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Case Laws
Showing 161 to 180 of 365 Records
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1995 (2) TMI 223 - ASSAM HIGH COURT
Price list - Modification of ... ... ... ... ..... eater stimuli to human ingenuity than the prospect of avoiding fiscal liability. Experience shows that under this stimulus human ingenuity outstretches parliamentary prescience. rdquo Avoidance of tax is lawful, evasion is illegal, one has a right to breathe through its tax loopholes.To close the loopholes, the legislature must put its foot, the court is not competent to make an exercise for it. The duty of the court is to find out whether within existing structure it is avoidance or evasion. In case of evasion only the court gets the jurisdiction to interfere. It is legal axiom rsquo that no tax can be sought to be realised except upon clear and distinct legal authority, established by them who seek to impose the burden. It has been designated as a great rule rsquo in the construction of fiscal law, that they are not to be extended by any laboured construction, one must adhere to the strict rule of interpretation. 24. The Civil Rules are allowed. I make no order as to costs.
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1995 (2) TMI 222 - CEGAT, MADRAS
Stay of Tribunal’s order during pendency of Reference before High Court ... ... ... ... ..... ion on 24-11-1994 by the High Court but also the stay was further directed to continue till the Tribunal passed final orders on the stay petition. Therefore, when the goods have been preserved by the Department for more than 7 years, in the above circumstances, by reason of the stay order of the High Court, and when the goods are still available with the Department and when the Reference application is pending before High Court it is but proper, the Department should be directed not to dispose of the goods pending disposal of the reference application by the High Court as otherwise, in the event of the reference applicant succeeding in the High Court he would suffer loss and injury if the goods are sold in the meanwhile. Therefore, in the above circumstances, when the goods are not perishable and the same are available with the Department, we direct the Department not to dispose of the goods pending disposal of the Reference application by the High Court. Ordered accordingly.
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1995 (2) TMI 221 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... erused the records. On going through the facts, we find that the rubber roller for rice mill is made by both metal and rubber. It is not in dispute that the product is being manufactured basing on metal net core on which rubber of the desired specification is wrapped layer by layer. It cannot be said to be piping and tubing of unhardened vulcanised rubber falling under 16A(3) of the Central Excise Tariff as it was rightly analysed by the authorities below. The exemption Notification 197/67-C.E., dated 29-8-1967 is for piping and tubing of unhardened vulcanised rubber falling sub-item(3) of Tariff Item 16A. Since the item in question does not fall under Tariff Item 16A(3) the exemption in terms of Notification No. 197/67 cannot be extended to the item. With this view we uphold the imp- ugned order and accordingly the appeal filed by the party is hereby dismissed. Operative portion of this order was already pronounced in the open Court on conclusion of the hearing on 17-2-1995.
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1995 (2) TMI 220 - CEGAT, BOMBAY
Classification ... ... ... ... ..... it in respect of the inputs declared as per the Notification issued under Rule 57A or the inputs have not gone into the manufacture of these undeclared final products, the objection is valid. We allow the liberty to the department to verify on this aspect. If it is otherwise, merely because of nondeclaration of the final products, Modvat credit is denied, they have to pay the duty on these final products from PLA, in which case, the credit gets restored in RG-23A to that extent for utilisation towards duty payable on the declared final product, in whose manufacture they are used. Hence it could only become an exercise of debit in PLA with the simultaneous credit in RG 23A, not having any revenue effect. In that view, the objection can be technically valid but cannot extinguish the credit earned on declared input, which can be utilised for duty payment towards declared final products. 5. The appeal is disposed of in the above terms, with consequential relief, where called for.
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1995 (2) TMI 219 - CEGAT, NEW DELHI
... ... ... ... ..... of Customs, Bombay in Final Order No. 289/89-B2, dated 4-9-1989. We also find that similar decision has been taken in another case - Final Order No. 202 to 210/89-B2, dated 20-7-1989 wherein also the Tribunal had found that it will be reasonable to remand the case to the original authority in similar circumstances. We also find that in another decision of the Tribunal reported in 1990 (45) E.L.T. 580 (Tri.) 1990 (29) ECR 414 in the case of Kirloskar Brothers v. Collector of Customs, Bombay, it has been held that the exemption under the same notification cannot be denied merely because of the omission to execute a Bond by the importer. Accordingly, all these appeals are remanded to the jurisdictional Assistant Collector of Customs, Calcutta Customs House for examining the claim of the appellants herein under these two notifications afresh in de novo proceedings with reference to the documents they have since produced in accordance with law and after hearing them in the matter.
