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Case Laws
Showing 121 to 140 of 538 Records
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2000 (5) TMI 833 - CEGAT, KOLKATA
Stay/Dispensation of pre-deposit - Personal hearing ... ... ... ... ..... etter was received by the appellant on 18-9-1998 and this fact was brought to the notice of the Additional Commissioner immediately vide the appellant rsquo s dated 22-9-1998 with the request to give another date of hearing to them. The impugned order was passed much after last date of hearing during which period the Additional Commissioner could have given them another chance to represent their case before hearing the appeal. After seeing the letter placed on record we are satisfied that the Additional Commissioner has passed the impugned order in violation of principles of natural justice. Accordingly after dispensing with the pre-deposit of duty we remand the matter to the Additional Commissioner for de novo adjudication. Needless to say that before deciding the case afresh, the appellants would be given an opportunity to represent their case and they would also co-operate with the authorities. Accordingly we allow the appeal by remand. Stay petition also gets disposed of.
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2000 (5) TMI 829 - CEGAT, KOLKATA
Modvat - Packing charges ... ... ... ... ..... d by the input manufacturer inclusive of packing charges on ferro chromes. Commissioner (Appeals) has observed that as duty has been paid on the ferro chromes inclusive of packing charges, the taking of credit of the entire duty is not vitiated by error of law. We agree with the above reasoning of the Commissioner (Appeals) that Rule 57A allows taking of credit of duty paid on the inputs as amount shown on the duty paying document. As such it is not permissible to the authority to segregate the amount of duty paid by the input manufacturer on the ground that the same has been paid on the packing charges or on the input contents. It may be observed here that if there is any variation subsequently in respect of duty demand at the input manufacturers end, the provisions of Rule 57E it can be adhered to. As such we do not find any reasonable ground to interfere with the order of the authorities below in respect of this issue also. Accordingly we reject the Revenue rsquo s appeal.
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2000 (5) TMI 825 - CEGAT, KOLKATA
Valuation - Revision of price list ... ... ... ... ..... deductions on account of transportation and insurance charges. When pointed out by the Superintendent they filed a revised price list. Shri S.N.S. Mahapatra submits that the revised price list should have been made effective from 5-4-1989, the date when the original price list was filed by them and subsequently approved by the Asstt. Commissioner. We do not find any merits in the said plea of the ld. Adv. The price list was filed on 5-4-1989 and was accordingly approved by the Assistant Commissioner. Instead of challenging the approval of the price list before the higher appellate forum the appellants filed a revised price list on a subsequent date. Commissioner (Appeals) is right in holding that the subsequent price list would be effective prospectively i.e., from the date of filing and will not have retrospective effect from 5-4-1989 during which period the already filed price list stood finally approved. As such we do not find any merits in the appeal and reject the same.
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2000 (5) TMI 824 - CEGAT, KOLKATA
Redemption fine - Quantum of ... ... ... ... ..... efore the Commissioner that the goods were brought by him from Delhi for marketing in the north eastern states. But as the market was not very encouraging he booked the same back for Delhi. No evidence rebutting the above stand of the appellant has been produced by the Revenue. We also take note of the fact that the redemption fine is an option given to the other person for getting his goods released on payment of a particular amount. The impugned order was passed in the year 1995 and there is nothing to show that the respondents has not exercised this option for getting the goods released on payment of fine of Rs. 2,000/-. We do not think it to be proper to increase the redemption fine after the exercise of option by the respondents, especially in view of our findings in the preceding paragraphs that the respondent had a good case on merits and the liability to confiscation is doubted by us. As such we do not find any merits in the Revenue rsquo s appeal and reject the same.
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2000 (5) TMI 822 - CEGAT, CHENNAI
Waste and scrap ... ... ... ... ..... is that we do not have the original records to verify this aspect of the matter as to whether the correct figure is 293 MT or 326 MT. Therefore, the matter is remanded to the adjudicating authority for computing correct duty liability on this aspect of the matter. The appellants shall be given an opportunity of hearing. In so far as the penalty for non-payment of duty on this aspect is concerned, the plea of the appellants that the matter has been settled under KVS Scheme on penalty in so far as confirmed demands are concerned is required to be taken into consideration by the Commissioner in de novo consideration while computing duty on this aspect of the matter. In that view of the matter, the Revenue prayer for confirmation of duty for clearance of ferrous waste and scrap is allowed. However, the aspect pertaining to computation of duty and penalty is referred back to the original authority for de novo consideration. The appeal of the Revenue is allowed in the above terms.
