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Case Laws
Showing 121 to 140 of 270 Records
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1990 (2) TMI 168 - CEGAT, NEW DELHI
Appeal - Condonation of delay ... ... ... ... ..... d with affidavit of Vishwanathan the Chartered Accountant and other factors mentioned above, establishes that the appellants are deligent in taking steps for filing the appeal. In my view the appellants who are deligent in pursuing the matter should not be penalised for the circumstances which are beyond their control namely changing the office of CEGAT from Nehru Place to R.K. Puram. It is only in cases when the appellants show supine indifference to the filing of the appeal they should be penalised, I, therefore, am of the view that the delay for which the appellants are responsible should be condoned. Accordingly, it is condoned, Assent per I.J. Rao, Member (T) . 16. I had the benefit of going through the orders of the two learned Judicial Members. I feel that for the reasons recorded by my sister, Ms. Maruthi, the delay in filing the appeal should be condoned, in the interests of justice. I order accordingly. In accordance with the majority decision the delay is condoned.
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1990 (2) TMI 167 - CEGAT, NEW DELHI
Rectification of mistake ... ... ... ... ..... not find error in the order. The Tribunal after taking into consideration all the arguments had quashed the imposition of fine in lieu of confiscation but had upheld the penalty to the extent of Rs. 10.000/-. The argument that since no fine was levied and as such no penalty was leviable is an arguable matter. The Hon rsquo ble Supreme Court in the case of T.S. Balaram v. M/s Volkart Brothers AIR 1971 SC 2204 had observed that a decision on a debatable point of law is not a mistake apparent from the record. In para 8 of the aforesaid order, the Hon rsquo ble Supreme Court has observed - ldquo ...A mistake apparent from the record must be an obvious and patent mistake and not something which can be established by a long drawn process of reasoning on points on which there may conceivably be two opinions. rdquo 5. In view of the above discussion, we hold that there is no mistake apparent from the record which calls for rectification. The application for rectification is rejected.
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1990 (2) TMI 166 - CEGAT, NEW DELHI
Appeal - Question of fact ... ... ... ... ..... accessories with the same part numbers each having length of 1.2 Metres per piece. In the face of such findings, we are of the view that the stand taken by the department, that the goods are only in running length and are therefore, in the nature of raw material and that on that score the goods are ineligible for exemption under Notification 206/76, is unsustainable. The ground that the sleeves being of general purpose use will not be eligible for concession at all, is not a ground taken by the Asstt. Collector in his order and therefore, on such a question of fact, the department cannot, in law, raise such a question of fact for the first time before the Tribunal, and as such, this does not fall for consideration by the Tribunal. The cross objection filed by the respondent is supportive of the impugned order, and since the respondents are not aggrieved by any part of it, such a cross objection is mis-conceived, and is rejected as such. The appeal is disposed of accordingly.
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1990 (2) TMI 165 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... for coated fabric to fall under T.I. 22(3) the coating should be with preparations of Cellulose derivatives or of other artificial plastic materials. In this case the test report mentions that the goods are not coated fabric and therefore, there was no need to go into the composition of coating, if any. In the absence of proof of composition of the coating, imported goods cannot be held to be classified under T.I. 22(3). They would be covered by T.I. 22(i)(b) and entitled to exemption in terms of Notification 221/82-C.E., dated 11-10-1982 which grants exemption to man-made fabrics falling under sub-item (1) of Item 22 of the First Schedule to the CESA, 1944. (15) In the light of the foregoing discussion we hold that the goods fall for classification under T.I. 22(i)(b), covered by Notification 221/81 and the goods have been validly imported under cover of a valid import licence. (16) In the result we set aside the impugned order and allow the appeal with consequential relief.
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1990 (2) TMI 164 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... it existed during the relevant period. 6. The learned consultant for the respondents has raised two new points, viz., that the appellants rsquo products are converted type of paper fully exempted under Notification No. 49/87-C.E., dated 1-3-1987 and that the process of printing and cutting undertaken by the respondents did not amount to manufacture. These new points were not raised before the lower authorities and they have been raised for the first time during the hearing before us. The lower authorities did not have any occasion to examine these two points. In the circumstances, we set aside the impugned order and remand the matter to the jurisdictional Assistant Collector of Central Excise to examine these two points after considering the materials and previous decisions which they want to rely upon and also after giving reasonable opportunity of personal hearing, according to the provisions of law. For this limited purpose, the matter is remanded for de novo examination.
