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1983 (8) TMI 292
... ... ... ... ..... at bare aluminium wire of 10 SWG and less cannot be called Electric Wires and Cables so as to fall within T.I. 33B of C.E.T. - Electric Wires and Cables. This view also finds support from the Tariff Advice of the C.B.E.andC. There being no other specific Tariff Item to cover this product, the same would be classifiable under T.I. 68 of the C.E.T. and should get whatever exemptions which are available legally, as a result of such classification. Parties agreed that if the appellants’ product bare aluminium wires of less than 10 SWG in respect of which the present demands arise are classified under T.I. 68 of the C.E.T., the demands made from the appellants by the Central Excise authorities would have to be set aside. We have said that aluminium wire in question would be correctly classifiable under Tariff Item 68 of C.E.T. In view of the foregoing the demands would have to be set aside. As a result, we set aside the demands made from the appellants and allow the appeal.
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1983 (8) TMI 291
... ... ... ... ..... y have not been able to positively exclude these valves from sub-item (2) of Heading 84.61. It cannot also be ignored that if these valves, which are undoubtedly required for the Soot Removers, were to be assessed as a part of that machinery under Heading 84.01/02, they would have been entitled to the same rate of duty as that prescribed under Heading 84.61(2). It is only because valves in themselves constitute an article covered by Heading 84.61, that the valves in question even though parts of the Soot Blower classifiable under Heading 84.01/02, are not entitled to the latter classification, in view of the general Notes (V) Parts (Section Note 2) vide Item (4) of the second para (p. 1156) of the Explanatory Notes to Section XVI. At the same time there is insufficient justification for denying classification of these as isolating valves. In the circumstances, the Tribunal finds merit in the appeal and allows it. The order of the Appellate Collector is, therefore, set aside.
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1983 (8) TMI 290
... ... ... ... ..... ut the order in original dated 14-9-1981 passed by the Asstt. Collector of Central Excise shows that duty demanded from the appellant is for the period 1-10-1972 to 31-5-1975. The demand of duty for the period 1-10-1972 to 30-3-1973 which was not mentioned in the notice to show cause dated 22-12-1975 would have to be excluded in computing the demand and demand from the appellants to that extent should be correspondingly reduced. The demand from the appellants would be confined only to the period mentioned in the show cause notice i.e. 31-3-1973 to 31-5-1975. The appeal to this extent (1-10-1972 to 31-3-1973) and for this period would have to be allowed. 9. As a result of aforesaid discussion the demand of duty from the appellants for the period 1-10-1972 to 30-3-1973 is set aside and the demand for the period 31-3-1975 to 31-5-1975 is upheld. The appellants shall pay the duty demanded for the period 31-3-1973 to 31-5-1975. With this modification the appeal is dismissed.
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1983 (8) TMI 289
... ... ... ... ..... s would lead to the position that the goods so cleared for export and actually exported out of India cannot be considered as goods cleared for home consumption and as a consequence the value of such goods cannot be taken into consideration for computation of the value of clearances under Notification No. 105/80-C.E. In view of the wording of this notification, we hold that both the orders passed by the Additional Collector coming to the conclusion which has been reproduced in para 5 supra is wrong and that it must be set aside. 10. We, therefore, order that the Additional Collector’s order be set aside. We further order that the matter be reconsidered and the value of the goods cleared and actually exported within the year referred to above should be excluded for purposes of computing the value of clearances for home consumption to decide the eligibility of the appellant for exemption under Notification No. 105/80-C.E. Both the appeals are disposed of accordingly.
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1983 (8) TMI 288
... ... ... ... ..... were received and acknowledged at the destination by the Central Excise Officer, there has as evidenced by the AR 3(A) forms, been factual compliance with the conditions of the notification and the adjudication proceedings instituted at the technical level have to be viewed in their proper perspective. We do not, in the circumstances, feel that the demand for duty should be sustained on such purely technical considerations. Had there been violation of law, the demand for duty should have been raised promptly and the goods which had not borne the proper rate of duty, should have been seized by the Department for penal action. That this was not done is enough acquiescence on the part of the Departmental Officers to off set the technical non-compliance. We are also fortified in taking this view by Government of India decision reported in 1980 E.L.T. 358, relied on by Shri Mukherjee. In these circumstances, we allow the appeal and set aside the order of the Appellate Collector.