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2000 (5) TMI 821 - CEGAT, KOLKATA
Redemption fine and penalty ... ... ... ... ..... he goods at higher prices during the relevant time. Accordingly he had ordered for revision of the prices and the determination of customs duty. We find that no penalty or fine has been imposed by the Commissioner inasmuch as he is not doubting the transacted value of the importer. The Revenue rsquo s grievance is that no reasons have been given by the Commissioner for not imposing penalty. As contended by Shri Biswas, the penalty was not imposed because the bona fides of the appellants were not doubted and the Commissioner has clearly observed that it is after the finalisation of the contract that the prices of the imported item bristles showed an upward trend. As such we also find that in view of the peculiar facts and circumstances of the case, though the upward revision of the assessable value has not been challenged by the appellants, there was no cause for imposition of any fine and penalty. Accordingly we uphold the impugned order and reject the Revenue rsquo s appeal.
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2000 (5) TMI 817 - CEGAT, KOLKATA
Penalty - Import of Mulberry raw silk, duty-free against Advance Licences ... ... ... ... ..... t the goods. We are also informed by Shri Kenedy that import of Mulberry raw silk was a restricted item and for which the appellants required an import licence. As such it stands established that benefit of DEEC scheme has been mis-utilised. As such we do not find any reason for interfering in the quantum of personal penalty imposed on M/s. Inter Trade. However, we agree with the ld. Advocate that imposition of separate penalties on the proprietor firm as also on the proprietor is not justifiable. It is well settled proposition of law that separate penalties cannot be imposed on the proprietor firm as well as on the proprietor. Accordingly penalty on the proprietor Shri Nirmal Kr. Saraswat is set aside. As the other portions of the order are not being challenged before us, no orders are being passed in respect of the same. 4. emsp As a result appeal filed by M/s. Inter Trade is rejected and appeal filed by Shri Nirmal Kr. Saraswat is allowed with consequential relief, if any.
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2000 (5) TMI 815 - CEGAT, NEW DELHI
Demand - Removal of excisable goods from factory ... ... ... ... ..... 1993 at 1330 hrs. and in different truck. He, further submits that the driver of the truck made a specific statement before the officers that the goods were loaded in the Tempo from the factory on 4-11-1993. He, therefore, submits that appeal be dismissed. 4. emsp Heard both sides. 5. emsp In this case the goods were recovered from the Tempo on 4-11-1993, whereas the duty paying documents produced by the appellants describe that the goods were removed on 3-11-1993 at 1740 hrs. and the Truck No. was given in the GP-I which was different from the Tempo from which the goods were recovered. The statement of the driver is clear on the point that the goods were loaded in the Tempo on 4-11-1993 from the factory. Therefore, there is no merit in the arguments of the appellants that the truck which actually took the goods from factory were broken down and the goods were transferred to the Tempo. In these circumstances, I find no infirmity in the impugned order. The appeal is dismissed.
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2000 (5) TMI 813 - CEGAT, MUMBAI
Reference to High Court - Modvat on capital goods ... ... ... ... ..... ifier used in the textile machinery to maintain required humidity for improving the quality of yarn was covered by that entry. It noted that humidifiers are machinery used in the manufacture of process. This expression in the entry in the schedule to sales tax is almost identical to the expression used in rule 57Q. Therefore, he contends that the matter already been settled by the High Court decision. 3. emsp The Larger Bench decision of the Tribunal has taken into account these interpretations of the Supreme Court and the Gujarat High Court (to whom the question will have to be referred) and it appears that the question has already been answered though the answer is not directly in the specific context. The view expressed by the Supreme Court and the Gujarat High Court as has been held in the Larger Bench decision apply to the expression used in rule 57Q. Therefore question of making a reference to the High Court now does not arise. 4. emsp Application accordingly dismissed.
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2000 (5) TMI 812 - CEGAT, MUMBAI
Demand - Limitation - Penalty ... ... ... ... ..... . In that case, there can be no basis for the charge that the true function was suppressed, and it was open to the department to enquire and ascertain the functions of these goods. There is nothing to show that this was done. 4. emsp It would then follow that there was no case for invoking the extended period in the notice dated 8-1-1991 demanding credit taken from 31-10-1986 to 8-6-1990. The demand is therefore barred by limitation and has to be set aside. 5. emsp It will then follow that penalty could not have been imposed for taking wrong credit. The Tribunal had, in fact, come to the same conclusion earlier in paragraph 7 of its order. What then remains is the liability of the appellant to penalty under Rule 226 for not entering particulars of the production of two weeks in the RG 1 register. The maximum penalty under Rule 226 is Rs. 2,000/-. The penalty will have to be reduced to this extent. 6. emsp The Tribunal rsquo s order passed on 14-1-1998 is modified accordingly.
