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Case Laws
Showing 81 to 100 of 265 Records
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1986 (9) TMI 252
Prepared or preserved foods - Skimmed milk powder ... ... ... ... ..... ed that the appellants were adopting either the larger packing, or the smaller packings packed in a larger packing, depending upon the order placed by the customers. Hence the fact that the larger packing also contained all details required under the Prevention of Food Adulteration Act would not support the conclusion drawn therefrom by the Department. 15. emsp As the notification stands benefit under the notification would be available when the SMP is packed for sale in a container containing not more than 1 kilogram of SMP. Even on the facts as stated by the Department the benefit was being claimed by the appellants only when the SMP was packed in such small packings and not when the name was being removed in larger unit packings. The reasons given in the order of the Collector to deny the benefit have earlier been discussed and it has been seen that the said reasons are not acceptable. In the circumstances this appeal is allowed and the order of the Collector is set aside.
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1986 (9) TMI 251
Confiscation of goods ... ... ... ... ..... en made to a case where after seizure and issue of show cause notice, the proceedings had been dropped. A copy of Order No. 16/84, dated 14-2-1985 by the Deputy Collector of Customs, Bangalore, in the case of M/s. Malhotra Radio Corporation, Bangalore, has been given to me. Even to cast the burden under Section 123 of the Act on the appellant, the initial threshold has to be crossed that the goods are of foreign origin. However, in view of the totality of the circumstances in this case, namely that the appellant had been claiming the goods to be of Indian origin, and the expert opinion on examination of the goods had not categorically endorsed the Department rsquo s case that they were of foreign origin, and the rejection of the expert opinion by the lower authority is also not based on sound reasoning, it is considered that this will be a fit case for extending the benefit of doubt to the appellant. The appeal is therefore, allowed with consequential relief to the appellant.
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1986 (9) TMI 250
Proforma credit ... ... ... ... ..... reservations about the date from which limitation should be computed, in view of what has been already set out above, I agree with Brother Hegde that demand notice in the instant case dated 11-7-1984 issued within six months from the date of cause of action was not barred by time. 32. I would agree with the order proposed by Brother Hegde. 33. emsp The points of difference in this appeal were referred by the President in terms of Section 129C(5) of the Customs Act to the third Member Shri S.O. Jha, Vice President (Judicial) who has since recorded his findings above. 34. emsp As per Section 129C(5), the appeal has to be disposed of in terms of majority view. In this view, the appeal filed by the Collector of Central Excise, Thane is to be allowed, setting aside the order passed by the Collector of Central Excise (Appeals), Bombay and restoring the order passed by the Assistant Collector of Central Excise, Division, IV, Thane. We order accordingly and allow the present appeal.
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1986 (9) TMI 249
Project import - Power Project ... ... ... ... ..... iary equipment should be relatable to a particular and a specified power project. In the present case, the vehicle was imported for setting up of seven transmission sub-stations falling under several projects and it was not relatable to a particular project. Therefore, even if the vehicle is considered to be auxiliary equipment (which, of course, is not the case), then also this specific provision is not fulfilled and it is not eligible for assessment as ldquo Project Import rdquo . 11. emsp Having regard to the above discussions, we hold that the vehicle imported for the initial setting up of power transmission sub-stations did not qualify for assessment under Tariff Heading 84.66(i) and accordingly, the Custom House was justified in refusing to register the contract for this vehicle under Project Imports (Registration of Contract) Regulations, 1965. We, therefore, find no reason to interfere with the impugned order. In the result, we uphold the same and dismiss this appeal.
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1986 (9) TMI 248
Refund claim ... ... ... ... ..... 4-1984 1985-ECR-289-(SC)J that the customs authorities, acting under the Act, were justified in disallowing the claim for refund as they were bound by the period of limitation provided therefor under Section 27(1) of the Customs Act, 1962. This is the latest judgment of the Hon rsquo ble Supreme Court confirming the position that quasi-judicial authorities cannot condone the delay in filing the application for refund. They are bound by the period of limitation. In the present case, the Assistant Collector received the refund application after the expiry of staturory period of six months from the date of payment of duty. The Assistant Collector was, therefore, justified in rejecting the claim as time-barred under Rule 11 of the Central Excise Rules, 1944. 13. In view of the foregoing discussions, we set aside the Order-in-appeal No. 339-C.E./APPL/KNP/80, dated 24-9-1983 passed by the Collector of Central Excise (Appeals), New Delhi and allow the appeal filed by the Department.
