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Case Laws
Showing 181 to 200 of 474 Records
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2000 (10) TMI 455 - CEGAT, MUMBAI
Classification ... ... ... ... ..... by the department s appeal. 3. emsp The Commissioner (Appeals) rsquo s order appears to be based only on the fact that the mineral hydrocarbon oil content of the imported goods is more than 70 . This is no doubt a condition contained in that heading for classifying the goods under heading 27.10. However that heading is for preparation not elsewhere specified. There can be no dispute that the goods are not plain mineral hydrocarbon oil but are preparations containing addition to the hydrocarbon oil, other constituents. The test report, indicating the goods to be ldquo additives rdquo makes this clear. From the use of the product as we have mentioned above, they appear to be more appropriately classifiable under 38.11. We are therefore of the view that the classification claimed by the heading 38.11 is correct. We therefore set aside the Commissioner (Appeals) rsquo s order, allow the appeal and restore the Asstt. Commissioner s order classifying the goods under heading 38.11.
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2000 (10) TMI 454 - CEGAT, MUMBAI
... ...
... ... ..... credit was subsequently amended on 20-10-1994 to provide for a total 765 metric tonnes for US 439,875/-. These documents and the invoices referred to the fax confirmation dated 10-6-1994. 7. emsp The reason advanced by the Commissioner for not accepting the transaction value therefore does not appear to us to be correct. The fact that part of this consignment has already been assessed and cleared at the originally agreed price, as also the acceptance of the same value as that declared for the consignment under consideration for a quantity of 567 metric tonnes cleared in September, 1994 in pursuance of a contract dated 7-6-1994, three days prior to the contract with which we are concerned, support the appellant s case further. We therefore do not find any justification not to accept the transaction value. There was therefore no basis for enhancement of the value or the confiscation of the goods, or the penalty on the appellant. 8. emsp Appeal allowed. Impugned order set aside.
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2000 (10) TMI 453 - CEGAT, MUMBAI
Refund - Short shipment ... ... ... ... ..... ication of receipt of 12,000 pieces is entirely different from the certification of the suppliers of despatch of 10,000 pieces. In view of this discrepancy, it must be said that the importers have failed to discharge the burden cast upon them. 6. emsp As I have said above and also on the basis of the Tribunal s cited judgment, in this extraoridinary situation, the degree of satisfaction has also to be extremely high and any lacuna therein will take away the benefit from the person concerned. It is in view of this situation the cited order gave the following caution in paragraph 6 ldquo It would not be necessary for me to repeat that this decision has been arrived at on the facts and circumstances of this case. Apart from the view of point that short shipment refund cannot be denied only on the ground that the goods were out of Customs charge, this decision does not seek to lay down any principle. rdquo 7. emsp On this, I find that the appeal does not succeed and is dismissed.
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2000 (10) TMI 452 - CEGAT, MUMBAI
Import - Advance licence ... ... ... ... ..... IF value of the goods, to be imported, more than 2 of the value of the content of the exported product. It appears to us the presence of sodium saccharin and other ingredients of tooth paste in the norms is rational for the purpose of calculation of the CIF value. It is thus not necessary that sodium saccharin should have been used in the manufacture of tooth paste at all before the .2 is applied in calculating the value of the licence. Even if sodium saccharin is actually used to the extent of, say 20 finished product, in calculating the value of the import entitlement only 2 would be reckoned. It is one thing to look at the norms and another to conclude from these that 2 sodium saccharin did not contain 2 of the tooth paste. 8. emsp The other reason advanced by the Collector (Appeals) that there is no specific value shown in the licence is also correct. For both these reasons therefore, we are unable to interfere with the Collector (Appeals) order. 9. emsp Appeal dismissed.
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2000 (10) TMI 451 - CEGAT, MUMBAI
Import - Advance licence ... ... ... ... ..... IF value of the goods, to be imported, more than 2 of the value of the content of the exported product. It appears to us the presence of sodium saccharin and other ingredients of tooth paste in the norms is rational for the purpose of calculation of the CIF value. It is thus not necessary that sodium saccharin should have been used in the manufacture of tooth paste at all before the .2 is applied in calculating the value of the licence. Even if sodium saccharin is actually used to the extent of, say 20 finished product, in calculating the value of the import entitlement only 2 would be reckoned. It is one thing to look at the norms and another to conclude from these that 2 sodium saccharin did not contain 2 of the tooth paste. 8. emsp The other reason advanced by the Collector (Appeals) that there is no specific value shown in the licence is also correct. For both these reasons therefore, we are unable to interfere with the Collector (Appeals) order. 9. emsp Appeal dismissed.
