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Case Laws
Showing 41 to 60 of 190 Records
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1989 (10) TMI 172
Gold Control ... ... ... ... ..... de thereunder. rdquo Any action taken in contravention of clear provision of the Act in Sec. 79 cannot be said to be done in good faith. In a republic government by rule of law no person violating the provision of law can be said to have acted in good faith specially when such persons are the creatures of the statute itself. Accordingly I am not inclined to accept the contention of Mr. Mishra. 14. From the aforesaid discussions, I am satisfied that the suit is to be decreed to the extent that gold seized cannot be confiscated without giving opportunity to plaintiff under Sec. 79 and defendants are directed to take steps so that the adjudicating authorities dispose of the proceeding for confiscation after giving notice to the plaintiff. Till then, the gold seized cannot be disposed of in any manner. 15. In the result, first Appeal is allowed. No costs. Trial Court shall return M.O.I, to the plaintiff after the period of appeal against this judgment expires. 16. Appeal allowed.
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1989 (10) TMI 171
Import - REP licence ... ... ... ... ..... invests entire discretion in the adjudicating authority to assess the quantum of redemption fine, and in absence of anything to indicate that he has acted with bias in use of discretion, no interference is called for. No bias or irrationality is shown. We, therefore, find no ground to interfere with that order of the Collector. 28. As regards the personal penalty of Rs.200000/- it cannot be held that the appellants imported Almonds, bona fide. Total quantity imported leads us to believe that such a huge quantity was not meant to be used as seeds. It can also not be presumed that they were unaware of the view taken by other Collectorates and Tribunals regarding this. We are satisfied that action of the appellants was not a bona fide one and in that case imposition of personal penalty was justified. About the quantum of penalty also, we find no justifiable reason to interfere with the same. 29. In the result, the appeal is dismissed and the order of the Collector is confirmed.
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1989 (10) TMI 170
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... ... ..... of the same jurisdictional Collectorate while passing orders under similar circumstances adopt uniformity in imposing fines and penalties to avoid complaints of discrimination. They should create an impression of fairness in the minds of the assessees. 15. While keeping in view the orders in original No. 44/86 and 45/86 dated 28-10-1986 and the above observations made and also the fact that previous consignments of the appellants have been cleared without fine and penalty and also keeping in view the fact that the importer being a genuine user of the impugned goods for manufacture of ayurvedic medicines, the redemption fine imposed in the impugned order is reduced to Rs. 15.000/- (Rupees fifteen thousand) and the penalty of Rs. 10,000/- (Rupees ten thousand) is set aside. The Revenue shall refund the excess redemption fine collected and also penalty, if already paid, within six months from the date of this order. The appeal is partly allowed in terms of the above extent only.
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1989 (10) TMI 169
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... ... ..... ports (Control) Order, 1955 which is deemed to be a contravention of Section 11 of the Customs Act, 1962, cannot be upheld. The contravention of these sections would arise when the appellants would have presented the Bill of Entry and made all arrangements for clearance of the goods with wilful intention of importing wrong goods. The appellants have acted very fairly and refused to clear the goods. The Addl. Collector had drawn certain conclusions without any basis. He clearly admits that the Department has not produced any documents to prove the manipulation of the transaction to import the goods, and that be the case, the contravention of the above sections is not sustainable. Suspicion however, grave cannot take the place of proof. In this case, even such a suspicion cannot be drawn. The reasoning of the Addl. Collector seems to be unreasonable. As such, the order is liable to be set aside. Penalty of Rs. 2.5 lakhs imposed on the appellants is set aside. Appeal is allowed.
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1989 (10) TMI 168
Investigation and Inquiry ... ... ... ... ..... y a diary seized from the residence of Vinod Bansal which revealed the names of Chouth Mal Jatia, U.K. Agarwal and M.K. Agarwal. As mentioned above, it will not be sufficient to indict Vinod Bansal. No other incriminating documents have been referred to by the Collector against Vinod Bansal in his findings. Para 18 of the show cause notice speaks of discreet enquiries made in Hongkong which show Vinod Bansal in guilty light. 9. We are afraid that the discreet enquiries by themselves cannot form the basis of imposing penalty on the appellant unless there is acceptable evidence on record. 9.1. Having regard to all the facts and circumstances, we do not think that any penalty is warranted on Vinod Bansal under the Customs Act. We order accordingly and set aside the penalty imposed on him. 9.2. In short, we reject the appeals of the three appellants namely R.K. Gupta, Raghunandan Jalan and O.P. Jalan. However, we accept the appeal of Vinod Bansal with consequential relief to him.
