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1984 (2) TMI 346
... ... ... ... ..... have to be interpreted, not in the light of the special definition given in the 1982 Act, but in the light of the ordinary understanding of that expression. So far as the ordinary understanding goes, we have not only the layman’s idea, which would be that a special excise duty is also comprehended in the expression “excise duty”; we also have the very clear and authoritative pronouncement of the Delhi High Court in the Modi Rubber case. 17. In the light of the position as explained above, we find that the expression “duty of excise” in the Provisional Collection of Taxes Act would clearly apply to any duty of excise, including what is called a special duty of excise; and the declaration under the Provisional Collection of Taxes Act would apply with equal force to a clause imposing such a duty. We therefore do not find substance in the argument advanced by the learned counsel for the appellants in this case. We accordingly reject the appeal.
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1984 (2) TMI 345
... ... ... ... ..... 10(a) would be applicable in the case would depends on the facts and circumstances of the case. For that we do not think that at this stage we should enter into an enquiry to find out whether the appellants had filed RT returns and whether there was assessment in the case. In fact this aspect of the matter has not been considered at any earlier stage. While it is not a question of law, it is necessary to go into the facts afresh to determine its applicability or otherwise. We are not inclined to enter into this aspect of the case at this stage. The demand for Central Excise duty relates to the period February 1972 to July 1974. The show cause notice demanding a duty for this period was issued on 1st September, 1975 i.e. after expiry of one year period. The demand was, therefore, clearly time-barred. It is, therefore, not necessary to go into the merits of the classification of the goods in question. The order of the Appellate Collector is set aside and the appeal is allowed.
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1984 (2) TMI 344
... ... ... ... ..... stence by a chemical change. The plea that only one molecule of water had been removed from the acetic acid for converting it into acetic anhydride and therefore no substantial change has taken place is not tenable. By doing so a new product has come into existence. The formulaes of both these products are different. The new product acetic anhydride has a distinct name, character and use of its own different from that of the acetic acid. Its chemical properties and structure are different from acetic acid. as per the law laid down by the Hon’ble Supreme Court in Union of India v. Delhi Cloth and General Mills Co. Ltd. (AIR 1963 S.C. 791) and South Bihar Sugar Mills Ltd. v. Union of India and Another, conversion of acetic acid into acetic anhydride amounts to manufacture as envisaged by Section 2(f) of the Central Excise Act, and therefore, the appellants are not entitled to exemption under Notification No. 119/75-C.E., dated 30-4-1975. I, therefore, reject this appeal.
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1984 (2) TMI 343
... ... ... ... ..... should have held and erred in law in not holding that the instructions issued by the Board of Central Excise and Customs in regard to limitations being dated May 27, 1958 numbered 19/56/56-CX. 11 wherein it is provided that ‘when a general protest has been lodged relative to whole of series of impending transactions, it is not necessary while the general question raised is under consideration, for each subsequent payment of duty to be accompanied by a special protest......’ is equally applicable in respect of Section 27 of the Customs Act. 10. Whether the learned Tribunal misread and misconstrued the proviso to sub-section (1) of Section 27 of the Customs Act, 1962 and erred in not holding ‘the limitation of one year or six months, as the case may be, shall not apply where any duty has been paid under protest’, embraces within its fold all payment made subsequent to the lodging of the said general protest in respect of transactions of the same nature.
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1984 (2) TMI 342
... ... ... ... ..... ecified or included......”). Though Item No. 15A of the CET was not exactly aligned with the CCCN terminology as a result of the 1977 Finance Bill, the pattern being broadly the same, assistance can be usefully derived from the CCCN and its Explanatory Notes to understand the scope of Item 15A CET subject, of course, to the consideration that the express language of the C.E. Tariff Item is kept in view. Applying these considerations, we are of the view that the products before us are more appropriately classifiable as adhesives or glue and not under Item 15A CET (“Artificial or synthetic resins and plastic materials and cellulose esters and ethers and articles thereof”). As such, the appropriate classification would be under Item 68 CET. 8. We set aside the impugned order and direct that the goods be reassessed to duty under Item 68 CET and the consequential relief granted to the appellants within 3 months from the date of communication of this order.
