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1983 (8) TMI 272
... ... ... ... ..... n and, therefore, any exemption given to phenolic resin is not admissible in the case of this product. 6. Unfortunately, we are not in a position to agree with the arguments of Smt. Zutshi. As has been clearly explained by Shri Mookherjee, the product in issue does not cease to be phenolic resin. Further, it has been in very clear terms provided in the explanation that chemically modified phenolic resins and liquid phenolic resins would get the benefit of the notification. We are not able to appreciate as to how the lower authorities could bring in the concept of “pure resins” to interpret the notification. The product manufactured by the appellants is nothing but phenol moulding powder which is basically a phenolic resin. 7. In view of the merits as well as the judgments of various High Courts cited above, we hold that the appellants were entitled to the benefit of Notification No. 122/71 and the appeal is accordingly allowed with consequential relief.
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1983 (8) TMI 271
... ... ... ... ..... of 1982, dated 19th April, 1982. Since this was an identical case that decision may be made applicable here as a proper certificate dated 29-5-1980 from the Director, Khadi and Village Industries Commission has been produced. 6. Shri Lakshmi Kumaran argued that the Khadi and Village Industries Commission is required to certify that the products to be exempted are the genuine products of a village industry specified or deemed to be specified in the schedule to the KandVIC Act and are marketed in accordance with the provisions of that Act, and he was not sure of the competence of the Director to certify that the products manufactured by the appellants are deemed to be specified in the Schedule. 7. In view of the order of the Government of India cited by the appellant accepting a certificate from the Director, Khadi for the purposes of the notification, the Tribunal sets aside the order of the Appellate Collector and refers the case back to him for a de novo decision.
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1983 (8) TMI 270
... ... ... ... ..... able under Heading 92.01/13. This importer has been cited as a precedent by the present Respondent and, therefore, it is to be deemed that the cases are on all fours. No evidence has been led to show that the goods imported do not have the special size and shape necessary for their use in stylii the manufacture of which they are undoubtedly used. Such stylii are used in sound recorders or reproducers and the argument they are not musical instruments carries no weight in view of the description in Heading 92.01/13. The nature of the processes originally mentioned is only for the purpose of fitment and vague statements by counsel that point grinding is involved, without any supporting evidence to show a basic change in the special shape, size and character of the imported goods, cannot detract from their being classified as parts of sound recorders or reproducers coming under Heading 92.01/13. We, therefore, set aside the order of the Appellate Collector and allow this appeal.
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1983 (8) TMI 269
... ... ... ... ..... i) Plates and Sheets and hoops, all sorts, other then skelp and strips’ and Flats, skelp and strips’ were liable to Basic Excise duty at the rate of ₹ 1350.00 per metric tonne while under sub-item (iv) Bars, rods, coils, wires joints, girders, angles, channels other than clotted channels etc. were liable to Basic duty at the rate of ₹ 350.00 per metric tonne and Special Excise duty was chargeable at the rate of 5% of the Basic duty. The invoice description of the goods leaves no manner of doubt that they were shafts and would not fall under sub-items (ii) and (iii) but under sub-item (ia) of Tariff Item 26A of the Central Excise Tariff. Countervailing duty (additional duty) should therefore, have been levied as on goods falling under this sub-item (ia) at the appropriate rate as then applicable. As a result, the appeal is allowed, the imported goods are ordered to be classified as Bars and rods and consequential relief granted to the appellants.
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1983 (8) TMI 268
... ... ... ... ..... 78 E.L.T. (J 399) and R.K. Audim and Ors. v. Special Steel Ltd., Bombay and Ors., 1978 E.L.T. (J 397), there can be no doubt that on the facts and circumstances obtaining in the case, the Rule applicable was Rule 10 and not Rule 10A, as claimed by the Department. The limitation for making demand under the Rule considering the procedure adopted by the appellants was one year, the show cause notice dated 13-10-1976 for the period 1-3-197 to 31-8-1975 was clearly beyond one year of the period and therefore, barred by limitation. The demand would, therefore, have to be set aside on this very ground. 5. In view of the foregoing, it is not necessary to consider the classification of the goods whether this would fall under T.I. 26 or T.I. 26AA of the CET. It is also not necessary to deal individually with the number of precedents cited by Shri Mukherjee. 6. As a result, the appeal is allowed on ground of limitation and the orders passed by the lower authorities set aside.