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2000 (10) TMI 450 - CEGAT, MUMBAI
Stay application - Natural justice ... ... ... ... ..... ate Authorities are required to be directed that whenever such applications for stay and/or waiver of condition of the pre-deposit are made, they shall hear expeditiously and pass appropriate orders .... rdquo When such finding has been given by the High Court I do not understand why the Commissioner (Appeals) has stated in the order dated 7-1-1999 that personal hearing is not a must for deciding stay application. Moreover the Supreme Court judgment in Jesus Sales Corporation, 1996 (83) E.L.T. 486 is a case dealing with Import and Export Act of 1947. That is not a case arising under a revenue legislation. That was a case under a regulatory legislative measure in respect of export and import in the country. I am therefore of the view that the approach of the Commissioner in deciding the matter in this case is absolutely wrong in law. The matter is remanded back to the appellate authority to decide the matter in accordance with law after observing principles of natural justice.
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2000 (10) TMI 449 - CEGAT, CALCUTTA
Stay/Dispensation of pre-deposit ... ... ... ... ..... ner had attained finality. As such the confirmation of differential demand of duty based upon the ACP, was justified. 4. emsp After hearing both the sides we find favours with the submissions of the ld. consultant. When the basic issue of fixation of annual capacity production is in dispute and has been appealed against by the appellant before the appellate forum the adjudicating authority should have awaited the decision of the appellate authority before adjudicating the show cause notices confirming differential demand of duty. Inasmuch as the appeal against the fixation of ACP is pending before Commissioner (Appeals) we, without making any observations about the jurisdiction of the Commissioner (Appeals) to decide the said appeal pending before him, allow the stay petition unconditionally. Commissioner (Appeals) would decide the appeal filed by the appellant as soon as possible and in any case before 29-11-2000, when the present appeal would be taken up by us for disposal.
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2000 (10) TMI 448 - CEGAT, MUMBAI
Stay/Dispensation of Pre-deposit - Valuation ... ... ... ... ..... he demand confirmed i.e. Rs. 1,04,40,028/- arises out of a show cause notice in which the extended period was invoked by the Commissioner alleging suppression of facts by the assessees. Shri Deshpande contends that the existence of the sister units was known to the department. He refers to the reply filed before the Commissioner to the effect that certain enquiries have been committed by the authorities earlier during which this fact had come to notice. In para (viii) of his order the Commissioner has not discussed this point of limitation. Thus the assessees have made a strong ground on limitation in the case of one out of three show cause notices. 10. emsp Thus, on finding that strong prima facie case has been made on limitation and also on finding that the issue of selection of the alternative assessee in terms of Rule 6(b)(i), we grant the prayer and waive the pre-deposit of duty as also penalty and stay the recovery thereof during the pendency of the present proceedings.
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2000 (10) TMI 447 - CEGAT, CHENNAI
Exemption - Adjudication - Natural justice ... ... ... ... ..... by the competent authority, but in the facts of this peculiar case, we find that another authority mentioned in the Notification is issuing a certificate which is contrary to the certificate of the first authority, therefore, we are of the opinion, that the matter requires a fresh adjudication as per our directions hereinabove and the case law relied upon by the learned advocate is therefore, not individually commented upon by us or relied upon by us in any other fashion. We make it clear that in the re-adjudication proceedings, the department as well as the appellants would have all the options for making their case. We leave the same open as regards time bar, suppression and merits of eligibility including the legal submissions and fresh material which both sides may like to place on record to support their individual cases. 6. In view of our findings, we would set aside the orders impugned and allow the appeals by way of remand for de novo adjudication in the above terms.
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2000 (10) TMI 446 - CEGAT, MUMBAI
Stay/Dispensation of pre-deposit ... ... ... ... ..... ry thereof. Since the liability to confiscation of the goods was alleged on the ground of underinvoicing we waive the pre-deposit of penalty by the two traders as well as by the transporters. 10. emsp Shri Willingdon prays for the stay of collection of interest. We find this request premature. The Commissioner had ordered payment of interest on delayed payment on Central Excise duty evaded. Whether the duty was evaded or not is to be decided by the Tribunal at the time of final hearing. Therefore the question of charging interest or granting stay of such charge at this stage does not arise. Shri Willingdon submits that during the currency of the appeal proceedings the appellants should be permitted to utilise land, building etc. The prayer is allowed subject to the assessees giving an undertaking to the Jurisdictional Commissioner to the effect that they will not sell, lease or otherwise part with the land, building etc. or any part thereof, during the pendency of the appeal.