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1983 (8) TMI 287
... ... ... ... ..... 4. The Bench has carefully considered the points made by both the parties. They have also had the benefit of perusing the photograph of the plant submitted by the Departmental Representative. The Bench is of the view that the plant in question was firmly attached to the earth and accordingly could not be described as goods’ attracting levy of Central Excise duty. The plant in question was admittedly assembled at the site and accordingly had become part of the immovable property. It is by now well settled law that such plant and machinery which is erected at site cannot be considered as excisable goods since it was assembled on the site out of the parts and materials purchased from the market. The Bench considers that the plant could not accordingly be subjected to excise duty. In view of this, it was not necessary for the Bench to go into other arguments of the Appellants. The Adjudication Order of the Collector is accordingly set aside and the appeal is allowed.
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1983 (8) TMI 286
... ... ... ... ..... een accepting photostat copies for the purpose of assessing the goods at preferential rate of duty. Unless there was any circumstance making the photostat copy suspicious we see no reason why the photostat copies produced by the appellants should not have been accepted for the purpose of assessing the goods at preferential rate of duty and granting refund to the appellants. The appellants are Department of Government of India and the photostat copies of Invoices produced by them cannot be said to be suspicious. 6. In view of the foregoing, we direct that photostat copies of Invoices produced by the appellants should be accepted, for the purpose of assessing the imported goods at preferential rate of duty if otherwise in order. The order-in-appeal is accordingly set aside and the matter is, therefore, remanded to the Assistant Collector of Customs, Madras for disposing of the appellants’ claim in accordance with law and observations made and directions given above.
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1983 (8) TMI 285
... ... ... ... ..... th and observed that to all these illustrations Notification No. 119/75 could be applicable. Central Board of Excise and Customs in Saru Smelting Pvt. Ltd., Meerut - order-in-appeal No. 7-B of 1981, dated 22-1-1981, 1982 E.L.T. 85, took the same view in respect of Solder wire manufactured on job basis from out of tin and lead supplied by Indian Telephone Industries, Bangalore. In coming to this decision the Board, besides M/s. Anup Engineering’s case (supra), relied on a decision of Calcutta High Court in Madura Coats Ltd. v. Collector of Central Excise, West Bengal, 1980 E.L.T. 582 (Calcutta). In view of these decisions, there can be no doubt that the appellants in respect of wire nails made out of wire supplied by M/s. India Co. Pvt. Ltd. and returned to them would get benefit of Notification No. 119/75. As a result, the appeal is allowed and appellants granted the benefit of Notification No. 119/75, dated 30-4-1975, with consequential refund for the disputed period.
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1983 (8) TMI 284
... ... ... ... ..... ve been properly fulfilled by them. In the instant case the new contention raised by the appellants requires appreciation of evidence. It is true that the appellants have filed the documents in support of the new contention but we are afraid that this is not proper stage or time for doing so. The notifications relied on by the appellant granted concessions only on fulfilment of certain conditions. We think that this is not the proper stage or time when we should examine whether the conditions stipulated in the notification have been fulfiled. In view of the foregoing we are not inclined to entertain new contention raised by Shri Gupta at the hearing and in his written arguments. 6. After this contention is excluded the appellants cannot get any relief on original claim on the ground that the imported goods are component parts of the compressor, because appellants themselves admitted that they are not so. 7. In view of the foregoing the appeal fails and is rejected.
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1983 (8) TMI 283
... ... ... ... ..... excess clearances would start. The Assistant Collector took time in giving his approval and soon thereafter they quantified the amount of the concession admissible to them and filed a specific refund claim. In such a setting, it has to be held that when the appellants applied to the Assistant Collector with the declaration of their base period and base clearance particulars, they staked their claim for the exemption under the notification. Quantification of their refund claim, which could be done only after the Assistant Collector’s approval to their base period and base clearances, was in continuation of the initial claim. In the facts of this case, the quantification of the claim cannot be taken in isolation. Since the appellants had staked their claim well in time it was not necessary for them to pay duty under protest. Accordingly, we hold that the appellants’ refund claim was not time-barred. The appeal is allowed with consequential relief to the appellants.
