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Showing 241 to 260 of 410 Records
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1998 (12) TMI 180 - CEGAT, MUMBAI
Modvat - Duty paying documents lacking in certain particulars ... ... ... ... ..... eceived and used in the manufacture of final product, such Modvat credit cannot be denied due to procedural deviation. What is important is the production of genuine/documents and the defects which are remediable can be cured subsequently. My above view is based on the case in respect of M/s. Amal Rasayan Ltd. v. Collector of Central Excise, 1998 (87) E.L.T. 133 and M/s. Mangalore Chemical and Fertilisers Ltd. v. The Deputy Commissioner, 1991 (56) E.L.T. 437 . Therefore, the assessee no doubt could not procure the proper invoice. Later on he had rectified the said defects. The inputs have been received and used in the manufacture of final product and Modvat credit cannot, in my view, be denied in the said circumstances. It is not the case of the department that the assessee has not filed any declaration. Therefore, I am of the view that the appeals have to be allowed and I set aside the impugned orders and allow the appeals with consequential relief, if any, permitted by law.
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1998 (12) TMI 179 - CEGAT, NEW DELHI
Paste - Departmental clarifications ... ... ... ... ..... aste is not liable to duty. 2. emsp The question raised by the Revenue in these appeals is that this clarification of the CBEC will be applied prospectively and not to the facts of these cases which relate to an earlier period. We are unable to accept this submission. A clarification of the Board applies to all pending matters. This is an appeal, which is pending before us. Therefore, the Board rsquo s Circular is rightly applicable to the present matter. Hence we dismiss the appeal of the Revenue.
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1998 (12) TMI 178 - CEGAT, NEW DELHI
Stay/Dispensation of pre-deposit - Demand - Limitation ... ... ... ... ..... Excise, Calcutta-II, wherein it has been held that provisions of Section 11AC cannot be applied to offences committed prior to the introduction of that Section. 2. emsp We have also heard the learned JDR Shri R.S. Sangia who reiterated the findings of the Adjudicating Authority regarding the suppression of facts. The said Authority has held that by not giving correct declaration in the classification list, the applicant has misled the department and, therefore, larger period of demand of duty has been rightly invoked. We are unable to comprehend this finding of the Adjudicating Authority in the face of the declaration made by the applicant in the classification list as already set out above. Consequently, we are prima facie of the view that the applicants have a strong prima facie case on question of time bar on demand of duty. Consequently, the provisions of Section 11AC for imposition of penalty also would not be attracted. Hence, we allow the stay petition unconditionally.
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1998 (12) TMI 177 - CEGAT, MUMBAI
Reference to High Court - Modvat ... ... ... ... ..... is an eligible input for availing the Modvat credit. In the order when it was made we have taken note of the Tribunal rsquo s judgment in respect of the same assessee reported in 1989 (41) E.L.T. 424. The question proposed is whether titanium metal anodes used as Electrodes in the Electrolytic cell in which brine is electrolysed to produce Caustic soda lye can be treated as input or not is purely a question of fact. We had followed in our earlier judgment of the Tribunal in respect of the same assessee rsquo s case. In any event, the instant material is only a part of the machine, hence we feel the question proposed is not a referable question of law of the Gujarat High Court. 3. emsp Application is rejected.
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1998 (12) TMI 176 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... no doubt the product Telescopic Brushes are parts of Electro-magnetic Clutches, but the latter is a part of Machine Tools. It is therefore, contended that Telescopic Brushes are parts of machine tools falling under Tariff Heading 84.66. 3. emsp We have considered the pleas of both the sides. We are unable to accept the pleas of the appellants for the reasons mentioned by the Revenue. Electro Magnetic Clutch being a separate specifically stated equipment/ machine, the part of it has to be classified in the same heading as per electro-magnetic clutch under Heading 85.05 in view of Section Note 2(b) of Section XVI. Hence, we dismiss the appeal of the appellants.
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1998 (12) TMI 175 - CEGAT, NEW DELHI
Demand - Limitation - Penalty ... ... ... ... ..... is baseless. Once this fact is known to the department, the department should have understood that job work activity was being done by the appellant and the value of the job work done would also be included for the purpose of reckoning the aggregate clearance under Notification No. 175/86-C.E. That having not been done by the department, the appellant cannot be blamed for the same. In view of the aforesaid facts and circumstances, the larger period of five year is not at all justified. Consequently, we uphold the plea of the appellant that the show cause notice dated 3-1-1990 is barred by time and on this point, we set aside the demand of duty made against the appellant. Since the demand of duty has been set aside, the penalty also would not be sustainable because no offence of wilful mis-statement or any guilty knowledge can be made against the appellants. In short, the appeal is allowed on the question of limitation alone and the impugned order to that extent is set aside.