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2000 (10) TMI 445 - CEGAT, MUMBAI
Appeal - Adjournment - Redemption fine and penalty ... ... ... ... ..... factured without the manufacturer having applied for registration and makes such manufacturer liable to penalty. There is no requirement in this sub-rule, either specific or implied that it is only applicable where the goods are cleared. It is the act of manufacture without licence which attracts this rule. The contention that the goods are immovable property is again unacceptable. It is not shown that how steel pipes are immovable property. The decision in Quality Steel Tubes P. Ltd v. CCE, 1995 (75) E.L.T. 17 relied upon by the appellant related not as is claimed to pipes, but to a plant to manufacture of pipes. The decision of the Tribunal in K.K. Leather Mart v. CCE, 1994 (74) E.L.T. 596 related to goods manufactured for export and not to home consumption and has to be distinguished. 4. emsp The value of pipes being Rs. 6.50 lakhs the redemption fine of Rs. 30,000/- and penalty of Rs. 5000/- are not incommensurate. We therefore declare to interfere and dismiss the appeal.
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2000 (10) TMI 444 - CEGAT, CHENNAI
Medical and surgical appliances - Adjudication - Appeal ... ... ... ... ..... and Section note are required to be read for the purpose of interpretating the terms of the Notification. It is well laid down that chapter note and Section note are required to be applied only for the purpose of classification. In so far as interpretation of the Notification is concerned, a plain reading is required to be done and the extracted portion of the Notification does not include parts for granting the benefit of the Notification. Therefore, the view expressed by the Collector (Appeals) that the benefit is available in respect of complete system and not for the parts is required to be upheld. The demand of duty restricting to a period of six months period was rightly done by the Collector (Appeals) i.e. prior to the issue of show cause notice, hence the lower authority shall quantify the amount which are required to be paid by the assessee in terms of this order after hearing the appellants otherwise there is no merit in the appeal and hence the appeal is rejected.
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2000 (10) TMI 443 - CEGAT, MUMBAI
Amplifier - Theatre amplifier system ... ... ... ... ..... r an audio reproduction system incorporating an amplifier will fall under item 1 of the Table to the notification. For the goods to fall under item 2, they must necessarily be those that cannot fall under item 1. The appellant s contention that it is only an amplifier in combination with other items that would fall under item 1 is not correct. As we have seen, that item specifies each of the four items, cassette deck, amplifier, equaliser and frequency synthesiser or any combination of that. This also answers the next argument, that it is only an amplifier that is part of an audio system that would fall under item 1. The words of the entry do not support this view. There is in fact no such thing, as we are aware, as an audio amplifier system. There may be an audio system or sound system consisting of essentially all the devices required to reproduce sound and broadcast it through speakers. There being no other argument, we see no merit in the appeal. 4. emsp Appeal dismissed.
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2000 (10) TMI 442 - CEGAT, NEW DELHI
Import licence ... ... ... ... ..... he ratio of the law laid down in M/s. Taj Trading Co. v. CC, Chandigarh decided vide Final Order Nos. 634-638/96-A dated 15-2-1996 is not attracted to the facts of the present case as the provisions of the Imports and Exports (Control) Act and the Import (Control) Order, 1955 had not been considered therein. Moreover, the appellants themselves accepted the enhanced value as assessed by the Customs authorities on weighment of their consignment, for the purposes of payment of duty and they are legally estopped from contending that the said enhanced value could not be debited to their licence. They could not be legally permitted to import the goods of the value beyond the value of their import licence. 10. emsp In view of the discussion made above, the impugned order of the Collector (Appeals) is perfectly valid and does not suffer from any legal infirmity and as such the same is affirmed. There is no merit in the appeal of the appellants and the same is ordered to be dismissed.
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2000 (10) TMI 441 - MADRAS HIGH COURT
Yarn - Drawal of sample - Demand ... ... ... ... ..... day had also been ascertained and samples had been drawn from those stocks that would show that the stock on hand also contained the yarn on excess count. 6. emsp We, therefore, hold that the demand for duty can be in respect of yarn manufactured on the date on which the samples were drawn, and the yarn found to be in stock as on the day the sample was drawn, if sample had been drawn for that stock. 7. emsp The question referred to us, as to whether the differential duty on the differential count of yarn which is in excess of the declared counts shall be demanded for the entire production from the period of drawal of sample till the next sample, is answered in negative. The question, as to whether the days production on which the representation the sample was drawn, shall be subject to the demand for duty, is answered in the affirmative. We may also add that the stocks found on that day in case the samples were drawn from such stocks are also liable for the differential duty.
