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Case Laws
Showing 161 to 180 of 515 Records
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2000 (3) TMI 771 - COMMISSIONER OF CUSTOMS (APPEALS), MUMBAI
Valuation - Damaged and rejected goods - Adjudication ... ... ... ... ..... s of the case and heard the appellant. I find that the adjudicating authority has travelled beyond the show cause notice while relying on information from website report and thereby violated principles of natural justice. Further, it is not correct on the part of adjudicating authority to arrive at the value of the impugned goods on the basis of cost of raw materials since impugned goods are admittedly assorted stock lot. I also find that no substantial evidence has been put forth by the adjudicating authority to reject the invoice issued by manufacturer in the name of the supplier of the impugned goods. Since the appellant had submitted manufacturer rsquo s invoice indicating supply of stock lot to the supplier, transaction value needs to be accepted under Rule 4 of Customs (Valuation) Rules, 1988. I, therefore hold that the impugned order is neither legal nor correct. In view of this I set aside the impugned order passed by lower adjudicating authority and allow the appeal.
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2000 (3) TMI 770 - CEGAT, MUMBAI
Stay/Dispensation of pre-deposit ... ... ... ... ..... uty as leviable on products falling under sub-heading 1508.90. In a later declaration filed on 31-7-1996, this classification was adopted. Subsequently a sample was drawn on 16-12-1997 and test results were communicated on 14-12-1998. The opinion of the chemical authorities was that the product merited classification under Chapter 38. The Assistant Commissioner in the original order referred to these aspects but did not take these into account before proceeding to finalise classification list under Chapter 38. We would like the ld. Commissioner to take this totality of facts into account when determining the issues. In fact when these issues were visible in the lower order in this manner there was no cause or warrant for the ld. Commissioner to require pre-deposit of any sums. 4. emsp We therefore allow this appeal and remand the proceedings back to the ld. commissioner (Appeals) for him to consider the issues on merits without insisting on any pre-deposit for hearing appeal.
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2000 (3) TMI 769 - CEGAT, MUMBAI
Marketability ... ... ... ... ..... marketable. For something to be marketable, there must be at least one buyer and one seller. In the absence of a buyer or a seller, it cannot be said that the goods are capable of being marketed. Capability of a commodity being marketed can be established by the fact there being a buyer, although, the commodity itself may not have been marketed by the fact that sale did not take place. The mere size of an article or the fact of it being separately classifiable in the tariff alone is not sufficient to consider it marketable. (Moti Laminates Pvt Ltd. v. Collector - 1995 (76) E.L.T. 241). The Commissioner has therefore not demonstrated, as he was required, the marketability of the product. 6. emsp In these circumstances, we allow the appeal and set aside the impugned order. The Commissioner shall decide upon the marketability of the product. We make it clear that both sides are at liberty to adduce before him such evidence as they may like in respect of their respective claims.
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2000 (3) TMI 768 - CEGAT, MUMBAI
Confiscation of Indian currency - Sale proceed of smuggled goods ... ... ... ... ..... his order, has emphasised the various short comings and discrepancies with regard to the claim made by Mrs. Ghishibai Jain and her husband Pravinkumar Jain. However, the question that is to be addressed is whether there was sufficient evidence to show that the currency was in fact the sale proceeds of the smuggled gold, such sale being made by a person who knows or had reason to believe that the goods are smuggled. These are the ingredients of Section 121 of the Act and have not even been remotely dealt with in the order. 4. emsp The conclusion is therefore inescapable is that the Department failed to show, as it was required to do, that the currency was the sale proceeds of the smuggled goods. The fact that the officers seized the currency on some information and that some gold was seized from the appellant are entirely insufficient evidence in this regard. 5. emsp I therefore allow the appeal with regard to the seizure of the Indian currency and set aside its confiscation.
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2000 (3) TMI 764 - CEGAT, MUMBAI
Stay/dispensation of pre-deposit - Maintenance of records ... ... ... ... ..... ors in the supervisor taking down in his note book. The existance of private record prima facie ruled out the argument of Shri L.B. Attar that annual capacity fixation and the amount indicated in the show cause notice cannot be tallied with each other. Prima facie the argument that the annual capacity the amount which factory captively produced and the actual production may not tally with mathematical precision cannot be accepted. We are therefore of the view that the appellants have not made any strong case for waiver of the duty. The accounts given to us is not at all satisfactory. The assessee being company registered under the Companies Act is expected to have printed balance sheet. They have not been produced before us. We therefore direct the assessee to pay sum of Rs. 4 lakhs within one month from the receipt of this order. On such payment being made by the assessee there will be a waiver of payment of remaining sum of duty and penalty demanded. Compliance on 7-3-2000.