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1998 (12) TMI 174 - CEGAT, NEW DELHI
Cloth - Controlled cloth - Benefit of notification 70/88-C.E. not available ... ... ... ... ..... il price in respect of controlled cloth as Rs. 8.25 per metre. (The assessees sold the fabric at Rs. 8.75/- per metre). Therefore, the cloth sold at a price higher than the price stipulated by the Textile Commissioner rsquo s Order read with Textile (Control) Order does not qualify as controlled cloth. Further, in exercise of the powers conferred by Clause 16, 17, 18 of the Textile (Control) Order 1986, the office of the Textile Commissioner issued the lsquo Controlled Cloth (Production and Distribution) Notification, 1987 rsquo on 29-4-1987 which provides that the controlled cloth must be sold by the Mills at the maximum ex-factory price determined by the Textile Commissioner. 5. emsp In the light of the above, we agree with the learned DR that the fabric on which duty demand has been raised and confirmed by the Assistant Collector is not eligible to the benefit of exemption in terms of Notification 70/88 and accordingly, we set aside the impugned order and allow the appeal.
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1998 (12) TMI 173 - CEGAT, MUMBAI
Import Trade Control ... ... ... ... ..... problem and destruction of his family house, shooting of his father and killing in riot in Delhi in 1984, loosing everything in life, which naturally forces any man to set right his life first, and then look to the other things. This cannot be termed as either negligence or unconcerned conduct with the imported car worth about Rs. 45,000/-. The reasoning in the impugned order both on facts and law is not sound. The appellant has a firm ground in support of his case that there was no idea to sell the car. CCP was in his favour. Show cause notice and adjudication orders are not shown to have been served. Even his letter is not replied. So under these circumstances there are sufficient and satisfactory grounds to set aside the impugned order. Point raised is answered in the affirmative. We pass the following order - ORDER 10. emsp For the reasons indicated above, impugned order is set aside against the appellant. His appeal is allowed with consequential relief according to law.
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1998 (12) TMI 172 - CEGAT, MUMBAI
Redemption fine and penalty ... ... ... ... ..... orter. He has ordered confiscation of the goods with an option to redeem them on payment of fine of Rs. 10.00 lakhs and imposed a penalty of Rs. 1.00 lakh. 3. In the background of the observation of the Collector, we agree with the departmental representative that there is merit in the submission in the department rsquo s appeal that penalty and redemption fine are incommensurate with the gravity of the misdeclaration and the duty involved. The department rsquo s appeal does not indicate any margin of profit or other factors which would be the relevant criterion for determining the fine and penalty. In these circumstances, we accept the suggestion of the departmental representative that 25 ought to be the reasonable figure for redemption fine. The knowing act of misdeclaration by the importer warrants a deterrent amount of penalty. 4. emsp Accordingly, we modify the Collector rsquo s order by determining the redemption fine to be Rs. 18.00 lakhs and penalty to Rs. 4.00 lakhs.
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1998 (12) TMI 171 - CEGAT, MUMBAI
... ... ... ... ..... o s decision in Appeal E/5495/91-A, filed by the Collector of Central Excise, Aurangabad against the order of the Collector (Appeals) for a later period, holding that the job charges included the manufacturing profit has been dismissed by the Tribunal on the ground that the job charges would necessarily include the profit element. Liket in that case, the department has no case that the appellant collected any amount from the buyers as profit over and above the job charges. The value declared therefore must be considered to have been included in the manufacturer rsquo s profit. 4. emsp Appeal allowed and the impugned order set aside. Consequential relief.
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1998 (12) TMI 170 - CEGAT, NEW DELHI
Scrap - Duty paid nature ... ... ... ... ..... the assessee are mixed up scrap (duty paid scrap and duty exempted copper scrap) and it is not possible to identify and prove that the open market purchases made by the party is a non-duty paid one. We have also perused the order in appeal passed by the lower Appellate authority where there is a categorical finding that the Department has not produced any evidence to show that the goods purchased are clearly non-duty paid. The consistent view of the Tribunal in such cases is that once a stand is taken by the assessee that the goods are duty paid, then the onus shifts to Revenue to prove that the relevant goods are non-duty paid. In the instant case, no investigation report has been filed to show that the department had conducted any investigation to prove that the goods were not duty paid. Having regard to the above case, we do not find any legal infirmity in the order of the learned Collector (Appeals). In the result, the impugned order is upheld and the appeal is rejected.
