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Case Laws
Showing 81 to 100 of 216 Records
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1988 (9) TMI 213
Modvat Scheme ... ... ... ... ..... onsidered and settled by this Bench of the Tribunal in the order relied upon by the learned Counsel. The Tribunal had found that Modvat Scheme is covered by Rules 57A to 57J of the Central Excise Rules, 1944 and that a perusal of these rules showed that there is nothing in these rules to indicate that the option by the manufacturer to operate under Modvat Scheme should be given only at the beginning of the financial year or that once having opted to come under that Scheme he can choose to go out of it only at the end of the financial year. It is also noted that this position has since been recognised by the Department itself as reflected in the clarificatory Trade Notice referred to by the learned Counsel, with the stipulation, rightly, that the value of clearances under Modvat should also be included for determining the aggregate value of clearances under Notification No. 175/86, dated 1-3-1986. In view of the position, the impugned order is set aside and the appeal allowed.
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1988 (9) TMI 212
Departmental Appeal ... ... ... ... ..... er seemed to be more or less like an open general licence to file appeals/applications/cross-objections/reference applications under different enactments, a doubt arose in our mind whether the Collector had, indeed, authorised the filing of this appeal. The result of this enquiry has been set out earlier. This would show lack of care and what is worse, a procedure of ldquo attestation rdquo of copies without verifying whether the copies correspond to the originals (in the present case there was no original). This is a state-of-affairs which should, in all fairness, be brought to the notice of the Central Board of Excise and Customs for such action as they may deem appropriate. 5. Insofar as the present appeal is concerned, it has been filed by an officer of the Excise Department who was not authorised by the Collector to file it. It is not therefore maintainable and is dismissed. 6. A copy of this order shall be sent for information to the Central Board of Excise and Customs.
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1988 (9) TMI 211
Seizure and confiscation ... ... ... ... ..... nd the date of seizure, a nominal fine would have served the purpose. Apparently, the imposition of fine of Rs. 25,000/- by the Collector was on account of his finding that there was contravention of Section 36, Rule 13(1) and Section 55. I, therefore, while upholding the order of confiscation reduces the fine from Rs. 25,000/- to Rs. 2,500/- (Rupees two thousand five hundred only). 12. As regards the penalty, the Collector has imposed a penalty of Rs. 2,500/-apparently because of his finding that the appellant was taking gold outside his licensed premises and he was guilty of Section 36 and Rule 13(1). I have not accepted that finding of the Collector. I hold that there was only a contravention, in respect of three transaction, of Section 55. The facts and circumstances of the case in my opinion does not warrant imposition of any penalty. I, therefore, set aside the penalty on the appellant. 13. The appellant be granted consequential relief if the fine and penalty were paid.
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1988 (9) TMI 198
Classification of goods ... ... ... ... ..... ns made by Shri Mondal were also considered by this Bench in its order No. 1099/88/WRB, dated 26-6-1988 in CD (BOM.) A. No. 759/83 in the case of Sonal Metal Syndicate, Bombay v. Collector of Customs, Bombay. 11. The department could not bring to our notice any judgment of any of the High Court which has taken a view different from the view taken by the Bombay High Court in the case of Abdul Hussain Mohammedally Master v. Union of India. The Collector of Customs (Appeals) rsquo order indicates that the Customs House has accepted the order passed in W.P. No. 287/78 and not an appeal or supplementary appeal had been filed. When that being the case we have no justifiable reason to take a view different from the view taken by the Bombay High Court or the view taken by this Bench or other Bench of this Tribunal in other cases. 12. On consideration of all the aspects, we see no reason to interfere with the order passed by the Collector (Appeals). Accordingly, we reject this appeal.
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1988 (9) TMI 197
Modvat Credit wrongly availed ... ... ... ... ..... or erroneously refunded the provisions of Section 11A comes into play. The recovery of Modvat credit is, therefore, covered under provisions of Section 11A. Moreover, there are no provisions in the Modvat Rules which override the provisions of Section 11A and the rules made by way of subordinate legislations even otherwise cannot have an over riding effect on the provisions of the parent statute under which the rules are made. In view of the above, the recovery under the Modvat Rules would necessarily be subject to the period of limitation laid down in Section 11A of the Act. 3. In view of the foregoing discussion and as the Assistant Collector of Central Excise has confirmed the demand invoking extended period, I set aside the impugned order and direct the Assistant Collector of Central Excise to send all the relevent records to the Collector of Central Excise for further action as may be deemed fit by him under the Central Excise law. The appeal is disposed of accordingly.
