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Showing 21 to 40 of 228 Records
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1983 (12) TMI 311 - CEGAT CALCUTTA
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... ... ..... evented by sufficient cause in the late filing of the appeals before the Tribunal. The appellant had filed the appeals before the Collector (Appeals) within the limitation and the appellant had filed the appeals with the honest belief due to the judgment of this Court that in the case of order passed by the additional Collector the appeal lies with the Collector (Appeals). Thus the delay in filing the appeals to this Court is condoned. However, keeping in view the judgment of the Calcutta High Court in the case of Inchek Tyres v. Assistant Collector of Customs reported in 1979 E.L.T. J236 and also the discussions above I hold that the appellant is not entitled to the refund of ₹ 9534.40 and ₹ 1866.91 as the appellant has not complied with the requirements of the procedure under Chapter IX of the Central Excise Rules, 1944. Mere registration with the Jute Commissioner does not help the appellant. In the result both the appeals filed by the appellant are dismissed.
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1983 (12) TMI 310 - CEGAT CALCUTTA
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... ... ..... the appellant had filed the registration certificate as well as the refund claim before the Superintendent of Central Excise within the time but Section 11B of the Central Excises and Salt Act, 1944 prescribed that the refund claim has to be filed before the Assistant Collector and in the instant case the same was filed on 2nd December, 1981. The provisions of Section 11B are quite explicit that the refund claim has to be filed before the Assistant Collector. I very respectfully agree with the findings of the Hon’ble Calcutta High Court in the case of Inchek Tyres v. Assistant Collector of Central Excise that the petitioner is bound to follow the conditions imposed by a statute which confers such right to the petitioner. The intention of the Legislature as per terms of Section 11B is very clear that the refund claim has to be filed before the Assistant Collector. The same being filed beyond time I uphold the order passed by the lower authorities and dismiss the appeal.
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1983 (12) TMI 309 - CEGAT CALCUTTA
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... ... ..... or until the certificate of re-warehousing is presented to the officer-in-charge of the factory or warehouse of removal to his satisfaction." Thus, Rule 156B requires that before an assessee is entitled to refund has to satisfy that the duty has been paid and proof of re-warehousing is produced by the consignor to the satisfaction of the proper officer. In this case, there is no re-warehousing and even the payment of excise duty by the consignee as per photostat copy of T.R. 6 is not a sufficient proof that the payment has been made and the appellants have not been able to discharge the onus as per judgment of Hindustan Steel Ltd. v. Union of India reported in 1979 E.L.T. (J33) (M.P.). In view of the above discussions, I hereby uphold the order passed by the lower authorities. Since there is no A.R. 3A certificate the question of limitation for making a refund claim is not of any importance. I confirm the order passed by the Collector (Appeals). The appeal is dismissed.
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1983 (12) TMI 308 - CEGAT NEW DELHI
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... ... ..... Air Compressor was an instrument or apparatus falling under Heading 90.24. He persisted in arguing that Air Compressors controls the flow and pressure of air which is gas. It is not possible to accept Shri. Poplai’s argument that Air Compressor would fall under Heading 90.24 because Heading No. 84.11 inter alia covers Air or gas Compressors. This being pointed to Shri. Poplai, he made an attempt to show how the goods imported are to be used in Instrumentation and control system of the appellants Thermal unit. The appellants have themselves said that the parts are accessories of Air Compressors and if Air Compressors might be used in the appellants unit would not mean that parts of Air Compressors should be classified with that of the unit. The appellants have failed to make out a case justifying classification of goods under Heading 90.24 or 90.29. Therefore, no interference in the order passed by the lower authorities is called for. The appeal fails and is dismissed.
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1983 (12) TMI 307 - CEGAT NEW DELHI
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... ... ..... uty was raised by the applicants in their grounds of appeal even though the Tribunal failed to deal with it and disposed of the appeal on a preliminary ground, the question relating to rate of duty of excise must be deemed to have been dealt with by the Tribunal in its order. Such an order still remains an order having relation to the determination of any question having relation to the rate of excise duty. 5. The applicants themselves in their grounds of appeal had urged that the appeal involved the question of classification and relating to rate of duty. In view of this and foregoing discussion, Shri. V. Lakshmikumaran’s objection that Section 35G(1) of the Act relating to statement of case to High Court not being applicable in these applications is well founded. We find that the orders in question relate to question having relation to the rate of duty of excise and Section 35G(1) of the Act is not applicable. The reference applications are accordingly rejected.