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1986 (9) TMI 247
Appeal to Appellate Tribunal ... ... ... ... ..... the Act. We find that on and from 27-12-1985 by reason of the amendment of Central Excises and Salt (Amendment) Act 79/85 it is only the Collector who is the competent authority to issue the show cause notice by invoking the extended period of limitation under Section 11A of the Act. It is not disputed before us that the show cause notice in question has been issued by the Superintendent of Central Excise in the circumstances stated above. We therefore find that the very issuance of the show cause notice itself is without jurisdiction and is not legally valid and consequently the impugned order in consequence of the said show cause notice is also legally not tenable. In this view of the matter we set aside the impugned order appealed against and allow this appeal. We would however like to make it clear that this order of ours would not in any way preclude the department from taking appropriate steps open to them under law for levy of the duty in question from the appellants.
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1986 (9) TMI 246
Gold - Confiscation and penalty ... ... ... ... ..... uld be entitled to possess 4000 gms. without being obliged under law to make any declaration thereof in terms of Section 16. I also find that the appellant and his major son have filed separate Wealth Tax Returns before the authorities and this would also prove that the appellants major son was not a member of the Hindu undivided family of which the appellant is said to be a Kartha. Since the adjudicating authority has not taken this aspect into consideration and has held that the appellant would be under legal obligation to make a declaration by reason of the fact that he was the head of the family and that his major son was also living with him with his wife, the impugned order has come to be passed. This reasoning of the adjudicating authority is contrary to the express provision of Section 16(6) of the Act and the special statutory definition for the family given therein. In this view of the matter I set aside the impugned order appealed against with consequential relief.
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1986 (9) TMI 245
... ...
... ... ..... f the proforma credit which is allocable to dutiable goods. Following the ratio there is no error in granting the refund in favour of the appellants herein. 7. The learned counsel raised a question of time bar. He stated that the demand has been made only in the Order-in-review, dated 26-3-1981. But we find that there was an earlier show cause notice on 13-12-1980. That notice has been issued within six months from the date when the amount was actually refunded to the applicant. The Assistant Collector has verified the particulars and has granted the refund after satisfying himself about the particulars furnished. The learned counsel also urged that Section 11 A has not been mentioned in the order and hence the order-in-review is vitiated. We are not impressed with this plea because the review show cause notice has been issued within a period of six months from the date of refund. In view of our findings on the merits the appeal is allowed and the impugned order is set aside.
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1986 (9) TMI 244
Appeal to the Appellate Tribunal ... ... ... ... ..... reported in AIR 1967 Madras 39 clearly holding that ldquo a lsquo seizure rsquo under the authority of law does involve a deprivation of possession and not merely of custody and so when the police officer seizes the goods, the accused loses possession which vests in the police. When that possession is transferred, by virtue of the provisions contained in Section 180, to the Customs authorities, there is no fresh seizure under the Sea Customs Act . The ratio decidendi of the aforesaid rulings is clear that Section 123 cannot be invoked against the appellant in the present case. I have also had occasion to deal with this question in certain earlier appeals before this Tribunal namely, in Customs Appeal Nos. 100, 101 and 194 of 1985 by judgment dated 4-8-1986. Therefore, the impugned order appealed against is set aside and the matter is remitted back for reconsideration by the original authority without applying the presumption under Section 123 of the Act against the appellant.
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1986 (9) TMI 243
Gold Control ... ... ... ... ..... ervent plea that the venial breach of the appellant in the facts and circumstances of this case should not be construed to be a penalty disentitling them in respect of their renewal of a licence and in the circumstances of this case, I hold that this contravention which is of a technical nature is not a disqualification. 9. emsp In this view of the matter, I modify the impugned order appealed against in respect of the quantum of penalty and reduce the penalty imposed on the appellants Selvarajan and Ramanujam from Rs.10,000/-to Rs. 2500/- each. 10. emsp In the result, Gold (Control) Appeal Nos. 90/86 (MAS) is allowed and 91 and 92 of 1986 are dismissed with modifications indicated above. Since the case of the appellants in Appeal Nos. 93 to 102/86 has already been accepted by the adjudicating authority under the impugned order, the appeals are dismissed as mis-conceived in law. 11. Except for the above modifications all the appeals except A. No. 90/86 are otherwise dismissed.
