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Showing 61 to 80 of 252 Records

• 1988 (4) TMI 297 - CEGAT, BOMBAY
  

  Gold dealer’s licence

  
  
  ... ...
  ... ... ..... peal. The refusal to renew the licence should be confined to - serious and persistent contraventions. 42. The licensing provisions should not be treated in par with the other provisions contained in the Act. The imposition of penalty or even confiscation of the offended gold would not preclude the licensee from carrying on his business as long as the licence remains in currency but then if the licence is cancelled or renewal is refused the licensee cannot carry on the business and as such interest of justice require that the application for renewal of licence should not be rejected if the licensee brings to the notice of the licensing authority that the order on which the licensing authority relies for taking action against the licensee is under appeal. The licensing authority should await the result of the appeal. 43. In the above view of the matter, we see no reason to interfere with the order passed by the Collector of Customs (Appeals). Accordingly, we reject this appeal.

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• 1988 (4) TMI 294 - CEGAT, NEW DELHI
  

  confiscation and imposition of penalty

  
  
  ... ...
  ... ... ..... onal and necessary equipments, the gas produced would simply disappear into the atmosphere. There is no allegation that these additional equipments were manufactured by the appellants. Therefore, even on the presumption that electrolytic cells for manufacture of hydrogen gas could be considered to be machines, in the present case, they do not constitute ldquo complete machinery rdquo . In this view of the matter, the benefit of duty exemption in terms of notification No. 118/75-C.E., dated 30-4-1975 has been wrongfully denied to the appellants. If the goods were entitled to exemption, as we hold they were, the question of confiscating them for contravention of Central Excise Rules and imposing penalty on the appellants would lose much of its significance. Having regard to the facts of the present case, we do not think these punitive actions were called for. 7. ensp In the result, we set aside the impugned order and allow the appeal with consequential relief to the appellants.

  ---

• 1988 (4) TMI 293 - CEGAT, NEW DELHI
  

  Classification

  
  
  ... ...
  ... ... ..... ndles we would be supplied with wax candles and not these filter candles, unless we specify filter candles. We are, therefore, not inclined to agree with the submission that the subject goods are known in the trade simply as candles. 6. ensp Shri Routh then submitted that these candles have been allowed the exemption in certain other Collectorates. That, in our opinion, would not be a relevant criterion since we would not be bound by the orders of the said subordinate authorities and we have to come our conclusions on examining the issue on its merits. 7. ensp Finally Shri Routh submitted that whenever there is an ambiguity the benefit thereof should go to the assessee and on that principle we should grant relief. However, our earlier discussion has shown that there can be no such ambiguity in the present case and hence the question of extending the benefit thereof to the appellants does not arise. 8. ensp Accordingly the impugned order is upheld and this appeal is dismissed.

  ---

• 1988 (4) TMI 288 - CEGAT, NEW DELHI
  

  Order - Adjudication

  
  
  ... ...
  ... ... ..... t had been sent setting out the said ground. However, we feel that interest of justice would be served if an order is directed to be passed after affording the appellants a hearing in which they may participate and set forth their submissions. 3. Accordingly the appeal is allowed, the impugned order is set aside and the matter is remitted to the Collector for readjudication. As earlier mentioned Shri Chakraborty had pointed out that no reply at all had been sent to the show cause notice. Shri Ganesan submits that the appellants shall submit the said reply within a reasonable period and would be ready for the adjudication also immediately thereafter. We direct that the reply to the show cause notice should be sent to the Collector within a month from the date of receipt of this order and that the Collector may then fix the date of personal hearing suitably, affording the Counsel and the appellants (who are at Delhi) sufficient time to enable them to participate in the hearing.

  ---

• 1988 (4) TMI 287 - CEGAT, NEW DELHI
  
  ... ...
  ... ... ..... t which, therefore, requires to be considered is whether the non-production of duty exemption certificate covering the subject goods at the time of import and clearance of the goods and their production at a later stage would disentitle the appellants from the benefit of the notification. We are of the view that when there has been substantial compliance with the conditions laid down in the notification, any procedural deficiency should not stand in the way of the relief which is otherwise admissible to the appellants. There is no dispute that the goods were covered by the amended duty exemption certificate. There is also no dispute that the goods have been used for the specified purpose. In the circumstances, we are of the view that the appellants are entitled to the benefit of the notification. 4. In the result, we set aside the orders of the lower authorities and allow the appeal with consequential relief to the appellants which shall be worked out by the Asstt. Collector.