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1983 (12) TMI 306 - CEGAT CALCUTTA
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... ... ..... wax is a canalised item for AM 1979-80 Policy and falls in Appendix 9 Item No. 12 of the said Policy and it goes out of the scope of O.G.L. The argument of the learned J.D.R. that the Import Policy dies with the year is correct. The principle of estoppel, as pleaded by the learned authorised representative is not applicable in this case. There cannot be promissory estoppel against a statute. The judgments cited by the learned authorised representative do not help him. However, I feel that the penalty imposed is very excessive. I reduce the same to ₹ 4000/- (Rupees four thousand only) as the appellant is actual user. The appellant is entitled to a relief of ₹ 5,000/- (Rupees five thousand only). The revenue is directed to refund the amount of ₹ 5,000/- (Rupees five thousand only) if paid by the appellant after necessary verification within two months from the date of this order. Except for this modification, for statistical purposes, the appeal is dismissed.
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1983 (12) TMI 305 - CEGAT NEW DELHI
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... ... ..... d it was held that excise duty was leviable not with reference to the date of manufacture of the excisable goods but at the time of the removal of the goods from the place of manufacture or from any place of storage. The learned Counsel for the appellants placed reliance on the judgment reported in 1978 E.L.T. (J33) (M.P.). But it must be pointed out that this decision does not consider the effect of Rule 9A. As pointed out in the later rulings cited by the learned SDR, there is considerable force in the contention that the date of removal of the goods would be the basis on which exigibility of goods should be determined. Further, it is well-settled that even a Nil’ assessment should be valid assessment for the purpose of the Central Excise Act. Hence, on careful consideration of the material placed, it is clear that the appellants cannot contend that the goods manufactured prior to the Notification No. 233/77 are not liable for duty. Therefore, the appeal is rejected.
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1983 (12) TMI 304 - CEGAT NEW DELHI
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... ... ..... he C.E.T. We are not aware of any process by which say a formed sheet (of thermoplastic material) can be directly moulded/extruded into a different article such as a rod, a tube, a film, a can etc. 15. However, we have seen that the Appellate orders assess the product under 15A(2) not under 15A(1) and so the discussion about mouldability becomes irrelevant. While assessment under 15A(2) is incorrect there is no case for assessment under 15A(1) for various reasons we have already recorded above and because such an assessment was no longer in existence when the appeal came before us. We, therefore, have to set aside the order of the Appellate Collector. The Custom House can, if it wishes, re-examine whether the crushed sheet scrap can be re-assessed to CV duty under any other suitable item of the C.E.T. That, however, is a matter that will have to be decided upon by the Custom House alone. 16. All the above 8 appeals are disposed of in the above manner by this order.
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1983 (12) TMI 303 - CEGAT NEW DELHI
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... ... ..... e, Calcutta and, therefore, the Board in its Appellate order had not taken it into consideration. Apparently, the appellants have not thought it fit to agitate this issue before the Collector of Central Excise, Calcutta. We, therefore, do not propose to go into this matter at this stage and in any case for want of any evidence on this, we are not in a position to pass any order on this issue. 3. Having considered the submissions made by both the parties, we are inclined to agree with the Departmental Representative. The appellants not only supplied their labour and expertise in the manufacture of Starting Resisters but procured and used substantial proportion of the raw materials and input required for the purpose. No evidence was produced by the appellants to show that the proportion of such inputs was not significant. Following the Supreme Court judgment referred to above, we uphold the Appellate order of the Central Board of Excise and Customs and dismiss the appeal.
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1983 (12) TMI 302 - CEGAT NEW DELHI
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... ... ..... a milling machine to remove material from the work-piece through the relative motion of work-piece and cutter.” and milling machine is defined as “Milling Machine (Mech. Eng.) A machine for the removal of metal by feeding a work-piece through the periphery of a rotating circular cutter. Also known as miller.” He further argued that the goods imported by the appellants are appropriately covered under Tariff Item 51A(5) of the C.E.T. This item includes all types of tools designed to be fitted into hand tools, machine tools etc. Accordingly, Gear cutting tools are classifiable under T.I. 51A of the Central Excise Tariff. 5. The Bench have considered the submissions made by both the parties and agrees with the Senior Departmental Representative that the goods in question would be assessable to countervailing duty under the aforesaid Central Excise Tariff Item, namely, 51A(5) as it then existed as milling cutters’. The appeal is accordingly dismissed.