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1983 (8) TMI 267
... ... ... ... ..... rchaser. Explanation creates a fiction whereby even if the goods are lying within the factory or warehouse premises and there is a receipt in favour of the purchaser issued by the railways or transport agency, such goods are deemed to have been removed from the factory or warehouse premises.” 8. The Explanation was not intended to apply in cases like the present, where the goods have in fact been cleared and removed from the factory in the presence of the Excise authorities, loaded in the wagons belonging to railways, and the same certified by excise and railway authorities, though for some reason the receipt could not be issued on the day of loading itself but it was issued on the next day bearing the date of loading as also of the next day namely 28-2-1973/1-3-1973. In a situation like this the date on railway receipt is not important and cannot be taken as the date of removal from the factory. In view of foregoing, we allow the appeal and set aside the demands.
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1983 (8) TMI 266
... ... ... ... ..... order and this is the reason why application to the appropriate authorities for NMI Certificate before the shipment of the goods could not be made. 5. On behalf of the respondent, Shri K.V. Kunhikrishnan, DR, defended the order passed by the lower authorities. 6. The only ground on which the appellants’ claim for refund had been rejected is that they had not applied for NMI Certificate before the shipment of the goods, otherwise there is no dispute that the appellants and the goods are entitled to benefit of Notification in question. Considering the entire facts and circumstances of the case, the Bench feels that a highly technical view in the matter should not be taken as the appellants though later have fulfilled all the conditions of the Notification. In this view of the matter, the appellants’ appeal deserves to be allowed. As a result the appeal is allowed and appellants granted the benefit of Notification No. 211/76-Cus. with consequential refund.
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1983 (8) TMI 265
... ... ... ... ..... ion. He then added that it is a part of the oil pump itself, it is neither a pipe fitting nor for containers. Hence Heading 84.61 could not be applied to it. 5. We have carefully considered the arguments advanced by the party. We observe that the nature of the goods involved in the case is one of the fact; if the imported goods is pressure reducing valve, it would fall under Item 84.61(2) and if not pressure reducing valve and is considered an integral part of the machines it would attract Item 84.10 of the CT Act. The matter would have to be remanded for a de novo examination in the light of observation made in the order. 6. As a result the appeal is allowed. The order under appeal is set aside and the matter remanded to the Collector of Customs (Appeals) for a de novo decision in the light of observations made above. As the goods are still under detention, the matter should be decided as early as possible but not later than 90 days from the receipt of this order.
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1983 (8) TMI 264
... ... ... ... ..... Notification for the purpose of countervailing duty for the goods falling under Tariff Heading 68 being Notification No. 364-Cus./76, dated 2-8-1976. We, therefore, hold that whereas classification for the purpose of basic customs duty has been rightly determined under Heading 70.21 during the period under reference, namely, when the Notification No. 9/79 had not come into existence, for the purpose of countervailing duty, these cannot be treated as “glassware” so as to be covered by Item 23A of the Central Excise Tariff but will have to be treated as goods not specifically covered by any Tariff Entry of the Central Excise Tariff and taken to be as residuary entry of 68. They are, therefore, exempt from countervailing duty and the appeal is accordingly allowed partly, to this effect, whereas it is dismissed in regard to the basic custom duty, the same is allowed so far as countervailing duty is concerned, with consequential relief by way of proportionate refund.
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1983 (8) TMI 263
... ... ... ... ..... ul suppression of facts etc., by the appellants, and that the time limit was five years, a part of the duty demanded would be clearly hit by limitation. Since the Superintendent’s letter informing the appellants that the product was dutiable, and calling upon them to furnish data regarding such goods manufactured, captively consumed or used, is dated 22-10-1981, and since this was apparently the first communication in the nature of a demand or a show cause notice issued by the Department, it could not in any event cover the period before 23-10-1976. For the period 1-3-1975 to 22-10-1976 the demand as confirmed in the Assistant Collector’s order must be taken as clearly time-barred. 46. In the result, we find that the orders of the lower authorities were correct, except that the demand of duty for the period from 1-3-1975 to 22-10-1976 is held as time-barred. The duty payable shall be reworked on this basis. Except for the relief so due, we reject the appeal.