  ---

• 1988 (4) TMI 286 - MADRAS HIGH COURT
  

  Prosecution - Notice

  
  
  ... ...
  ... ... ..... on 10-5-1978. The applicant was not apprised of the name of the Court in which the prosecution was being launched and as such he could not approach the Court within the prescribed period of ten days to send the sample for analysis to the Central Food Laboratory. Non-compliance of a mandatory provision goes to the very root of the prosecution case, and therefore, the conviction of the applicant could not sustain. rdquo The above said decision is directly applicable to the facts of the present case. In view of the fact that the name of the Court in which the prosecution against the petitioner was launched was not mentioned in Ex. P. 5 notice under Section 13(2) of the Act, the entire prosecution against the petitioner is vitiated. The conviction is not sustainable. 5. In the result, the revision is allowed. The conviction and the sentence awarded to the petitioner are set aside and he is acquitted of the charge. Fine amount if paid is directed to be refunded to the petitioner.

  ---

• 1988 (4) TMI 281 - CEGAT, NEW DELHI
  

  Yarn - Man-made fibres

  
  
  ... ...
  ... ... ..... t of the duty paid thereunder. When this position was pointed out to Shri Dave, he fairly stated that he had nothing to submit in respect of this point. 7. in the result, therefore, the finding of the Collector (Appeals) that the resultant yarns were classifiable under Item No. 18E CET is upheld. His finding that appropriate duty was recoverable on the constituent yarns, was clearly beyond his Jurisdiction since the show cause notice and the Assistant Collector rsquo s order did not proceed on that basis. This part of his Finding cannot be supported and is set aside. 8. The appeal is allowed in the above terms. If the demand has been honoured by the appellants, the money shall be refunded to them. 9. Per Assent V.T. Reghavachari, Member (J) . - While I have some reservations about the observations at para 4 of the order of the Senior Vice President, I agree with him as to the disposal of the appeal. I, therefore, concur with his order as contained in paragraph 8 of his order.

  ---

• 1988 (4) TMI 278 - CALCUTTA HIGH COURT
  

  Writ jurisdiction

  
  
  ... ...
  ... ... ..... cation was made, on 10th August, 1987 which was much after the making of the present application. The petitioner had a remedy open to him to go in appeal from the said order. It cannot be said that the issuing of the summons under Section 108 of the Customs Act was invalid. The petitioner did submit his reply to the show cause notice, which was much after the making of the present application. I do not think that in the facts and circumstances of this case, the Court should interfere specially when the proceedings under the Customs Act were allowed to go on and no stay thereof was obtained even at the time of the making of the present application or even thereafter. The petitioner had his remedies open under the Customs Act, by way of preferring an appeal, and it was upto the petitioner to take recourse thereto. 20. In that view of the matter this application is dismissed and the rule if issued is discharged. All interim orders are vacated. There will be no order as to costs.

  ---

• 1988 (4) TMI 276 - KERALA HIGH COURT
  

  Reward to informers

  
  
  ... ...
  ... ... ..... discretion should lead to an inference of application of mind to matters relevant. 11. I therefore hold that the Collector has not, in making the award in question, properly considered the various circumstances which are relevant in the context of making the award. There has been no proper application of the mind to the relative merits, or importance of the various factors and circumstances. The award made appears to be trivial compared to the substantial haul that has been made, because of the section initiated on the information given by the petitioner. 12. I quash Ext. P5 and direct the second respondent to consider the matter afresh in the light of the observations contained in this judgment and in the judgments in O.P. No. 9014 of 1982 and Writ Appeal No. 355 of 1984. The second respondent will also keep in mind the fact that over 19 years have passed after the seizure was made. The Original Petition is allowed as above. Issue photo-copy of this judgment on usual terms.

  ---

• 1988 (4) TMI 272 - CEGAT, NEW DELHI
  

  Manufacture

  
  
  ... ...
  ... ... ..... in the case of Empire Industries Ltd. - 1985 (20) E.L.T. 179 (SC). This judgment related to cotton fabrics and there was a finding by the Hon rsquo ble Supreme Court that the processes of bleaching, dyeing and printing brought into existence a new product. But in the case before us, the product remains the same, namely, steel structural and it is put to the same use also. The process of galvanisation, no doubt, improved the quality and prolonged the life of the structural but it did not thereby bring into existence a new product having a different name, character and use. We, therefore, uphold the finding of the Appellate Collector that the process of galvanisation did not amount to manufacture and hence there could be no further duty under Item 68. 6. Since we have agreed with the respondents on the substantive issue of merit, there is no need for us to go into the question of limitation. 7. In the result, we discharge the revision show cause notice and dismiss this appeal.