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1990 (2) TMI 163 - CEGAT, NEW DELHI
Markings on packages ... ... ... ... ..... moved the bags without marking they were in the process of being stitched and marking had been delayed although entries had been made in the R.G.1 register. Moreover, the exact quantity that has been mentioned in the R.G.1 register were found physically in the store room. Therefore, the allegation that this could have been a double transport has not been proved. Confiscation cannot be made when there is no adequate evidence of clandestine removal, the benefit of doubt goes to the appellants when he says that he has made an entry in the R.G.1 register after having manufactured the goods and that he failed to make the marking due to the circumstance of having gone to Delhi. The citation quoted by the learned SDR with reference to the circumstantial evidence, was available in clinching terms in this relevant and therefore, is not found clearly applicable to the present case. I, therefore, set aside the order of the Collector (Appeals) with consequential relief to the appellants.
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1990 (2) TMI 162 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... have demonstrated excellent lubricating ability in millions of flight hours in a wide range of aircraft types. This experience gives added confidence to results from bench and pump tests which also show Skydrol Type IV fluids to be excellent lubricants. rdquo 7. From the above narration, it is clear that the product has good lubricating and fire-resistant properties. But, it is equally clear that it is basically a hydraulic fluid. As the literature shows, it is a hydraulic fluid with good lubricating and fire-resistant properties. It further shows a good hydraulic fluid for modern aircrafts must have good lubricating and fire-resistant properties which the instant product has, as evidenced by the literature. But it is nevertheless a hydraulic fluid which is how it is known and traded and described by the appellants also. It will not be correct, therefore, to describe it as a lubricating preparation. 8. In the above view of the matter, the appeal has no merit and is dismissed.
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1990 (2) TMI 161 - CEGAT, NEW DELHI
... ...
... ... ..... detailed technical literature placed before her by the appellants, nor has she dealt with the affidavits of the trade as to the commercial identity of the products. She has failed to take into account the manufacturing, process. She has not referred to the test of trade parlance or to the several judgments of the High Court and Supreme Court cited by the appellants. 8. In view of the above, we are of the opinion that this is a fit case for remand. The order of the Collector (Appeals) is set aside and the matter is remanded back to her for de novo adjudication considering all the points raised and on the basis of all the materials available on record and giving detailed reasons in the order. The Collector (Appeals) should pass the order in the light of the above observations within 3 months from the date of receipt of this order. An opportunity of personal hearing should be afforded to the appellants before passing the fresh order. The appeal is thus allowed by way of remand.
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1990 (2) TMI 160 - CEGAT, NEW DELHI
... ...
... ... ..... view and remand the matter to the Assistant Collector with the direction that he should verify (i) that there were 7 distributors in all. (ii) 5 of the distributors were not alleged to be related persons. (iii) that there were regular sales to the 5 distributors. (iv) that the price at which the goods were sold to the 5 distributors was the same as the price to the two distributors alleged to be related persons. 6. If on verification these are found to be the facts, the classification list No. 2/79 should be approved allowing the discount of 10 as also the price mentioned therein. The appellants may produce necessary documents like particulars of sales and copies of some invoices before the Assistant Collector to verify the sales. If the Assistant Collector finds that the appellants rsquo goods are being sold to all the seven distributors at the same price necessary relief should be extended to them by the Assistant Collector himself. 7. The appeal is thus allowed by remand.
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1990 (2) TMI 159 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... ere is no alternative but to allow the appeal since neither the Tribunal has the power to reject the claim for refund of the excise duty on the ground of unjust enrichment nor it has any power to evolve its own scheme for the refund of the amount to the ultimate consumers as done by the Hon rsquo ble Supreme Court and the Calcutta High Court in the aforesaid cases. However, it may be observed that it is the high time when the Legislature should step in to check such a fraud on consumers and the society when such a claim is made for the refund of the excise duty which the manufacturers have already recovered from their customers. 7. Following the aforesaid decisions, we also hold that lsquo unjust enrichment rsquo cannot be a ground for denying refund of duty otherwise due under Section 11-B of the Central Excises and Salt Act, 1944. In the result, we uphold the impugned order and dismiss the Appeal No. E/3974/89-C filed by the Revenue. 8. Thus, both the appeals are dismissed.
