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Showing 41 to 60 of 189 Records
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1986 (10) TMI 234 - CEGAT, CALCUTTA
... ... ... ... ..... other both are rightly aggrieved of the Order-in-Original passed by the learned Addl. Collector to the extent that law and procedure have not been duly followed and a defective order has been passed without taking into account all the relevant aspects of the matter. 49. emsp The order of the Addl. Collector of Customs, Calcutta is bad in law and is liable to be set aside as such. However, the question of the ownership of the goods is also required to be decided by the learned Addl. Collector and since correct conclusions can be drawn only after all the relevant facts and circumstances of the case and the submissions of Shri S.N. Lihala and Shri S.K. Lihala as well as of Shri Kashi Nath Panda are taken into account by the original authority which has not been done, we set aside the Order-in-Original passed by the Addl. Collector and remand the case back to him for de novo adjudication in accordance with law and the prescribed procedures keeping in mind the above observations.
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1986 (10) TMI 233 - CEGAT, NEW DELHI
Dutiability - Double taxation ... ... ... ... ..... admittedly both aluminium wires and conductors fell under the same tariff sub-item 33B (ii) ldquo All others rdquo , the department cannot collect and retain full duty twice under the said sub-item the duty collected at the wire stage should have to be deducted from the duty payable on the conductors through the mechanism of Rule 56A, vide the Supreme Court Full Bench judgment in the case M/s. Empire Industries Ltd. and others v. U.O.I, and others 1985 (20) E.L.T. 179 (SC) Paragraphs 47 and 49 . If that is done, the net duty that would be chargeable would be equal to the duty leviable on conductors which the respondents have already paid. There is no warrant in law for asking them to pay the duty on wires also in addition without giving them proforma credit of the wire duty. Nothing more is, therefore, payable by the respondents. 5. emsp In the light of our above discussion, we dismiss all the five appeals and discharge the show cause notice issued by the Central Government.
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1986 (10) TMI 232 - CEGAT, NEW DELHI
Import - Photocopiers cannot be imported as gift ... ... ... ... ..... happens at times that when prohibited goods are confiscated, the authorities give the importers an option to have the goods redeemed on payment of an adjudged amount of fine in lieu of confiscation. But there can be no question of any ldquo practice rdquo in such matters. Each case stands on its own merits. At any rate, there is no evidence adduced on record to support the appellants rsquo contention regarding the existence of any ldquo practice rdquo till August, 1985. It may be that to begin with the authorities released a few photocopiers on fine but when such unauthorised importations started arriving on a large scale, posing a danger to the up and coming home industry, they decided to be strict. There is nothing wrong in that. The lower orders are based on facts and are legally correct. Since we uphold the absolute confiscation, we do not consider it necessary to go into the controversy regarding correct value of the goods. 4. In the result, we dismiss both the appeals.
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1986 (10) TMI 231 - CEGAT, NEW DELHI
Export - Taxable event ... ... ... ... ..... ove is applied for, it is open to the authorities either to grant the amendment or direct that the original shipping bill may be withdrawn and a fresh shipping bill (with the name of the vessel through which the export is to take place) be presented. If the authorities had directed the respondents to file a fresh shipping bill with the name of M.V. President Wilson, the same would have been presented on 19-6-1981. That would be subsequent to the date of entry outwards for that vessel (10-6-1981) and therefore under Section 16 the rate of duty would have been as on 19-6-1981 i.e. nil rate of duty. The fact that the authorities did not insist on this procedure, but permitted an amendment to take place, should not lead to any different conclusion as to the applicability of Section 16 to the amended shipping bill. 4. emsp In the above view we hold that the order of the Appellate Collector directing refund as applied for is correct. Upholding the said order we dismiss this appeal.
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1986 (10) TMI 230 - CEGAT, MADRAS
Imposition of penalty justified ... ... ... ... ..... rge against Gajraj has been clearly brought home. So far as the quantum of penalty on Gajraj is concerned we are not inclined to agree with the learned S.D.R.. that merely because he occupies a little higher status than the members of the crew he would deserve to be treated in a different way with higher penalty. It is settled proposition of law that in respect of commission of an offence people who are similarly placed with reference to the commission of an offence should be treated similarly unless there is any special circumstance warranting a different treatment. In the present case we do not find any justification for imposing a higher penalty on appellant Gajraj. We therefore reduce the penalty imposed on appellant Gajraj under the impugned order from Rs. 25,000/- to Rs. 10,000/-. In the result C/64/86 (appellant Sripad Thite) and C/58/86 (appellant Shaik Mohd. Rowther and Co.) are allowed and the other appeals are dismissed except for the modifications indicated above.