  ---

• 1988 (4) TMI 271 - CEGAT, MADRAS
  

  Import - REP Licence

  
  
  ... ...
  ... ... ..... nto account for seeing that a bona fide mistake may not unduly harshly penalise or cause irreparable injury to the importer but it seems to me equally plain that the resort to Section 125 of the Customs Act to impose fine in lieu of confiscation cannot be so exercised as to give a bonanza or profits for an illegal transaction of import. Some justification offered by the importer may be taken into account for not proceeding for personal penalty under Section 112 of the Act or for not proceeding under Section 135 of the Act against the importer. But there would appear to be hardly any justification for letting an importer make monetary gain from any illegal transaction of imports and/or exports rdquo . It is further found that the quantum of penalty on the appellant is very reasonable considering the value of the goods imported and the nature of offence. In the result, we see no reason to interfere with the order passed by the Collector and the appeals are accordingly rejected.

  ---

• 1988 (4) TMI 270 - CEGAT, NEW DELHI
  

  Classification

  
  
  ... ...
  ... ... ..... entral Excise Tariff does not have one and so we have to be content with the comparative degree lower that the best but higher that the good. 9. The appellants did claim before the Assistant Collector in their note in support of the claim for refund of excess countervailing duty recovery, at paragraph 3(c), that IC engines of all sorts are covered under Item 29 of the CET and not under Item 34-A. Unfortunately, this item covers only internal combustion engines it does not cover parts of such engines. We are, therefore, left with Item 68 the omnivorous head but assessment under this item never formed part of the proceedings - the importers never claimed assessment under this heading nor did the Custom House consider it as a possible candidate. In the circumstances, I would not be able to interfere with the assessment made by the Custom House, but only because assessment under Heading 29 asked for by the appellants would not be permissible. The appeals are, therefore, rejected.

  ---

• 1988 (4) TMI 269 - MADRAS HIGH COURT
  

  Offence involving moral turpitude

  
  
  ... ...
  ... ... ..... maker has carefully circumscribed the nature of the offence, the conviction therefor would have implication in the matter of employment and the only category of offences are those which invite shame on the person who became guilty, which shame will irradiate on the institution which employs. In this case, the petitioner was not in a position to show the Customs Clearance Certificate in respect of two items of articles. The fact of possessing V.C.R. and video camera without the corresponding customs documents is by no stretch of imagination an offence involving moral turpitude and therefore, no automatic termination of service can take place on the basis of the conviction recorded against the accused. Learned Public Prosecutor appearing for the Customs Department is also of the opinion that the offence under Section 135(1)(b)(i) and Section 135(1)(b)(ii) of the Customs Act does not involve moral turpitude in this case. With this observation, the revision petition is dismissed.

  ---

• 1988 (4) TMI 268 - CEGAT, NEW DELHI
  

  Claasification

  
  
  ... ...
  ... ... ..... is not necessary for the item to be classified under Tariff Item 10 that it should be in the liquid form at the room temperature. What is required is that it should satisfy the parameters of Item 10 which as we have discussed above stand satisfied. 11. We observe that the respondents had given all information relevant to their product to the departmental authorities and the departmental authorities also tested the product. No case has been made out that the appellants had suppressed any fact or made any mis-statement with intent to evade payment of duty. In fact it is seen from the narration of the show cause notice issued no such allegation has been levelled against them that they had suppressed any fact or made any mis-statement with the intent to evade duty. Longer time of 5 years in terms of Section 11A cannot be invoiced. 12. We, therefore, find that no infirmity in the order of Collector (Appeals) and uphold the same. The appeals of the revenue are therefore dismissed.

  ---

• 1988 (4) TMI 267 - CEGAT, NEW DELHI
  

  Classification

  
  
  ... ...
  ... ... ..... light of this interpretative Rule, as rightly pointed out by the learned JDR, there is no doubt that the essential character of the goods is imparted by the PVC resins, asbestos fibre sheet being merely in the nature of a backing to the PVC sheet. Further, Explanatory Notes under Heading 39.01 to 39.06 in Chapter 39 (page 570) of CCCN clearly spells out that these Headings, namely 39.01 to 39.06 include the plates, sheets etc. consisting of artificial plastic sheets etc. separated by a layer of another material such as metal, foil, paper board etc., provided that the composite product retains the essential character of products of artificial plastic material. In view of the reasoning spelt out above, the composite product having the essential character of the PVC sheets, the composite product herein also would fall under Heading 39.01 to 39.06. 5. In view of the foregoing discussion, the appeal of the Collector of Customs, Bombay is allowed while modifying the impugned order.

