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Case Laws
Showing 41 to 60 of 235 Records
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1988 (12) TMI 273
Fur Cloth-Artificial fur cloth imported is a velvet fabric ... ... ... ... ..... th is mentioned even in the opinion obtained from Dr. Talukdar by the appellants. The further submission made that they had shown evidence to indicate that the goods imported resemble natural fur is unacceptable because it is seen that the letter dated 28-3-1988 of Shri Radhakrishnan is one addressed to the appellants, and further, it is based on shipping samples, and not samples from the imported consignments. We also find that the letter is subsequent to the date of the Collector rsquo s adjudication order. The Collector had adjudicated the case by his order dated 18-3-1988. Therefore, on a total consideration of evidence on record, it is seen that the Collector rsquo s conclusion is supported by the expert opinion of Dr. Subramaniam, and by the official clarification given by the licensing authority in terms of the licensing policy, and in such a situation, there is no infirmity in the Collector rsquo s order which is, therefore, upheld. The appeal is, therefore, rejected.
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1988 (12) TMI 272
... ...
... ... ..... ags besides package tea as well as the exported in bulk and so groundnut kernel must include blanched and roasted peanuts, is unsound and untenable. The Collector of Customs has failed to see that all the varieties of coffee and all the varieties of tea are intended for consumption which is not the case of the groundnut kernels and blanched roasted peanuts. The former is primarily used for extraction of oil while the latter is intended for direct consumption. Hence the conclusion of the department that groundnut kernel covers blanched and roasted peanuts and they fall under Heading No. 20(i) of the Export Tariff is such as no reasonable person could adopt. rdquo 6. ensp We are in agreement with the above discussion and conclusion of the learned Judge. We are unable to accept the contention raised by Mr. Narasimhan, learned Counsel appearing for the Department/Appellants. 7. ensp In the result, the appeals fail and are accordingly dismissed. There will be no order as to costs.
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1988 (12) TMI 271
Confiscation of conveyance ... ... ... ... ..... ow cause notice, not participating in the personal hearing. If the purchaser of the truck had not paid the full consideration, the Tribunal is not the forum for enforcement of that liability or on that ground the appellant who had not challenged the liability of the truck for confiscation could urge that the Collector rsquo s order should be set aside insofar as it relates to the truck. He had parted with his right, title and interest. It looks to us that he is projecting the cause of somebody else who had not chosen to come before this Tribunal. Moreover, we have no reason to hold that the truck did not become liable to confiscation. The Collector rsquo s finding is specific that this truck was used for the carriage of smuggled goods. The real owner at the relevant time was Shri Kassam U. Makha though he had an opportunity he did not challenge the liability of the truck to confiscation. In the circumstances, we see no merit in this appeal and accordingly, we reject the same.
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1988 (12) TMI 270
Classification ... ... ... ... ..... ed 49 of raw tobacco, the remaining 60 being other ingredients like lime and red earth. The Tribunal came to the conclusion that the product lsquo gudakhu rsquo fell under Item 4 and not Item 68. The product in the present appeals, as seen from the Order-in-Appeal dated 26-2-1982, contains 50 molasses, 40 tobacco, the rest being lime, clay etc. 4. ensp Following the previous decisions of this Tribunal, (Orders No. 185/87-D, dated 11-3-1987 and No. 353/87-D, dated 4-5-1987), the impugned orders are set aside and the appeals are allowed with consequential relief, if any, which must be granted by the Asstt. Collector to the appellants expeditiously since these matters are quite old. 5. ensp The Department as filed so-called cross objections in which the only relief asked for is that the present appeals should be dismissed. Since the impugned orders were wholly in favour of the Revenue, there was no cause for filing the so-called cross objections. Accordingly, they are dismissed.
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1988 (12) TMI 261
MODVAT and Proforma Credit ... ... ... ... ..... show cause notice dated 5-3-1987 is within the time and is fully enforceable. We, therefore, direct that the Department shall quantify the duty recoverable in the light of above decision and enforce recovery thereof. 20. As regards the last plea made by Shri Shroff requesting for permission to reverse the MODVAT credit but retain the proforma credit, such a request should have been raised at least when the Range Supdt. specifically brought to their notice of the provisions of sub-rule (9) of Rule 56A. There was an opportunity given to them at that stage. The appellants have not obviously availed of that opportunity and were carrying on under a mistaken impression on their own. Such an attitude on the part of the assessee cannot be condoned and this request therefore does not merit consideration at this stage. We accordingly reject this request. 21. In the result, subject to the modification contained in para 19 above, the appeal filed by the appellants is otherwise rejected.
