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Case Laws
Showing 201 to 220 of 538 Records
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2000 (5) TMI 588 - CEGAT, KOLKATA
... ...
... ... ..... se and part of the case covered in the present appeal, are covered by the decision in 1987 (27) E.L.T. 718 and deductions as claimed have to be granted and on certain trucks, the contract prices have to be accepted as the Section 4 follows, therefore, the matter requires to be remanded back for re-adjudication. 6. emsp In view of our findings, the impugned orders are set aside and the matter remanded back to the jurisdictional Assistant Commissioner to re-determine the values of the standard products (trucks) as per the decision in 1987 (27) E.L.T. 718 after verifying the pattern of sale and giving a suitable deductions for which the appellants took produce the necessary data to the jurisdictional Assistant Commissioner. The deductions permissible under Section 4 can only be given in the case of non-standard tailor-made contracts as per the customers rsquo specifications. For this purpose, the appeal is allowed as remand for de novo adjudication by the Assistant Commissioner.
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2000 (5) TMI 587 - CEGAT, KOLKATA
Adjudication - Jurisdiction - Show cause notice ... ... ... ... ..... of Writ Petition filed by the respondents, they should have been deemed as pending show cause notices on the said dates and should have been transferred to the Commissioner of Central Excise by the Assistant Commissioner. However, we are not convinced with the above arguments of the Revenue inasmuch as admittedly these show cause notices stood adjudicated by the Assistant Commissioner as on 30-9-1982, when the Writ Petition challenging the show cause notices was pending before the Hon rsquo ble High Court. The re-adjudication was done by the Assistant Commissioner only on the direction of the Hon rsquo ble High Court. On both dates, he was having power to pass the orders. As such, we do not find any infirmity in the view taken by the Commissioner (Appeals) that the impugned order passed by the Assistant Commissioner, were with his jurisdiction to do so. Accordingly, we reject the Revenue rsquo s Appeal. Cross-Objection filed by the respondent is also disposed of accordingly.
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2000 (5) TMI 586 - SUPREME COURT
Whether refusal on the part of a person, who is summoned under Section 40 of the Foreign Exchange Regulation Act, 1973 to comply with the directions under the summons, would attract the provisions of Section 56 of the Act?
Held that:- The ultimate conclusion of the learned Single Judge of the Delhi High Court in the impugned Judgment that the Union of India can prosecute the accused for offences under the provisions of Section 174 or any other relevant provision under Chapter 10 of the IPC relating to contempts of the lawful authority of public servants, is not sustainable in law. As has been stated earlier, bearing in mind the purpose for which an officer of Enforcement Directorate have been empowered to summon persons, either to give evidence or to produce a document and the provisions of the Act, making the persons summoned, bound to state the truth and further the investigation in question having been made to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code, on a plain literal meaning being given to the language used in Section 56 of the Act, we are of the considered opinion that violation or contravention of the directions given under the summons under Section 40 would come within the purview of Section 56 and, therefore would be punishable thereunder, and the impugned judgment of the Delhi High Court as well the judgment of Kerala High Court must be held to have been wrongly decided.
We, therefore, set aside the impugned judgments of the learned Single Judge of Delhi High Court and allow these appeals and direct that the complaint proceedings may be proceeded with, in accordance with law.
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2000 (5) TMI 584 - CEGAT, NEW DELHI
Duty liability ... ... ... ... ..... oing the job, they returned the goods to them. No violation of provisions of Rules 57F(3) and 57F(4) of the Central Excise Rules, 1944 can be said to had been done by them. The case of the respondents is fully covered by the ratio of the law laid down in M. Tax and another (supra) referred by the Commissioner (Appeals) in the impugned order wherein the Tribunal has taken the view in similar circumstances that the job-workers would not be liable to pay the duty on the processed fabrics when they had returned the same after doing the work of heat setting and stentering under Rule 57F(3)/57F(4) of the Rules. Therefore view taken by the Commissioner (Appeals) while reversing the Order-in-Original of the Additional Commissioner, that the respondents were not liable to discharge the duty on the processed fabrics, as a job-workers, cannot be said to be erroneous or incorrect in law. Consequently, there is no merit in the appeal of the Revenue and the same is ordered to be dismissed.
