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Case Laws
Showing 61 to 80 of 222 Records
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1989 (11) TMI 194
Joint appeal ... ... ... ... ..... ged to have been committed is same, and the finding of the Collector is that both the appellant firm and the partner committed the offence under Rule 209A of the CES Rules. Therefore, I am of the view that a joint appeal both by the firm and the partner can be filed. 16. This Tribunal has already expressed a similar view in its order No. 145/87 dated 11-2-1987 and while holding that a single joint appeal is maintainable, considered the principle underlying in Order 2 Rule 1 and other relevant provisions of Civil Procedure Code. 17. However, I find from the cause title that only M/s. Universal Automobiles and Ancillary Industries are figuring as appellants, and Shri S.K. Lakhani has not joined as one of the appellants. The firm as well as the partner should figure as appellants in the memorandum of appeal. I therefore direct the appellants to amend the cause title by adding the name of the partner Shri S.K. Lakhani. 18. The miscellaneous application is disposed of accordingly.
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1989 (11) TMI 193
Modvat credit - Foundry chemicals ... ... ... ... ..... 57A i.e. category Machines, Machinery, Plant, equipment, apparatus, tools or appliances, the appellants are therefore not eligible for credit in respect of the inputs of these moulds. On the other point the Appeal has greater force, heat treatment and purification of molten metal are essential factors for final product Grey Iron Castings. Unfortunately, Assistant Collector rsquo s impugned orders are very brief and not speaking. The Assistant Collector has not given any indications as to why these inputs are not eligible for credit. Appellants specifically stress that these inputs are used for heat treatment and purifications of molten metal. If what they say is correct, Modvat credit may be allowed. In view of above observations, I set aside the impugned orders and remand the case back to Assistant Collector for de novo adjudication in respect of chemicals acquired other than for making moulds and cores, in the light of the above discussion. The appeal is otherwise rejected.
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1989 (11) TMI 192
Refund - Duty paid under protest ... ... ... ... ..... passes. The Officer completing the R.T. 12 returns has to refer to these gate passes, amongst other things to verify the correctness of the entries in the RT 12 itself. We would therefore, conclude that the provisions of Rule 233B in regard to endorsement of gate passes and R.T. 12 returns are directory and not mandatory in nature. This is particularly so as an important document, such as gate pass has been duly endorsed, this action itself being a follow up of a valid letter of protest dated 29-12-1981. 6. In this case the CEGAT had held that non-endorsement of RT 12, lsquo duty paid under protest rsquo would not disentitle claimant from claiming the refund. Applying the same ratio, I am of the view that non-endorsement of the words, ldquo under protest rdquo on the gate pass in a peculiar case like the present one should not disentitle the appellant from being paid the refund. In this view of the matter, I set aside the impugned order and allow the appeal of the appellant.
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1989 (11) TMI 191
Stay/Pre-deposit of duty and penalty ... ... ... ... ..... ce a certificate from the Textile Commissioner to the effect that the polyester fibre cleared under concessional rate has been used for the purpose set out in the notification. This is a statutory requirement and while the learned Collector could not have proceeded to decide the case without taking this factor into account, the question as to who has to produce this certificate and before which authority has also to be gone into in the facts and circumstances of the case with reference to the notification. In view of the above we observe that the learned lower authority has not examined the matter in depth nor taken all the pleas made by the appellants into account before passing the impugned order. We, therefore, hold that the order of the learned lower authority is not a proper order and set aside the same and remand the matter to the lower authority for de novo consideration after giving the appellants an opportunity of hearing. The appeal is, therefore, allowed by remand.
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1989 (11) TMI 190
Import - O.G.L. ... ... ... ... ..... he operator or service engineer and the central processing unit. rdquo The learned Collector himself has stated that the monitor displays the output from the CPU. The appellants rsquo plea is that through the keyboard the instructions are fed into the computer and to that extent control can be exercised to the CPU through the keyboard. From the definition of lsquo console rsquo given in the McGraw-Hill Dictionary of Computers it is clear in the light of the certificate produced and the pleas made that the appellants rsquo set of the keyboard and monitor constitutes a console and to that extent the appellants rsquo system can be said to be incorporating the console also. It is observed that the learned lower authority has not relied upon any technical literature or definition as to what constitutes a console. In view of what has been set out above, I hold the order of the lower authority is not maintainable and the same is set aside and the appeal of the appellants is allowed.