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1998 (12) TMI 169 - CEGAT, MUMBAI
... ... ... ... ..... d. v. Collector of Central Excise, Pune - 1996 (88) E.L.T. 355 on which appellants rely upon, wherein after considering the Patna High Court judgment above, the Larger Bench held that tool kit even assuming that they are tools, but even then considering the comprehensiveness of the words used in relation to the manufacture rsquo of occurring in Rule 57A of Central Excise Rules, and further considering that the finished products are motor vehicles with these articles placed in them as necessitated by Trade Pattern, marketability test, the Larger Bench held that tool kit along with motor vehicle are input, as contemplated in Rule 57A of Central Excise Rules and are not covered by the exclusion clause of the Explanation to that Rule. The ratio of the decision fully applies in the case of Luggage carrier fitted with and cleared by the applicant, along with their vehicle TATA SUMO. In this view of the matter, the Commissioner (Appeals) order is set aside and the appeal is allowed.
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1998 (12) TMI 168 - CEGAT, NEW DELHI
Redemption fine - Penalty ... ... ... ... ..... 10. emsp It is true that the concerned Section permits imposition of penalty upto 5 times the value of the goods involved. Seldom, if ever, is this figure reached. The quantum of penalty varies depending upon the various ingredients present in the unlawful importation. So at all times, these ingredients have to be spelt out so as to indicate the adequacy or otherwise of the quantum of penalty. In view of the lack of these inputs, it cannot be said the present imposition was inadequate. 11. emsp Although it is not a part of record, I also take cognizance of Shri Harbans Singh, ld. Advocate rsquo s submission that the department has not thought much of this offence inasmuch as his clients were not prosecuted. 12. emsp On consideration of the grounds of appeal, the reasoning given in the impugned order and my discussion above, I find that the Revenue have not made a case for merit in interference with the impugned order. These appeals from the Revenue, therefore, are dismissed.
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1998 (12) TMI 167 - CEGAT, NEW DELHI
... ... ... ... ..... not justified under the Customs Valuation Rules. We also observe that sub-rule (3) of Rule 5 provides that if more than one transaction value of identical goods is found, the lowest of such value shall be used to determine the value of imported goods. The learned Counsel has also rightly contended that the computer print out of the Bombay Customs House also showed the price of Gem brand staple pin No. 10 made in Korea at the price of U.S. 0.5427 per dozen boxes which was less than the price declared by them and according to Rule 5(3), the lowest value of identical goods should have been taken by the Department for determination of the value of the imported goods. We, therefore, set aside the impugned order enhancing the value of the imported goods. As the enhancement of the value has not been upheld, consequentially the order passed by the Additional Collector imposing penalty and fine becomes inoperable and as such is also set aside. Accordingly both the appeals are allowed.
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1998 (12) TMI 166 - CEGAT, MUMBAI
Stay/Dispensation of pre-deposit ... ... ... ... ..... mount received by the applicant would be Rs. 30 lakhs. We have to consider in addition receipt of normal agency charges from exporters and importers. There is no explanation as to disposition of amounts so received. We therefore do not find any basis for financial hardship. 10. emsp We, however, noted that the applicant has already deposited Rs. 25 lakhs in pursuance to the High Court order pending adjudication regarding which the Commissioner has passed another orders. We are of the view that no further deposit in addition to the Rs. 75 lakhs already deposited by Vas Synthetics is required to be made, and dispense with the deposit of remaining duty and stay its recovery. We direct, against the penalties imposed, applicants Arun Mehra and Ashok Pokharkar to deposit Rs. 75 lakhs and Rs. 13 lakhs respectively within 2 months from the date of pronouncement of this order. On such deposit we waive deposit of the remaining amount and stay recovery. 11. emsp Compliance on 18-2-1999.