  ---

• 1988 (4) TMI 266 - CEGAT, NEW DELHI
  

  Drug intermediate

  
  
  ... ...
  ... ... ..... drug as are to be used at the penultimate stage of manufacture before the emergence of the drug. 7. The short point for consideration that remains is whether the condition imposed by the Collector (Appeals) while allowing the appeal that the appellants satisfy the lower authority by production of evidence that the goods imported in fact have been used for the manufacture of the drugs. As mentioned above, no evidence to the contrary is before us that the goods imported can be put to any use other than for the manufacture of drugs. The item imported is listed in the Merck Index and this clearly shows that the product is derived from Dioscorea composita Hemsl and intended for manufacture of hormones. As pleaded before us inasmuch as goods do not have any alternate use there is no need to ask for any proof for actual uses of the product. The judgment of the Hon rsquo ble Bombay High Court cited has also laid the law in the above terms. In view of the above, we allow the appeals.

  ---

• 1988 (4) TMI 265 - CEGAT, NEW DELHI
  

  Demand for erroneous refund

  
  
  ... ...
  ... ... ..... would be the date when the refund voucher was prepared and issued, the date of refund in cases where refund is by ordering credit to be taken in the PLA would be the date when credit is actually taken in the PLA. 13. The contention for the Department in the present instance is that the date when credit was actually taken was 9-1-1979 and if limitation is computed from that date the notice dated 1-6-1979 was within time, the subsequent notice merely altering the amount demanded. We find that no evidence is available to us at present as to the date when credit was actually taken. This matter had not been raised in this form before the lower authorities. That is why they did not go into this particular date. The order of the Collector (Appeals) will therefore have to be set aside and the matter will have to be remitted to him in order to go into this question of limitation in the light of the observations above and thereafter decide the issue appropriately. Ordered accordingly.

  ---

• 1988 (4) TMI 264 - CEGAT, NEW DELHI
  
  ... ...
  ... ... ..... tated, was on issues similar to those involved in the present case. 5. On careful consideration, we find force in the department rsquo s plea. Justice should not only be done but should also appear to be done. Rule 5 of the Customs (Appeals) Rules, 1982 was not merely a rule of procedure or just a technical requirement it concerned a vital aspect of principles of natural justice. When the department was deprived of their statutory right to examine and rebut the additional evidence sought to be used against them, substantial prejudice was caused to the department rsquo s case. It was not a trivial thing as stated by the respondents. 6. We, therefore, accept the department rsquo s plea, allow this appeal, set aside the impugned order-in-appeal and remand the matter to the Collector (Appeals) for a fresh decision after due compliance with the rules. The Collector (Appeals) is directed to pass the fresh order within 4 months from the date of receipt of this order of the Tribunal.

  ---

• 1988 (4) TMI 263 - CEGAT, NEW DELHI
  
  ... ...
  ... ... ..... 7 lakhs of rupees by mis-representation about the nature of their sales to the various dealers. Therefore, a penalty was correctly imposed but a penalty has to be in proportion to the seriousness of the offence. Keeping in mind al facts and circumstances of the case we reduce the penalty of Rs. 8 lakhs to Rs. 3.5 lakh only. We uphold penalty of Rs. 1000 under Rule 210 of the Central Excise Rules, 1944, 30. In our view the confiscation of the land, building, plant and machinery of the appellants was unnecessarily harsh decision. Apart from the legal requirements of stating reasons for such confiscation there was also the necessity for justification on the grounds of justice. Neither of these requirements had been satisfied in this case. We therefore, set aside the confiscation of land, building, plant and machinery. 31. The appeal is rejected excepting for the modification ordered above. Consequential relief on account of the modifications should be granted to the appellants.

  ---

• 1988 (4) TMI 262 - SUPREME COURT
  

  Natural justice

  
  
  ... ...
  ... ... ..... was not right on merit. We have not considered it appropriate to go into the merit of the matter because in our opinion that would not be appropriate. On the other hand, the appeal should go back to the High Court where the questions can be looked into. 6. emsp In these circumstances, we allow the appeals and vacate the judgment of the High Court bearing the two dates being 9th March, and 25th March, 1987, and remit the two appeals to be dealt with by a Division Bench of the High Court preferably consisting of two other learned judges so that the parties may have no apprehensions. We intend to say nothing against the learned Judges who disposed of the appeals by the impugned judgment. We express no opinion on merit. The Division Bench shall look into the entire matter giving full opportunity to the parties to canvass their respective contention and dispose of the appeals in accordance with law. The appellants shall be entitled to costs. Hearing fee is assessed at Rs. 5.000/-.

  ---

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