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1986 (10) TMI 229 - CEGAT, BOMBAY
Loss or deterioration ... ... ... ... ..... have prevailed on them in turning down the requests for remission of duty was the Board rsquo s letter dated 22.10.1982 and the instructions conveyed therein. It is seen that these instructions are not in keeping with the judicial exercise of discretion vested in the Proper Officer. In some cases, the Molasses had already been destroyed while in other case, the Molasses are still available with the appellants pending their appeal. It has been urged by some appellants as in appeal Nos. 33/84 and 105/85 that they have Molasses in store for the sugar seasons 1977-78 and 1979-80 onwards respectively. These Molasses have deteriorated in quality due to open storage and are not fit for use or marketing. Therefore they have to be permitted to be destroyed under Rule 49 on remission of duty. In these circumstances, I agree with the conclusions reached by Brother Hedge in paragraphs 2, 59 and 60 of his order in relation to the cross-objections and the appeals, and I order accordingly.
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1986 (10) TMI 228 - CEGAT, CALCUTTA
Appeal - Remand - An order which does not exist in the eve of law cannot be confirmed ... ... ... ... ..... ords, after this order was set aside, it ceased to exist in the eyes of law. Since the order itself ceased to exist in the eyes of law, it could not have been confirmed by the learned Collector by his order dated 15-8-1982, as mentioned above after de novo examination. An order, which does not exist in the eyes of law, cannot be confirmed. Though the learned Collector, in the course of de novo examination, has taken pains to show that sufficient opportunity, according to him, was given to the appellant as directed by the learned Board, it is apparent that his order suffers from a legal defect which cannot be cured. 7. In view of what has been stated above, this order of the learned Collector dated 15-7-1982 is set aside and the case is remanded back for de novo adjudication in accordance with law to the learned Collector of Central Excise having jurisdiction, after giving the appellant an opportunity of being heard. 8. Appeal is allowed. (Announced in open court on 3-10-1986)
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1986 (10) TMI 205 - CEGAT, NEW DELHI
Manufacture ... ... ... ... ..... s, the transformer oil must be assessed under item 8 and so the action to assess it under this head is correct and we rectify it. All orders to the contrary are void and shall have no effect. rdquo ldquo Para No. 12. The above discussion and finding will apply to the Appellate Collector rsquo s order No.l545/Cal/81 dated 16-11-1981 dealt with in the Tribunal appeal No-206/82-C. This appeal relates to the period 9-6-1978 to 21-9-1978. In this appeal too, M/s. Indian Petro Products obtained TOFS/TOBS which paid duty under item 11 A and used it to manufacture transformer oil. But the Appellate Collector decided that with effect from 9-6-1978, transformer oil was classifiable under item 8 CET, a view quite the reverse of his earlier one of 30-4-1981 for the period 1-3-1978 to 31-5-1978. rdquo After going through the earlier orders of the Tribunal we do not find any reason for deviating from the earlier view. Accordingly we do not find any merit in the appeal. Appeal is dismissed.
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1986 (10) TMI 204 - CEGAT, NEW DELHI
Appeal to Appellate Tribunal - Right of appeal ... ... ... ... ..... e said notice with regard to any provisions of law also cannot be upheld. It is true that in the case of J.K. Steel Limited v. Union of India, A.I.R. 1970 S.C. 1173 and N.B. Sanjana, Assistant Collector of Central Excise v. Elphinstone Spinning and Weaving Mills, 1978 E.L.T. (J 399) (S.C.), the Supreme Court has held that the wrong mentioning of the Section would not vitiate the proceedings. But from the record I observe that the instant case is not the case where Rule 9(2) of the Central Excise Rules, 1944 was mentioned wrongly. In the Show Cause Notice which is on record there is no allegation of any wilful misstatement or suppression of facts by the appellant as required under old Rule 10, and therefore the lower Appellate Authority below, if I may say, rightly held that the case was not covered by Rule 10. Under these circumstances, in my opinion no interference with the impugned order is called for at this end. 6.In the result the appeal fails being devoid of any merits.
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1986 (10) TMI 203 - CEGAT, NEW DELHI
CLASSIFICATION ... ... ... ... ..... said order-in-appeal we, on our own, come to the conclusion that the lsquo exclusion clause rsquo of Column-4 to Notification No. 172/77-Cus would not take within its compass the imported goods, which were merely in the form of lsquo diffused chips rsquo and had to undergo various intricate and technical processes to reach the stage of lsquo semi conductor devices rsquo , and which have been certified by the Department of Electronics (DGTD) to have been only in the nature of lsquo raw material rsquo or components for manufacture of lsquo semi conductor devices rsquo . 21. emsp We have already observed that the respondent has not placed any material before us to show them otherwise. We, therefore, in the result hold the appellants entitled to benefit of Notification No. 172/77-Cus dated 3-8-1977, in all these cases, in respect to the said goods while holding them classifiable under T.I. 85.18/27(1) of the CTA. 22. The appeals are allowed accordingly, with consequential relief.
