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Case Laws
Showing 81 to 100 of 300 Records
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1989 (9) TMI 267 - CEGAT, NEW DELHI
Import - Toys ... ... ... ... ..... nd that it is also linked to the main plank of the department rsquo s case that the import by the two appellants forms part of one and the same finished goods, but when we have found that such clubbing of the two consignments is not borne out by evidence on record, there is no other ground in the impugned order on which the penalty on this appellant is maintainable. So also on the question of valuation because of the finding that the two consignments cannot be clubbed, the charge of under-valuation cannot succeed because it is also based on the premises that the two consignments being one and the same should be clubbed to form the basis of import of the banned item, namely, fully finished toys. In the result, the appeal of M/s. Kakar Toys Industries is allowed. The personal penalty on appellants M/s. Mahendra Mechanical Industries is set aside. The order of absolute confiscation of the consignment imported by them is maintained. The appeals are disposed of in the above terms.
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1989 (9) TMI 266 - CEGAT, CALCUTTA
Refund - Limitation ... ... ... ... ..... y the Superintendent and then he should compute the amount of tax in consonance with that order and while doing so if he finds that the amount deposited by the assessee was more than the amount due in terms of the Assistant Collector rsquo s order, he should have credited the said amount in terms of Rule 1731 straightaway and no question of any refund application arises in the circumstance. In the present case, since the refund application was made much prior to the date of assessed duty the same is not barred also. 44. It is in this view of the matter I agree with the conclusions and order of my learned Brother, though I have some reservations about the observations made in Para 31 of his order. 45. In the result, the appeal is allowed and the matter is remanded to the Assistant Collector to consider the claims for refund on merits and allow the same by adjustment or by refund as there is an application for refund made by appellant earlier to approval of classification list.
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1989 (9) TMI 265 - CEGAT, CALCUTTA
Stay/Dispensation of prior deposit ... ... ... ... ..... licensed under Section 58. It was the contention of the learned Counsel that the goods never left docks and were never deposited in a warehouse. The docks area has not been appointed as a Public Warehouse or licensed as a Private Warehouse. Warehoused goods under Section 2(44) would mean goods deposited in a warehouse. Since the subject goods were never deposited in a warehouse as required by these provisions they had not become warehoused goods and accordingly provisions of Section 68 and thereby 15(l)(b) would not come into play. We are satisfied that the appellants on the above reasoning for a strong prima facie case. We accordingly allow the Stay Petition. 10. As the appeal relates to the rate of duty to be applied for assessment of duty, which is dealt with by the Special Benches of the Tribunal, we direct the Registry to transfer this appeal to the Special Bench concerned at CEGAT, New Delhi. 11. The operative part of this order was pronounced in the Court on 18-9-1989.
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1989 (9) TMI 264 - CEGAT, MADRAS
Demand for differential duty without prior show cause notice ... ... ... ... ..... show cause notice indisputably and admittedly has been issued only on 12-12-1986 demanding differential duty for the period 1-3-1986 to 24-3-1986 and this is clearly barred by limitation under Section 11A of the Central Excises and Salt Act, 1944. The first order of the lower appellate authority in directing the Assistant Collector of Central Excise to adhere to the principles of natural justice and issue a show cause notice is only without prejudice to the rights of the party and the lower appellate authority has never held that the first communication of the Superintendent of the Central Excise dated 18-8-1986 is a show cause notice. Therefore, on consideration of the entire materials on record, I am inclined to hold that the finding of the lower appellate authority under the impugned order that the demand is clearly barred by limitation is sustainable in law and in this view of the matter I uphold the impugned order of the lower appellate authority and dismiss the appeal.
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1989 (9) TMI 263 - CEGAT, NEW DELHI
Manufacture Demand ... ... ... ... ..... actured and produced in fully finished condition by M/s. Ideal Beauty Products. The goods are cleared from M/s. Ideal Beauty Products. As rightly held by the Collector(A), the duty liability of the goods is in the hands of M/s. Ideal Beauty Products. There is no process incidental or ancilliary to manufacture as contended by Revenue in this appeal. The entire products are fully manufactured and they are received in bulk quantity and they are only re-packed and such a re-packing of an already manufactured product, does not amount to manufacturing activity. There is no new commodity emerging having a distinct name, character and use and known to the trade as such. The kum kum remains identical whether in bulk or in small retail packs. Hence the contention raised in these two appeals does not merit any consideration in view of the well-settled law and hence, the appeals are dismissed. The cross objections are only in the nature of comments. They are also disposed of accordingly.