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1988 (9) TMI 196
Classification ... ... ... ... ..... are not articles made of plastics. They do not fall under sub-item (2) of Tariff Item 15A of the CET. Notification No. 149/82-C.E., dated 22-4-1982 is, therefore, not applicable to these goods. As the mouldings are not ldquo articles made of plastics rdquo the same are not eligible for the exemption of duty under Notification No. 182/82-C.E. We, therefore, hold that the Collector (Appeals) has rightly rejected the claim of the appellants to the benefit of Notifications No. 149/82-C.E. and 182/82-C.E. 10. In the light of the foregoing discussions, we uphold the decision of the Collector of Central Excise (Appeals) insofar as it relates to the classification of mouldings under Tariff Item 68 and the denial of benefit of Notifications No. 149/82-C.E. and 182/82-C.E. are concerned. We, however, hold that the textolite sheets are correctly classifiable under Item 22F of the First Schedule to the Central Excises and Salt Act, 1944. 11. The appeal is disposed of in the above terms.
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1988 (9) TMI 195
Seizure - Confiscation ... ... ... ... ..... y on the appellant Shri A.H. Gandhi, I do not see any justifiable reason for the Collector to impose penalty on the mother Smt. R.H. Gandhi. The clandestine business would have been carried on by the son, who had come of age, and not the old lady. There was no admission by the lady that she was carrying on the business in gold whereas the son did admit it. In the circumstances, I set aside the penalty of Rs. 1000/- imposed Smt. Ratanbai Hiralal Gandhi. 16. In the result, the order of absolute confiscation of 197.100 gms. primary gold, the order of confiscation of 1409.600 gms. of gold ornaments and fine in lieu of confiscation of Rs. 20,000/- and the penalty of Rs. 5,000/- imposed on the appellant Shri Anandlal Hiralal Gandhi are confirmed. The order of absolute confiscation of 15 gold coins weighing 29.200 gms is set aside so also the penalty of Rs.1000/- on Smt. Ratanbai Hiralal Gandhi. The gold coins shall be released to her. The penalty, if paid, shall be refunded to her.
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1988 (9) TMI 194
Seizure and confiscation ... ... ... ... ..... ink to file any affidavit of the customers who alleged to have given old gold ornaments of the quantity of 457.600 gms. The absence of any claim by the customers and non-production of the affidavits clearly indicate that the present explanation of the appellant cannot be true at all. 14. On consideration of all the aspects, I see no reason to interfere with the order of confiscation of the gold made by the learned Collector. 15. The only question that remains for consideration is about the quantum of fine and the penalty imposed. Undisputedly, the value of the seized gold at the relevant time was Rs. 4,08,959/-. The fine levied was Rs. 50,0000/-. The penalty imposed was Rs. 5,000/-. Looking to the gravity of the offence viz., huge unaccounted new gold ornaments, non-maintaining of the repair register, non-accounting as required under Section 55 and giving false explanation later, justified the fine and the penalty. 16. In the result this appeal fails and the same is rejected.
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1988 (9) TMI 183
Retrospective levy/revalidation of levy ... ... ... ... ..... ion 11A of the Act. In the absence of any specific provision overriding Section 11A, it will be consistent with rules of harmonious construction to hold that Section 51 of the Finance Act, 1982 insofar as it gives retrospective effect to the amendments made to Rules 9 and 49 of the Rules, is subject to the provision of Section 11 A. rdquo 8. emsp The view of the Supreme Court is quite clear as can be seen above. There is no specific provision in Section 52 of the Finance Act, 1982 or in Notification No. 22/82 enabling the Excise authorities to make any demand beyond the periods mentioned in Section 11A of the Central Excises and Salt Act. 9. In the circumstances we follow the ratio of the Supreme Court judgment and not the Madras High Court judgment. 10. emsp Applying the limitation provisions of Section 11A to the facts of this case we hold that the demand is time barred under the said Section. We, therefore, allow the appeal and order consequential relief to the appellants.
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1988 (9) TMI 182
Import of restricted items illicit ... ... ... ... ..... ctor in this regard while in appeal before the Central Board of Excise and Customs. His contention that now this letter should be considered as not withdrawn, has, therefore, to be rejected. 14. emsp The other point made is that the Collector of Customs, in his order, holding that there was a deliberate attempt to smuggle the main springs for wrist watches, has also held that this was done by concealing them in Case No. FC-1, which was not alleged in the Show Cause Notice. The substantive allegation was the attempt to smuggle the wrist watch parts and this has been examined in depth before the learned Collector has held that it is proved. In this process, the Collector has made an observation that the means adopted was by concealing such parts in Case No. FC-1. This will not vitiate his order. 15. emsp In the circumstances, we see no reason to interfere with the order of the Central Board of Excise and Customs upholding the order of the Collector of Customs. Appeal dismissed.