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2000 (5) TMI 582 - CEGAT, MUMBAI
Redemption fine and penalty - Enhancement of ... ... ... ... ..... deal with the result of the falsification which would have been of a benefit i.e. clearance without debiting in the licence. It is therefore not correct to say that, the appeal does, the Collector has concluded that the forgery was caused by the clearing agent or at the instance of the appellant. On the contrary, the Collector based his approval on the finding of his predecessor in the earlier adjudication that the importer was absolved of the charges before him. This is the sole ground for enhancement of the penalty. There is therefore no basis for enhancement of penalty. 7. emsp It will be clear from this discussion that even if the Tribunal had in its earlier order confirmed the confiscation of the goods, there would be no basis for enhancing the redemption fine or enhancement of penalty. The department rsquo s appeal would have merited dismissal independently on its own. In these circumstances, there is no question of recalling our earlier order. 8. emsp Appeal dismissed.
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2000 (5) TMI 580 - CEGAT, KOLKATA
Ropes manufactured out of sisal and manila yarn ... ... ... ... ..... 1998 (98) E.L.T. 103 (T) wherein similar benefit of Notification No. 62/87-C.E. was extended to ropes. In view of these he prays for setting aside the portion of the impugned order passed by the Commissioner (Appeals). 3. emsp We have heard Shri R.K. Roy, learned JDR for the Revenue. 4. emsp We find a lot of force in the appellant rsquo s submission that yarn consumed captively being exempted under Notification No. 49/90 on that count could be said to have discharged the rate of duty so as to earn the benefit of Notification No. 62/87 in respect of ropes. However in view of the fact that matter already stands remanded to the Assistant Commissioner in respect of another portion involved in the same appeal which is not challenged before us, we direct the Assistant Commissioner to take up the present issue also in the remand proceedings afresh, after we set aside the portion of the impugned order dealing with the present issue. The appeal is thus disposed of in the above terms.
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2000 (5) TMI 577 - CEGAT, KOLKATA
Adjudication - Show cause notice ... ... ... ... ..... ing any opportunity to the appellants to put forth their defence. Though, argues the learned Advocate, this submission in regard to the impugned Order of the Assistant Commissioner having travelled beyond the show cause notice, was taken before the Commissioner (Appeals), he had not considered the same and had passed Orders on merits of the case. 2. emsp We have also heard Shri R.K. Roy, learned JDR for the Revenue. In view of the sequence of events as narrated above, we find that sub-heading No. 7326.90 was neither proposed in the show cause notice nor in the corrigendum. As such, the Assistant Commissioner rsquo s Order has clearly travelled beyond the scope of the show cause notice. The appellants were also not given an opportunity at any point of time to contest the said sub-heading. Accordingly, we set aside the impugned Order and remand the matter to the Assistant Commissioner for de novo decision after affording the appellants an opportunity to put forth their defence.
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2000 (5) TMI 574 - CEGAT, KOLKATA
Matter remanded to Commissioner (Appeals) for decision on merits ... ... ... ... ..... irst order dated 4-12-1991 passed by the Asstt. Commr. in respect of the same proceedings which was subsequently set aside by the Commissioner and the matter was remanded. Assistant Commissioner has observed that the right order was not placed before the Commissioner (Appeals). He has, therefore, rejected the appeal. It has been contended by the appellants that this was a mistake on their part. The Commissioner should not have rejected the appeal on this ground. We agree with the learned Chartered Accountant Shri D.B. Desai and accordingly we set aside the impugned order and remand the matter to the Commr. (Appeals) for decision on merits.
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2000 (5) TMI 573 - CEGAT, KOLKATA
Appeal to Appellate Tribunal - Fee ... ... ... ... ..... . 800/- towards fees in terms of provisions of B(6). He submits that as neither any duty has been confirmed against them nor any penalty has been imposed by the impugned order which only determines the annual capacity of production, they would be covered by sub-clause (a) of Section 35B(6). We agree with the above submissions and allow the Miscellaneous Application.
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2000 (5) TMI 551 - CEGAT, CHENNAI
Reference to High Court - Refund ... ... ... ... ..... re is no merit in the said reference application and same needs to be rejected. 4. emsp I have carefully considered these submissions and records of the case and I find in para-6 of statements of facts annexed by Revenue to the said reference application that the Commissionerate itself has conceded that prior to the amendment of the Section by sub-clause (e) of the explanation, the relevant date for computing six months time limit was the date of finalisation of provisional assessment. This reference has been submitted only in view of sub-clause (e) ibid. A perusal of sub-clause (e) ibid shows that the date applies only to any person other than manufacturer. The appeal considered by the said final order was from M/s. Velathal Spinning Mills (P) Ltd., who are registered manufacturers under the Act and therefore the sub-clause (e) would not apply to the facts of this case at all. Therefore, I find that the reference application is totally misplaced in law and same is rejected .
