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Case Laws
Showing 81 to 100 of 273 Records
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1990 (1) TMI 226
Revision by Board - Review ... ... ... ... ..... recording my complete disagreement on this proposition, I find that this proposition is not at all necessary for a decision in this matter. The appellants being a small scale industry, the rate of duty applicable to their product depended on the value of their annual clearances. The appellants protested against the value adopted by the Central Excise Department. Therefore, if the value is to be revised the consequential benefits have to flow to the appellants who would have become eligible to the benefit of the small scale industry Notifications Nos. 71/78 and 80/80 by which they get slab exemptions. It is for this reason that I hold that without holding that a protest for one purpose is a protest for all purposes (with which I don rsquo t agree) the appeals are to be allowed. I allow the appeals accordingly. The ratio of the judgment in the case of Collector of Central Excise, Madras v. Chennai Bottling Co. Ltd. reported in 1986 (24) E.L.T. 3 is relevant to the above facts.
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1990 (1) TMI 224
Valves - Gas Cylinder Valves ... ... ... ... ..... ntroller. A specimen form of certificate to be obtained from the inspecting authority is also given in Schedule II of the Rules. We have gone through the relevant rulas of the Gas Cylinders Rules, 1981, an extract of which have been placed before us. Rules 3,4,7 and 15 of the aforesaid rules are very relevant in the matter. From the provisions of these rules, we are of the view that the ISI inspection was compulsory to make the gas cylinder valves marketable. It was at this stage, therefore, that the valve should be treated as fully manufactured. In this view of the matter, the chlorine gas cylinder valves manufactured by the appellants were required to be entered in the R.G. 1 register only after inspection by the ISI authorities. 5. In the circumstances, we hold that the aforesaid 422 pieces of gas cylinder valves were not liable to be seized and confiscated by the central excise authorities. We, therefore, set aside the orders of the lower authorities and allow the appeal.
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1990 (1) TMI 223
Adjudication ... ... ... ... ..... e under the Act itself. It cannot be the intention nor can the scope of Rule 12 be so construed as to find that the Collector can waive such a cardinal condition. The period prescribed under Section 11B is one indicative of public policy in such matters and cannot be ignored by the Collector in exercising powers of relaxation under the proviso to Rule 12 of Central Excise Rules, 1944. rdquo I find that in the said case the delay in filing the rebate claim was due to the delayed receipt of the buff copies of AR 4A forms. It was still held that it cannot be a valid reason for waiver of the provisions of Section 11B which, in any case, do not provide in terms for any relaxation. Here, the delay is attributed to the prolonged illness of the Dealing Assistant of the appellants. Whatever be the reason, the extenuating factors cannot have the effect of relaxing the statutory provisions. 11. For the reasons discussed above, I uphold the Collector rsquo s order and dismiss the appeal.
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1990 (1) TMI 222
Classification of goods ... ... ... ... ..... ice as to the availment of either of the two concessions has to be left to the assessees as it is open to them to opt for either of the two which is more beneficial to them. They cannot be bound in law for availing of the benefit which is not beneficial to them. The departmental authorities notwithstanding the first approval had granted the approval to the second classification list and it has to be taken that the authorities had given their approval for the respondent to avail of the benefit of Notification 175/86. In law also there is no bar to the respondent opting out of the MODVAT concession and to opt for exemption Notification, which is more beneficial to them, so long as they pay the duty correctly in terms of the Notification. In the present case there is no averment from the Revenue that they had not paid the duty correctly in terms of Notification 175/86. In the above view of the matter, therefore, I hold that there is no merit in the appeal and I dismiss the same.
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1990 (1) TMI 221
Demand - Limitation ... ... ... ... ..... detergents and hence duty leviable was to the extent of 5 ad valorem under Notification No. 148/81, dated 1-8-1981 instead of 15 as charged by the Department. This ground of appeal has not been substantiated by them by adducing necessary evidence to show that the conditions of the notification dated 1-8-1981 were fulfilled. In the result, we are unable to extend the benefit of this notification to the appellants. The Tribunal rsquo s decision reported in 1986 (24) E.L.T. 567, cited by the learned Consultant for the appellants, does not apply to the facts of the present case. 9. So far as the penalty and confiscation are concerned, we observe that there was no suppression of facts on the part of the appellants. In the facts and circumstances of the cases, imposition of penalty and confiscation of their goo.....warranted. We, therefore, set aside the penalty and confiscation ordered by. . . . .Collector. 10. The appeals are disposed of in the light of the foregoing discussions.