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1988 (9) TMI 181
Customs duty leviable on goods ... ... ... ... ..... no evidence before us of any clandestine removal having been detected. At the same time, we must point out that there is no official record of weighment of the scrap before its removal from the port. As a matter of fact, what is material for our discussion is the consideration that both the seller and the buyer found it worthwhile to quote Rs. 50 lakhs as a fair price for the ship on lsquo as is where is rsquo basis in an open public auction. The highest bid of Rs. 50 lakhs was later approved by the Hon rsquo ble High Court of Bombay as per the terms and conditions of the sale. 12. No other plea was pressed for by either side. 13. emsp In the result, we modify the impugned order in appeal only to the extent that the highest auction bid price of Rs. 50 lakhs, which was later approved by the Hon rsquo ble High Court of Bombay, plus the usual landing charges, shall form the basis of assessment for the ship. The appeal is partly allowed in these terms and is otherwise dismissed.
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1988 (9) TMI 180
Valuation - Packing Cost of durable but not returnable packing ... ... ... ... ..... ding with the Central Govt., they involve a question of valuation of goods for purposes of assessment of duty and these proceedings were to be decided by the Government. On and from 11-10-1982 this Tribunal came into existence and the Central Government lost its jurisdiction to decide any matter involving any dispute relating to valuation of the goods for purposes of assessment of Central Excise duty. That jurisdiction was transferred to this Tribunal. The proceedings pending with the Central Govt. or before the Central Govt. were, therefore, validly transferred to this Tribunal. 6. emsp Since admittedly the Respondents had no agreement or arrangement with their buyers for return of the cartons, the tentative view taken in the Revision Show Cause Notice has to be upheld. Accordingly, we allow the appeal of the department, set aside the impugned order of the Appellate Collector and maintain rejection of the refund claim of the respondents as ordered by the Assistant Collector.
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1988 (9) TMI 179
... ...
... ... ..... mitation was extended. 11. emsp We mention the other arguments of Shri Kohli only to dismiss the same. The arguments are that the C. Ex. officers should have checked the price list with the invoices. Apart from the fact that no invoices could have been filed with the price list, it also remains that this check can be done at any time. Even if there is a failure in discharging this duty, such a failure does not give the appellants any immunity from the operation of the provisions of law. His further argument that the price list had to be checked as per Rule 173C, CE Rules also must be dismissed for similar reasons. The approval of the price list does not mean that the assessee is at liberty to do anything he likes after such approval. 12. emsp The other arguments advanced by the learned Consultant do not need detailed examination in view of the clear legal and factual position. We see no reason to reject the findings of the Collector (Appeals). 13. We dismiss both the appeals.
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1988 (9) TMI 178
Adjudication order ... ... ... ... ..... asons were recorded on 31st August, 1988. It is a judicial procedure that while passing an order the reasons have to be recorded first and the order has to be passed thereafter. In the matter before us, the reasons for coming to a conclusion were recorded on 31st August, 1988 and we are of the view that it cannot form part of the order. Accordingly, we hold that the order passed by the learned Addl. Collector is a non-speaking order. We set aside the impugned order and remand the matter to the Addl. Collector of Customs for de novo adjudication. We also order that the learned Addl. Collector would grant a personal hearing to the appellant and will re-adjudicate the matter within one month from the date of receipt of the order. Before we part with this matter, we would like to observe that while re-adjudicating the matter, the learned Addl. Collector of Customs will look afresh into the matter. 5. In the result, the appeal is allowed by way of remand. Pronounced in open court.
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1988 (9) TMI 177
Classification of goods ... ... ... ... ..... elating to mens rea or criminal intent on the part of the respondents has not been correctly and cogently established by the appellants (i.e. the department). Hence all the 29 appeals filed by the appellants are liable for rejection as infructuous. 15. I also rely on CEGAT, West Regional Bench, Bombay in the case of Pragat General Agencies, Bombay v. Collector of Customs, Bombay 1984 (16) E.L.T. 519 , CEGAT, North Regional Bench, New Delhi in the case of Menon Associates v. Collector of Customs, Bombay 1988 (34) E.L.T. 367 Para 12 , CEGAT, South Regional Bench, Madras in the case of Bharat Surgical Corporation v. Collector of Customs, Madras 1986 (26) E.L.T. 868 , Hon rsquo ble Madras High Court in the case of Asia Tobacco Company Ltd. v. Union of India and Others 1984 (18) E.L.T. 152 (Mad.) W.P. Nos. 6048 to 6050 of 1984, decided on 10-8-1984 , in support of my findings recorded above and consequent decision in the impugned cases. 16. I reject all the 29 appeals accordingly.