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1983 (8) TMI 282
... ... ... ... ..... removal was goods yarn in the form of warp beams. Lap waste arising thereafter in their factory is not entitled to refund under the notification. In the case of the appellants, waste yarn arising in the course of spinning, reeling and warping etc. processes, i.e., pre-assessment processes, was entitled to exemption but not the waste arising in the weaving process after the assessment. The argument of discrimination put forth by them is not valid because the substantive part of the notification applied to all waste yarn falling under Item 18E of the tariff irrespective of the fact whether the cotton content thereof was more than 40% or less than 40%. The appellants cannot complaint of discrimination vis-a-vis the mills working under a different scheme of assessment (such as the compounded levy scheme). Without going into the aspect of time bar, we hold that on the substantive ground alone the appellants’ claim is inadmissible. Accordingly, we reject this appeal.
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1983 (8) TMI 281
... ... ... ... ..... the money lying in deposit with the Government on 12-12-1978. The lower authorities have rejected their claim as time-barred under Rule 11 as it was filed beyond the time-limit of six months. Their plea before us is that the time-barred prescribed in Rule 11 did apply to deposits. During the hearing before us today, they reiterated this plea and relied on certain instructions issued by the Government during early 1980 in support of their case. The Department’s Representative stated that in view of the Government’s instructions cited by the appellants, he had nothing to say. 3. We have carefully considered the matter. The time-limit contained in Rule 11 applied to refund of duty and charges. It did not apply to refund of the “sum” kept in “deposit” with the Government in terms of Rule 92B. Refund of such deposits is governed by the general law of limitation. Accordingly, we allow the appeal with consequential relief to the appellants.
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1983 (8) TMI 280
... ... ... ... ..... reject the appeal so far as this issued is concerned. 7. The second issue relates to the assessment to duty of steel pipe fittings. The appellants claimed exemption for these under Notification No. 82-Cus. of 1960. Their claim was rejected as unsubstituted. Shri Gupta contended that the essential documents, namely, the duty exemption certificate and the end-use affidavit, were both produced before the Appellate Collector and the appeal was rejected because they did not produce the drawing showing the exact use of these fittings. Such a drawing has also been furnished with the revision application. 8. In our view, the matter could be decided even without the drawing. Shri Kunhi krishnan, after seeing the duty exemption certificate and the end-use affidavit, fairly agreed that these were sufficient to establish the appellants’ case. We accordingly allow their appeal so far as the steel pipe fittings are concerned, and direct that consequential relief be given.
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1983 (8) TMI 279
... ... ... ... ..... sed but still well-known among children; and some may be the invention of the child itself. In the matter providing recreation or bodily exercise, there does not appear to be any essential difference between a game involving a rubber play ball and one involving a standard cricket ball or football. While some adults and children have the facility of engaging in games and sports with standard equipment and under regulated conditions, many others may not have such a facility or privilege, and have to be content with playing in such manner as they can and with such equipment as is available to them. A rubber play ball is one of the cheapest and most versatile items of such equipment. In our view it would be wrong to exclude such rubber play balls from the description “sports goods” by importing into that expression a restrictive meaning based on the CCCN. 10. For these reasons we allow the appeal and direct that consequential relief be granted to the appellants.
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1983 (8) TMI 278
... ... ... ... ..... to know about their excisability. Though the Department acknowledged their letter and promised a further reply, one was sent to the appellants. The lower authorities have stated that no individual reply to the appellants was necessary in view of the general clarification contained in the trade notice. But we find that the trade notice hardly clarified the point so far as the specific product manufactured by the appellants was concerned in view of the claimed different use and purpose of the appellants’ product. The Assistant Collector admitted it in his order that the appellants had no mala fide intention. In the circumstances, imposition of penalty on the appellants is not justified and the demand for duty made from them after 3 years is clearly time-barred. Accordingly, without going into the other points raised by the appellants, we allow this appeal on the ground of time-bar alone. The penalty imposed on the appellants and the duty demanded from them are set aside.