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1986 (10) TMI 202 - CEGAT, NEW DELHI
Appeal - Condonation of delay ... ... ... ... ..... se received from the Assistant Collector concerned, vide copies supplied by the learned SDR subsequently, do not reflect any keenness to file the time-chart or supporting affidavit before the Tribunal because we do not find any instruction to that effect in the reply-message, the only instruction being to place reliance on a subsequent order of the West Regional Bench. 16. emsp We, therefore, are of our considered view that in this case, no cause, much less a sufficient cause, has been established or made out for not presenting the appeal within the statutory period, as provided by Section 129A(3) of the Act, and that no case for condoning this inordinate delay of 9 months and 25 days has been made out. We, therefore, reject the applications for lsquo condonation of delay rsquo in all the cases. 17. emsp As a result, the appeals, having been filed after the statutory period of limitation, cannot be entertained and are liable to rejection. The appeals are rejected accordingly.
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1986 (10) TMI 201 - CEGAT, NEW DELHI
Refund claim ... ... ... ... ..... s to the existence of such a procedure in the Madurai Collectorate during the relevant period we are not in a position to come to any conclusion on this question so as to apply the principles laid down in the decisions relied on by Shri Salve. We are satisfied that the order of the lower authorities cannot be supported since that had not gone into the question of prevalent practice. In the circumstances it has become necessary to have this matter gone into by the Assistant Collector before the refund claim could be properly disposed of. 6. emsp Accordingly, the appeal is allowed, the orders of the lower authorities are set aside and the matter is remanded to the Assistant Collector for de novo adjudication in the light of the discussion earlier and in the light of principles laid down in the decisions of this Tribunal mentioned above. As the refund claim is old, the Assistant Collector should dispose of the matter within three months after the receipt of a copy of this order.
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1986 (10) TMI 200 - CEGAT, NEW DELHI
classification ... ... ... ... ..... on of the Tribunal in the case of Collector of Central Excise, Bhubaneshwar v. Orissa Weavers Co-operative Spinning Mills 1985 (21) E.L.T. 348 (Tribunal) involving multiple fold Cotton Yarn would cover this case as well. It has been held in the said decision of the Tribunal as follows - ldquo It is further made clear in Explanation II below, Item 18III made applicable to Item 18A by virtue of Explanation (3) thereunder that Cotton Yarn includes both single yarn as well as multiple fold yarns else there would be no point in describing how the count of multiple fold yarn shall be determined for the purpose of Tariff Item 18 as well as 18A. In fact, single yarn and multiple fold yarn or double yarn are two different varieties of Cotton Yarn. They are not different commodities either in the Central Excise Tariff or commercially rdquo . These observations are equally relevant for the product under consideration. Accordingly, the appeal is allowed with consequential relief, if any.
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1986 (10) TMI 199 - CEGAT, NEW DELHI
Demands and Refunds ... ... ... ... ..... he Government and not as duty and, therefore, the time bar of Section 27 of the Customs Act would not apply to the refund of such a deposit. If the provisions of general law of limitation can be applied to the aforesaid cases of refund, there is no reason as to why those provisions cannot be made applicable in the cases of short-recoveries. In this view, the demand would be time barred inasmuch as the notice was issued beyond 3 years of the date of short-payment which is the limitation provided in the Limitation Act. Since an appeal lies to the Tribunal in terms of Section 35B of the Act against a decision of the Collector (Appeals) and the appeal is actually now before the Tribunal, the Tribunal is bound to give a decision. In view of the above finding, the appeal is dismissed. This is, however, without prejudice to any proceedings that the Department may like to launch in a court of law under any other provisions of any Act other than the Central Excises and Salt Act, 1944.
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1986 (10) TMI 198 - CEGAT, NEW DELHI
CLASSIFICATION ... ... ... ... ..... c.v. duty, we do not agree with the learned consultant for the appellants. The scope of the expression lsquo shapes and sections in any form or size rsquo in the Tariff Item 27(b) of CET is wide enough to cover forgings of aluminium as well. The distinction sought to be drawn between primary articles and secondary articles on the basis of Central Board of Excise and Customs rsquo letter dated 25-4-1979 is not quite proper. That clarification is mainly in the context of articles of aluminium like rings, bars, spoons etc. A perusal of the first para of the said clarificatory letter, on the other hand, makes it fairly clear that the purpose of including the aforesaid expression was to extend the scope of Tariff Entry beyond the extruded shapes and sections which alone were liable to duty under Tariff Item 27 prior to 1977 Budget. Accordingly, the contention of the appellants on the question of c.v. duty is rejected. 7. The appeal is, therefore, partly allowed in the above terms.