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1988 (12) TMI 260
Penalty - Import of almonds ... ... ... ... ..... ers, the import was from the same suppliers as in the present case and the same suppliers had described the goods as ldquo almonds inshcll rdquo whereas for the same goods by the same suppiliers, the appellants contend that they are almonds seeds. The lower authorities would in such a situation be justified in imposing penalty on the importers. We also do not find any merit in the plea put forth that Section 128-A(3) of the Customs Act only empowers the Collector (Appeals) to enhance penalty, and not to impose penalty where there was originally no penalty at all. This is because of the wide amplitude of Section I28-A(3) which empowers Collector (Appeals) to ldquo pass such order as he thinks fit confirming, modifying or annulling the decision or order appealed against rdquo , and in such a context the plea put forth has to be rejected as untenable. In the result, we see no reason to interfere with the order passed by the Collector (Appeals) and appeals are therefore rejected.
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1988 (12) TMI 256
Valuation - Related person ... ... ... ... ..... ion of any mis-statement so far as appellants. 55. So far as factual position is concerned, the price declared by the appellants in the price list correctly reflected the position at which the invoices were raised. It was based on their interpretation of the law as understood by them that they declared the prices in the price list as charged by them to ICIL and not the ones charged by ICIL to their customers. This can only be for reason of mis-interpretation of the law and this cannot be considered mis-statement in regard to price. Mis-statement can only be there when the statement made is otherwise than the known position or the actual position. This is not the case in the case before us. Now mis-construction of law or misinterpietation of the same by the assessee is not covered by specified provisions under Rule 10. 56. In the facts of this case, therefore, we hold that the demand can be raised under Rule 10A. In view of above, we thus partially allow the appeals by remand.
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1988 (12) TMI 255
Value of clearances ... ... ... ... ..... demand were not supported by any material and were perverse. The Hon rsquo ble High Court after a detailed consideration of all the aspects of the case found that the books of accounts produced by the appellant therein before the Excise Authorities contained clear evidence of the fact that the appellant Shri Bajrang Gopilal Gajvi himself was the owner of the yarn alleged to have been sold by Tejpal to the powerloom owners and he got back that very yarn in the shape of cloth after it was woven into cloth and ultimately dismissed the writ petition. It was stated that against the said judgment of the Bombay High Court Shri Bajrang Gopilal Gajvi filed his civil appeal before the Hon rsquo ble Supreme Court but without success See Bajrang Gopilal Gajvi v. M.N. Balkundri and Others, 1986 (25) E.L.T. 609 . 10. In the light of the foregoing discussion we find no force in the contention raised by the learned counsel for the appellants and reject the appeal being devoid of any merits.
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1988 (12) TMI 254
Reasonable time for pre-deposit to be given when such application rejected ... ... ... ... ..... rocedure required to be followed under law. Mere non-deposit itself would not be sufficient to dismiss the appeals. The party is required to be given an opportunity to deposit the duty. A reasonable time should also be allowed to make the deposit. Despite such an order the party without sufficient cause fails to make the deposit then only the Collector (Appeals) gets jurisdiction to dismiss the appeals for non-deposit. 6. Since the procedure followed by the Collector (Appeals) is not in accordance with law, we set aside the order passed by the Collector (Appeals) in the appeals, and remand the matter to the Collector (Appeals) for consideration afresh. The Collector (Appeals) shall list the stay applications filed by the appellants herein and consider the same and thereafter he shall consider the appeals filed by the appellants herein before him. 7. Since we have disposed of the appeals, the stay applications do not survive for consideration. They are disposed of accordingly.
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1988 (12) TMI 253
Machines - Natural justice ... ... ... ... ..... adras IIT had expressed an opinion, is a very old machine and crude in design whereas the instrument imported in this case is a highly sophisticated and modern one. We do feel that if the view of Madras IIT could have been obtained in the case of Validator 10, then it could also have been obtained in respect of the instrument imported in the case also. In any case, no final view in this matter could have been taken merely on the basis of technical advice obtained in respect of Validator 10, without giving a hearing to the Importer on the issue. 10. We, therefore, set aside the order appealed against and remand the matter to the Assistant Collector for de novo consideration and adjudication after giving the Importers a full opportunity to explain their case on the grounds taken against them by the department. While passing his orders, he will no doubt, bear in mind the decision of this Tribunal in the case of M/s. Kinetic Engineering Ltd. (supra). 11. Appeal allowed by remand.