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1989 (10) TMI 167
Demand - Misdeclaration ... ... ... ... ..... ies other than those removed have been sold by the appellants. There is no allegation of receipt and consumption of excess raw cotton. In short, there are no other evidences to support the allegation of excess production and their clandestine removal. Merely, because of the entries in the daily production register, especially when that is not the basis for recording production in the RG-I register, no firm conclusion can be arrived at without any, if not all, of the above said type of corroborative evidences. In view of this, we hold that the charge of suppression of production and clandestine removal has not been established beyond reasonable doubt. We, therefore, discharge the appellants from this charge as well and drop the demand for Rs. 1,02,922.60/- confirmed on this ground by the Addl. Collector. 9. In the result, the case does not justify imposition of penalty and the order imposing the penalty is also required to be set aside. 10. The appeal is allowed on all counts.
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1989 (10) TMI 166
Valuation of clearances ... ... ... ... ..... pute is different. Since Solubilised Vat Dyes falling under Tariff Item 14-D were fully exempted from Central Excise duty under Notification No. 180/61-C.E. and those dyes were specified goods under Notification No. 80/80-C.E. during the financial year 1981-82, the value of clearances of those dyes has to be excluded in the computation of the aggregate value of clearances as required under Explanation IV below the Notification No. 80/80-C.E. The decision relied on by the learned DR is not applicable to the present case. We also observe that the synthetic dyes falling under Item No. 14-D was deleted from the Notification No. 80/80-C.E. w.e.f. 28-2-1982 vide Notification No. 106/82-C.E. This notification does not have any retrospective effect. In the circumstances, it cannot be said that these dyes were not specified goods during the preceding year 1981-82. 5. In view of the foregoing discussions, we set aside the impugned orders and allow the appeals with consequential relief.
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1989 (10) TMI 165
Packing of indigenous goods in foreign containers - Confiscation ... ... ... ... ..... Central Excise, New Delhi relating to burden of proof - the decision ldquo that the goods admittedly are neither notified goods under Section 123 of the Customs Act nor covered by Chapter IV-A, of the Act. The above circumstances alone would not justify a presumption as to their smuggled nature. Therefore the Collector was not justified in placing the burden on the appellants to prove the lawful origin of these goods rdquo is in conformity with the facts and circumstances of the present case. Therefore the few evidence which lends support that the goods could be of foreign origin cannot be a basis for confiscation and duty liability, unless a concrete evidence is let in. In case the goods had been properly imported, and duty-paid, the Department cannot justify its action by merely presuming the goods to be an illegal importation. Therefore, there is no strong reason for upholding the order of the Collector and is therefore set aside and consequentially the appeal is allowed.
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1989 (10) TMI 164
Dutiability of - Waste/Scrap ... ... ... ... ..... basis that the goods are waste material, and he has come to the conclusion that the waste material is generated during the course of manufacture of excisable goods. The question of excisability of waste has already been well-settled in a number of decisions among them being the decision of the Delhi High Court reported in Modi Rubber Ltd. v. Union of India -1987 (29) E.L.T. 502 and that of the Tribunal in Collector v. Aluminium Industries Ltd. - 1987 (31) E.L.T. 748. The Tribunal and various High Courts have held that where the Legislature intended to provide for excisability of waste, it has done so by specific mention in appropriate tariff entries. There is no entry in Central Excise Tariff providing for HDPE circular bag waste and HDPE laminated fabric waste and this type of waste is, therefore, not subject to levy of Central Excise duty. 5. Having decided the issue of excisability of waste in favour of the appellants, we set aside the impugned order and allow the appeal.
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1989 (10) TMI 163
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... ... ..... for customs duty since under Section 14(l)(a) of the Customs Act, 1962, duty will have to be levied on the deemed value as referred in the Section. However, the onus of proving mis-declaration regarding the price mentioned in the Bill of Entry is on the department and this onus can be discharged only on proof of proper facts which would discredit the price mentioned in the Bill of Entry and not on the basis of mere suspicion and surmise. The total evidence, in the instant case, would suggest that the price had been agreed upon between the parties after normal negotiations and that such a price would, therefore, be the ruling price in the international market at the relevant period. The charge of mis-declaration regarding the value is, therefore, not established. With this view we hold that the price shown in the invoice was the proper price and deemed value under Section 14(l)(a) of the Act. 6. In the result, the appeal is allowed with consequential relief to the appellants.