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2000 (3) TMI 738 - CEGAT, NEW DELHI
Demand - Jurisdiction ... ... ... ... ..... e appeal be allowed. 3. emsp Learned Advocate appearing on behalf of the respondents submits that for deciding the classification, proper officer is the Assistant Commissioner of Central Excise. Therefore, there is no infirmity in the impugned order. He, therefore, prays that the appeal be dismissed. 4. emsp Heard both sides. 5. emsp In this case the show cause notice dated 2-6-1995 was issued to the respondents answerable to the Collector of Central Excise. In the show cause notice there is also allegation that intention of the respondents was to evade payment of duty and the provisions of Section 11A of the Central Excise Act was also invoked. Therefore, the Commissioner of Central Excise is only competent to decide the dispute. In these circumstances, we find force in the arguments of the learned SDR and direct that the Commissioner of Central Excise to decide the issue involved in this case in accordance with law. The impugned order is set aside and the appeal is allowed.
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2000 (3) TMI 737 - CEGAT, NEW DELHI
Appeal - Limitation ... ... ... ... ..... ng such appeals. The only ground raised in support of the application for condonation of the delay is that the applicants were pursuing the remedy of revision before the Central Government against the impugned order under a bona fide belief that such remedy was the correct remedy in law against the impugned order. It was only on receipt of order dated 27-8-1999 from the Government that the applicants realised their mistake. I, however, do not find any evidence of these facts pleaded by the applicants in support of the present application. I am, therefore, not in a position to satisfy myself as to whether the applicants had sufficient cause for not filing the appeal before the Tribunal within the prescribed period. The submissions of the ld. DR opposing the COD application are to this effect and the same have to be accepted. 3. emsp In view of the above observations and findings, the application is rejected. 4. emsp In the result the appeal also stands rejected as time-barred.
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2000 (3) TMI 736 - CEGAT, CHENNAI
Modvat on capital goods ... ... ... ... ..... d that such an intermediary product should be ldquo by-product rdquo . 5. emsp I have carefully considered these rival submissions and records of the case. On a considered view, I am of the opinion that there is nothing in Rule 57Q or 57R which restricts the scope of words ldquo intermediary goods rdquo being only by-product which emerged during the process of manufacture and which are used captively for the production of the final products which are cleared from the factory would qualify as ldquo intermediary goods rdquo . The only test is that such goods are not sold by the assessee and they are necessary for the production of the final goods which are sold. In this case, it is not disputed that Nitrogen Gas is never sold or that it is not necessary in the manufacture of the final products namely Refractories. These two tests being satisfied, I do not find any infirmity in the order impugned which compels me to interfere with the same. Therefore, Revenue appeal is rejected.
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2000 (3) TMI 735 - CEGAT, NEW DELHI
Reference to High Court ... ... ... ... ..... e issue involved in the appeal was covered against the Revenue in the case of C.C.E. v. Venkateswara Industries reported in 1996 (86) E.L.T. 446 which was followed subsequently in the case of Vishal Steel Rolling Mills v. C.C.E. reported in 1997 (96) E.L.T. 645 (Tri.) 1997 (23) R.L.T. 323. Since the above order was passed by mutual consent of the two sides, neither any question of fact nor any question of law can arise out of the final order. 3. emsp In the above view of the matter, the application is rejected.
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2000 (3) TMI 734 - CEGAT, MUMBAI
Stay/Dispensation of pre-deposit - Appellate Tribunal’s powers ... ... ... ... ..... sp The application for modification seeks to question the power of the Tribunal regarding grant of stay. Normally, whenever the application is filed under Sec. 35F of the Central Excises Act, there is also a prayer for stay of recovery. The applicant also makes such prayer on the face of the fact that the Tribunal has got inherent power. The grant of stay by the Tribunal is an incidental and ancillary power so as to fulfil exercising the power of hearing of the appeal which can be finally done only if the stay is granted. The leading case in this regard is Md. Kunhi rsquo s case decided by the Supreme Court. In the order sought to be modified, the Tribunal taking note of the circumstances of the case has passed the order. I do not think such a power to grant stay ever can be questioned by the applicant. The prayer seems to suggest that the power of stay is not there, which to my mind, is a preposterous one. I agree with the order of my ld. brother and dismiss the application.