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1983 (8) TMI 277
... ... ... ... ..... ldquo;all sorts” referred to in Item 50 must be read in-conjunction with the preceding words, namely, “welding electrodes”. Since the subject wires have not been shown to be welding electrodes, the words “all sorts” do not help the Department’s case. As regards the question of an appropriate alternative tariff entry, whether Item 68 or Item 26AA(ia), we agree with both sides that since the question involves verification of new facts, in fairness to both parties it should be left to the lower authorities to consider it. 7. Accordingly, without prejudice to the Department’s right to consider alternative classification for the subject wires, we allow these two appeals on the short point that the subject wires do not fall under Item 50 of the Central Excise Tariff. In the consequences, the duties demanded from the appellants, the penalties imposed on them and the order of confiscation of the goods seized from them are all set aside.
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1983 (8) TMI 276
... ... ... ... ..... s and other articles, and Shri Ganesh did not cite from the judgments any passage of general applicability which would govern the present case, we do not find anything in them to lead us to a different conclusion. 28. As regards the alternative classification suggested by Shri Ganesh, namely, under Heading No. 38.01/19, as “chemical products......not elsewhere specified”, it is not necessary to go into great detail, because the specific description in Heading No. 48.01/21 as “impregnated paper” must prevail over a non-specific Heading such as No. 38.01/19. Any assessment under Item 28 of the old Tariff Schedule cannot have much weight, since there are substantial differences between the old and the new Tariff, and the latter contains the specific description “impregnated paper and paper board”. 29. In the result, we find that the imported goods were correctly classified under Heading 48.01/21. We accordingly reject these appeals.
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1983 (8) TMI 275
... ... ... ... ..... y, by applying Interpretative Rule 3(b), they were held to be classifiable under Item No. 68 CET for the levy of countervailing duty, in the absence of a provision in the Central Excise Tariff corresponding to Interpretative Rule 3(b). The logic of that decision is equally applicable to the present case. Having regard to all the circumstances, we would take the view that the appellants should not be debarred from agitating the correct classification for purpose of countervailing duty even at this stage, since no new or additional facts are necessary to support this argument. 27. In the result, we hold that the goods in question were correctly classifiable under Heading No. 39.01/06 for the levy of basic Customs duty and under Item No. 68 CET for the levy of countervailing duty. We, therefore, allow the appeal only to the extent of ordering consequential relief in the matter of countervailing duty and reject it so far as the assessment to basic Customs duty is concerned.
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1983 (8) TMI 274
... ... ... ... ..... in respect of other notifications unless such a condition or conditions are embodied or adopted in such other notifications also. Any other interpretation would render the Notification No. 14/76 nugatory and beyond the scope of Rule 8 itself. The Supreme Court in the case of Hemraj Gordhandas v. Assistant Collector of Central Excise - 1979 E.L.T. (J 350) - has very clearly held that if the tax-payer is within the plain terms of an exemption notification, he cannot be denied its benefit by calling in aid the supposed intention of the exempting authority. In the present case, the appellants are governed by Notification No. 97/70, as they satisfy all the conditions of the said notification. On the other hand, Notification No. 14/76 hardly had any applicability to the appellants in the absence of any corresponding provision in Notification No. 97/70 which has to be read independent of Notification No. 14/76 in the absence of any Corresponding provision in Notification No. 97/70.
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1983 (8) TMI 273
... ... ... ... ..... at the appellants were doing is to replace certain existing parts of a ring frame which is already installed (fixed to the ground) in the customer mill. The drafting mechanism is not a separate machine as such but only a part or section of the ring frame and it comes into being only when all the parts are mounted on the ring frame. This work is done at site. From their factory, the appellants clear only certain parts, partly their own duty-paid parts and partly S.K.F. duty-paid parts. We hold that in the facts and circumstances of this case, what the appellants are doing is only a conversion or modernisation or upgradation job on an existing installed machinery and not the manufacture and clearance of a news machine. There is, therefore, no justification for including the value of bought-out parts in the value of their clearances for determining their eligibility under Notification No. 176/77-C.E. Accordingly, we allow this appeal with consequential relief to the appellants.
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