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1989 (10) TMI 162
Evidence - Cross-examination ... ... ... ... ..... it would be worthwhile to summon those persons with their account books for purpose of giving evidence so that the veracity of their statements could be tested and ascertained with reference to the same. Therefore, in the factual background of this case, we are inclined to think that the request of the appellants for cross-examination of the persons with reference to their account books would appear to be quite reasonable and in conformity with the principles of natural justice. Therefore, in this view of the matter, without expressing any opinion on the merits of the issue, on a technical ground that the impugned order is violative of the principles of natural justice, for the reasons set out above, we set aside the impugned orders appealed against and remit the appeals for reconsideration by the adjudicating authority in the light of our observations above and in accordance with law after affording the appellants herein a reasonable opportunity of being heard in the matter.
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1989 (10) TMI 161
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... ... ..... e before us. 22. Regarding the clearance of the department of Atomic Energy of the Government of India for any product specifically provided, we find that this point was not taken up earlier by the department. Goods had been confiscated but allowed to be cleared on payment of fine in lieu of confiscation. Clearance from the designated specialised agency of the Government should have been taken before clearance of the goods. The goods have been allowed clearance already on payment of fine in lieu of confiscation for a different reason which we do not hold to be valid. We also agree with the reasoning adopted by the West Regional Bench of the Tribunal in the Western Trading Corpn. matter mentioned supra. We accept the appeals and set aside the orders of confiscation in all these ten cases, as confirmed by the Collector of Customs (Appeals). The appellants would be entitled to the consequential reliefs. 23. Operative part of this order was pronounced in open Court on 26-10-1989.
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1989 (10) TMI 160
Confiscation of Conveyances ... ... ... ... ..... uggled goods, the value of which, as seen from the records, is Rs. 1,60,250/-. 12. In our view, taking into consideration the totality of the circumstances that the appellant is a poor man engaged in agricultural activities and also in supplying of vegetables to the market through this trailer and trolley and also taking note that he is an aged man and has incurred debts for the purchase of the trailer and trolley in question, and this being the source of his livelihood, a sum of Rs. 25,000/- would meet the ends of justice as redemption fine. Accordingly, we uphold the order of confiscation of the trailer and the trolley and the tarpaulins in question. But we give the appellant an option to redeem the same on payment of a redemption fine of Rs. 25,000/- (Rupees twenty-five thousand) only within three months from the date of receipt of this order, or such extended period which may be granted by this Tribunal on application. The appeal is thus partly allowed in the above terms.
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1989 (10) TMI 159
Spent Bleaching Earth ... ... ... ... ..... rlier Orders No. 41/87-C, dated 9-1-1987 Collector of Central Excise, Patna v. Fertilizer Corpn.), No. 322/87-C, dated 30-4-1987 Fertilizer Corporation of India v. Collector of Central Excise, Patna -1987 (30) E.L.T. 289 (Tri.) and No. 338-339/87-C, dated 7-5-1987 F.C.I. v. Collector of Central Excise, Patna - 1987 (30) E.L.T. 507 (Tri.) . Further, in the case of Hindustan Lever Ltd., Bombay v. Collector of Central Excise, Calcutta 1985 (22) E.L.T. 232 (Tribunal) , this Tribunal has held that spent earth arising from activated earth during the manufacture of soap, not being the result of manufacture under Section 2(f), is not liable to Central Excise duty. On the basis of facts, the present case is squarely covered by the last two decisions mentioned above, viz., those reported in 1985 (22) E.L.T. 232 (Tribunal) and 1988 (14) ECR 688 (Cegat). We do not find sufficient justification to take a different view. Accordingly, we set aside the impugned order and allow these appeals.
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1989 (10) TMI 158
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... ... ..... cided completely. The question of refund is between SAIL and the department and the presence of this applicant is not necessary for determining whether the refund for the period of six months are to be allowed or not. Therefore, for deciding the question in dispute, this applicant is not a necessary party. Merely because he will be driven for separate proceedings for seeking their adjudication of a colateral matter which is not directly and substantially in issue in the present proceedings, it is no ground to implead the applicant as a coappellant in this case. The applicant cannot be said to be a person who is directly interested in the subject matter of this appeal. Only because he may be incidentally affected by an order in this case, that by itself is not a ground to implead him as a party to the appeal under Rule-41 of the CEGAT Procedure Rules, 1982. In such circumstances, we are of the opinion that this application is without any merit and the same is hereby dismissed.