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1990 (2) TMI 158 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... prepared storax (purified balsam) from Heading 13.01. Chapter Note 1 (h) excludes resinoids. It is for the Revenue to show that the imported substance is a resinoid. The explanatory notes of the HSN relied upon by the Revenue have no statutory force. Even so, they are a useful reference material. Under Heading No. 13.01, the notes say inter alia that the natural gums, resins, oleoresins and balsams covered by the heading may be crude, washed, purified, bleached, crushed or powdered. They exclude only processed material - such as treatment with water under pressure, treatment with mineral acids or heat-treatment. There is no evidence to show that the instant goods had been subjected to any of these or similar processes. Prepared storax, being purified balsam, is, therefore, more appropriately covered by the Heading 13.01, sub-heading 1301.90, rather than a resinoid under Heading 33.01, sub-heading 3301.30. 9. In the above view of the matter, the appeal fails and is dismissed.
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1990 (2) TMI 157 - CEGAT, NEW DELHI
Manufacture ... ... ... ... ..... product. 11. For the foregoing reasons, the reconditioning of old worn out Sugar Mill Roller does not amount to manufacture as envisaged in the Act and the Schedule and the question posed in the very beginning of the writ petition is answered in the negative. I further hold that the petitioner is not liable to pay excise duty on reconditioning of old worn out Sugar Mill Rollers. I quash the impugned orders (Annexures P-7, P-9, P-15 and P-20). There shall be no order as to costs. The earlier orders of the Tribunal and the observations of the Hon rsquo ble Supreme Court in the case of Lathia Industrial Supplies Co. Pvt. Ltd. v. Collector of Central Excise, Baroda reported in 1987 (29) E.L.T. 751 (S.C.) also fully support the appellant rsquo s case. We are of the view that no manufacturing activity is involved. 5. In view of the above discussion, we set aside the impugned order and allow the appeal. The revenue authorities are directed to give consequential effect to this order.
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1990 (2) TMI 156 - CEGAT, NEW DELHI
Appeal - Condonation of delay ... ... ... ... ..... contentions. When the matter was taken up for hearing, he expressed his inability to furnish any evidence. The application is also not rectified. The latches and negligence are quite clear in this case which do not call for any condonation. The appellants have not cared even to file a proper application for condonation of delay despite seeking time and at the time of hearing, they have sought for an order on the basis of the unsigned, unverified, unsupported application. Public Sector Undertakings are expected to act with more diligence. As rightly contended by the Departmental Representative, Shri Chakraborty, such type of applications are not entertained by the Tribunal in case of Revenue applications. We see no reason to condone the delay in this case. We reject the condonation application and as a consequence, the appeal is also dismissed as barred by limitation. 7. The operative part of this order was pronounced in the Court on 9-2-1990 at the conclusion of the hearing.
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1990 (2) TMI 155 - CEGAT, NEW DELHI
... ...
... ... ..... question of granting the 15 discount on the individual export passengers rsquo invoice price. The Tribunal had followed the judgment in the case of B.J. Singh v. Collector of Customs reported in 1990 (45) E.L.T. 474. Accordingly, we direct the revenue authorities to assess the car on the basis of the World Car Catalogue Price of the same model less 15 discount. The appellant had declared the value as per the value of the second-hand car invoice less 4 depreciation. This reflects the innocence of the appellants. There appears to be complete absence of the element of mens rea. We do not find any justification in the levy of penalty. The order imposing a penalty of Rs. 1,00,000.00 (Rs. one lakh only) is quashed. With these observations, the appeal is allowed. We further order that if the appellant had imported any accessory, the value of the same should be added for the purposes of assessable value. The revenue authorities are directed to give consequential effect to this order.
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1990 (2) TMI 154 - SUPREME COURT
Legality of the orders dated October 11, 1988 passed under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 for the detention of the appellants have been dismissed challenged
Held that:- In the grounds of detention the detaining authority has only mentioned the fact that the appellants has been remanded to judicial custody till October 13,1988. The grounds of detention do not show that the detaining authority apprehended that the further remand would not be granted by the Magistrate on October 13, 1988, and the appellants would be released from custody on October 13,1988. Nor is there any material in the grounds of detention which may lend support to such an apprehension. Also the bail applications moved by the appellants had been rejected by the Sessions Judge a few days prior to the passing of the order of detention on October 11,1988. The grounds of detention disclose that the appellants were engaged in activities which are offences punishable with imprisonment under the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985. It cannot, therefore, be said that there was a reasonable prospect of the appellants not being further remanded to custody on October 13,1988 and their being released from custody at the time when the order for preventive detention of that appellant was passed on October 11,1988. In the circumstances, we are of the view that the order for detention of the appellants cannot be sustained and must be set aside and the appellants should be released forthwith.