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1983 (12) TMI 301 - CEGAT NEW DELHI
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... ... ..... t to say that punctuation is a minor element for interpretation of statute and is of importance only when statute is found to be punctuated. Accepting Shri Banerjee’s argument that the word “domestic” used in sub-heading (2) of Heading 84.40 qualifies also the words “laundry and dry-cleaning machinery” would mean bringing into existence such domestic appliances and machinery which in fact do not exist. such construction would lead to absurdity which has to be avoided. We do not think that the word Domestic’ used in the sub-heading (2) of Heading 84.40 qualifies the words laundry and dry-cleaning machinery. Admittedly, the appellants imported “Industrial laundry and dry-cleaning machinery". In our view, the lower authorities were justified in classifying the goods imported under sub-heading (2) of Heading 84.40 and not under sub-heading (1) as claimed by the appellants. In view of the foregoing, the appeal fails and is dismissed.
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1983 (12) TMI 300 - CEGAT NEW DELHI
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... ... ..... fore, the entire proceedings are at large before the authority considering the refund claim. Besides, this Appellate Tribunal has wide powers under the Central Excises and Salt Act, 1944 as it can take fresh/additional evidence and decide an appeal on the grounds not set forth in the Memorandum of Appeal. Therefore, the Tribunal, while deciding an appeal can grant all reliefs whether claimed for or not. See P.R. Mukherjee v. C.I.T. - 1979 (116) I.T.R. 554 (Cal.) It is now settled position that a question of law can be raised at any stage of the proceedings even at second appeal stage See Khader Knitting Co. - 1984 (15) E.L.T. 176 and Town Municipal Corporation v. Labour Court - A.I.R. 1969 S.C. 1335 . A question of classification is a mixed question of law and fact therefore additional or new grounds can be urged even at second appeal stage See Cynamid India Ltd. - 1984 (15) E.L.T. 186 . In the light of this legal position the majority judgment seems to be sound and correct.
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1983 (12) TMI 299 - CEGAT NEW DELHI
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... ... ..... ny finding to the contrary, this plea of the appellants that the second Company was an independent unit has to be accepted. There is no ground at all to hold that the second Company is a dummy of the appellants. In this context, we respectfully refer to the judgment in Hind Lamps v. Union of India - 1978 E.L.T. (J 78) where it was held that where a manufacturing company sold to agents who purchased the entire production that would not lead to the conclusion that the manufacturing company was a dummy company or that it was not the manufacturer. Similarly, supply of diagrams and specifications or raw material does not amount to becoming the manufacturer unless it is proved that such manufacture is done in the capacity of a dummy company only which is not the case in the instant appeal. 15. In view of this, we accept the appellants’ submission that the facts in their appeal are on all fours with the judgment of the Madras High Court. Accordingly, we allow the appeal.
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1983 (12) TMI 298 - CEGAT NEW DELHI
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... ... ..... o the effect that Rectangular Beverage Jug (Hot) would be classifiable under Item No. 33C of the Central Excise. It will, not, however, be covered under Sl. Nos. 9, 14 and 16 of the Schedule to Notification No. 33/69-C.E., dated 1-3-1969. She further added that the said Notification No. 33/69-C.E. had now been amended on 17-4-1979 by Notification No. 165/79-C.E., dated 17-4-1979 and Item Rectangular Beverage Jugs (hot) was added at Sl. No. 21 to the said Notification w.e.f. 17-4-1979 only. Accordingly, she stated that this item could not be subjected to Central Excise duty for the earlier period i.e. prior to 17-4-1979. 6. Having considered the submissions made by both the parties, we are of the view that Electric Kettles and Hot food cabinets could not be considered Hot Cups and Rectangular Beverage Jugs (Hot). We, therefore, set aside the orders of the lower authorities and direct consequential refund of duty, fine and penalty to the appellants. The appeal is allowed.
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1983 (12) TMI 297 - CEGAT NEW DELHI
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... ... ..... 1963 S.C. 1561 - has held that “General statute applies to all persons and localities within jurisdiction as distinguished from special one which in its operation is confined to a particular locality”. Further in the case of Justiniano Augusto v. Antonio Vincnte - AIR 1979 S.C. 1984 - The Supreme Court held that a law applicable to a locality is a special law as distinguished from a general law. In the light of this legal position the minority judgment questioning the jurisdiction of the Deputy Collector, Allahabad to adjudicate upon the present case seems to be correct because the subsequent Notifications Nos. 35/75 and 33B/78 have not been issued in continuation or in modification of the earlier Notifications. Therefore, there is no question of overlapping of territorial jurisdiction and accordingly these subsequent notifications have the effect of abrogating the earlier notification to the extent that the matter is dealt with by these subsequent notification.