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2000 (5) TMI 550 - CEGAT, KOLKATA
Classification of goods - Hair oil - Excisability ... ... ... ... ..... an error of law and deserves to be reversed. From the above reasons, this revision is partly allowed and the Tribunal rsquo s order is modified so far as Himtaj Oil is concerned and it is held that the turnover thereof is liable to be taxed at the rate prescribed for medicines. The Tribunal is directed to pass consequential order accordingly. We find from the above that the Hon rsquo ble Allahabad High Court has held the product to be Ayurvedic Medicine. We have not been shown by the Revenue that the said order of the Hon rsquo ble High Court was reversed by the Hon rsquo ble Supreme Court. 12. emsp In view of the above discussions and in view of the Allahabad High Court judgment on the same product, we hold that the product in question is an Ayurvedic Medicine classifiable under heading 3003.30 as held by the Assistant Commissioner. Accordingly, we set aside the impugned order of the Commissioner (Appeals) and allow the appeal with consequential relief to the appellant (s).
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2000 (5) TMI 549 - CEGAT, MUMBAI
Classification - Demand - Penalty ... ... ... ... ..... against Chapter Entry No. 5408.00, it is observed that fabrics containing filament yarn would be classifiable thereunder. Therefore, if the filament yarn was found to be in quantities to justify misdeclaration and change in classification, the correct heading for classifying the fabrics would be under Chapter Heading 54 and not under Chapter Heading 55 as arrived at by the Adjudicator in the impugned order. When the classification arrived at in the adjudication order is not found to be correct by us, we cannot uphold any determination of the less charge as made out on the basis of classifying the goods under Heading 5508.00 as made in the impugned order. When no demand of duty as less charge would be confirmed, there is no question of determining any liability for confiscation and or consequences of penalty as arrived at in this case. 4. emsp In view of our findings as above, the order is set aside and the appeal is allowed. Consequential relief, if any, accordingly ordered.
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2000 (5) TMI 533 - CEGAT, MUMBAI
SSI Exemption - Brand name ... ... ... ... ..... quo . He did not accept that the letter F for these denotes the name Fixolite, which was the brand name used by another manufacturer, was not entitled to this notification. It is informed that no proof is produced to this effect. 2. emsp The departmental representative reiterates the grounds in the appeal. This appears to us entirely irrelevant to the basis on which the Commissioner (Appeals) came to his conclusion. The grounds say that an appeal has been filed against the order-in-original passed by the Commissioner of Central Excise, Aurangabad which is pending with the Tribunal. We do not see how it follows from this that order presently impugned is legal and proper. The Commissioner (Appeals) has not at all referred to any order of anybody else and his order is self-contained and clearly explains the reasons for its conclusion, which we have reproduced above. There is nothing in the appeal to question this reason. 3. emsp We are unable to interfere and dismiss the appeal.
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2000 (5) TMI 528 - CEGAT, KOLKATA
Classification of goods ... ... ... ... ..... s merit classification u/s.h 3824.90, the same must necessarily to be held to fall in the Exim Code No. 38249029.80 when the subject goods are capable of being categorised as ldquo office stationery rdquo for which there is an omnibus Exim Code, i.e., 39261009.10. In view thereof, we fully agree with the arguments advanced by the learned Consultant. Accordingly, we hold that for the purpose of ITC (HS) Classification, the ldquo type correction instrument in the shape of a pen rdquo merits to be categorised as ldquo office stationery rdquo and consequently classifiable under the Exim Code No. 39261009.10. In view thereof, no specific import licence is required in respect of the same. Hence, the confiscation of the goods and imposition of penalty on the appellants must be held to be unwarranted and unjustified. Accordingly, we set aside the impugned order with consequential relief to the appellants. 7. emsp The appeal is thus allowed with consequential relief to the appellants.
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2000 (5) TMI 527 - CEGAT, NEW DELHI
Classification - Appeal - Refund ... ... ... ... ..... as the appellants had cleared their final products namely, HDPE sacks on payment of appropriate duty and exemption on duty paid on HDPE tapes consumed captively was admissible to them in terms of Notification 217/86. The refund claim cannot also be rejected on the ground of limitation since the duty had been paid under protest and recorded in the relevant gate passes. 8. emsp However, with regard to the question of unjust enrichment, we find that the refund claim will have to be examined afresh in the light of the Apex Court judgment in U.O.I. v. Solar Pesticides and Another (supra). 9. emsp Since the only surviving issue in this appeal is the question of unjust enrichment, that matter is remanded to the original adjudicating authority to examine the appellants rsquo claim for refund of the disputed amount in the light of afore-mentioned decision of the Apex Court in Solar Pesticides case. 10. emsp The three Appeals are accordingly allowed in the above terms by way of remand.