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1998 (12) TMI 165 - CEGAT, NEW DELHI
PVC compound - Eligibility to Notification No. 206/77-C.E. ... ... ... ... ..... e Revenue. 2. emsp On hearing both sides and perusing the records, we find that in the appeal before us, the Department is seeking to rely upon the Chief Chemist rsquo s opinion to the effect that the product in dispute is not commonly understood as PVC compound, in view of the fact that, while in PVC compound, plasticizer is incorporated in the resion so as to solvate PVC, Plastisol is a simple mixture of PVC resin, plasticizer and filler and the product in dispute is not one where plasticizer is solvated. This opinion was obtained after the passing of the impugned order and is, therefore, not a document relied upon either in the show cause notice or in the proceedings before the original authority. Hence, the Department cannot rely upon such opinion. There is no other ground of challenge to the Additional Collector rsquo s order and hence no ground for interference with the impugned order as it stands has been made out. Accordingly, we uphold the same and reject the appeal.
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1998 (12) TMI 164 - CEGAT, MADRAS
Appeal by Department ... ... ... ... ..... ision of law. 3. emsp Learned DR placed before us the case file. We have examined. We notice that the Superintendent had placed the file before the Commissioner with the noting that ldquo in view of Collector rsquo s orders in the Review sheet a fresh authorisation is put up for approval rdquo . That has been initialled by the Collector on 22-1-1990 and also signed the authorisation which was placed before him. The authorisation does not indicate that the Order is not legal or proper. There is no review sheet in the file to indicate that the order had been read by the Collector and had expressed his opinion that the said order is not legal or proper. In the absence of this Commissioner rsquo s application of mind and the same not coming forthwith from reading the case records, we are of the considered opinion that the judgment of the Hon rsquo ble Supreme Court would directly apply to this case and the appeal is liable to be rejected on this ground. Hence ordered accordingly.
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1998 (12) TMI 163 - CEGAT, NEW DELHI
Demand - Show cause notice ... ... ... ... ..... appellant rsquo s Counsel had stated that they had received the notice only on 13-10-1986. However, it is also noted that the appellants rsquo have also not shown any proof as to receipt of the letter on 13-10-1986. Nevertheless, having regard to the above factual position, we are inclined to accept the appellants rsquo contention that in the absence of proof of SCN dated 6-10-1986 having been tendered or delivered on 6-10-1986 their plea of time bar would be valid. 8. emsp As regards the demand of Rs. 22,543.00, the ld. Counsel had not pressed the matter and, therefore, the same is being upheld. 9. emsp As regards the dispute relating to the assessment being provisional, we are not expressing any opinion in the absence of any material on record to support the contentions of either side. 10. emsp Since we have held that the demand for the month of March, 1986 is hit by time bar, the demand for March, 1986 is set aside. 11. emsp The appeals are disposed of in the above terms.
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1998 (12) TMI 162 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... se of the paper and thus there has been great injustice by not considering these important factors. He, therefore, prays that the impugned order may be upheld and the appeal may be rejected. 5. emsp Heard the submissions of both the sides. On careful consideration of the submissions made, we find that there is force in the arguments of ld. Counsel for the respondents inasmuch as the adjudicating authority did not take into consideration the note in the test report nor did he refer to retest report dated 25-10-1991 nor did he pay any heed to the result of the other test report submitted by the assessee. We find that this is a fit case for remand. In the circumstances, we remand the appeal to the adjudicating authority to examine the retest report as well as other test reports and any other evidence adduced by the appellant after giving an opportunity of being heard in person and pass appropriate orders in accordance with law. The appeal is, therefore, allowed by way of remand.
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1998 (12) TMI 161 - SUPREME COURT
Ship for breaking up ... ... ... ... ..... xplaining Light Displacement Tonnage. We fail to see how these throw any light on the present case. 5. Entry 89.08 has been subsequently amended w.e.f. 29-2-1988. As a result, Note 2 hase been introduced in Chapter 89. Note 2 reads as under ldquo 2. In Heading No. 89.08 rdquo Light Displacement Tonnage (LDT) means LDT in metric tonnes as per Builder rsquo s Registered LDT referred to in the Stability Book or the builder rsquo s certificate at the time of initial commissioning of the vessel or the floating structure Provided that in case of any change in the LDT, the highest of the LDT indicated in any of the documents referred to above shall be taken for the purpose of levy of duty. 6.The Tribunal has rightly held that since Chapter Note 2 was incorporated only w.e.f. 29-2-1988, it cannot affect the present case where the ship was imported prior to the addition of the said Note in Chapter 89. 7.The appeal is, therefore, dismissed. There will, however, be no order as to costs.
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