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2000 (5) TMI 808 - CEGAT, MUMBAI
Demand - Limitation - Suppression ... ... ... ... ..... on the Supreme Court judgment (paragraph 3) in the case of CCE v. Oil and Natural Gas Commission 1998 (103) E.L.T. 3 (S.C.) would not help him. The court has confirmed in that paragraph with regard to the words in the show cause notice in which there were allegations of mis-statement and suppression of facts with a deliberate and wilful intent to evade payment of duty without specific inclusion of the proviso to Sec. 11A(1) of the Act, the Tribunal rsquo s view that in view of these words, the show cause notice was issued under Sec. 11A(1) of the Act. In the case before us, as we have seen, proviso to Sec. 11A(1) was specifically invoked. It is not possible for us to agree that there was an intention, imperfectly expressed, to invoke the extended period on the grounds of contravention of rules. 7. emsp We are, therefore, of the view that the notice could not invoke the extended period of limitation. The appeal is accordingly allowed. Consequential relief, if permitted by law.
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2000 (5) TMI 806 - CEGAT, KOLKATA
SSI Exemption - Retrospective effect ... ... ... ... ..... . withdrawal of certain conditions from an earlier notification cannot by any stretch of imagination be called clarificatory. We also note condition introduced w.e.f. 1-4-1994 restricting DGTD registered units from availing the benefit of Notification No. 1/93 was issued simultaneously to the cessation of DGTD. As such it can be presumed that such a negative condition was introduced in the notification by the Government being fully aware of the fact that DGTD is going to be abolished w.e.f. 1-4-1994. We cannot challenge the wisdom of the legislation. Even while issuing amending Notification No. 125/94, dated 31-8-1994 no clarifications or indications have been given that the same would be applicable w.e.f. 1-4-1994. As such we find ourselves unable to hold that the said Notification dated 31-8-1994 modifying the conditions for availability of Notification No. 1/93 would be effective retrospectively from 1-4-1994. Accordingly we reject the appeal and uphold the impugned order.
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2000 (5) TMI 804 - CEGAT, CALCUTTA
... ...
... ... ..... ctory. In view of clear instructions, he prays for allowing the stay petition unconditionally and also the appeal. 3. emsp Shri J.M. Kennedy, learned JDR reiterated the reasonings adopted by the Commissioner and submits that admittedly the provisions of Notification in question has been contravened inasmuch as the credit has been taken in RG-23A Part II after expiry period of six months. 4. emsp We have heard the submissions made from both sides and find a lot of force in the submission of the learned Advocate. The position having been clarified by the Board itself the Revenue cannot be heard arguing against the same as laid down by the Supreme Court in a number of decisions. Accordingly we find it a fit case to allow the stay petition unconditionally. 5. emsp As only a short point is involved which stands concluded by the Board in its Circular referred above we take up the appeal itself and set aside the impugned order for the reasons as discussed in the preceding paragraph.
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2000 (5) TMI 803 - CEGAT, NEW DELHI
... ...
... ... ..... ping bill since they were lying with DGFT. It was also submitted that copy of the original AR4 was placed before the Authorities below but there was no mention of original copy of AR4 in the respective orders. But the counsel drew my attention to the reply filed to the show cause notice in which it was clearly mentioned that original has been filed. In these circumstances, I am of the view that the matter will have to go back for reconsideration. Accordingly, I am remanding the matter to the concerned Assistant Commissioner to examine the issue afresh. The party may make use of this opportunity and substantiate their claim during re-adjudication proceedings by adducing evidence why he could not produce copy of AR4 and other evidence in support of their contention. The Assistant Commissioner is directed to consider all these points and to pass an order in accordance with law after providing an opportunity of hearing. 6. emsp Thus, this appeal is disposed of in the above terms.
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2000 (5) TMI 801 - CEGAT, KOLKATA
Appeal - Restoration of appeal ... ... ... ... ..... to the provisions of Section 129 of the Customs Act, 1962. In para 7 of the said judgment, a reference has been made to the Hon rsquo ble Supreme Court for decision in the case of Navin Chandra Chhotelal v. C.B.E. and C. and Others reported in 1981 E.L.T. 679 (S.C.) wherein while interpreting the provisions of Section 129 of the Customs Act, it has been held that the Appellate Authority has got discretion either to waive the entire amount or reduce the quantum of such duty and penalty and it is obligatory on the part of the appellants to deposit such duty or penalty pending the appeal failing which, the Appellate Authority is fully competent to reject the Appeal for non-compliance with the provisions of said Section. 5. emsp Following the ratio of the above decision of the Hon rsquo ble Supreme Court as followed in 2000 (36) RLT 851 (CEGAT), we do not find justification for allowing the Miscellaneous Applications for restoration of appeals. The same are accordingly rejected.