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1989 (11) TMI 189
... ...
... ... ..... ual position, the benefit of doubt is definitely required to be given to the appellants. We, therefore, hold that the allegation of deliberate presentation of the anti-dated B/L is not established. We also take note of the plea made by Shri Nankani that two consignments of cassia imported by the same vessel have been allowed on accepting the Bs/L bearing the same date without any question. Though in those cases, Ls/C have been opened and established, the fact that date of loading on those Bs/L has not been questioned in those cases, indicates that suspicion has arisen only because of absence of L/C in this case and the documents are not otherwise suspect. 15A. In view of the aforesaid findings, while confirming the order of confiscation, we would deem it proper to set aside the penalty. We would also reduce the redemption fine from Rs. Nine lakhs to Rs. Four lakhs fifty thousand. The appellants be granted consequential relief. 16. The appeal is disposed of in the above terms.
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1989 (11) TMI 188
Jurisdiction ... ... ... ... ..... the penalty imposed on M/s. Dipen Enterprises is therefore sustainable. We, therefore, uphold the same. 26. As regards the penalties imposed on the other three appellants viz. M/s. Jolly Enterprises, S/Shri Suresh V. Shah and Nilesh Shah, in view of our findings that there does not exist a case for clubbing the imports at Kandla with the imports made by M/s. Dipen Enterprises and also in view of the finding that no tangible evidence has been produced to show that the imports in this case have been made on behalf of M/s. Jolly Enterprises or that the importers are only M/s. Jolly Enterprises, we extend the benefit and discharge the appellants in appeals C/174, 318 and 319/89 from the penalties imposed. 27. In the result the appeal filed by M/s. Dipen Enterprises is dismissed, while the appeals filed by the other three appellants viz. M/s. Jolly Enterprises, Shri Suresh V. Shah and Shri Nilesh V. Shah are allowed, in so far as the imposition of penalties on them are concerned.
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1989 (11) TMI 187
Confiscation and Penalty ... ... ... ... ..... he Transporter and therefore, they are guilty for contravening the provisions of Rule 52-A. On these findings he also imposed a penalty of Rs. 1000/- on the said Shri Harcharan Singh Chawla, partner of the said Transporter and also a penalty of Rs. 200/- on the said Driver Shri Mohd. Kaleem Khan and also ordered for the confiscation of the seized motor tempo HDL 8788 with an option to redeem the same on payment of redemption fine of Rs. 2000/-. The said Transporter and the Driver have not challenged the said penalty and the confiscation by filing any appeal before us. This circumstance also lends assurance to our conclusion that the appellants were guilty of contravening the provisions of Rule 173-Q of the Central Excise Rules, 1944. 8. Before we part, it may be stated that the case law cited by the appellants was duly considered by us and while upholding the findings of the lower authority we had in our mind the broad propositions of law laid down therein. Reject the appeal.
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1989 (11) TMI 186
Modvat Credit availed wrongly ... ... ... ... ..... cause notice and also a demand for disallowing Modvat credit wrongly availed under Rule 571(1) of the Central Excise Rules, 1944. 5. We have carefully considered the submissions made before us. In view of the findings of the lower appellate authority in the impugned order, ultimately setting aside the order of the original authority namely, the Assistant Collector of Central Excise dated 9-6-1988, we do not find any justification or need for an observation by the lower appellate authority as under - ldquo No order is passed in appeal against the Supdt. order, as the same is not appealed against in the present appeal. rdquo We would like to note that the so-called order of the Supdt. of Central Excise was not the subject matter of appeal before the lower appellate authority and, therefore, the observations of the lower appellate authority in this regard have to be ignored. We, therefore, expunge the above observations in the impugned order and allow the appeal to this extent.