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1983 (8) TMI 262
... ... ... ... ..... gards the appellants’ objection that no show cause notice was issued to them, we agree with the Department’s representative that they were duly heard before the impugned Order-in-Original confirming the demand was passed by the Asstt. Collector. There was thus no breach of principles of natural justice. 8. Finally, in so far as the appellants’ claim regarding exemption of the pre-duty quantity of 10.5 M.T. is concerned, we find that in view of the authorities mentioned below it is now well established that, according to Rule 9A of the Central Excise Rules, 1944, it is the rate of duty applicable on the date of removal of the goods which applies in a case of the type as in the present appeal and not the rate in force on the date of manufacture of the goods - (1) 1978 E.L.T. 680 (Bom.). (2) 1979 E.L.T. 258 (Gujarat). (3) 1982 E.L.T. 97 (M.P.) (4) 1983 E.L.T. 285 (Allahabad). In the light of the above discussion, we reject this appeal.
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1983 (8) TMI 261
... ... ... ... ..... lar meaning and is well understood in common parlance as referring to beverages which one can drink straightway just after opening the bottle or can. A product like Milkafe’ which requires some further effort to make it drinkable - heating the water or getting chilled water, adding it to the product and stirring the mix to get a homogenous liquid - cannot be called ready-to-serve beverage in that sense. We see no justification in looking to the technical dictionaries and other enactments in order to get the meaning and the scope of an expression which is well understood in common parlance, more so in the case of a product which is of common day to day use. We, therefore, hold that Milkafe’, not being a ready-to-serve beverage, was not covered by the exclusion list of Notification No. 17/70-C.E. and was, therefore, exempt from payment of duty under Tariff Item 1B. 5. Accordingly, we discharge the show cause notice for review issued by the Government of India.
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1983 (8) TMI 260
... ... ... ... ..... y has been rightly demanded and confirmed. To the extent it relates to the duty demanded we, therefore, dismiss the appeal. The quantum of redemption fine having not been questioned, the same also becomes a concluded issue. 10. The only aspect remaining to be considered is that of penalty. Although we feel that the plea of lack of mens rea does not carry conviction, in the light of the facts discussed above namely, Declaration filed by the appellants was conveniently vague, and the plea of ignorance of the notification fails to impress, and the lower authorities have rightly considered it to be a fit case for imposition of penalty also, but considering the amount of duty liability to be only ₹ 65,817.63, the penalty imposed to the tune of ₹ 1.5 lakhs seems to be little out of proportion. The appeal is, therefore, allowed only partly to the effect that the amount of penalty shall also stand reduced, to equal to the amount of duty namely, ₹ 65,817.63.
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1983 (8) TMI 259
... ... ... ... ..... efended the order of the lower authorities. 8. We have considered the submissions of both sides. Having regard to the facts and circumstances of the case and the unqualified and unconditional nature of the Order-in-Revision, we are of the considered view that it was not open to the lower authorities to interpret and implement the said order in the manner they have done. There is nothing in the order to show that Government had not taken into consideration any aspect of the case before them. The lower authorities had, in our opinion, no jurisdiction to examine the refund claims afresh with reference to Rule 11. 9. In the above view of the matter, we direct that the concerned Asstt. Collector of Central Excise shall pass the remaining part of the 3 refund claims of MRF and make payments to them, within 3 months from the date of communication of this order. 10. We trust that with this order, the curtain will be finally rung down upon this long and tortuous story.
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1983 (8) TMI 258
... ... ... ... ..... s involved (96.32 M.T.) and the rate of duty applicable (as under Item 28 of the tariff). With this information specified, calculation of the demand amount was just a matter of simple arithmatical calculation. As such, the appellants can hardly claim with fairness that they were left in uncertainty in regard to the size of their liability. As regards increase in the amount of the demand through a corrigendum, when the calculation mistake involved in the earlier amount was explained to the appellants, they did not seriously press for this objection. 8. Accordingly, we hold that the subject edge-cuttings or trimmings of tinned sheets were correctly assessed by the Collector under the specific tariff Item No. 28. We, therefore, reject this appeal. However, we direct that set off of duty paid on uncoated steel sheets in terms of exemption Notification No. 48/70-C.E., dated 1-3-1970, unless already granted to the appellants in some form or the other, should be given to them.