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1990 (1) TMI 220
Penalty - Notified goods ... ... ... ... ..... y to Bombay and this might, at worst, make for a very venial breach not warranting imposition of any penalty or fine in the peculiar facts and circumstances of the case. Therefore, on consideration of the entire evidence on record, while agreeing with the submissions of the learned SDR that a technical contravention of Section 11C (3) and also a technical contravention under Section 11-F, as indicated above, is made out on record, in view of the fact that the contraventions are very technical in nature and venial in character being procedural infractions in the facts and circumstances of the case, we are of the view that the impugned order of the Additional Collector of Customs does not warrant interference at our hands. We, therefore, dismiss the appeal. 6. The Cross-objection filed by the Respondents is, in our opinion, mis-conceived in law because the Respondents cannot be said to be aggrieved by any portion of the order appealed against. The same is accordingly dismissed.
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1990 (1) TMI 219
Re-adjudication on Remand ... ... ... ... ..... in respect of (a) and (b) above. Regarding (c), we find that the appellants rsquo explanation that they are selling both new and re-conditioned batteries through invoices is plausible. The argument of the learned SDR that the price per battery in Appendix 14 to the show cause notice is comparable with the price emerging from the excise records leading to the conclusion that there has been some manipulation and unaccounted production cannot be accepted because price of batteries will admittedly vary depending upon the number of battery plates contained in it. The Department has not been able to conclusively establish the charge of clandestine removal from the different figures found in the sales invoices and central excise records. We hold that the charge of clandestine removal has not been satisfactorily proved and therefore, we set aside the demand of duty on batteries. 12. In the result, we set aside the impugned order and allow the appeal with consequential relief, if any.
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1990 (1) TMI 218
... ...
... ... ..... has to be taken into consideration while imposing the redemption fine. The appellants have established some extenuating circumstances in view of the materials which I had discussed above. In appeal No. C-75/86, the value of the goods imported were Rs. 85,694 and the redemption fine imposed is Rs. 35,000/-. In appeal No. C-74/86, the value of the goods imported is Rs. 85,093.63 np and the redemption fine imposed is Rs. 35,000/-. In appeal No. 116/86, the value of the goods imported was Rs. 41,180/- and the redemption fine imposed was Rs. 10,000/- which is roughly about 25 of the total value. In my opinion, the redemption fine imposed in appeal No. C-116/86 need not be interfered with and the same is confirmed. But in appeals C-74/86 and C-75/86 the redemption fine imposed are proportionately reduced from Rs. 35,000/- to Rs. 20,000/- in each case. Subject to the above modifications, these appeals are dismissed. The appellants are accordingly entitled for consequential reliefs.
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1990 (1) TMI 217
Classification ... ... ... ... ..... ollector (Appeals) the appellants rsquo alternative classification was under Heading 44.10 if their claim for assessment under Heading 44.09 was found to be not acceptable. The learned Departmental Representative has argued that this alternative plea was not raised before the lower authorities and hence the appellants cannot raise it now. He has argued that the correct classification should be under Heading 44.08. 2. We have considered the records and the arguments. In the order cited above, this Tribunal, after detailed examination of the issue, ruled out classification of block board under heading 4408.90. We find no reason to take a different view and we respectfully follow the said decision. The learned Departmental Representative rsquo s plea that the appellants cannot claim alternative classification does not hold good as the Tribunal is to take a correct decision in classification matters. 3. In the circumstances, we set aside the impugned orders and allow the appeals.
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1990 (1) TMI 216
Manufacture complete before testing of goods ... ... ... ... ..... ngs as above, evasion of duty and clandestine removal has not been established and as such the gravity of the action of the appellants gets considerably reduced. In our view the penalty of Rs. 25,000/- should be sufficient. 26. The Collector has also ordered confiscation of plant and machinery, with granting an option to redeem the same on payment of fine of Rs. 1.00 lac. In our view, the nature of the breach, held by us to have been proved, does not warrant any such confiscation. We, therefore, set aside the same. 27. In the result, the appeal is partly allowed. We confirm the order of confiscation of 2444.72 sq. ft., 24531.34 sq. ft. and 689.14 sq. mtrs. of S.S. Wire Mesh and P.B. Wire Mesh under Rule 173Q(I) of the Central Excise Rules, but reduce the redemption fine to Rs. 50,000/- (Rupees Fifty thousand only). We also reduce the personal penalty to Rs. 25.000/- (Rupees Twenty-five thousand only). Rest of the order of the Collector of Central Excise, is however set aside.