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1989 (9) TMI 262 - CEGAT, MADRAS
Proforma Credit ... ... ... ... ..... t not under Rule 56A but under the Notification 95/83 and the appellants rsquo product was deleted from the Schedule to the said Notification, By virtue of this deletion the appellants became disentitled to the input relief in respect of their product. Inasmuch as this item in question was not earlier enjoying the benefit under Rule 56A, notwithstanding the fact that in terms of Notification 95/83 the appellants were observing Rule 56A procedure, the appellants will not be eligible for the benefit of the sub-rule (8) which only is available in respect of the items which under the erstwhile Tariff stood covered under Rule 56A. It is observed that when the substantive concession was available under Rule 56A only when the appellants would be entitled to the benefit of sub-rule (8) of Rule 56A. In the present case the substantive concession was not available under Rule 56A but under Notification 95/83. In this view of the matter I find no merits in the appeal and reject the same.
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1989 (9) TMI 261 - CEGAT, MADRAS
Confiscation - Redemption fine in lieu of confiscation ... ... ... ... ..... g the expenditure of scarce foreign exchange resources of the country. The importer has scant regard for the purpose for which the provision has been made in the Policy and have obviously misdescribed the goods as Blood cell separator to mislead the authorities into passing the goods as life saving equipment. It is also not understandable how the authorities allowed the import of the goods (Haemometer) earlier against the entry for Life Saving Equipment which in no way covers the goods by any stretch of imagination. We observe that the lower authority has rightly confiscated the goods. No evidence has been produced to show as to how the redemption fine fixed could be considered as high. We, therefore, find no reason or justification to reduce the same. The fact that an earlier consignment has been allowed in a case like this cannot be a mitigating circumstance as the violation of the law is quite flagrant as held by us above. In this view of the matter, we dismiss the appeal.
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1989 (9) TMI 260 - CEGAT, MADRAS
Modvat Credit - Deemed credit ... ... ... ... ..... examined and it is decided that deemed MODVAT credit should be permitted on all the inputs whether purchased or otherwise received by the manufacturers unless such inputs are clearly recognisable as non-duty paid or chargeable to nil rate of duty. rdquo Since in terms of the above Trade Notice deemed credit is permissible on all the inputs whether purchased or otherwise received by the manufacturer unless such inputs are clearly recognisable as non-duty paid or chargeable to nil rate of duty, we are inclined to hold that the appellants would be entitled to take deemed credit in respect of the inputs in question. We would like to note in this context that it is not the case of the Department in the show cause notice that the inputs are clearly recognisable as non-duty paid. On the other hand the lower appellate authority has entered a finding in the impugned order that all other conditions are satisfied. In the result the impugned order is set aside and the appeal is allowed.
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1989 (9) TMI 259 - CEGAT, CALCUTTA
Seizure and confiscation ... ... ... ... ..... The learned Advocate also relied on several other rulings. But, since the principles enunciated in all these rulings are similar, we need not multiply citing those decisions. 13. In the result, insofar as point No. (i) is concerned, we hold that the burden has not shifted on the appellant. We also hold that the department has failed to prove that the goods in question are smuggled in character. In view of this finding on point No. (i), the finding on point No. (ii) is not of much importance. The reason is that when the smuggled character of the goods is not established, the appellant is entitled for the benefit of doubt and it should be extended to him, and the confiscation of the goods and the imposition of penalty on the appellant are liable to be set aside. 14. In view of above discussions, we hereby accept the appeal and it is hereby ordered that the confiscated goods in this case be returned to the appellant. The penalty imposed on the appellant is also hereby set aside.
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1989 (9) TMI 258 - CEGAT, NEW DELHI
Stay/Dispensation ... ... ... ... ..... tly on the basis of his own visual examination and of market enquiry, details of which were not communicated to the applicants, decided that the imported goods were leather belts. Besides ordering, as a consequence, confiscation of the goods, the Additional Collector imposed a penalty of Rs. 25,000/-. 3. Shri Gujral submitted that prima-facie all the facts are in favour of the applicants and they have an excellant case. 4. Shri Sharma opposed the stay and submitted that the Additional Collector himself examined the goods. He supported the impugned order. 5. We have considered the submissions of both sides. The applicants are stated to be exporters of about 2 crores Rupees worth of goods a year. Prima facie, we feel that the applicants have a good case and some valid points. The amount involved is small. In these circumstances we grant the stay application, waiving the predeposit of the penalty and granting stay against its realisation during the pendency of these proceedings.