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2000 (5) TMI 520 - CEGAT, MUMBAI
Valuation - Packing - Corrugated boxes ... ... ... ... ..... that cardboard packing was a normal packing and disallowed the deduction. In the impugned order the Collector (Appeals) upheld the denial citing the Ponds India Ltd. judgment of the Supreme Court. 3. emsp In the appeal memorandum the plea is maintained that the secondary packing is for protecting the goods and not for making the goods marketable. 4. emsp We have considered the submissions. The talcum powder is not sold in retail at the factory gate but is sold to wholesale buyers. In the wholesale trade the normal package would be of a number of containers such as the corrugated box in the present case. The ratio of the cited judgment in the case of Ponds India Ltd. - 1989 (44) E.L.T. 185 was later adopted by the Supreme Court in their judgment in the case of Geep Industrial Syndicate Ltd. v. C.C.E. - 1997 (90) E.L.T. 271. We do not find from the submissions made in the appeal memorandum that these findings could be distinguished. The appeal does not succeed and is dismissed
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2000 (5) TMI 519 - CEGAT, CHENNAI
Reference to High Court - Customs House Agent ... ... ... ... ..... ised as a question of law. Therefore, on both these counts, we find that no question of law as proposed in question No. 2 noted above arises in the final order. 7. emsp Revenue also prays that the Tribunal should not have based the order on ldquo mere technicalities rdquo in allowing the appeal of the respondent as the ends of justice are more important than the former. This again is challenging the correctness or otherwise of the Tribunal rsquo s decision vis-a-vis the applicability of Regulation 18 and Regulation 20. Whether the Tribunal has taken a strict view in considering the nature and content or whether the Tribunal should have taken proper view is again tantamount to question the correctness of the Tribunal rsquo s decision. This also does not raise a question of law. It is the Tribunal rsquo s discretion to construe a statute as it is read. 8. emsp In view of the aforesaid findings, we do not find any merit in the said Reference application and the same is rejected.
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2000 (5) TMI 518 - CEGAT, MUMBAI
Confiscation and penalty ... ... ... ... ..... bed in the shipping bill and invoice of the exporter and the supporting invoice of the manufacturer, both of which accompanied the shipping bill, as AM/FM generator. A slightest reference to any technical dictionary would have indicated that the terms lsquo AM rsquo and lsquo FM rsquo stood for lsquo amplitude modulation rsquo and lsquo frequency modulation rsquo respectively referring to characteristics of signals or pulses and that the goods therefore were not generators of electricity. If the appellant really wanted to mis-declare the goods with a view to obtain the drawback under the heading claimed, it would have taken care not to include in the documents in question the letters lsquo AM rsquo and lsquo FM rsquo . The departmental representative has nothing to rebut this point, except to rely on the Commissioner s order. There was in my view no attempt to mis-declare the goods. 4. emsp In these circumstances, I therefore allow the appeal and set aside the impugned order.
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2000 (5) TMI 517 - CEGAT, KOLKATA
Return of duty paid goods - Duty paying documents ... ... ... ... ..... of the said condition. 2. emsp After hearing both sides, I find force in the appellants rsquo contention that when their application for relaxation of Rule 173H(2) was pending before the Assistant Commissioner, it was his duty to first consider the same and then pass the impugned order confirming demand of duty against them. I observe that if the duty-paid character of the returned goods can be established by collateral evidence, the benefit should not be denied to the appellants on the ground of non-accompanying of returned goods with the original duty paying documents, for which the appellants have tendered a satisfactory explanation. As such, I set aside the impugned order and remand the matter to the Assistant Commissioner with direction to dispose of the appellant rsquo s application under the provisions of Rule 173H(2) and then to decide the matter afresh after taking into account in the light of the observations made by him. The appeal is thus allowed by way of remand.
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2000 (5) TMI 516 - CEGAT, KOLKATA
Project Import - Enforcement of bond ... ... ... ... ..... ing the legal procedure of finalising assessment first and then enforcing the Bond for recovery. We also observe that Commissioner (Appeals) has given a finding that no final assessment could be made by the proper officer as the re-conciliation statements or other documents were not submitted by the appellants. However, we find that even in the absence of the statements made by the appellants, the finalisation of the assessment could be made on the basis of whatever documents were available on record, before enforcing the Bond. As such, we feel that as admittedly the assessments were provisional at the relevant time and are still provisional, as informed to us by Shri Saha, the enforcement of the Bond was premature. 3. emsp Accordingly, we set aside the impugned Order and remand the matter to the original adjudicating authority for finalising the assessments first and then enforce the Bond, in case any duty is due from the appellants. The appeal is disposed of in above terms.
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