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1995 (2) TMI 218 - CEGAT, NEW DELHI
Modvat Credit - Higher notional credit not immediately taken on receipt of goods ... ... ... ... ..... lector (Appeals) has not cited any authority under which the credit cannot be taken subsequently. The appellants rely on the case of CCE v. Mysore Lac and Paint Works Ltd. - reported in 1991 (52) E.L.T. 590 where Tribunal held that Modvat credit once taken does not disentitle an assessee to take additional credit if later it is found that more credit was admissible. 5. emsp The poisition in law is that under Rule 57A appellants are entitled to take credit of the amount of duty actually paid, or credit of duty at a higher rate if admissible in their case under Rule 57B of Central Excise Rules read with Notification 175/86. That appellants are eligible to take notional higher credit is not disputed. A mistake merely in not indicating correct amount of duty initially in the accounts maintained for that purpose cannot have the effect of washing away rights and benefits conferred under substantive provisions of law. 6. I therefore set aside the impugned Order and allow the appeal.
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1995 (2) TMI 217 - CEGAT, MADRAS
Modvat credit - Intermediate product ... ... ... ... ..... d to be eligible for MODVAT credit merely because it has suffered duty. It would be seen that there are a number of products which have suffered duty and which are not notified for the purpose of MODVAT scheme. We are here only to interpret the rules governing the MODVAT scheme as they are and it is out of our bounds to question the legislative wisdom. Therefore, on consideration of the evidence on record and having regard to the admitted fact that the intermediate product in question namely Nylon Filament Yarn which is admittedly not a specified or notified input under the relevant notification issued under Rule 57A and also keeping in mind the wording of Rule 57D(2) particularly with reference to the proviso and conditions enumerated thereunder, we hold that the appellant would not be eligible to take MODVAT Credit on the duty suffered by the intermediate product namely Nylon Filament Yarn. In this view of the matter and for the reasons stated above the appeal is dismissed.
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1995 (2) TMI 216 - CEGAT, NEW DELHI
... ... ... ... ..... nding before the Tribunal and as such he pleaded for out of turn hearing. Shri R.K. Kapoor, ld. SDR for the respondent does not object to the appellants rsquo prayer for out of turn hearing in view of the facts stated by the learned Consultant. We have heard both sides and have gone through the facts and circumstances of the case. Keeping in view the fact that the appellant company rsquo s Directors are facing criminal prosecution, we are of the view that it is a fit case where out of turn hearing should be granted. We order accordingly. The matter will be heard on merits. The matter is fixed for 2nd March, 1995.
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1995 (2) TMI 215 - CEGAT, NEW DELHI
Modvat Credit - Strictures against the Department ... ... ... ... ..... eal with of which the present one is an example may be an extreme one at that, with total lack of perception of the spirit as well as the letter of the law. The narration in the order-in-original that the appellants had contravened Rule 57G(2) as they had taken Modvat Credit on inputs which were not accompanied by the duty paying documents issued/endorsed in their favour is a totally unacceptable proposition. While mistakes and misinterpretations, real or alleged, may be there in the original or the appellate decisions which after all is the raison d rsquo etre for higher appellate institutions, one would expect that the decisions are not totally unreasonable and off the mark as in the present case. Such decisions only lead to avoidable increase of appeal work without any benefit to the department. A copy of this order may be sent to the Principal Collector, New Delhi and Member, Central Excise, Central Board of Excise and Customs for their information and appropriate action.
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1995 (2) TMI 214 - CEGAT, BOMBAY
Appeal - Limitation ... ... ... ... ..... lected in the Madurai Collectorate Trade Notice indicating that the Government of India is contemplating issue of Notification under Section 11C of the CESA, 1944, for the aforesaid period, this Bench has granted stay and waiver of pre-deposit of duty. Hence, there was no wanton negligence on their part to delay the filing of the appeal, which is only on account of the ailment of the proprietress. 5. emsp The reasons furnished are justifiable particularly when the sole proprietress was not well during the period of receipt of the impugned order-in-original. The delay therefore should not be held against her for dismissing the appeal as time barred. We therefore set aside the order and remand the case back to the Collector (Appeals) for considering the appeal of the appellants on merits and thereafter pass orders in accordance with law. 6 emsp Appeal is allowed by way of remand. 7. emsp Since the appeal itself is disposed of, the stay appliction is also treated as disposed of.