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1984 (2) TMI 341
... ... ... ... ..... elevance since it refers to a definition in that particular statute. We do not agree that the recommendations of the Export and Import Control Authorities would be the basis to conclude if an institution would be an industry. This recommendation has been issued presumably on the basis that the appellants’ establishment is a small scale industrial unit. The additional evidence produced by the appellants will not advance their case either. These appliances have been imported by the appellants only for expanding their activities of a photographic laboratory. We are of the view that the appellants cannot claim the benefit of Tariff Item 84.66. Incidentally we may point out that entry 84.66 envisages the Government approving certain projects as coming within the purview of the entry. The laboratory of the appellants has not been approved as a project of the Government. There are no grounds to interfere with the orders of the authorities below. The appeal is hence dismissed.
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1984 (2) TMI 340
... ... ... ... ..... cannot be exported. From the facts of the case it does not appear that appellants could have obtained excise documents like AR 4 or AR 4A to cover the export, since no duty liability whether for refund or for failure to export could arise, the facts of the present case make it clear beyond doubt that 505 fare meters had actually been exported out of India. It is now idle to conjecture whether they were cleared for home consumption and then exported or cleared for export ab with. The facts of the present case are substantially similar to International Minelmech P. Ltd’s case and in some respects it is better for the appellants. We would, therefore, hold that 505 fare meters are entitled to be treated as exported and their value deductible in arriving at the value of the clearance for home consumption in the relevant financial year. We therefore, allow the appeal in respect of 505 fare meters with consequential relief to the appellants. The appeal is thus partly allowed.
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1984 (2) TMI 339
... ... ... ... ..... ras High Court in the case of CIT v. S. Shivarama Krishna - 1968 (70) I.T.R. 860 has held the High Court having jurisdiction over the Original Authority, whose order is subject matter of Appeal, is the competent High Court to, hear Reference, irrespective of the fact that the seat of the Appellate Tribunal is outside the territorial jurisdiction to such a High Court. It is noteworthy that the Appellate Authority has to see the correctness and legality of the orders passed by the lower Authority and if the lower Authority has ignored the law laid down by the High Court having jurisdiction over them, such an order is patently wrong and illegal and merely because the Appellate Authority is outside the jurisdiction of respective High Court having jurisdiction over the original authorities and the assessees, it cannot ignore the law laid down by the respective High Court merely because the spat of the Appellate Authority is outside the territorial jurisdiction of such High Court.
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1984 (2) TMI 338
... ... ... ... ..... referred to the second proviso to Rule 49 of the C.E. Rules, 1944 which provides that no duty may be demanded on any goods claimed by the manufacturer as unfit for consumption or for marketing subject to the conditions imposed by the Collector by order in writing. In the instant case, the Respondent did not approach the authorities for waiver of duty. If the respondent had the intention of re-pulping the paper alleged to be defective paper, he should have kept proper records thereof. I, therefore, restore the order of the Asstt. Collector of Central Excise, to the extent of charging the duty of ₹ 3,481.77 (Rs. 3,316.25 basic 165.52 spl). However, keeping in view the facts and circumstances of the case, I feel that it is not a fit case where a penalty should be imposed on the respondents. I, therefore, uphold the order of the Collector (Appeals) quashing the imposition of penalty of ₹ 1,050. With the above modification, the appeal filed by the Revenue is accepted.
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1984 (2) TMI 337
... ... ... ... ..... onal rate of duty applicable to bunkers for coastal vessels was rejected because the procedure/documentation presented under Notification No. 5 of 15th January 1966 had not been followed. In the present case, though the Departmental Representative did make a submission that the procedure had not been followed, Shri Dane had controverted it. Neither in the Assistant Collector’s Order of 25th August, 1973 nor the Appellate Collector’s Order of 28th February, 1975 is there any finding that the requisite procedure had not been complied with. 9. Having regard to the foregoing discussion, we held that the M.V. “ELEFTHEUROPOLIS” was engaged in a coastal voyage between Bombay and Calcutta ports via Vizag ports and that the appellants were entitled to the benefit of Notification No. 5/66, dated 15th January, 1966. We allow the appeal. Consequential relief shall be granted to the appellants within three months from the date of communication of this order.
