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Case Laws
Showing 21 to 40 of 155 Records
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1986 (6) TMI 211
Demand under provisional assessment procedure ... ... ... ... ..... Supreme Court with retrospective effect. rdquo It would thus be seen that the Hon rsquo ble Supreme Court has not laid any law in regard to recovery to be made in case of short levy and the order passed was in peculiar facts and circumstances of that case only. There is no evidence to show that the price approved was provisional in any manner or was treated so by the Department or the assessee. In the present case while the Department entertained doubt that the assessable value should have been higher, no steps were taken to raise the demand within the period of limitation. The Tribunal being a statutory authority, constituted under the Central Excises and Salt Act, 1944, can only function within the parameter of Central Excise Act and Rules and has necessarily to go by the time-limits wherever prescribed for the purpose of passing orders regarding the demands etc. In view of the above, we allow the appeal in the terms above and set aside the order of the Appellate Collector.
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1986 (6) TMI 208
Seizure and confiscation ... ... ... ... ..... Vinyl Wall Coverings, the imported goods, are to be treated as PVC sheets as contended by the learned counsel for the appellants cannot be brushed aside. In other words, it is not possible to brush aside the contention of the appellants when one looks to the material which gives the goods their essential character as laid down in Rule 3(b) of the Rules of Interpretation of the Customs Tariff. For similar reasons, the contention that the imported Acrylic Fur Cloth is to be treated as Artificial Fur Cloth as mentioned in column 4 of Appendix 17 of the said Import and Export Policy also cannot be brushed aside since the Acrylic Fur Cloth had the essential characteristics of the fur cloth and are made of acrylic which is artificial or synthetic fibre and may be used for making ladies hand bags, wallets, purses etc. 14 ensp . In the light of the foregoing discussions all the appeals deserve to be allowed, and are allowed. The impugned order is set aside with consequential relief.
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1986 (6) TMI 205
Penalty and fine ... ... ... ... ..... ances as available on record, I find sufficient force in the plea of the appellant that the entries could not be made due to the sickness of the two store keepers. No evidence has been adduced by the department that the statements of the two store keepers recorded on the day of seizure are in any manner false or untrue. The possibility of weighment error against a huge quantity lying in stock cannot be ruled out in respect of the goods found to be short. Since in any case duty has already been paid by the appellant on this shortage, I will not interfere in this aspect at this stage. The breach of Central Excise law is totally unintentional in this case and cannot be attributed due to any malafide whatsoever. Considering all the facts and circumstances, the amount of fine and penalty imposed is highly disproportionate to the gravity of offence. Accordingly, I reduce the fine in lieu of confiscation from Rs. 25,000/-to Rs. 1,000/- and the penalty from Rs. 10,000/- to Rs. 500/-.
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1986 (6) TMI 201
Set-off of duty - Extent of - Limited concession ... ... ... ... ..... nufacture of the finished product cleared from the factory on payment of duty. Duty suffered by the input used in the manufacture of finished product which was moved from the Rajahmundry factory to the packing stations located elsewhere, in terms of Rule No. 56B, without payment of duty, could not be utilised towards payment of duty on the finished product cleared on payment of duty from the Rajahmundry factory. 19. emsp As stated earlier, the Counsel for the appellants had given up the contention that credit of input duty earned at the Rajahmundry factory could be utilised towards payment of duty on Horlicks (removed under Rule 56B from the said factory to the packing stations located elsewhere, such removals being without payment of duty) packed at the packing stations and cleared therefrom on payment of duty. In view of this, we are not called upon, nor do we, record any finding on this contention. 20. emsp In the above view of the matter, the appeal fails and is rejected.
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1986 (6) TMI 200
Set off of duty ... ... ... ... ..... n would be admissible only on the quantity of chemicals which is actually used up during the process of manufacture. In practical terms, the manufacturer would be able to take credit for the duty already paid on the cryolite at the time he receives it into his factory. However, the quantity of cryolite lying over at the end of the manufacturing process (whether as originally received or as recovered after one or more uses) would be liable to duty in terms of para 10 of the appendix to the notification. 19. In the view we have taken, the question of time-bar with reference to the argument made by the Department does not arise and it is needless to go into it. 20. emsp In the result we agree with the conclusions of the Collector (Appeals) and reject this appeal. We would add that neither the order of the Collector (Appeals) nor this order would stand in the way of duty being recovered on unused quantities of ingots in terms of para 10 of the Appendix to Notification No. 201/79.