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2000 (3) TMI 733 - CEGAT, NEW DELHI
Modvat - Capital goods ... ... ... ... ..... the four edges of the Sheets. The cutting blades are fitted on the Shearing Machine which cut the edges. The Blade/Knife wear out with the usage requiring replacement and thus are a component/spare of the Shearing Machine. The components spares detailed at item Nos. ii to iv above are fitted on the machine which are used for manufacture of the final product as explained above. The difference in slitting machine and shearing machine is that the former is used for slitting smaller width strips whereas the later for cutting higher width sheets in the process of manufacture. 4. emsp The Department does not dispute the above factual position. From the above material, it is clear that the disputed items are used for production and processing of respondents final products and are hence entitled to capital goods credit under Rule 57Q. I, therefore, see no reason to interfere with the impugned order which does not suffer from any legal infirmity, uphold the same and reject the appeal.
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2000 (3) TMI 731 - CEGAT, MUMBAI
Stay/Dispensation of pre-deposit ... ... ... ... ..... to mislead the Customs Department that the benefit of the notification has been rightly availed of. We are not able at this stage to accept the plea of superior order towards justification. 14. emsp Having regard to the facts presented before us in the application and taking into account the conduct of Sanghvi as well as the duty liability and possible extent of penalty, we direct a deposit of Rs. 70 lakhs by Sanghvi towards duty and penalty due and Rs. 5 lakhs by Kiran Sanghvi, Rs. 1 lakh by K.D. Motta towards penalty imposed on each of them. The amounts are required to be paid within a month from the receipt of the order and compliance reported on 12-4-2000. 15. emsp At the close of dictation of this order, Mr. Parasurampuria prayed that his clients may be given three months for making the deposit. We see no reason at this stage to extend the time already given. However, we permit the payment for Sanghvi Conditioners, Kiran Sanghvi and K.D. Motta to be made by instalments.
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2000 (3) TMI 730 - CEGAT, NEW DELHI
Capacitors - Electronic capacitors ... ... ... ... ..... ccepted the appellant rsquo s submission during adjudication proceedings that the statement was recorded in duress and therefore should not be relied upon. 5. emsp It is clear from the expert opinion that the material used by the appellant is the raw material recognised by the notification itself as the one required for manufacture of electronic capacitor. After observing the manufacturing process in the appellants rsquo unit, the expert has confirmed that the approved raw material is one used by the appellants. He has also confirmed that the product in question is electronic capacitor. In view of these circumstances we accept the appellant rsquo s contention that the exemption had been rightly availed of by them and that the evidence relied upon by the adjudication does not prove that the capacitors manufactured by them were not electronic capacitors. The appeal is, accordingly, allowed with consequential relief, if any, to the appellants and the impugned order is set aside.
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2000 (3) TMI 729 - CEGAT, NEW DELHI
Modvat - Capital goods ... ... ... ... ..... unctional use in terms of the provisions of Rule 57Q having no direct nexus to manufacturing stream in the factory. It is argued that the meaning of capital goods under Rule 57Q at the relevant time was restrictive. The reliance is also placed on the decision of the CEGAT in M/s. Shanmugaraja Spinning Mills - 1997 (89) E.L.T. 84 (Tribunal). 3. emsp I have carefully considered the submissions made before me. It is observed that the lower appellate authority in allowing the Modvat credit on the impugned machine has relied on the judgment of the Apex Court in M/s. Eastend Paper Ind. (Supra). Notwithstanding the decision of CEGAT in M/s. Shanmugaraja Spinning Mills case relied upon by the Revenue, it is not the plea before me that the reliance placed by Commissioner (Appeals) on the judgment of the Supreme Court is either misplaced or this judgment is not relevant to the issue under consideration. In the circumstances, therefore, the Revenue appeal fails and the same is rejected.
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2000 (3) TMI 728 - CEGAT, NEW DELHI
... ...
... ... ..... same shall lapse and shall not be allowed to be utilized for payment of duty. It does not mean that if the amount of Modvat credit availed on the inputs and finished goods lying in stock on the date of opting for the exemption scheme is more than the credit balance in their Modvat credit account, they will not be liable to pay such amount or the same will be condoned. The key words in this sub-rule are ldquo shall be required to pay an amount equivalent to the credit allowed to him in respect of inputs and finished goods lying in stock rdquo . Therefore, if the amount in the Modvat credit account is not sufficient enough to cover the credit of duty availed on the inputs lying in stock or used in any finished goods, the balance will have to be paid in cash. Thus the payment of Rs. 2,23,074/- made by the appellants is entirely as per these provisions and the refund claim of this amount has been rightly rejected. 5. emsp In the result the appeal fails and the same is dismissed.