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1984 (2) TMI 336
... ... ... ... ..... the wordings of Notification No. 176/77 the Patna High Court, independent of said Section 2(d) has held that the exempted goods are not to be taken into account while computing the value of clearances of “all excisable goods cleared”. Since there is no contrary judgment to the said Patna High Court decision on the interpretation of Notification No. 176/77 to our knowledge, therefore, the same was binding as law on the Appellate Tribunal in view of the Delhi High Court decision in the case of J.K. Synthetics Ltd. v. Collector of Central Excise, Civil Writ No. 115-D/63, decided on 28-7-1970; Bombay High Court decision in the case of CIT v. Godavari Saraf, 1978 E.L.T. J 624 and Gujarat High Court judgment in the case of J.D. Patel v. U.O.I., 1978 E.L.T. J 540 (Guj.). In these cases it was held, to avoid discrimination, the authorities under an all India statute arc bound by the decision of any High Court provided there is no conflicting decision of other High Court.
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1984 (2) TMI 335
... ... ... ... ..... cluding what the goods were before cutting, what they became after cutting and what the relevant tariff entry said. Secondly, it appears to us that if the Department holds that the original manufacturer of the material cleared it on payment of lower duty as applicable to waste while the material did not conform to the definition of waste as laid down in the relevant notification, the action of the Department should really have to be directed against that manufacturer. We may add here that while concluding the hearing before us, the Department’s representative also admitted that if the original manufacturer paid the correct duty on the material cleared by him, there would be no liability on the appellants. 10. Since we are in agreement with the appellants on the substantive issue, we do not consider it necessary to go into the question of time bar. 11. The appeal is allowed. The duty demanded from the appellants and the penalty imposed on them are set aside.
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1984 (2) TMI 334
... ... ... ... ..... ng a short-fall vis a-vis the base year clearances were not correct. The appellants had correctly availed of the concession after taking approval of the Department. Yet, they paid back the money when compelled to do so by the Department. They applied for the corresponding refund quite promptly thereafter within one to two months of paying back the money. Since the time-limit for refund under Rule 11 of the Central Excise Rules, 1944 was six months, the refund claim cannot be held as time-barred. The lower authorities were not correct in reckoning the time-limit from the original duty payment from October, 1978 onwards because the cause for the refund claim arose only after the second payment (in compliance with the Department’s directive) in 1979. Thus, there was no justification for the Department’s action either from the point of view of law or equity. We hold that the refund claims of the two appellants were not time-barred and allow their appeals accordingly.
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1984 (2) TMI 333
... ... ... ... ..... have held is that mere nomenclature is not material what is material is that the deduction sought should be recognised by an established practice of the trade as a trade discount. In the instant case the expression used is ‘trade discount for freight’. The exact scope of the expression is not clear. In the commercial world also, one does not come across the expression trade discount of freight. In the present case, it appears to us from the record that the appellants have reduced freight charges at the rate of rupee one per container to their customers. This is some- thing quite different from a trade discount as understood by the trade and further clarified by the Supreme Court observations given above. We, therefore, hold that this ad hoc reduction of Re. 1/- per tin described as ‘trade discount of freight’ cannot be excluded from the assessable value of the goods. 4. In the result we do not find any force in this appeal and dismiss the same.
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1984 (2) TMI 332
... ... ... ... ..... June, 1977. Shri A.K. Saha, during the course of his argument has drawn my attention to the Hon’ble Supreme Court judgment in the case of Hansraj Govardandas v. H.H. Dave reported in E.C.R. C274 S.C. (1932-82). The Hon’ble court had held that in a taxing statute there is no room for any intentment. The matter is going wholly by the language of the Notification. In Notification No. 198/76-C.E., dated 16th June, 1976 (Sl. No. 32) it was mentioned “Electric Fans, All Sorts”. The words ‘electric fans, all sorts’ have to be construed liberally. I have already given my finding that the regulator is the indispensable part of the fan. 14. In the result, the appeal filed by the Revenue is dismissed. 15. The respondent has also filed a Cross Objection which just supports the order passed by the Collector (Appeals) and is anfractuous. Since no new point has been raised in the Cross Objection the same filed by the respondent is dismissed.