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1990 (1) TMI 215
MODVAT Credit not available on equipments ... ... ... ... ..... ed as intermediate products. 15. We have carefully considered this plea. It is an admitted position that sand moulds are independently manufactured. They do not occur at an intermediate stage in the product stream of the final product, and hence they cannot be construed to be an intermediate product which have come into existence during the course of manufacture of the final product. In our view, sand moulds can only be construed as manufactured independently and used as apparatus for casting. Hence, the alternative argument based on Rule 5 rsquo (D) also fails to convince us. 16. Since both the main and alternative arguments of the learned counsel are not sustainable as per our above findings, we dismiss the appeals and uphold the view of the department that inputs used in sand moulds, which are only equipment for casting, are not entitled for modvat credit towards the duty payable on the final product namely castings. The demands of the department are therefore enforceable.
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1990 (1) TMI 214
Rebate on Export - Appeal and Revision ... ... ... ... ..... ountries or territories. Interest on such rebate arises out of the rebate and does not arise independently. I am of the opinion that when Statute bars the jurisdiction excluding certain matters, consequent matters arising out of such barred/excluded subjects automatically stand excluded/barred. In this view, I agree with the order of the Learned Member (Judicial) and hold that the Tribunal has no jurisdiction to decide the issue and hear the appeal. 9. The difference of opinion having been resolved accordingly, the file is returned to the Bench for further action on the appeal. Order per S. Kalyanam, Member (J) . 10. In the light of the majority view as held above, the Tribunal has no jurisdiction to decide the issue and hear the appeal in terms of clause (b) of the first proviso to Section 35B of the Central Excises and Salt Act, 1944. The appeal papers are, therefore, directed to be returned to the party for filing the appeal before the appropriate forum, if they so desire.
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1990 (1) TMI 213
Classification ... ... ... ... ..... cy 1984-85, a specific entry in Appendix 3, Part-B, Appendix 4, Part-C, will prevail over a generic description in any of these appendices. Therefore, a specific description of alloy steel flats of all grades of alloy steel (which includes tool/die steel as well) will, prevail over the generic description of rectangular/square shape of cross-section of 2,50,000 sq. mm. and below of forged/rolled tool and die steel appearing against serial No. 9(b) of Appendix 3, Part-B. 21. In view of the foregoing discussion we are of the considered view that the subject goods are covered under the licence and the contrary finding of the learned Collector of Customs, Calcutta, is not in accordance with the provisions and appendices of 1984-1985 Import Policy and accordingly we set aside all the impugned orders, in the above captioned six appeals filed before us. 22. Accordingly, all the above captioned six appeals are hereby allowed. The appellants are entitled for the consequential reliefs.
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1990 (1) TMI 212
MODVAT credit ... ... ... ... ..... process of manufacture is carried out to obtain dextrose monohydrate crystals and that is the main product. Mother liquor thrown out on centrifuging can only be by-product. We are unable to agree with the Collector (Appeals) that hydrol can be the main product and dextrose by-product. This is for the simple reason that the object of manufacture is to get dextrose crystals and not to get hydrol - the mother liquor. The technical literatures cited by the learned consultant also support the view that hydrol is a by product. In this view of the matter, the appellants are entitled to the benefit of Rule 57D and credit cannot be varied or curtailed on account of the fact that some part of the inputs would have gone into this by-product, which is chargeable to nil rate of duty. Moreover, we observe that demand has been issued on the entire quantity of hydrol produced which is hardly sustainable. 8. In the result, we allow the appeal and set aside the orders of the authorities below.
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1990 (1) TMI 211
Reference to High Court ... ... ... ... ..... initial adjudication is by the Ahmedabad Collectorate of Customs, for appropriate direction on the following points 1. Whether the Tribunal has erred on facts and law in holding and relying upon the statements of the witnesses purported to have been recorded under Sec. 108 of the Customs Act, prior to issuance of the show cause notice under Sec. 124 of the Customs Act, and, if not, whether the judgment of the High Court of Gujarat in Union of India v. Abdul Kadar Abdulgani Hasmani and Others (Criminal Appeal No. 798 of 1979 with Criminal Appeal Nos. 889 of 79,1257 of 79 and 1260 of 79 - decided on 2-5-1984 - Coram Hon. Mr. Justice D.C. Gheewala and Hon. Mr. Justice J.P. Desai) reported in (1985) XXVI (2) GLR 1146 is a good law? 2. What is the sphere of binding effect of the judgment of one High Court, on the Tribunal, when, the Tribunal jurisdiction extends to the area falling within the jurisdiction of more than one High Court, and the other High Courts hold divergent views?