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2000 (10) TMI 440 - CEGAT, NEW DELHI
Reference to High Court ... ... ... ... ..... resent for the respondents. On careful consideration of the submissions made and explanation furnished in the reference application, we find that there are conflicting decisions of the Tribunal. We, therefore hold that a point of law arises. In the circumstances, we allow the reference application. 10. emsp We have also examined the ROM application. We find that there is no mistake in the order of the Tribunal and, therefore ROM application is rejected. 11. emsp The matter is, therefore referred to the Hon rsquo ble Rajasthan High Court at Jaipur for its considered view on the question of the ldquo Tribunal rsquo s observations regarding Board rsquo s Circular No. 3/92 dated 15-5-1992 amending the powers of adjudication with regard to the proviso to Section 11A in cases of fraud, suppression, etc. which did not curtail any powers of the Asst. Commissioner for adjudication as envisaged in the Board rsquo s Instructions F. No. 267/104/87-CX. 8, dated 15-12-87 is correct. rdquo
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2000 (10) TMI 439 - CEGAT, NEW DELHI
Stay/Dispensation of pre-deposit ... ... ... ... ..... ustoms, Allahabad reported in 1995 (78) E.L.T. 219, the Tribunal has upheld the classification of bus ducts under CET sub-heading 8538.00 as part suitable for use solely or principally with apparatus of heading 85.35, 85.36, or 85.37. Therefore, prima facie, classification under CET sub-heading 8544.00 is erroneous and the demand raised thereunder cannot prima facie be sustained. In view of the Tribunal rsquo s decision, appellants have made out a strong prima facie case for waiver of pre-deposit and stay of recovery of duty pending the appeal. We order accordingly.
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2000 (10) TMI 438 - CEGAT, CHENNAI
Demand - Dummy unit - Clandestine removal - SSI Exemption ... ... ... ... ..... not in terms and in violation of the law laid down by the Tribunal in a catena of decisions. The order determining and demanding duty on units found to be dummy, sham, and facade is required to be set-aside on this ground. (c) emsp We find that there is no clear cut finding as to why and how the clearances are being considered to be clandestine and in contravention of Rule 9(2). Therefore, prima facie, to us the demands made under Rule 9(2) read with Section 11A proviso appears to be not applicable in the facts of this case. (d) emsp The impugned order is therefore, required to be set aside and remanded back for re-determination of the demands as per law. The Commissioner should give a finding as to how he was considering the removal to be clandestine when admittedly there was duty paying documents when the trucks were intercepted. In view of our findings above, we set aside the impugned order and remand the matter for de novo consideration in the light of the findings above.
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2000 (10) TMI 437 - CEGAT, CHENNAI
Dutiability - Customs duty - Remand ... ... ... ... ..... Since flowers have been grown in India and removed from the premises within India to a premises in India, we cannot appreciate how customs duty would be applicable. (b) emsp Since principles of natural justice have been grossly violated in the decision of the Commissioner (Appeals), inasmuch as they have not determined the amounts of pre-deposit and the matter on merits in two cases and in the third case they have summarily rejected the material and the grounds on pre-deposit of duty we would consider this case to be a fit case for remand for de novo decision by the lower authorities i.e. jurisdictional Asstt. Commissioner. 6. emsp In view of our findings, we would set aside the order of the lower authorities and remand the matter back for re-determination of duty, if any, as per law. The appellants and the department will have a full freedom to rely on such material as they desire by following the principles of natural justice. The appeals are disposed of in the above terms.
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2000 (10) TMI 436 - CEGAT, CHENNAI
Adjudication - Natural justice - Cross-examination - Confiscation ... ... ... ... ..... t it does not say so. To our mind, the said order appropriating the sale proceeds after obtaining permission under Section 110 of the Customs Act, 1962 is not correct in law as it is only Section 126 of the Customs Act which provides that the officer adjudging confiscation shall take and hold possession of the confiscated goods and the confiscated goods shall only vest with the Central Govt. and it does not provide for appropriation of the sale proceeds. Sale proceeds can be allowed for confiscation under Section 121 of the Customs Act, 1962. Order of appropriation without granting option of redemption or the nature of confiscation whether it is absolute confiscation or otherwise is also bad in law especially when it is an order without giving any reasons as to why a particular course of order of confiscation is resorted to. 3. emsp In view of our above findings, we set aside the order of the Commissioner of Customs and remand the matter to him for re-adjudication as per law.
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