..... t. The present case is not like a Banker rsquo s lien where a lien is vested in the Bank with regard to various accounts of the judgment debtor. The present case concerns a statutory refund being granted under Section 53 of the Act and the only limited question is whether the mode of recovery impugned in the present case has been sanctioned by the Legislature under the said Act, 1963. For the reasons mentioned hereinabove, the B.P.T. has no such power under the Act to make unilateral adjustments. 7. In the circumstances, the impugned Order dated 13th March, 1989 (Ex-C to the Petition) is set aside. The petitioner would be entitled to refund amount of Rs. 48,016.82 which have been sanctioned by the Chairman as far back as 2nd February, 1989. The petitioner would be entitled to the said amount of Rs. 48/016.82 with interest at the rate of 12 per annum from 2nd February, 1989 till payment. 8. Accordingly, Rule is made absolute with no order as to costs. Certified copy expedited.
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