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1986 (6) TMI 193
Order - Rectification by Corrigendum ... ... ... ... ..... ase should not go back to the Adjudicating Authority for deciding the same de novo. To this submission, the learned SDR also had no objection. In the circumstances, I am of the view that to remit the case for Adjudication de novo would not be in the interest of justice. Keeping in view of the fact that the case relates to the year 1979 and to ask the appellant to face the adjudication proceedings again de novo would definitely cause undue hardship to him coupled with the fact that the Department has also no objection to such a course being adopted. 7. emsp In the light of the foregoing discussions, I set aside the impugned Order-in-Review and also the Corrigendum No. C. VIII (10)23/80/12928 (or 12925 as mentioned by the appellant) dated 17-12-1980 which was issued in partial modification of Adjudication Order-in-Original No. 107/80 dated 5-12-1980 passed by the Assistant Collector, Customs and Central Excise, Jaipur, and restore the Order-in-Original No. 107/80 dated 5-12-80.
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1986 (6) TMI 192
Manufacture ... ... ... ... ..... sent case, the said goods had been imported and cleared after paying all the duties payable including additional (countervailing) Customs duty equal to the Central Excise duty chargeable under T.I. 26AA of the Central Excise Tariff. I, therefore, hold that the provisions of Rule 173H of the Central Excise Rules, apply to this case. 11. The goods in the instant case were cleared on 11-1-81 whereas show cause notice was issued on 18-12-82. The permission for re-processing was taken from the Superintendent of Central Excise and intimation under D-3 was given. Besides, the show cause notice has not brought out any evidence in support of the allegation that there was fraud, collusion or any wilful mis-statement or suppression of facts by the said firm. I, therefore, find no justification to invoke the 5 years rsquo time limit under the proviso of Section 11 A of the said Act in the instant case. The demand for duty made in the show cause notice is, therefore, barred by limitation.
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1986 (6) TMI 191
Classification of goods ... ... ... ... ..... f India and Others 1980 E.L.T. 268 (Bombay) State of Tamil Nadu v. Natarajan (48 STC 315 Mad.) Deputy Commissioner of Sales Tax v. PIO Food Packers (46 STC 63) Commissioner of Sales Tax v. Dunken Coffee Mfg. Co. (35 STC 493) State of Gujarat v. Sukhram Jagannath (50 STC 76) B. Dar Laboratories v. State of Gujarat 22 STC 160 (Guj.) and State of Maharashtra v. C.P. Manganese Ore (AIR 1977 SC 879). 14. In the result, the writ petition fails and is dismissed with costs. Order - This petition coming on further orders on this day in the presence of Mr. C. Daniel, Advocate for the petitioner and of Mr. R. Joshi, Additional Central Government Standing Counsel on behalf of the respondent the court made the following order The writ petition was dismissed with costs by my order dated 2.5.1986. However, I did not fix the costs and therefore, the matter is posted before me. Taking into consideration the points involved, I fix the advocate rsquo s fee at Rs. 500 (Rupees Five hundred only).
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1986 (6) TMI 189
Customs - Refund Claim ... ... ... ... ..... Therefore, the extended period of limitation, namely, one year prescribed under Section 27(1) should apply. 4. Shri Pal was not called upon to argue the case. 5. emsp The contention of Shri Phadkar has no merit. Admittedly, the appellant is a Company. The Government and Government Companies are two distinct entities. The benefit of enlarged period of limitation is available only to the Government and not to Government Companies. Therefore, I see no merit in this contention of Shri Phadkar. In the result, this appeal fails and the same is rejected.
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1986 (6) TMI 174
Adjudication Order ... ... ... ... ..... the case should not go back to the Adjudicating Authority for deciding the same de novo. To this submission, the learned SDR also had no objection. In the circumstances, I am of the view that to remit the case for Adjudication de novo would not be in the interest of justice. Keeping in view of the fact that the case relates to the year 1979 and to ask the appellant to face the adjudication proceedings again de novo would definitely cause undue hardship to him coupled with the fact that the Department has also no objection to such a course being adopted. 7. In the light of the foregoing discussions, I set aside the impugned Order-in-Review and also the Corrigendum No. C.VIII (10)23/80/12928 (or 12925 as mentioned by the appellant) dated 17-12-1980 which was issued in partial modification of Adjudication Order-in-Original No. 107/80 dated 5-12-1980 passed by the Assistant Collector, Customs of Central Excise, Jaipur, and restore the Order-in-Original No. 107/80 dated 5-12-1980.