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2000 (5) TMI 800 - CEGAT,MUMBAI
Import - Port Trust - Cargo, Custody of ... ... ... ... ..... tion Ltd v. CC, Bombay - 1984 (18) E.L.T. 358 and Taj Mahal Hotel v. CC, Bombay - 1995 (80) E.L.T. 588. 7. emsp The Departmental Representative points out that the survey issued by the Kandla Port Trust says that the goods were stored in the open plot at the ldquo risk and responsibility rdquo of the importer. On it being asked the Advocate for the respondent emphatically states that the plot in question was part of the Port Trust docks and that the importer was not asked to account any risk and responsibility for storage of its goods on that plot. The statement in the letter appears to us to be an attempt of the Port Trust to evading responsibilities in the matter. Having been appointed custodian of the imported cargo under Section 45 of the Act it is for the Port Trust to ensure safe custody of the cargo. We do not see how any risk and responsibility on the part of the importer goods comes into picture. 8. emsp We therefore see no reason to interfere and dismiss the appeal.
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2000 (5) TMI 799 - CEGAT, CALCUTTA
Order - Natural justice ... ... ... ... ..... als). In spite of that, Commissioner has dismissed the appeal without giving any personal hearing to the appellants. This, he submits, is in grave violation of principle of natural justice. 4. emsp Shri R.K. Roy, ld. JDR appears for the Revenue. 5. emsp In view of what has stated by the ld. Advocate, we find that the impugned order suffers from violation of principle of natural justice. It has been stressed by many judicial as well as quasi-judicial authorities that before passing the stay order, applicants are required to be given a personal hearing. As we find from records that no hearing was granted to the appellants, we find the impugned order bad in law. Accordingly, we set aside the same and remand the matter to the Commissioner (Appeals) for fresh decision on the stay petition. Needless to say that before passing the order on stay petition, he would grant a personal hearing to the appellants. Appeal is thus allowed by way of remand. Stay petition also gets disposed of.
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2000 (5) TMI 768 - CEGAT, CHENNAI
Appeal - Limitation ... ... ... ... ..... een laid down and as the delay was marginal and reasons were found to be sufficient, the delay was condoned. In the case of Harsha Tractor v. Collector as in 1989 (41) E.L.T. 8 (S.C.) the delay was condoned because the party had been given wrong advice by the Legal Adviser and such reason was found to be acceptable for condoning the delay. Likewise, in the said cited case, sufficient ground was noticed. While in the present case, the Commissioner merely submits that there was delay in putting-up the file by the dealing section and due to absence of concerned officer without explaining as to who the Officer was and how such movement has resulted in delay. Such reasons have not been accepted by the Tribunal in the cited judgments in terms of Apex Court rendered in UOI v. Tata Yodogawa Ltd. (supra). Therefore, applying the ratio of the two citations referred to by ld. Counsel, the application for condonation is rejected. Hence, the appeal along with stay application is rejected.
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2000 (5) TMI 767 - CEGAT, KOLKATA
Modvat - Duty paying documents ... ... ... ... ..... cope for doubt about the impugned document. He, therefore, argued that the orders passed by the lower authorities are patently wrong which deserve to be set aside. 5. emsp Shri J.M. Kennedy, ld. JDR reiterates the reasoning of the order impugned. 6. emsp I have heard both the sides and perused the Challan No. 038908 dated 27-2-1997 (duplicate copy for the transport). In this challan I find that all the necessary details as required under 52A are furnished. As per the explanation to Rule 52A ibid, the document in question shall be construed as a valid invoice for the purpose of Modvat credit because it is explicitly made clear in the said Explanation that ldquo Challan rdquo falls within the abmit of the term ldquo invoice rdquo . Any other view in this regard is patently wrong and devoid of reason or logic. In this view of the matter, the impugned order deserves to be set aside. Ordered accordingly. Consequently, the appeal is allowed and the stay petition stands disposed of.
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2000 (5) TMI 766 - CEGAT, NEW DELHI
Demand - Limitation - Confiscation of the medical equipment - Penalty ... ... ... ... ..... ce Section 111(o) makes contravention of the provisions of the Act liable to confiscation which will include also the conditions under an exemption Notification issued under Section 25 of the Act, we do not find that there is scope for contending that liability under Section 111(o) and for penalty under Section 112 are not attracted in the instant case. 11. emsp As regards penalty under Section 114A and the interest demanded under Section 28AB, we find that the said provisions were enacted subsequent to the imports and therefore the said provisions will not be applicable in the facts and circumstances of the case. The penalty under Section 114A and interest demanded under Section 28AB cannot therefore sustain. 12. emsp Since we have held that the show cause notice is hit by limitation as also beyond the jurisdiction of the authority who issued the notice, the impugned order also cannot be sustained and has to be set aside. 13. emsp Appeal allowed and impugned order set aside.
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