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1986 (9) TMI 242
Gold - Seizure and confiscation ... ... ... ... ..... d D.R. and would be liable for confiscation. Therefore, the order of confiscation and release of the same in lieu of confiscation is legally in order. But however in regard to the quantum of fine, so far as appellant M/s. Jewellery House (No. 89/86) is concerned, in the facts and circumstances of this case I am inclined to hold that some more leniency is called for and in this view of the matter, I reduce the quantum of fine from Rs. 25,000/- to Rs. 20,0001- (Rs. Twenty thousand only). But in respect of fine imposed on appellant Shantilal Jain in Appeal No. 132/86 is concerned, the learned D.R. brought to my notice that 253.450 gms. of gold ornaments sold by the appellant outside the licensed premises were not even covered by vouchers nor supported by any entry in the G.S. 12 register, I, therefore, hold that the fine imposed on appellant Shantilal Jain does not call for any further reduction. In the result the above appeals are dismissed with modification as indicated above.
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1986 (9) TMI 241
Sugar - Excess production rebate ... ... ... ... ..... aid notification No. 108/78. rdquo 5. emsp As pointed out for the respondents this ground for denial of benefits had not been raised before the Assistant Collector or the Appellate Collector and hence not considered by either of them. No details have been furnished either under the review show cause notice or otherwise as to how the respondents satisfy the said requirements in order to be entitled to benefit under that notification. Shri Joshi denies that the said conditions as stipulated in the said notification are satisfied by the respondents. In the absence of any particulars in that behalf in the review show cause notices we hold that this ground for setting aside the order-of the Appellate Collector is not acceptable. 6. emsp In the result we hold that no grounds have been established to set aside the orders of the Appellate Collector in any of these three appeals. The appeals are accordingly dismissed and the review notices of the Government are accordingly discharged.
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1986 (9) TMI 240
Adjudication - Inspection - Local inspection ... ... ... ... ..... he impugned order deleting the words ldquo absolutely rdquo from the express ldquo absolutely confiscated rdquo occurring in the original order. Since the lower authority has given the appellant an option of redemption, the Original order dated 1-4-1986, the word ldquo absolutely confiscated rdquo in the operative part of the Order is evidently an error apparent on the face of the record which could be rectified by a corrigendum in terms of Section 154 of the Customs Act, 1962. Since the impugned order is vitiated by reason of bias on the part of the adjudicating authority as indicated above, it would not be in conformity with the tenets of natural justice if the matter which I propose to remit back is re-adjudicated by the same authority. The impugned order appealed against is therefore, set aside and the matter remitted back with a direction that it shall not be adjudicated upon by the adjudicating authority who has passed the impugned order for the reasons indicated above.
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1986 (9) TMI 212
CLASSIFICATION ... ... ... ... ..... ing paper. In the event, the proper classification therefor under CTA would be 48.01/21(3) relating to ldquo other printing and writing paper rdquo . The CCCN has separately dealt with paper and paper board, coated, under heading 48.07. It is for that reason that such paper and paper board, coated (which would include art paper) is excluded from heading 48.01 of the CCCN. In the absence of any such specific provision for exclusion in the Customs Tariff Act, reliance on the exclusion of art paper from heading 48.01 in the CCCN would not be of any relevance. 7. emsp In view of the above circumstances, we hold that the subject goods were properly classifiable under heading 48.01/21 (3), CTA. Accordingly we hold that the appellants were entitled to the refund claimed in all the five instances. All these five appeals are allowed and the orders of the lower authorities are set aside, the goods being ordered to be classified under heading 48.01/21 (3) CTA, with consequential relief.
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1986 (9) TMI 211
Confectionery - Bourbon Cream not chocolate ... ... ... ... ..... which are laid down in the specification. Since vegetable fat is not one of the permitted items the product does not seem to qualify for the description chocolate. 7. emsp It is seen from page 350 McGraw-Hill Encyclopaedia of Science and Technology (5th Edition) Vol. III that many confectioners and biscuits manufacturers have turned to chocolate substitutes made with fats other than cocoa butter. This has been done for economic reasons as well as to obtain special effects in their products. 8. emsp In view of the above discussion we hold that the subject products, which contains vegetable fat which is not one of the permitted items according to the Indian Standard specification, does not fall within the scope of description Chocolate. We therefore hold that this is classifiable under residuary item 68 CET. In the light of above we allow the appeal, order that the product Bourbon Cream biscuits be classified under item 68 CET with consequential relief if any to the appellants.