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1986 (6) TMI 173
Compounded levy scheme ... ... ... ... ..... ly be Rs.2,000/- and the Collector had erred in levying penalty. We do not see any force in the contention that Rule 173Q would apply only in cases where the compounding levy assessment is not opted by the assessee. 96ZZZ would apply for misdeclaration only but 96YYY states that the special procedure allowing compounded levy would not apply to a manufacturer who had employed more than five workers during the calendar year preceding the date of the application. So, 96YYY excludes the special procedure itself. Under these circumstances, it cannot be urged that the penalty could be imposed only under Rule 96 ZZZ. Imposition of penalty under Rule 173Q is justified. Considering the manner in which the evasion has been carried out penalty cannot be said to be excessive. 19. emsp In the result, the appeal is dismissed except for the direction to the Collector of Central Excise, Madras to re-work the differential duty in the light of the documents produced and after due verification.
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1986 (6) TMI 172
Reference to the High Court - Questions not arising out of Tribunal’s Order not referable
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1986 (6) TMI 171
Customs - Clandestine removal of goods from Customs bonded warehouse ... ... ... ... ..... s follows - ldquo The only evidence against him is the statement of Shri Thiruvengadam given on 15-11-1984 to the effect that the keys were received from Shri Sheriff through Shri Rahimatullah. This statement is not corroboration by any other evidence like admission of the same by Shri Rahimatullah etc. In such circumstances, any penal action taken against Shri Sheriff may not be sustainable in law. rdquo We feel if the same reasoning had been adopted by the adjudicating authority against the appellant, the appellant should have been exonerated of the charge. No doubt, we are convinced that the circumstances appearing in evidence as against the appellant engender a grave suspicion in our mind. As suspicion however grave it might, cannot take the place of proof, we are constrained to hold that the charge against the appellant has not been brought home by the evidence available on record. In the result, the impugned order appealed against is set aside and the appeal is allowed.
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1986 (6) TMI 170
Proforma credit - Iron and steel products ... ... ... ... ..... of duty at concessional rate would not have arisen. The assessees were working under SRP and would have known that the submission of RT-12 with PLA or RG-23 was required. This RG-23 account was not submitted by the assessee till several months after the expiry of the period in dispute. It raises a question in one rsquo s mind whether the RG-23 was, in fact, maintained at the proper time, although the Assistant Collector does not go into this. 10. emsp The assessees did not approach the central excise in a straightforward manner. They have asked for permission to adjust proforma credit for 1-3-1973 to 24-8-1973 and to reopen assessment of RT-12 returns from 25-8-1973 to 28-2-1974 these are nothing but tactics for obtaining refunds of duty for which claims would be time barred. The Assistant Collector did not appear to have noted this, but we think he did right in rejecting the request for allowing the proforma credit and for reopening the assessments. 11. We reject the appeal.
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1986 (6) TMI 169
Milk foods - ‘SPERT’ is a ‘milk food’, skimmed milk powder being its major constituent ... ... ... ... ..... 14 of the schedule to show that it falls within the entry. I am afraid the department has not discharged its burden, whereas the respondent has, on its part, produced sufficient material to point to the conclusion that its product does not fall within the mischief of entry No. 14. 21. emsp In the light of the foregoing discussion, I am of the view that the product SPERT manufactured by the respondent is not covered by entry No. 14 of the Schedule to Notification 17/70, dated 1-3-1970 and hence it is exempted from payment of excise duty. In this view of the matter, the appeal fails and is rejected. Order per V.T. Raghavachari, Member (J) . - I have carefully perused the orders prepared by Shri P.C. Jain, (Member) and Shri G. Sankaran, (Vice President). I agree with the reasonings and the conclusions in the order prepared by Shri G. Sankaran and therefore agree with him that the appeal is to be rejected. In accordance with the decision of the majority this appeal is dismissed.