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1989 (9) TMI 257 - CEGAT, NEW DELHI
Demand - Limitation ... ... ... ... ..... on of limitation, although we find that in the relevant show cause notice, duty has been demanded under Section 11-A, and although it could be that in the facts of this case the failure to make demand for duty promptly was enough acquiescence on the part of the departmental officers to offset the technical non-compliance, we would at this stage leave it open in view of the terms of the remand order as above. The Assistant Collector should also afford opportunity to the appellants to put-forth any evidence that they may have in the matter and hear them also before re-determining the issue regarding the demand for duty. Ordered accordingly. As regards the Cross-objection filed by the department, while the appellants informed that the copy thereof was not available with them, we find that the Cross-objection itself is not maintainable as the respondent Collector is not aggrieved by any portion of the order of the Collector (Appeals). The Cross-objection is, therefore, dismissed.
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1989 (9) TMI 256 - CEGAT, NEW DELHI
Stay/Dispensation of - Pre-deposit ... ... ... ... ..... heard again and again. Such matters would be very few and the present matter is one of such exceptional nature. 6A. These proceedings are in effect, an examination of the necessity to modify the earlier orders of the Tribunal. The Gujarat High Court judgment, and the series of judgments cited by the learned Advocate cannot be lost sight of. In the light of the ratio of these judgments, it appears that the show cause notice issued by the Deputy Collector in this matter is, prima-facie not maintainable. In these prima-facie circumstances, we, in modification of all earlier orders passed in this regard, order that the pre-deposit of the adjudged amount be waived and stay granted thereon during the course of these proceedings. 7. Shri Gujral pleads for early hearing. He has been advised to make an application in this regard. 8. The miscellaneous application is disposed of in these terms. The learned SDR can argue about the validity of the proceedings when the appeal is taken up.
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1989 (9) TMI 248 - CEGAT, NEW DELHI
... ...
... ... ..... can be adopted, namely, the declared value of Rs. 35,000/-, the value of Rs. 1 lakh as certified by the Chartered Engineer and the value of U.S. 3180 as sworn by the Superintendent Priest of the temple. To this highest of value the amount of freight and insurance have to be added. In regard to the freight and insurance amount the same should be taken as already indicated in the Show Cause Notice to the appellants. Similarly, as in above cited case, since there has been no foreign exchange remittance and no case of deliberate under-invoicing has been made out on the basis of the evidence on record, the confiscation of the goods is not justified and the order of confiscation and fine on the goods is set aside, as also the penalty on the appellants, in the absence of any proven mala fides on their part. In the result, we order valuation of the goods for purposes of Customs duty in accordance with the highest price as indicated above. The appeal is disposed of in the above terms.
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1989 (9) TMI 247 - CEGAT, NEW DELHI
Rate and tariff valuation ... ... ... ... ..... ch there is no dispute. It is also admitted that the Assistant Collector on the application of the importer and on being satisfied, had permitted them to store the imported goods in the warehouse. The appellant-importer had produced the ex-bond bills of entry for release of the consignments. So it follows that Section 15(l)(b) applies to such goods which required to be cleared from a warehouse under Section 68. The rate of duty and tariff valuation in such cases will be on the date on which the goods are actually removed from the warehouse. The procedure adopted by the lower authorities is correct in law. The importer has not raised any dispute regarding the execution of bond and warehousing. It was open to them at that time to raise the dispute regarding warehousing but they have not done the same instead they stored the goods in warehouse by executing the bond, therefore, Section 15(l)(b) applies in their case. Hence there is no merit in the appeal and the same is rejected.
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1989 (9) TMI 246 - CEGAT, MADRAS
MODVAT credit ... ... ... ... ..... ation as to whether the inputs earlier removed were utilised for the purpose for which the MODVAT concession had been legislated. In this background, therefore, we hold that the lower authority should re-examine the matter and determine whether with reference to the records it can be verified that the inputs which were sent out and after reprocessing have been received back and the ultimate use of the inputs is utilised for the end-product. If the lower authorities are satisfied, then the benefit of concession should be given notwithstanding the fact that they failed to apply and take the necessary permission for the same. We observe that there is a provision in the Rules for penalising when anything is done in violation of the Rules. The authorities are free to take any action under the relevant provisions. We, therefore, in the facts and circumstances of the case remand the matter to the lower authorities for de novo examination and decision in the light of our order above.