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1988 (9) TMI 176
Classification ... ... ... ... ..... r of the rules made thereunder with an intent to evade payment of duty, the time limit gets extended to 5 years. It is admitted by the appellant that he did not declare manufacture of the product under consideration at any time to the Central Excise authorities nor had he been able to produce evidence that the manufacture was within the knowledge of the department at any time. In these circumstances, therefore, it has to be inferred that non-levy on this item has arisen on account of suppression of fact by the appellant and therefore, the time limit of 5 years as spelt out in Section 11A would apply in the instant case. The plea of the appellant, therefore, on the question of time bar is rejected. 7. emsp The appeal is, therefore, allowed only to a limited extent by way of remand to the adjudicating authority for determining whether the pivot bolt fastens the two bodies rigidly or firmly and then decide the classification in the light of the observations made in para 5 above.
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1988 (9) TMI 175
Whether by reason of D.N. Capoor having passed the order of detention only in exercise of his special empowerment to act under Section 3(1) of the Act and not in exercise of any right given to him under the Rules of Business of the Government, he was under a constitutional obligation to communicate to and afford opportunity to the detenu to make a representation to himself in the first instance before the detenu availed of his right to make representations to the State Government and the Central Government?
Held that:- The view taken by the High Court, it would lead to the position that even if an order of detention is made on very valid and justifiable grounds by a specially empowered officer, the sustainment of the order would depend upon extraneous factors such as the officer not falling sick or going on leave or retiring from service or being transferred etc. etc. Surely, the Act and the Constitution do not envisage such situations. It is because of these factors Dr. Chitale contended, and in our opinion very rightly, that if the view of the High Court is to be accepted it would often lead to a defeasance of the COFEPOSA Act itself and the purpose for which is was enacted.
Thus we cannot accept or sustain the view taken by the High Court for quashing the order of detention passed against the detenu. We, therefore direct that notwithstanding our holding that the High Court was in error in quashing the order of detention made against the detenu, he will not be re-arrested and placed in custody for the rest of the period of detention. Appeal is allowed and the judgment and order of the High Court are set aside but, however, the detenu’s release will not be effected
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1988 (9) TMI 174
Absolute Confiscation ... ... ... ... ..... uld not justify ordering absolute confiscation. The two decisions on which Shri Shah relied also indicated that it has been the Policy of the Government to allow redemption on payment of fine even in respect of the primary gold. It would have been a different thing if there had been a charge of dealing in primary gold or carrying on business in gold without a licence. Since no such charge had been levelled or proved against the appellant, the authorities below were not justified in ordering absolute confiscation. I, therefore, set aside the order of absolute confiscation of primary gold of 81.900 gms which the appellant claimed ........... and direct that the same may be allowed to be redeemed on payment of fine of Rs. 12,500/- (Rupees twelve thousand and five hundred). The appellant shall exercise the option within four weeks from the date of communication of this order. He shall also convert the primary gold into ornaments within another four weeks from the date of release.
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1988 (9) TMI 173
Computation of capital investment made from time to time ... ... ... ... ..... r of the Department of Small Scale Industry in the Ministry of Industry. Similarly with regard to the moulds I do not see any force in the arguments of the adjudicating authority. Moulds are moulds whether they are made of iron and steel or of any other material. It may be major item of expenditure so far as this industry is concerned but the condition of investment of Rs. 20 lakhs on plant and machinery is applicable to all industries in general. Therefore in my view the value of moulds is also required to be excluded in view of the circular referred to above. Accordingly, the total investment on plant and machinery by the appellant would be far below Rs. 20 lakhs. The benefit of Notification No. 105/80, therefore, cannot be denied to the appellant. I order accordingly and allow the appeal. 7. emsp In the light of what we have said earlier we do not find any error or impropriety in the impugned order and find no reason to interfere with it. We, therefore, dismiss the appeal.
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1988 (9) TMI 150
Dealing in gold without licence ... ... ... ... ..... the charge under Section 27(1) necessarily fails. 14. emsp On the admission of the appellant and from the material collected the department could have charged the appellant for contravention of Section 55 of the Act. But then no such allegation was made in the show cause notice. 15. emsp The admission of the appellant, his presence in the gold dealers premises are taken as sufficient to infer that the appellant had come to that premises to dispose of the gold ornaments, even then, the charge under Section 27(1) cannot be brought home against him because his act does not amount to carrying on business as a dealer in gold. It only amounts to a single act of sale. The expression lsquo business rsquo contemplates series of transactions and not a single or stray transaction. I, therefore, allow this appeal, set aside the order of confiscation consequently the fine levied in lieu of confiscation as well as the penalty on the appellant. The appellant be granted consequential relief.
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