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1990 (2) TMI 153 - CEGAT, NEW DELHI
Stay - Appeal ... ... ... ... ..... the appellants have not filed their reply so far and the next date for submitting it is 15-2-1990. From the facts of the present appeal and the subsequent show cause notice dated 27-10-1989, we do not find that the issues involved in both the cases are identical. The proceedings are at the initial stage and the appellants have yet to file their reply to the Show Cause Notice dated 27-10-1989. No harm or injustice would be caused to them if they participate in the proceedings initiated by issuing the said Show Cause Notice dated 27-10-1989. 5. In view of the foregoing we do not think it expedient in the interest of justice to stay the further proceedings initiated on the subsequent show cause notice dated 27-10-1989. 6. In the result we reject the application in hand. However, if there is a delay in finalising the proceedings on the basis of the said show cause notice dated 27-10-1989, the appellant would be free to move an application for early hearing of the present appeal.
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1990 (2) TMI 152 - CEGAT, NEW DELHI
Repair of transformers does not amount to manufacture ... ... ... ... ..... habad High Court in the case of Roman Electricals v. Union of India and another reported in 1988/(35) E.L.T. 275, and had taken note of notification No. 118/75-CE, dated 30th April, 1975 and the duty demand could be only subject to the provisions of this notification, if found applicable. 2. Shri M.K. Sohal, the learned JDR who has appeared on behalf of the respondent leaves the decision to the Bench. 3. We have heard both the sides and have gone through the facts and circumstances of the case. We are of the view that in para No. 13 some more clarification should have been there. Para No. 13 of order No. 74/89-B1 should be read as under - ldquo 13. In view of the case law discussed above, we hold that the repair of transformers in the instant case does not amount to lsquo manufacture rsquo . The appellant is liable to pay duty on the value of spare parts manufactured, if otherwise payable and used in the old transformers and no duty is chargeable on the labour charges. rdquo
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1990 (2) TMI 151 - CEGAT, NEW DELHI
Synthetic rags cut into pieces not completely in pre-mutilated condition ... ... ... ... ..... Entry, there is no dispute. The only question in dispute that was raised that the rags were not completely mutilated and these are retrievable and are restitchable. The Tribunal went into the question and held exhaustive discussion, took into consideration all the relevant facts and also that the goods were not available and as such no further mutilation was possible, came to the conclusion that the order of the Collector was not sustainable. The appeal was allowed. We find no ground to entertain this petition. The petition is therefore dismissed. rdquo We very respectfully followed the judgment of the Hon rsquo ble Supreme Court. We hold that the importation was under AM-1985-88 Import and Export Policy. Accordingly, we set aside the fine and penalty imposed at Rs. 1, 35, 000/- and 23, 000/- respectively. We set aside the impugned order and allow the appeal. The revenue authorities are directed to give consequential effect to this order. In the result the appeal is allowed.
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1990 (2) TMI 150 - CEGAT, NEW DELHI
Medicines - Patent or Proprietary medicines ... ... ... ... ..... played by metronidazole. The fact that in respect of certain ingredients like chloramphenicol, esters or other derivatives have been specified would not mean that if, in respect of metronidazole, its ester has not been specified, the ester would, for that reason alone, be disqualified from the benefit of the notification. The question is whether the specified ingredient, namely, metronidazole, is present in the preparation. The answer is that it is present in the form of its ester, namely, benzoate. It is settled law that exemption notifications should not be construed in such a way as to defeat their very purpose. In this view of the matter, we do not find any infirmity in the impugned order. We uphold the same aid dismiss the present appeal. 6. The so-called cross-objection is not maintainable since it is not directed against any part of the impugned order and the only lsquo relief sought is that the Collector rsquo s order should be confirmed. It is dismissed accordingly.
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1990 (2) TMI 149 - CEGAT, BOMBAY
Modvat Credit - Demand for reversal of credit ... ... ... ... ..... ent of Modvat credit on Bazar Scrap of Iron and Steel. The credit was taken during the period from April, 1986 to September, 1986, for which a show cause notice demanding the duty amount was issued on 8-6-1987 by the Supdt. invoking the provisions of Rule 57-I. The matter was adjudicated by the Asstt. Collector who passed the order dated 7-6-1988 confirming the demand. 4. This Bench has been taking a consistent view that even for demanding reversal of the credit already taken under Rule 57-I, the provisions of Section 11A would stand attracted and the demand has to be raised within the period of six months. Here that has not been done. The show cause notice issued has not spelt out any suppression or any mis-representation. The notice was issued by the Supdt. and the adjudication was made by the Asstt. Collector confirming the demand beyond six months. Considering on these grounds, we find no merit in the appeal filed by the department. Therefore, the appeal stands dismissed.
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