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1989 (11) TMI 185
Classification ... ... ... ... ..... dal, Member (T) 10. In view of the Chapter Note 2 to Chapter 31 of the Schedule to the Central Excise Tariff Act, 1985, the respondents rsquo final product Ammonium Nitrate is clearly classifiable under Heading 31.02 of the Central Excise Tariff Act, 1985 with effect from 10- 2-1987. Prior to 10-2-1987, the respondents classified this product under Heading 2806.90 and this classification was approved. They used oxygen and ammonia falling under Chapter 28 of the Tariff as inputs for the manufacture of Ammonium Nitrate. MODVAT credit under Notification No. 177/86-CE is available in respect of the final product and inputs falling under Chapter 28. The Assistant Collector could not change the classification with retrospective effect. Consequently, the respondents could not be asked to withdraw the credit availed of by them upto 10-2-1987. I do not, therefore, find any infirmity in the impugned order-in-appeal of the Collector (Appeals). In the circumstances, I dismiss the appeal.
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1989 (11) TMI 184
S.S.I. Exemption - Value of clearances
... ... ... ... ..... to avoid tax and consider whether the situation created by the devices could be related to the existing legislation with the aid of emerging techniques of interpretation to expose the devices for what they really are and to refuse to give judicial benediction. Accordingly it is clear that any colourful device to avoid tax is not part of tax planning and while interpreting the statutes it is the duty of the Government to expose each tax avoidance and refuse approval or benefit. 17. In view of the above, we have taken that the appellants have adopted the dubious method in not disclosing the true facts to the Department and filed different declarations as diversified activities which is not premissible on facts in the eye of law which amount to clear case of suppression of facts and in view of these facts and circumstances the Department was justified in raising the demand by invoking the larger period. 18. In the result we uphold the impugned order and the appeal is dismissed.
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1989 (11) TMI 183
Forged blanks for manufacture of Hand Tools ... ... ... ... ..... een given by the department that the products under consideration are marketable. It is a settled proposition of law that the burden of proving that the goods are marketable and therefore, are excisable lies squarely on the department 1989 (43) E.L.T. 214 SC . Collector rsquo s reliance on Delhi High Court rsquo s judgment in a general manner that forgings are bought and sold in the market is of no avail unless it be shown with the help of cogent evidence that the forgings of hand tools proposed to be levied to duty are marketable. There may be some forgings after the process of fettling which may be marketable, as mentioned supra, but it does not mean that the product under consideration in the instant appeal is marketable. Accordingly, on this question itself no duty can be levied on the product at the intermediate stage in the instant case. Consequently, the appeal is allowed in toto and the impugned order is set aside. Consequential relief to be granted to the appellants.
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1989 (11) TMI 182
Penalty - Two separate penalties imposed on firm ... ... ... ... ..... . Since the penalty under Section 112(a) on him is a levy in rem, we are in agreement with learned counsel when he submitted that with his death, the penalty on Shri Gonsalves will abate. As regards the appellant Mr. Mookherjee, we observe that he was an employee in the managerial cadre the evidence on record would show that he cannot plead total ignorance of the decisions relating to the imports, and, in such a view of the matter, his liability to penalty is well founded. However, as regards the quantum thereof, considering the long lapse of time of over 9 years, we are of the view that a lower penalty would serve the ends of justice and, accordingly, the penalty on him is reduced to Rs. 10,000/- (Rupees ten thousand only) in the facts and circumstances of the case. As for appellant Richford, for the same reasons as in the case of Mr. Mookherjee, the personal penalty on him is reduced to Rs. 5,000/- (Rupees five thousand only). The appeals are disposed of in the above terms.
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1989 (11) TMI 181
Reference to High Court - Signature of applicant not obtained on Recovery Memo ... ... ... ... ..... fact and not questions of law based on the appreciation of evidence, hence these can not be referred to the High Court. Question No. 6 Non-invocation of Section 121 of the Customs Act is merely an omission in the show cause notice. Allegation that the Indian Currency was the sale proceeds of the smuggled goods, namely Almond kernels, has been clearly made in the show cause notices. It is well settled proposition of law that mere omission to cite a provision of law does not vitiate the proceedings. Accordingly this question is also not worth referring to the High Court. Question 8, 9, 10, 11 and 12 These are all questions of facts based on the appreciation of evidence made by the Tribunal in its order dated 21 Sep. 1987. Entire evidence on record has been assessed by the Tribunal and then the findings, as set out above, have been reached. Accordingly these questions can not be referred to the High Court. 5. In view of above discussion, the reference applications are rejected.