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1983 (8) TMI 257
... ... ... ... ..... e communication dated 14-2-1981 in this regard to the Asstt. Collector of Central Excise as early as within a week of receipt of the order. The Asstt. Collector also replied to the same informing the appellants about the appellate authority to whom appeal against the order would lie. In the circumstances, the ratio of the Bombay High Court Decision (Supra) that period of limitation of 3 months would run from the date of such clarification and not from the date of the original order would be applicable. We are in respectful agreement with the same. 6. In the view of the foregoing we find that the appeal filed by the appellants before the Appellate Collector, Central Excise was within time and not barred by limitation as held by the learned Appellate Collector. As a consequence, the order under appeal is set aside and the matter remanded to the Appellate Collector, Central Excise, Delhi for deciding the appeal on merits. The appeal is thus allowed and the matter remanded.
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1983 (8) TMI 256
... ... ... ... ..... evidence but after the lapse of 3 decades we do no think it feasible to relegate the parties to a stage as it was in 1956. For non-feasance or mis-feasance, the respondent must bear the legal consequences. We do not express our opinion about the authenticity or the value of the letter sent by Shree Shew Sakti Oil Mills Ltd. to the bankers as the explanation of the other party has not come on record. It can be possible that some plausible explanation might be given by the parties concerned but in the circumstances of the case we do not think that it would be just and proper to remand the case on this score. 9. From the above discussion we find that the impugned order of the Additional Collector of Customs in which proper finding has not been given after due appreciation of the evidence on record, is not sustainable. We, therefore, accept this appeal and set aside the order of the Additional Collector. The appellants would, therefore, be entitled to consequential relief.
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1983 (8) TMI 255
... ... ... ... ..... ntrol and other checks. Thus we are in full agreement with the reasoning of Shri Mahesh Kumar and see no substance in the submissions put forth by Shri Garg in this behalf. 12. Further, we are also unable to accept the contention of Shri Garg that commission paid to financiers, distributors or underwriters is an admissible deduction under Section 4 of the Act. Shri Mahesh Kumar has correctly pointed out that whenever any discount is allowed the same should figure in the relevant assessment documents and its benefit should flow to the buyer of the goodsand not to third parties such as commission agents, underwriters etc. There is no bar to any party giving suitable remuneration to their financiers or underwriters but such payments do not come within the purview of Section 4 of the Act and cannot be deducted from the normal price for arriving at the assessable value of goods. 13. For the reasons stated above we find no merit in this appeal, which is hereby dismissed.
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1983 (8) TMI 254
... ... ... ... ..... e-existing right and really amounts to begging the question. The new proviso is wholly inapplicable in such a situation and the jurisdiction of the authority has to be exercised under the old law which so continues to exist. The argument of Shri Ganapathy Iyer on this point, therefore, cannot be accepted". 9. In the instant case, show cause notice leading to the demand was served on the appellant on 8-5-1981. This happened before Section 35F of the Act had come into force on 11-10-1982. In view of the Supreme Court decision which is law of land and admitted position that the appellants had a right of appeal without any condition as to pre-deposit on the date the proceedings commenced it must be held that Section 35F of the Act would not be applicable in the appellants’ case. 10. As a result, appellants’ contention that Section 35F requiring pre-deposit of duty or penalty is not applicable is accepted. The appeal would be heard without such deposit.
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1983 (8) TMI 253
... ... ... ... ..... final assessment if there is no change in the rate of duty in the meantime. But if there is such a change, the goods have to be re-assessed at the changed rate applicable. Otherwise, the proviso to Section 15 would become redundant. We have no doubt in our mind that various sections of the Act have to be construed harmoniously. In fact, there is no conflict between Section 17 and the other sections because each one of them covers a different type of situation. Section 17 does not over-ride Section 15 or for that matter any other section. On the contrary, Section 15 is a part of the charging provisions of the Act inasmuch as it lays down the crucial date, the rate of duty in force on which is to be applied to the goods and it has to be given full play. 8. emsp Accordingly, we hold that the rate of duty as in force on 6-11-1979, the date on which the ship was granted entry inwards, was correctly applied to the goods imported by the appellants and, therefore, reject this appeal.
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