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1988 (12) TMI 252
Steel Ingots ... ... ... ... ..... ment of duty on any of the final product in or in relation to the manufacture of which such inputs are used. A plain reading of the Rule, when considered in the background of the objective of the Modvat scheme, viz., to provide instant credit for the manufacturers and to avoid cascading effect of taxation on input in relation to the final product, it will be clear that this Rule in terms will not be a bar for utilisation of amount of credit, which may accumulate because of a situation where the duty on the final product is less than the duty on the inputs for payment of duty on the same final product. This conclusion is also supported by the admitted position that for the purpose of Modvat credit scheme, there is no one-to-one relationship of input and final product for the purpose of utilisation of credit. Therefore, in such a view of the matter, there is a lot of force in the submission of the appellant, which is accordingly accepted, and the appeal is consequently allowed.
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1988 (12) TMI 251
MODVAT credit ... ... ... ... ..... the input by paying 20 duty and paid only 12 duty and subsequently paid the differential duty of 8 , it would not amount to variation of the rate of duty within the meaning of Rule 57-E extracted above. Since the authorities below have sought to reverse the credit by application of Rule 57-E, we hold that 57-E in the facts and circumstances of the case has, no application and therefore, reversal of credit by invoking Rule 57-E is not sustainable in law. In this view of the matter, we set aside the impugned order appealed against and allow the appeal, and remit the issue to the original authority for verification of the fact as to whether the input in question has suffered the correct duty as per law and whether the same amount has also been taken credit by the appellants herein and consider the case by application of Rule 57-A of the MODVAT Rules. Inasmuch as we have held that Rule 57-E is not applicable we do not feel called upon to pronounce upon the question of limitation.
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1988 (12) TMI 250
Rectification of mistake ... ... ... ... ..... rlooking the factual position of the appellants asking for a test of the goods. 7. Therefore, there is a mistake on the fact of the order. This cannot be ignored. 8. The remaining points are of minor importance and need not be considered. The learned Advocate placed before us a judgment of the Hon rsquo ble High Court of Madhya Pradesh in (1985) Taxation 76(3) - 168 (Commissioner of Income-tax, Bhopal v. Mithalal Ashok Kumar, M.T. Cloth Market, Indore) which dealt with a matter relating to rectification of mistakes. We have taken note of the same. 9. As there is a clear mistake in the order of the Tribunal, we feel that in the interests of justice the matter should be reheard. Attempts to decide the matter without reference to this mistake would not be just or even possible. In this view we recall the order No A/12/88-NRB (In Appeal No-1526/87-NRB, dated 2-1-88) and direct that a fresh hearing be granted. 10. The rectification of mistake is accordingly allowed in these terms.
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1988 (12) TMI 249
Import - Potassium cyanide ... ... ... ... ..... ant Commissioner will, as he is bound to, follow the Tribunal rsquo s view. It is, of course, open to the Appellate Assistant Commissioner to take his own view on the facts, but, so far as the law propounded by the Tribunal is concerned, it is binding and it should be applied by the Appellate Assistant Commissioner to the facts before him. 19. The above observation made in the context of the binding effect of the decision of the Sales Tax Appellate Tribunal, in our view, is equally applicable with respect to the decisions of this Tribunal. 20. It is unfortunate that the Collector (Appeals) without any justifying reason failed to follow the binding decision of this Tribunal which necessitated in filing of the present appeals. 21. Since the issues involved in these appeals are fully covered by our order reported in 1988 (38) E.L.T. 339, we allow both the appeals, set aside the orders passed by the authorities below and direct that the appellants be granted consequential relief.
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1988 (12) TMI 248
Penalty - Jointly not imposable under law ... ... ... ... ..... liable to be set aside. It is strange that the Collector imposed a penalty on two persons jointly. The party should be told, what is the amount to be paid by him as penalty. In law it is not open to the Collector to impose a penalty jointly on two persons. There is a grave irregularity. 11. On consideration of all the aspects, we set aside the Collector rsquo s order in so far it relates to the present appellants. The penalties on the appellants under both the Acts are set aside. We, however, remand the matter to the Collector for fresh adjudication. Since the copies of show cause notices have been already furnished to the appellants, the Collector shall now furnish copies of all the documents relied upon, to the appellants and grant them reasonable time for reply. He shall then afford personal hearing and pass orders in accordance with law. 12. Since we have disposed of the appeals, the stay applications do not survive for consideration and they are disposed of accordingly.