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1989 (11) TMI 180
MODVAT and Proforma credit ... ... ... ... ..... evidenced by the Trade Notice No. 197/89 dated 20-10-1989 of Karnataka Collectorate, have taken this view. The explanation added to sub-rule (2) of Rule 56A is of later date and it is to give relief to the manufacturers who, no doubt, had utilised the inputs in the manufacturing stream for the intended purpose of manufacturing the end product for which the credit had been allowed, but because of some defects in the manufacturing proess or because of the inherent nature of the activity has to lose a part of the inputs in the waste and by-products etc. In the face of the specific relief given, I hold that any defective product which emerges in the manufacturing process has to be given the status of waste or by-product and the credit to be taken in respect of the inputs contained therein has to be taken to be available to the appellants. In view of this I find no infirmity in the lower appellate authority rsquo s order and I uphold the same and dismiss the appeal of the Revenue.
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1989 (11) TMI 179
Dry fruits - being consumer goods not importable as raw material ... ... ... ... ..... ditional licence, the ratio of point decided by the said Court, is that dry fruits are consumer goods of agricultural origin and not importable under the licence issued. The position may not alter materially, even when the same are imported under REP licence, unless there is a specific provision to the contrary made, and no such specific provision exists here. Further, when the Supreme Court has placed the provision of Appendix 2 of Policy AM 1985-88 at par with those of Appendix 4 of Policy AM 1983-84, as indicated above, there remains no scope to interpret the provisions of Para 138 of Policy AM 1983-84, and Appendix 4 of the same Policy, as standing on different footing. Consequently therefore, we are of the opinion that no interpretation, other than the one made by the Tribunal appears probable, and that therefore, the point poised by the learned advocate for reference to the High Court vide Sec. 130 of the Customs Act cannot survive. 12. We, therefore, reject the prayer.
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1989 (11) TMI 178
Confiscation and Penalty ... ... ... ... ..... hey were the persons concerned within the ambit of meaning of Section 112(b) of the Customs Act, 1962. But paradoxically the imposition of penalty of Rs. 500/- on each of the appellants is without reference to even Section 112, not to talk of sub-section (a) or sub-section (b) thereof. However, in this discussion as he had referred to them as the persons concerned within the ambit of the meaning of Section 112(b) of the Customs Act, 1962 the absence of reference to these provisions while imposing penalty on them does not, on that score vitiate the order. But as we have observed earlier, the identity of goods as smuggled goods liable to confiscation not having been established, we have no hesitation in accepting these appeals setting aside the Collector rsquo s order. The confiscation of the goods in question and the order of imposition of penalty on each of the five appellants are set aside. The appellants will be entitled to the consequential reliefs arising from this order.
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1989 (11) TMI 177
Appeal - Order of appellate authority final if no appeal is made within prescribed time limit
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1989 (11) TMI 176
Confiscation ... ... ... ... ..... yone of the provisions of the Act which would render them liable to confiscation under the said Section 111. In my view there is no provision which can be invoked for confiscation of the goods where an intention to illegally import is read unless substantive violation of any other provision can be shown to be there. As pointed out above, the goods have been declared to the authorities and after declaration having been filed in respect of the same, the requirement of Section 30 of Customs Act, 1962 can be taken to have been complied with. The learned Senior D.R. could not show how the requirements of declaration as required under Section 30 of the goods in the Menifest had not been complied with. The goods could be considered as the same bottom cargo, since the same were not declared for discharge at the port. Therefore, no mis-declaration or violation calling for the confiscation of the goods can be taken to have been there. In the above view of the matter I allow the appeal.
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1989 (11) TMI 175
Demand - Limitation ... ... ... ... ..... lone cannot be a ground for denial of exemption, if the conditions of the notification are complied with. Rule 173B is a procedural requirement for declaring the goods sought to be removed for pre-determlnation of the rate of duty and eligibility for exemption. If there is a failure on this, that alone cannot disentitle the goods for exemption, if the conditions of the notification are otherwise fulfilled. Eligibility for exemption is to be determined on the merits of the notification. It is not the case of the department that because of non-declaration of physician rsquo s samples in the classification lists, the condition prescribed in the Notification has not been complied with. There is no discussion as to how the goods are not eligible for exemption, if considered on merits in terms of the exemption notification. In view of this, even on merits, apart from the question of time bar, the order of the Additional Collector is not sustainable. We, therefore, allow the appeal.
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