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1990 (1) TMI 210
Demand - Short levy ... ... ... ... ..... uo 8. We are unable to agree with Shri Mondal that there was any contravention of provisions of rule with an intention to evade the payment of duty. The assessing officer has pointed out certain short levy, which was not accepted by the respondents land as is evident from the reply to the show cause notice, they have pointed out this position contesting the short endorsement on the RT-12 returns. The proper course for the department was to issue a show cause notice well in time so as to confirm the demand. Only when such a demand has been confirmed and they had not paid duty, malafides can be attributed. In this case, admittedly, no such suppression or fraud committed by the respondents is alleged. If such an allegation is to be made as rightly held by the Collector (Appeals), it could be done only by the Collector especially where demand is issued or confirmed on this ground. In view of this, we do not see any merit in the appeal filed by the department and dismiss the same.
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1990 (1) TMI 209
Bond for production of end use certificate ... ... ... ... ..... as the end of the matter especially as by that time, the end use certificate duly granted by the jurisdictional Central Excise authority was also available. In this context, we also note the observation of this Bench in its Order No. 43/1989-C dated 8-3-1989 on the appellant rsquo s stay application while granting stay, that in similar matters, the Hon rsquo ble Supreme Court has taken the view that technicalities should not deprive the assessee of the legitimate concession given by the Government if there is substantial compliance with law. We have also perused the end-use certificate dated 15-5-1987 issued by the Superintendent, Central Excise Range VII, Mulund Division, available in the paper book to the effect that the imported material is fully utilised in the manufacture of penultimate drugs which tallies with the particulars of the imported goods contained in the bond executed on 11-8-1986. In the circumstances the impugned order is set aside and the appeal is allowed.
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1990 (1) TMI 208
Modvat Credit - Wrongly availed of - Limitation ... ... ... ... ..... n of Sec. 11A of the Act on this aspect cannot be said to be overruled by the rule. Rules are to be read in conjunction with the provisions of the Act, even where specific limitation is not provided for in the rule. We have, therefore, been taking the consistent view that the statutory provisions of Sec. 11A cannot be ignored, even while issuing a demand under Rule 57-I. Such a demand is required to be made by the proper officer as laid down in Section 11A within the time limit prescribed therein - the relevant date being the date on which the Department came to know of the assessee taking credit, which, normally as per the law is made known to the department through RT-12 returns filed alongwith RG-23A extracts. 12. In this view of the matter, since in all the aforesaid appeals filed by the Department, admittedly, the show cause notices are beyond a period of six months from the date of filing of RT-12 returns, they are barred by time. 13. We, therefore, dismiss the appeals.
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1990 (1) TMI 207
Modvat credit - Demand for recovery of irregular credit ... ... ... ... ..... levy or irregular availment of credit is only through the RT-12 Returns. Accordingly, we hold that the relevant date even for the purpose of demanding irregular credit under Rule 57(I) is the date on which RT-12 Return is filed. The other argument advanced by the respondents is that the show cause notice is issued under Rule 57-I and not under Sec. 11A. This argument is only to be recorded for dismissal because the Tribunal has been consistently taking the view that any demand raised under Rule 57-I is within the parameters laid down under Sec. 11A of the Act. Moreover, even the Collector (Appeals) has held that the demand is time barred under Sec. 11A. If the argument of the respondents is to be accepted, then the benefit of the order of the Collector (Appeals) is not available to them. We, therefore, allow the appeal of the department, set aside the order of the Collector (Appeals) but remand the case back to him for consideration of the respondents rsquo appeal on merits.
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1990 (1) TMI 206
Interest on amount of duty due on warehoused goods ... ... ... ... ..... rticular date and once the duty payable with reference to that date has been paid it has to be held that necessary duty for the purpose of clearance of the goods has been paid. Any shortfall that may occur on account of removal of the goods on a date subsequent to the date of payment of duty will not impinge upon the duty paid character of the goods and the order for clearance that has been passed. In the above view of the matter, therefore, we hold that the appellants were required to pay interest on the component of the duty which was due to be paid upto the date of the out of charge order passed by the proper officer for clearance of the goods for home consumption and in case because of subsequent removal of the goods some further duty became payable in respect of the goods which are still lying in the warehouse, the additional interest liability on that component of further duty which was required to be paid can be collected. The appeal is thus allowed in the above terms.
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