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1986 (10) TMI 197 - CEGAT, NEW DELHI
Import - Confiscation - Misdeclaration ... ... ... ... ..... appellant cannot be accepted and there is no evidence on record to this effect that the supplier had sent by mistake Brass Metal instead of Brass Dross. In the invoices there is a clear mention that the Foreign. Supplier was to sell Brass Dross but actually he had sent Brass Metal. There is a big difference in the price of Brass Metal and Brass Dross and no prudent seller would sell expensive item at a lower rate. To meet the ends of justice we reduce the personal penalties to Rs. 25,000/- Rs. 25,000/-(Rupees Twenty Five Thousand Plus Rupees Twenty Five Thousand only). We confirm the findings of the lower authorities on the points of valuation and classification. We further hold that the fine in lieu of confiscation at Rs. 5 lakhs each is excessive. To meet the ends of justice we reduce the same to Rs. 4,50,000/- each (Rupees Four Lakhs Fifty Thousand each only). Except for the reduction in personal penalties and fine in lieu of confiscation the appeal is otherwise rejected.
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1986 (10) TMI 196 - CEGAT, NEW DELHI
Exemption notification issued under Central Excise Rules ... ... ... ... ..... ble under the Central Excises and Salt Act. When the notification under rule 8 seeks to involve any other central law like the Customs Tariff Act, it must refer specifically to such Act in the absence of any such specific reference, we cannot read in the word ldquo duty rdquo , a duty other than the duty leviable under the Central Excises and Salt Act. 13. emsp A duty of customs leviable as additional duty under the Customs Tariff Act is not a duty defined under the rules and the payment of such duty cannot be relevant for purposes of reading the three notifications claimed by the appellants. We are not able to agree that the word ldquo duty must be distinguished from rdquo duty of excise . In our view the two mean the same. 14. emsp We reject the contention of the learned counsel for M/s. United Metal Industries that the Collector could not have taken this action since only a demand under Section 11A was valid. We can see no basis for this argument. 15. We reject the appeal.
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1986 (10) TMI 195 - CEGAT, MADRAS
Appeal to the Appellate Tribunal ... ... ... ... ..... r of Customs (Appeal) once over on the very same issue already decided by his predecessor in office as indicated above. Evidently this mistake has happened by reason of the change of the Collector of Customs (Appeal). Since already the Collector of Customs (Appeal), Madras in respect of the issue in question passed an order on 14-5-1985 as disclosed by the department rsquo s file the present impugned order dated 24-1-1986 once over is without jurisdiction. In this view of the matter I set aside the impugned order dated 24-1-1986 passed by the Collector of Customs (Appeal) as one without jurisdiction in law. I further direct that the copies of the order of the Collector of Customs (Appeal) dated 14-5-1985 referred to supra be communicated as per law to the appellant so as to enable him to prefer an appeal before proper forum if he so desires. Since the impugned order has been set aside on preliminary question of law I do not feel called upon to go into the merits of the issue.
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1986 (10) TMI 194 - CEGAT, NEW DELHI
Capacitators ... ... ... ... ..... 5. Explanatory Notes to the CCCN provide a valuable guide since entries in the CTA closely follow the CCCN. Note 2 of Section XVI further provides that goods described, inter alia, in Chapter 85 are to be classified according to the description mentioned in the various Headings in that Chapter. Electrical Capacitators being specifically mentioned in Heading 85.18/27(2) and Electrolytic Capacitator being only a type of Electrical Capacitator are positively covered by the Tariff as held by the lower authorities. The distinction sought to be created by the appellants is of no significance so far as the classification of the goods is concerned. In view of this finding, the question of benefit of Notification 341/76-Cus., dated 2-8-1976 for import of goods from Yugoslavia does not arise in this case. Since according to the Notification, the goods in order to enjoy the benefit of concessional rate of duty must fall under Tariff Heading 85.15. 6. Accordingly, the appeal is rejected.
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1986 (10) TMI 193 - CEGAT, BOMBAY
Man-made filament yarn ... ... ... ... ..... n the case of M/s Reliance Textile Industries Pvt. Ltd., this Bench, in detail, considered the nature and character of POY. It has also considered the scope and ambit of Rule 56B. After recording detailed reasons, the Bench held that POY is a finished product. Just because it cannot be woven or knitted or used in the manufacture of fabrics without converting into textured yarn, it does not cease to be a finished product. The Bench had also held that POY is regarded not only by the manufacturer but commercially and in the trade as a distinct commodity having its own identity and known in the market as such. We see no reason to take a view different from the view taken by us in M/s Reliance Textile Industries Pvt. Ltd rsquo .s case. Since we have rejected the contentions urged by Shri Jagtiani, the question of referring the matter for the consideration of a larger Bench would not arise. 51.In the result, this appeal is allowed. The order of the Collector (Appeals) is set aside.
........
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