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1995 (2) TMI 213 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... emphar Drugs and Liniments - 1989 (40) E.L.T. 276 (S.C.) and Padmini Products v. C.C.E., 1989 (43) E.L.T. 195 (S.C.) 27. emsp Taking all the relevant considerations into account, we order classification of the excisable goods manufactured by Ravi Industries under sub-heading No. 8535.00 or sub-heading No. 8536.90 depending upon the fact whether the apparatus is for voltage exceeding 1000 volts, or Voltage not exceeding 1000 volts. The goods manufactured by C and S are classified under sub-heading No. 8537.00 and those manufactured by V.E.A. under sub-heading No. 8538.00. The demands for CE duty should be worked out accordingly. 28. emsp In the circumstances, the charge of suppression against V.E.A. is not sustainable and the demand for Central Excise Duty, if any, is demandable only for the period of six months from the date of issue of the show cause notice. The penalty of Rs. 1.50 lakhs is also set aside. All the appeals and the cross-objections are disposed of accordingly.
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1995 (2) TMI 212 - ALLAHABAD HIGH COURT
Stay/Dispensation of pre-deposit ... ... ... ... ..... find that there is no confusion, but it is surprising that the President of the learned Tribunal as well as technical member have not been able to appreciate the observation ldquo But the same purpose could be achieved by permitting him to furnish a security bond. rdquo made by this Court with a view to repel the condition of cash deposit of seven lacs. This observation is required to be kept into consideration by the learned Tribunal while reconsidering and deciding afresh the waiver/stay application of the applicant in the appeal pending before the learned Tribunal. There is no conflict or confusion between these observations referred to above and the operative direction given by this Court. It is now expected that the learned Tribunal shall reconsider and decide the waiver/stay application in appeal keeping the aforesaid observation in mind. The application is accordingly disposed of. 4. A certified copy of this order be issued within two days on payment of usual charges.
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1995 (2) TMI 211 - CEGAT, NEW DELHI
Appeal - Jurisdiction ... ... ... ... ..... aking the factory uptodate and having fixed assets. Whatever profits they earn which are not much are being put to fixed assets. Their business activities at Ludhiana are getting set back because of terrorist activities. This, we note, was the position when the appeal and stay petition were filed in October 1991. They have not submitted any document to establish their financial hardship at present. In the circumstances of the case, we direct them to make a pre-deposit of Rs. 5 lakhs (Rs. five lakhs) within a period of two months from the date of receipt of the order and give an undertaking for the balance amount of penalty. Subject to their doing so the pre-deposit of the balance amount for the hearing of their appeal is waived and its recovery stayed during the pendency of the appeal. Compliance should be reported on 17-5-1995. Failure to comply with this order will result in vacation of the stay and they will be required to make the deposit of the entire amount in question.
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1995 (2) TMI 210 - CEGAT, NEW DELHI
Confiscation and redemption fine ... ... ... ... ..... of Hasmukh Dalpatrai Ganatra and Another v. CCE, Bombay - reported in 1987 (30) E.L.T. 782 (T) and V.K. Thappi v. CCE - reported in 1988 (33) E.L.T. 424 (T). Penalty under Rule 209A is not attracted in case of the first appellant who is a proprietor of a manufacturing concern not required to pay duty in regard to inputs lying in his factory nor the possession or keeping etc. of the inputs as such within the factory would render goods liable to confiscation. 8.In view of the discussions hereinbefore I pass the following Order 1.Redemption fine on the first appellant, TMC, is reduced to Rs. 35,000/- 2.Penalty on the first appellant, TMC under Rule 173Q is reduced to Rs. 10,000/- 3.Penalty on second appellant, GTW, under Rule 173Q is set aside. 4.Penalty on Shri Ravi Goyal under Rule 209A is reduced to Rs. 5,000/-. 5.Penalties on Shri S.P. Goyal under Rule 173Q and Rule 209A are set aside. Subject to this modification, impugned Order is otherwise upheld and the appeals rejected.
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1995 (2) TMI 209 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... al Excise (Appeals), Pune, are set aside, and matters are remanded back to the original authorities for de novo decision. 14. emsp The appellants have raised some other issues relating to the clarificatory nature of amending Notification No. 150/89-C.E., dated 12-6-1989, issuing of two show cause notices on same issue, intention of the legislature, limitation etc. we have not dealt with them at this stage in view of our decision to remand the matters for de novo adjudications. The appellants will be at liberty to put up their case before the original authorities in the manner they deem fit. 15. emsp Accordingly, in the interest of justice, we set aside both the impugned orders and remand the cases back to the original authorities for de novo adjudication. An opportunity should be given to the appellants to present their case in person, and orders should be passed after observing the principles of natural justice. 16. Accordingly, both the appeals are allowed by way of remand.