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1984 (2) TMI 331
... ... ... ... ..... a plant designed and in fact used for making bamboo pulp. The mere fact that the plant was capable of being used for making bamboo pulp will not disentitle the appellants to the benefit of the exemption. There has been no suppression of facts. The plant was not used for making bamboo pulp during the visits by the excise authorities in the relevant period. If the plant had been used for making bamboo pulp and the same had been utilised accordingly in the manufacture of paper, normally a notice would have been issued. Under those circumstances, it is clear that there was no mis-statement by the appellants in. their classification lists. It is stated that they have no plant attached to the mill for making bamboo pulp. Unless it is proved to be factually incorrect, it is not open to the department to issue the show cause notice. Hence, both on the question of time bar and on facts we are of the view that the show cause notice cannot be sustained. The appeal is therefore allowed.
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1984 (2) TMI 330
... ... ... ... ..... ble accidents beyond the control of the appellants and those which cannot be prevented despite all reasonable precautions taken in this behalf. The Respondents have not raised any plea to say that the accident which caused the loss of the goods in the present case was on account of collusion, negligence of the appellants or their employees. On the other hand, the appellants have stated that the loss occurred on account of the accident which could not be prevented by them despite of all reasonable precautions. Accordingly, following the judgment of the Delhi High Court in the matter of Sialkot Industrial Corporation (1979 E.L.T. J 329) supra we hold that the appellants are entitled to get relief in respect of the goods which were lost or destroyed before their clearance for home consumption. The Order of the Appellate Collector is therefore set aside and the appeal allowed. The appellants be granted consequential relief within four months from the communication of this order.
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1984 (2) TMI 329
... ... ... ... ..... with his old machinery not intended for sale it is not liable to duty. Similarly, component parts manufactured in the site are equally outside the purview of Item 29A as they are not assembled units. The ruling in Order No. 110/84-B was also incase of small milk dairy unit the appellant therein purchased second hand compressors and copper tubes from local markets and they were soldered together with compressor by means, of tubes. Applying the ratio of Ahmedabad High Court, this Tribunal held the item would not be an excisable commodity. In the present case, it is seen from the order of the lower authorities that the ”Cabinet" or the “storage tank” was manufactured out of old tank purchased from the kabaries. On the facts of the case, we find that the parts assembled by their appellant herein cannot be considered to be Cabinet within the meaning of the exemption notification and under those circumstances, the appeal is allowed with consequential relief.
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1984 (2) TMI 328
... ... ... ... ..... penal provisions of Rule 196(1), it contemplates (a) demand for duty on goods not accounted ; (b) withdrawal of the concession for a breach of these Rules (not this Chapter); and (c) in the event of such a breach, forfeiture of security, confiscation of the excisable (exempted) goods and all goods manufactured from such goods in store at the factory. From this it is clear that the breach is not confined to Rules in Chapter X, in order to attract confiscation of the parts. However, in the circumstances of the case, specially when no penalty is being imposed and keeping in view the fact that the exempted parts were yet to be used either as O.E. for motor vehicles or as parts of I.C. engines as such, we do not feel that the confiscation is necessary. It would suffice if duty is recovered at the appropriate rate on the parts not entitled to the exemption, if this has not already been done. We accordingly modify the order of the Collector and grant the appeal to this extent only.
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1984 (2) TMI 327
... ... ... ... ..... squo;s claims. 35. Issue No. (viii) - In view of our answers to the issues at (ii), (iii) and (iv), this question does not survive for consideration. 36. Issue No. (ix) - We do not consider it necessary to answer this question in the abstract. However, we would only abserve that we have considered it proper (apart from the merits of the case) that we ought not to take a view which has the effect of rendering statutory notifications which had been in force for a long period nugatory and meaningless. On merits, we have found that the Notifications in question only followed the intent of the statute and the exemption giving authority and, therefore, ought to be given effect to particularly when they did not have any in built absurdity which made them ex-facie meaningless or unworkable. 37. Having regard to the foregoing discussion, the appeal succeeds and is allowed. The impugned Order-in-Appeal is set aside and the Assistant Collector’s orders restored.
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