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1989 (10) TMI 157
Exemption available simultaneously under two notifications ... ... ... ... ..... nly for the benefit of one of the Notification viz. 175/86 and, therefore, no demand could be raised against the respondents. 5. We observe that it is nobody rsquo s case that the respondents in case they had opted for availing of the benefit of Notification 175/86 only they were in any way barred from the benefit of the said Notification. It is also conceded that the appellants were at liberty to claim benefit under either of the two Notifications. The learned Collector (Appeals) has merely extended in his order the benefit of Notification 175/86 to the respondents. Legally we do not find any basis in the plea of the appellant that the respondent could be forced to avail of the benefit of Notification 138/86 when they are eligible for the benefit under Notification 175/86 also and when the benefit under either of the five notifications is available to them under law. We, therefore, find no infirmity in the order of the Collector (Appeals) and accordingly dismiss the appeals.
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1989 (10) TMI 156
MODVAT Credit - Waste and Scrap ... ... ... ... ..... osition would be different insofar as the M.S. scrap purchased from the market during March 1986 is concerned and they would be entitled to the credit in terms of Rule 57-H(1) subject to satisfaction of the conditions mentioned therein. However, in respect of M.S. scrap received on or after 1-4-1986 to 5-6-1986 they will not be entitled to any credit because they declared the input waste and scrap only w.e.f. 6-6-1986. 6. Final position of disallowing or allowing the credit may be determined in the light of the above findings. In the facts and circumstances of the case, we do not find any reason to interfere with the penalty of Rs. 5000/- imposed by the Collector. It is not just a technical breach committed by the appellants. They have not only taken the credit illegally during the period 1st April 1986 to 5-6-1986 but they have gone on to utilise it for payment of duty on the final products which they would have otherwise had to pay by cash by making the deposits in the PLA.
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1989 (10) TMI 155
Exemption to S.S.I. units - Value of clearances ... ... ... ... ..... ring activity were in fact one operation. As stated earlier, no statement has been recorded from anybody to bring out the nature of the operation of the two units and inference has been sought to be drawn from some common features alone. As it is the two units were in existence before the Notifications came into force and this has been accepted by the learned Collector and in this background it was necessary for the department to establish with evidence that in fact the operations of the two units were part of the same business event. While the operations of the appellants may be entirely colourable, we cannot say that the case against the appellants has been established beyond a reasonable doubt. We, therefore, give the benefit of doubt to the appellants and hold that the case against them has not been proved by the authorities with requisite evidence and set aside the order of the lower authority with consequential relief. We, therefore, allow the appeal in the above terms.
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1989 (10) TMI 154
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... ... ..... there is no mala fide intention or any attempt to evade duty. Their bona fides have been noted in the adjudication order itself. It is also to be conceded that no removal of excisable goods took place contravening any of the rules. The Rules quoted in the show cause notice viz. Rule 9(A), 57A, 173C, 173F, 173G(1) have no relevance in this case. Rule 173Q has also no application for imposition of penalty in this case for the reasons adduced by Shri Chatterjee with which we are in agreement. The delay in payment of duty on the part of the appellants does not appear to be specifically covered by any of the penal provisions of the Central Excise Rules. Even, the residuary Rule 210 is applicable to a breach of the Central Excise Rules where no penalty has been provided therein in the Act. Here no breach of the Rules can be established. In the circumstances, we accept the appeal and direct that the appellant may be granted consequential relief by refund of the penalty paid by them.
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1989 (10) TMI 153
Demand - Natural justice ... ... ... ... ..... s a unilateral action by the assessee at this stage and the departmental officer comes into the picture only when he sees the RT-12 at the time of scrutiny and completion. Since the assessee is not prejudiced by the assessment order which is only checking the correctness of the detail submitted by them in the RT-12 return and taking corrective action only in the course of mistake, the procedure of issuing show cause notice and giving hearing would not be called for and the Rule rightly excludes such a procedure. In the circumstances, the Collector (Appeals) was palpably in error in placing reliance upon the judgments relating to imposition of penalty or confiscation of goods or demanding extra duty resulting from reclassification of the goods different from the originally approved one. We, therefore, accept the appeals and set aside the Order-in-Appeal passed by the Collr. of Central Ex. (Appeals). 7. The operative part of this order was announced in open Court on 18-10-1989.
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