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1988 (12) TMI 247
... ...
... ... ..... upon by the advocate for the appellants are entirely different from the facts in this case. It is in the peculiar facts of those cases that the final decision regarding the confiscation by the courts or the Tribunal should be understood. As rightly pointed out by the learned SDR for the department, provisions of Sections 111(d) and 111(m) are such which do not require any mens rea to be proved before the goods can be held liable to confiscation. Having regard to the overall facts and circumstances of the case and the finding of the adjudicating authority to the effect that there is no evidence of deliberate suppression of facts on the part of the appellants, we feel that the ends of justice would be met if a nominal fine 10 of the value of the goods declared by the appellants is imposed as a fine in lieu of confiscation of the goods. Accordingly, we reduce the fine from Rs. 2,50,000/- to Rs. 36,000/-(Rupees thirty-six thousand only). 5. Appeal disposed of in the above terms.
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1988 (12) TMI 246
Refund claim ... ... ... ... ..... or refund as they were bound by the period of limitation provided therefor in the relevant provisions of the Customs Act, 1962. If really the payment of duty was under a mistake of law, the party might seek recourse to such alternative remedy as it might be advised. See the observations of this Court in Miles India Ltd. v. The Assistant Collector of Customs 1987 (30) E.L.T. 641 (S.C.) 1985 ECR 289 . rdquo In this judgment the Apex Court of the country has held that in making claims for the refund before the Departmental authority, as assessee is bound within the four corners of the statute and the period of limitation prescribed in the Central Excise Act and the Rules framed thereunder must be adhered to. In view of this pronouncement of the Hon rsquo ble Supreme Court, the law is clearly settled and there is no justification for making a reference to High Court in the present case. As a result, the reference application filed by M/s. Worthington Pump India Ltd. is dismissed.
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1988 (12) TMI 245
Adjudication - Cross-examination ... ... ... ... ..... the transaction entered into by the appellant firm was in the course of inter-State trade, the Sales-tax Tribunal relied, inter alia on the statement of a partner of another firm which had not been tested by cross-examination. The Supreme Court set aside the order of the Tribunal as well as the order in revision of the High Court therefrom and remitted the matter to the Tribunal giving directions regarding the documents offered by the appellant before the Supreme Court to be produced as well as the documents which the Tribunal had called for and had not been produced. rdquo 8. In view of the above discussion, we set aside the impugned order and remand the matter to the Collector having jurisdiction and further order that the adjudicating authority will grant an opportunity of personal hearing and also afford necessary opportunity for the cross-examination of the witnesses in accordance with law. In the result, the appeal is allowed by way of remand. Pronounced in open court.
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1988 (12) TMI 220
Confiscation - Redemption fine ... ... ... ... ..... eas advanced on both sides in respect of National VCR and I agree with the learned SDR that the matter requires re-verification of the baggage receipt and reconsideration of the facts in the light of such re-verification. Accordingly, I direct that the question of National VCR be re-adjudicated after re-verifying the baggage receipt No. 55189 dated 2-1-85 of Delhi Customs, Delhi Airport. In order to make the inquiry fruitful an attested photostat copy of baggage receipt No. 55189 as available in the record of the Customs, Delhi Airport should be made available to the appellant or his learned advocate so that he can make his further submissions on the question of validity of import of National VCR. Since the matter is more than 2 years old it would be advisable if the adjudicating authority decides the case expeditiously so far as the National VCR is concerned, and in any case not later than 4 months from the date of receipt of this order. 9. Appeal is disposed of accordingly.
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1988 (12) TMI 219
Appeal - Additional evidence ... ... ... ... ..... lained away by saying that there was a mistake on the part of the clearing agents in taking the clearance of the goods, when there is no acceptable evidence on record about scrap up to the point of clearance of goods from customs charge. 23. I observe that the suppliers have not admitted the supply of scrap by them and have merely stated that there could have been some inadvertence at the time of packing of the goods on their part. Further, merely as a goodwill gesture against their claim of Rs. 1,23,000/- on the suppliers, the appellants have been offered a mearly amount of 1000. Thus, in fact, there is no acceptance by the suppliers that the scrap was in fact supplied by them. 24. In view of the above, I hold that there is no acceptable evidence on record in support of the appellant rsquo s plea of a wrong supply and I hold that the lower authority has correctly rejected the appellants claim. 25. The appeal is, therefore, dismissed. 26. Order per K. Gopal Hegde . - I agree.
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