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1986 (6) TMI 168
Appeal only to be filed ... ... ... ... ..... applicant had quantified the demand. Shri Pattekar appearing for the Respondent Collector however submits that he has no instructions regarding the amount quantified by the applicant. We feel that the present application in the circumstances is premature so far as the duty is concerned. As regards the penalty. Shri Taraporewala after consulting his client submitted that he would be able to deposit that amount and as such no stay is required at this stage regarding the said amount.
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1986 (6) TMI 164
Seizure and confiscation of Gold and gold ornaments ... ... ... ... ..... he contention that the Commissioner of Income Tax is a necessary party to the petitions, cannot be accepted, because no challenge has been made to the authorisation issued by him. The contention was that the seizure made by the Income tax Officer was in excess of the authority given to him by the Commissioner of Income Tax. 11. emsp In the result, the petition of Smt. Sona Bai is partly allowed and that of Smt. Chanda Bai is allowed in toto. We direct the respondents to return the gold ornaments weighing 529.000 gms. to Smt. Sona Bai and the ornaments weighing 434.500 gms. to Smt. Chanda Bai which have been shown belonging to them in Annexure ldquo B rdquo to the Panchnama, Annexure ldquo P-1 . The claim of Smt. Sona Bai over 4 gold bangles weighing 28.500 gms. and over the primary gold weighing 94.000 gms. is rejected. In the circumstances of the case, the parties are directed to bear their costs as incurred. The outstanding amount of security be refunded to the petitioners.
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1986 (6) TMI 163
Valuation - Cost of crating/packing of forklift trucks not includible in assessable value ... ... ... ... ..... klift trucks during transit. It is evident, therefore, that such crating is done solely for facilitating smooth transport of the forklift trucks. Hence, the cost of packing is not includible in the assessable value of forklift trucks 1985 (22) E.L.T. 306 (SC) - UOI and others v. Godfrey Philips India Ltd., and others 7. emsp So far as loading/unloading or forwarding charges are concerned the matter stands settled by paragraph 49 of the Supreme Court judgment in the case of Bombay Tyre International Ltd. All such charges incurred up to the point of loading the forklift trucks for delivery at the factory gate are includible in the assessable value. Such charges, if any, incurred after the factory qate stage are an element of cost of transportation and hence not includible. 8. emsp In the light of our above findings, the assessable value should now be re-determined by the Assistant Collector and consequential relief given to the appellants. The appeal is disposed of accordingly.
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1986 (6) TMI 162
Storage losses - Criteria for - Claim partly rejected by lower authorities ... ... ... ... ..... pto 1 ought to be condoned. There is no such rule of thumb. Regard must be had to period of storage and seasonal climate. What Assistant Collector has condoned is more than reasonable. This appeal is hereby rejected rsquo . The Appellate Collector rsquo s order does not give a satisfactory reasons to reject the claim. The Appellate Collector did not hold that the loss claimed by the appellants did not occur. He has only taken into consideration the period of storage and the month during which the goods were stored. These two factors by themselves would not be sufficient to disallow the claim. The Board rsquo s circular clearly indicates, that, after taking into consideration the experience gained during the past several years, the Board decided that the claim upto 1 should not be even enquired into. In the circumstances and for the reasons stated this appeal is allowed and the order passed by the authorities below are set aside. The appellants be granted consequential relief.
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1986 (6) TMI 161
Customs - Abatement of duty - ... ... ... ... ..... n account of damage or deterioration. The lower authorities rejected the appellants rsquo claim on the ground that Section 22 had no application once the goods had been cleared out of customs control. 3. emsp On careful consideration of the matter, we agree with the lower authorities, sub-section (3) of Section 22 provides for two methods of ascertaining the reduced value of the damaged goods - by appraisement by the proper officer or by sale of the goods by the proper officer. Neither of these courses is possible once the goods have gone out of customs control. Secondly, Section 22 applies to ldquo imported goods rdquo . ldquo Imported goods rdquo , as defined in Section 2(25) of the act, specifically exclude goods which have been cleared for home consumption. The appellants ought to have established the extent of damage and the reduced value of the goods while the goods were still under customs control. 4. We, therefore, find no merit in the appeal and dismiss both of them.
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