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1995 (2) TMI 208 - CEGAT, NEW DELHI
Confiscation and Penalty ... ... ... ... ..... ome of the entries to the shop floor may be made, that there is a time lag between this entry and the actual consumption of the goods in the manufacturing process. Since, when the debit entry has been made, the quantity was therefore, reduced from the closing balance as shortage has taken place. He further argued that in any event that there is no question of any danger to revenue. It has further been alleged that the appellant was trying to remove the inputs on which credit has been taken clandestinely. The Assistant Collector says that stock in balance has shown nil with the intent to evade payment of duty by removing inputs without payment of duty on them as required under Rule 57F. There is however, no evidence to substantiate this claim. 9. emsp In the circumstances, I set aside the confiscation of PVC and polypropylene. Since failure to maintain accounts properly has been established, I reduce the penalty imposed from Rs. 5,000/- to Rs. 2,000 (rupees two thousand only).
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1995 (2) TMI 207 - CEGAT, NEW DELHI
Refund - Payment of duty under protest ... ... ... ... ..... sent matter, the appellant is trying to enlarge the original refund claim. In the present matter, the appellant cannot be permitted to enlarge the refund claim. The refund claim made in the year 1980 will not enlarge the scope of the refund which was mentioned in the appellant rsquo s letter dated 31st March, 1976 which has been reproduced above. Since the claim of refund is beyond six months for getting its classification under T.I. 68, I agree with the conclusions arrived by the learned brother, Member Technical. The question referred to me is answered accordingly. 13. Registry is directed to place the matter before the regular Bench for passing appropriate orders in accordance with law. Sd/- (Harish Chander) President In the light of the majority view as above, there is no reason to interfere with the impugned order passed by the Collector (Appeals). The appeal is, therefore, rejected. Dated 24-2-1995 Sd/- (K.S. Venkataramani) Member (T) Sd/- (G.A. Brahma Deva) Member (J)
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1995 (2) TMI 206 - CEGAT, NEW DELHI
... ... ... ... ..... , the transaction value shall be accepted provided that the examination of the circumstances of the sale of the imported goods indicate that the relationship did not influence the price. Above all, it has been observed by the Collector himself in his order, ldquo However, in view of the fact that there are a number of varieties of umbrella frames, each differing from the other in style and finish, the prices are bound to vary rdquo . It would, all the more, be necessary for the Collector in such a context to have based the determination of the assessable value on firmer footing as per the parameters laid down in the Valuation Rules, rather than in the manner adopted in the impugned order. In the facts and circumstances of this case, therefore, for the foregoing reasons, it is held that the rejection of the invoice value as not representing the transaction value of the goods is not well-founded. The appeals are, accordingly, allowed with consequential relief to the appellants.
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1995 (2) TMI 205 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... s and not for carrying out any mathematical calculations or operations, it is evidently not a mathematical instrument. According to the same dictionary the word ldquo Tool rdquo means ldquo any instrument for manual operations a shaping implement for working upon something, as by cutting, striking, rubbing or other process, in any manual art or industry. rdquo Hence it follows that a micrometer rsquo cannot be deemed as a tool rsquo . We therefore hold that the Appellate Collector rsquo s finding that micrometers rsquo were measuring tools rsquo not classifiable under Tariff Item 68 was erroneous. 7. emsp In view of the foregoing it follows that micrometers rsquo being precision measuring instruments rsquo were classifiable under Tariff Item 68. However, in the absence of any evidence that micrometers rsquo are mathematical instruments we hold that they were not eligible for exemption under Notification No. 55/75-C.E., dated 1-3-1975. 8. In the result, the appeal is rejected.
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1995 (2) TMI 204 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... r cycle and cycle rickshaw, shall be eligible for exemption. The steel balls even if, classifiable under Heading No. 73.08, but not for cycles or cycle rickshaws, will not be eligible for such an exemption. 16. emsp The appellants have relied upon the Tribunal rsquo s decision in the case of Collector of Central Excise, Jaipur v. National Engineering India Limited, 1994 (72) E.L.T. 588 (T). It is seen that in that case before the Tribunal, the steel balls were not considered as polished balls, while in the case before us, the appellants themselves had admitted that the steel balls manufactured by them were polished steel balls (refer their letter dated 30-10-1986, at page 43 of the paper book.) 17. emsp Taking all the relevant considerations into account, we reject the appeal in so far as the steel balls of sizes 3/16 , 5/32 and 1/8 (inches) are concerned, and accept the appeal in so far as the steel balls of size 1/4 inch are concerned. The appeal is disposed of accordingly.
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