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1983 (12) TMI 296 - CEGAT NEW DELHI
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... ... ..... therefore, he sold the paper at a price that includes the higher duty, we know where the blame lies, if blame there is. Having done this, we do not think the department can rightfully say that the refund should not be given because of an action taken by itself at the time of clearance. 22. We would at the end like to clarify a point about the tolerance demanded by the assessee. The factory wants a tolerance of 6% to be given as this would bring their paper under the appropriate substance to qualify for assessment under 17(3). We consider this demand unacceptable because such tolerances can be given only when there is a dispute in respect of the grammage declared. In other words, when a grammage is declared as say 90 and on test it is found to be higher or lower than the declared grammage by a margin of 6% or less, the declaration is taken as correct. There is no case for giving a tolerance in order to change an assessment in the manner demanded by the assessee.
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1983 (12) TMI 295 - CEGAT NEW DELHI
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... ... ..... in other words a subsequent revocation of an approval given earlier is wholly prospective. Obviously, till the earlier approval is revoked by a quasi-judicial order, it continues to subsist. A modification in the classification list or revocation of an approval of a classification list granted earlier operates from the date thereof and is not retrospective. That this is so would appear to have been accepted by the Government of India in their order in 1981 E.L.T. 958 (in re Navin Industries, Bhavnagar). Unless the classification list is modified or approval thereof revoked there could not be a short levy, except after actual assessment in terms of Rule 10 of the Rules (now Section 11A of the Act). 18. In the result, I for one, would think that the Asstt. Collector had no jurisdiction to review classification list, previously approved, on his own. Consequently, his adjudication order was void and subsequent proceedings arising out of it were all of no consequence whatsoever.
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1983 (12) TMI 294 - CEGAT NEW DELHI
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... ... ..... ulsorily supplied. On the other hand, the invoice describes the item as “Special Accessories for the machine” and also “Spares”. Under the former heading there are 10 items while under the latter there are 37 items. Separate prices have been mentioned in the invoice for these items. So it is obvious that the requirements of the Accessories (Conditions) Rules, 1963 are not attracted. 4. However, Mr. Nair rightly pointed out that Heading 84.45/48 in itself contains concessional rates in respect of “Accessories and parts suitable for use solely or principally with the machine tools.......”. The lower authority has not adverted to this aspect of the entry. The impugned order is therefore set aside and the matter is remanded back to the Collector of Customs (Appeals), Calcutta, for de-novo enquiry in respect of the Accessories and parts being used solely and principally with the machine tools and as per the observations contained in this order.
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1983 (12) TMI 293 - CEGAT NEW DELHI
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... ... ..... at the time of restructuring of C.E. Tariff Item 34A and it is apparent from the orders both of the lower authorities that there was some confusion regarding liability to duty of parts which had been exempted till 1-3-1979. There is no doubt that, on purely technical considerations, the clearances did not merit the concession rate of duty. Nevertheless, the factual position, specially that the goods were otherwise entitled to relief from duty and the substance of the Chapter X procedure had been satisfied; as well as the fact that no demand was raised or action taken by the department against the actual user of the goods, for which a demand is now raised against the appellant, cannot be ignored. Keeping in view our own order cited by the appellant and weighing the precedents cited by both sides, we conclude that equity justice would override a merely technical view being taken of the matter. We accordingly allow the appeal and set aside the order of the Appellate Collector.
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1983 (12) TMI 292 - CEGAT NEW DELHI
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... ... ..... of the plant and machinery installed therein. It is not necessary that the plant and machinery must be embedded in earth or attached to what is so embedded. The words plant and machinery occurring in the aforesaid Notification should be deemed to include any machinery or equipment used for industrial activity or furthering industrial activity in the factory. The Appellants have admitted that the mobile crane in question is in fact used in the appellants’ premises in lieu and in substitute for overhead fixed crane which is normally used by similar large scale barge manufacturers and engineering units. The crane is actually being used by the appellants for handling the barge and components thereof during the manufacture. The Bench has, therefore, no hesitation in holding that the value of the said crane should be included in the computation of the total investment made in plant and machinery installed in the appellants’ factory. The Appeal is, therefore, dismissed.
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