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1989 (9) TMI 242 - CEGAT, NEW DELHI
Exemption - Evidence ... ... ... ... ..... comes only forgivable procedural failure and not an insurmountable lapse. Therefore, we feel that it would not be fair and just to reject the certificate as law did not prescribe such rejection. 9. In view of the above discussion, we set aside the impugned orders and remand the matters to the Assistant Collector having jurisdiction with a direction to satisfy himself as to the existence of the essentiality certificate the time of the importation of the goods. If necessary, he may examine the relevant records where there are entries as to the issue of these certificates from the concerned authorities. We further direct that he will also satisfy as to the genuineness of the essentiality certificate as well as the consumption certificate. We also direct that the adjudicating authority will observe principles of natural justice and also afford opportunity of personal hearing in all the above captioned 28 appeals. For statistical purposes, the appeals are allowed by way of remand.
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1989 (9) TMI 241 - CEGAT, NEW DELHI
Exemption not deniable because of wrong description in invoice ... ... ... ... ..... that their order with the supplier was lsquo moulds for plastic footwear (EVA rubber) rsquo and not EVA and rubber. The Collector (Appeals) has made a further reference which admittedly is new ground taken, relating to the industrial licence of the appellants. A perusal of this industrial licence 14993 dated 18-2-1985 shows that they were licenced for PVC footwear. No doubt, certain items were added on 17-11-1985, which again includes PVC compound and also convass and sports shoes and leather shoes, but we find that this amendment was much subsequent to the sales contract for the present consignment which was finalised as per record on 27-8-1985. Therefore, the claim of the appellants for exemption is found, in the circumstances, as discussed above, to be well-founded as the moulds have been shown by reasonable evidence as having been imported for manufacture of plastic footwear. In this view of the matter, we find lot of substance in the appeal, which is accordingly allowed.
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1989 (9) TMI 240 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... ken for the purpose of classification but the goods as understood in common parlance and in commercial terms should be taken. The Collector has admitted in his order that in trade imported item is referred as mirror. It matters little if further processes are to be done on this mirror. The imported goods cannot be considered as glass sheet as the goods have not been so described in any of the imported documents. Merely because the party has admitted that there are some more processes required to be done to make the glass optically clear, this by itself, cannot be taken as a mere glass sheet. The Revenue has not placed any material to show that it is a mere glass and no processes on its has been carried out. We are convinced that the imported product is a float glass and not a mere glass sheet. Subsequent consignments have been classified by Collector (Appeals) under Item 90.01. The appellants are entitled to succeed in this appeal with consequential relief. Appeal is allowed.
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1989 (9) TMI 239 - CEGAT, NEW DELHI
Stay - Pre-deposit of duty ... ... ... ... ..... accepted the application partly and after considering all the circumstances, we have passed the above order, modifying the earlier orders passed in E/Stay/1389/88 and E/Misc./507/88-C. 12. The Tribunal had, in its stay order, accepted the offer of the Director of the appellant company to execute guarantee bond and the appellant had sought clarification on that point. Parties have not made any submissions on this point. But considering this aspect of the order, below stay application, has also to be complied with, we feel that the proper course would be for the Director to file an undertaking. So, we direct that the Director concerned (who has made the offer) to file an undertaking (on appropriate non-judicial stamp paper) to the effect that company shall not transfer, by any voluntary act in any manner, its immovable property and machinery of the value of Rs. 8 lakhs (details to be stated) till the final disposal of the appeal within three months from the date of this order.
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1989 (9) TMI 238 - CEGAT, NEW DELHI
Stay - Pre-deposit of duty ... ... ... ... ..... (37) E.L.T. 239 (Tribunal) 1988 (18) ECR 437. He has pleaded for the grant of stay. Sh. M.S. Arora, Ld. JDR in view of the earlier judgments of the Tribunal leaves it to the Bench. 2. We have heard both sides. The facts are not disputed. The Show Cause Notice was issued by the Superintendent and the extended period of limitations of 5 years has been invoked. The Tribunal in the case of M/s Kapil Brothers v. C.C.E Patna, reported in 1988 (18) ECR 437 had followed the Gujarat High Court rsquo s judgment in the case of M/s Gujarat State Fertilizer Co. Ltd. and Another v. U.O.I. and Others reported in 1988 (34) E.L.T. 442 (S.C.). In. view of the legal position discussed above, we are of the view that if the applicants are desired to deposit an amount of Rs. 53,577.11, it will amount to undue hardship. We dispense with the pre-deposit of the same and further order that during the pendency of the appeal, the Revenue authority will not pursue recovery proceedings of the duty amount.
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