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1986 (9) TMI 210
Export - Shipping Bill presented before Entry outwards grant ... ... ... ... ..... ffected by S.S. Jala Mohan. Entry outwards for the ship was granted on 12-9-1981. The shipping bill had been presented on 25-8-1981 itself. Therefore, under the deeming provisions of Section 16 of the Customs Act the date of presentation of the shipping bill should be held to be 12-9-1981 only. The decision of the Supreme Court in Gangadhar Narsinghdas Agarwal v, P.S. Trivikraman and another (1983 E.L.T. 1491 SC) is authority for this proposition. It laid down that Section 16 provided for one fictional date only, that being the date of grant of entry outwards if the shipping bill had been presented before that date. 5. Therefore, in the present instance, the rate of duty would be the rate prevalent on 12-9-1981. Since by 10-9-1981 duty on export of coffee stood abolished it follows that no duty was payable by the respondents on their export. Accordingly, we hold that the Appellate Collector was correct in directing the refund applied for. This appeal is, therefore, dismissed.
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1986 (9) TMI 209
CLASSIFICATION ... ... ... ... ..... dura Coats Ltd. is regarding the continuance of the benefit of an exemption Notification issued under an old Tariff Entry even after the product enjoying the benefit thereof becomes classifiable under a new Tariff Entry as a result of an amendment of the Tariff/ Finance Act, until the Notification is specifically withdrawn or superseded by another Notification. In the view that we are taking, it is not held that the impugned goods were correctly classifiable under Item 22-A of the Central Excise Tariff prior to 1.3.75 or covered by exemption Notification No. 53/65. Therefore, the question of this exemption continuing after the amendment of the Tariff with effect from 1.3.75 does not arise. 16. emsp Respectfully concurring with the decision of this Bench in the case of Sri Ram Jute Mills Ltd., Calcutta v. Collector of Central Excise, Calcutta (supra), we hold that the impugned products are correctly classifiable under Item 68 of the Central Excise Tariff. 17. Appeal dismissed.
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1986 (9) TMI 208
Penalty unjustified if appellants were acting bona fide ... ... ... ... ..... ormal period of 6 months only. Since the period for which duty was being demanded extended upto 29.9.77 only, but the show cause notice has been issued on 17.9.80, it would follow that the demand under the notice was wholly barred by time. 12. emsp In the view we have taken on the question whether the appellants were acting bonafide in not taking out a licence even after 1.3.1975, and in continuing to clear their Coca Cola concentrates and beverage bases without payment of excise duty, we are further of the view that in the absence of any intention on the part of the Appellants to wilfully evade payment of duty the imposition of penalty on them is also not justified. In that view, we set aside the order regarding imposition of penalty. In view of the above conclusions, which are sufficient for the disposal of the appeal, it is not necessary to go into the other contentions raised by both parties. 13. The appeal is accordingly allowed, setting aside the order of the Collector.
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1986 (9) TMI 207
Electric motors, all sorts ... ... ... ... ..... ly as components. The Department does not contest the entitlement of the appellants to the benefit of this notification. The other notification i.e. No. 68/60, dated 28-4-1960 is in respect of electric motors cleared for home consumption. The latter exemption is dependent on the total output of electric motors of the unit as a whole including those used for captive purpose for the manufacture of electric fans. In determining this output, the appellants contention is that the electric motors which they manufacture for use in electric fans should not be taken into account for reason that these are not electric motors of conventional type. For reasons discussed in the foregoing para we feel that the lower authorities have taken a correct view that the relevant tariff item covers electric motors all sorts, and that this item would cover the electric motors which are component parts of the fans manufactured by the appellants. 12. emsp Accordingly the appeal fails and is dismissed.
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1986 (9) TMI 206
classification ... ... ... ... ..... e prohibitive if used as a domestic fan, it would not be the test to determine whether it is an industrial fan. A careful consideration of the nature of the products as also the materials placed, prove beyond doubt that these are various types of exhaust fans and not fans of the special type of design envisaged for use in an industrial system. 17. emsp It was urged that these fans are known in the market as industrial fans. But, as rightly observed by the S.D.R., when we are considering the tariff entry it is the duty to consider all relevant factors to find out whether they fall under one tariff item or the other rather than on mere trade parlance test. It is the nature, character, description and use of the goods that will determine under which tariff item a particular product would fall. 18. emsp In view of the discussion above, the conclusion, in our opinion, is inevitable, namely, the products are rightly classifiable under T.I. 33(3). The appeal is, therefore, rejected.
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