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2000 (3) TMI 727 - CEGAT, MUMBAI
Stay/Dispensation of pre-deposit - Manufacture ... ... ... ... ..... e manufacture was not shown in that lists is prima facie not relevant. There is no such requirement in the rules. The Rule 57G declaration indicated power driven pumps themselves to be input. The explanation offered that these pumps were when tested were necessarily dismantled and put together and painted was also not considered. This activity prima facie amounts to manufacture, since it confer upon the article of marketability they do not otherwise possess. No clear reason is forthcoming in the Commissioner s as to why these processors are not manufacture. 4. emsp Accordingly I waive deposit of the duty demanded and penalties imposed and stay their recovery.
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2000 (3) TMI 726 - CEGAT, NEW DELHI
Penalty - Clearance of goods ... ... ... ... ..... cts of some other goods he is required to file a fresh declaration or amendment of declaration already filed within 30 days of any alteration in the same manner as provided under Rule 173B(1). The lower authorities have held the view that though the production can been commenced, pending declaration/amendment within 30 days of any alteration but no clearance can be made of the goods so produced. I do not see any such restriction in the cited Rule. It is nowhere stated in this rule that though the production can be made pending filing of fresh declaration within 30 days but no clearance can be effected. Even otherwise also when the production is permitted to be made the goods so produced cannot be denied clearance. I, therefore, find no contravention of the provisions of Rule 173B by the appellants and therefore there is no warrant for imposition of penalty. 5. emsp I, therefore, set aside the order of the lower authority and allow the appeal with consequential relief, if any.
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2000 (3) TMI 725 - CEGAT, NEW DELHI
Accounts and Records - Excess - Confiscation - Demand - Modvat ... ... ... ... ..... ey are inputs for manufacture of metal containers, therefore, demand of duty amounting to Rs. 4,44,609.88 is not sustainable in law and the same is, therefore, set aside. However, demand of duty on 46.994 m.ts. of tin sheets found short is confirmed. This demand shall be worked out by the Asstt. Collector and demanded from the assessee. This figure had been worked out on the basis that 436.534 m.ts. were found short in the factory premises. Out of this 436.534 m.ts. 389.540 m.ts. was recovered from the Delhi godown of the appellant, therefore, the remaining quantity comes to 46.994 m.ts on which duty shall to be paid. 16. emsp In so far as imposition of penalty on the appellant is concerned, looking to all the facts and circumstances of the case, we find that the penalty is on the higher side, the same is reduced to Rs. 2.5 lakhs. 17. emsp But for the above modification, the impugned order is upheld and the appeal with the Misc. application are disposed of in the above terms.
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2000 (3) TMI 724 - CEGAT, KOLKATA
SSI Exemption - Demand - Limitation ... ... ... ... ..... t to appear before the Central Excise Authorities along with the value of goods cleared variety wise during March 1986, 1986-87, 1987-88 and April 1988 and to date for home consumption and export separately. The appellants vide their letter dated 18-11-1988 addressed to the Superintendent have informed him that ldquo We are glad to appear before your goodself on 18-11-1988 along with all the documents required. Please verify the same. rdquo The said letter is shown to have been received by the Department and shows seven enclosures along with it. In view of these two documents referred by the appellants it cannot be said that the appellant suppressed the requisite information from the Department with an intention to evade payment of duty. Accordingly, we hold the demand of duty of Rs. 25,000/- is barred by limitation. Penalty of Rs. 5,000/- is also set aside on this ground. Accordingly the appeal is allowed on the point of limitation with consequential relief to the appellant.
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2000 (3) TMI 723 - CEGAT, NEW DELHI
Refund - Limitation ... ... ... ... ..... ) in para 146 of which it is held that the duty paid cases, which finally ended in orders, decrees of judgments of Court, must be deemed to have been paid under protest and the procedure and limitation etc. in Sec. 11B(2) read with Section 11B(3) will not apply to such cases. The ratio of this judgment is followed in the case of General Engg. Works v. CCE, Jaipur reported in 1999 (111) E.L.T. 86 (Tribunal). 7. emsp I have carefully considered the submissions made before me. Respectfully, following the ratio of the judgment of the Apex Court in the case of Mafatlal Industries (supra) as followed in the case of General Engg. Works, I uphold the order passed by the lower appellate authority and dismiss the appeal of the Revenue. 8. emsp Cross objections filed by the respondent are only in the form of comments on the appeal filed by the department. They are otherwise not aggrieved by the order of the Commissioner (Appeals). These are therefore, misconceived and are also rejected.
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