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Case Laws
Showing 81 to 100 of 270 Records
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1990 (2) TMI 208
Appeal - New ground ... ... ... ... ..... ibility of the appellants to proforma credit under the provisions of Rule 56A which permits a manufacturer of any excisable goods specified under special Rule (1) therein to receive material or component parts of finished products on which the duty of excise or additional duty has been paid, in his factory, for the manufacture of finished goods or for the more convenient distribution of finished products and to take credit of the duty already paid on such material or component parts of finished products. The learned SDR has no objection to the matter being remanded. 4. In the facts and circumstances mentioned above, we remand the matter to the Assistant Collector to consider the eligibility of the appellants to proforma credit under Rule 56-A in accordance with law and on the basis of all the relevant and material particulars and documents. Appellants should be given an opportunity of being heard in person before any order is passed. 5. The appeal is allowed by way of remand.
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1990 (2) TMI 207
MOOVAT Credit - Adjustment in duty credit ... ... ... ... ..... reason to interfere with the order of the Collector (Appeals) rejecting the appellants rsquo (M/s. Mahindra and Mahindra rsquo s) appeal on merits. Accordingly, we reject the Appeal No. E/521/89 BOM filed by M/s. Mahindra and Mahindra Ltd. 11. Now coming to the appeal filed by the department (E/556/89 BOM) in respect of one demand which has been set aside by the Collector (Appeals) on the ground of time bar, in so far as this Bench is concerned, we have been taking the consistent view that any demand under Rule 57-I, when the time limit was not prescribed, it has to be read in conjunction with the provisions of Sec. 11A of the Central Excises Act. Admittedly, when it is so read, the demand in question is beyond six months, and hence the Collector (Appeals) is justified in setting aside the demand as time barred. Thus the appeal No. E/556/89 BOM filed by the department also fails. 12. In the result both the appeals are dismissed and the order of the Collector (Appeals) stands.
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1990 (2) TMI 206
Proforma credit ... ... ... ... ..... e, Patna, decided by the Tribunal and reported in 1987 (30) E.L.T. 507 (Tri.) 1987 (12) ECR 535, it was held that use of sulphuric acid in the manufacture of Sodium hexameta phosphate for water treatment essential for manufacturing fertiliser amounts to ultimate use in the manufacture of fertiliser. The particular exemption was in respect of sulphuric acid used for manufacture of fertiliser. Even though part of sulphuric acid was used as stated above for the manufacture of a chemical which was required only for water treatment, it was held to be essential for the manufacture of fertiliser and, therefore, amounts to ultimate use in the manufacture of fertiliser. Following the above decision we hold that the chemicals used for treatment of water for production of steam would entitle the appellants to derive the benefit admissible to materials required for the manufacture of explosives. Accordingly, we allow the appeal. The appellants would be entitled to consequential benefits.
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1990 (2) TMI 205
Import - Synthetic rags ... ... ... ... ..... ing aware of the requirements for import under OGL should have taken care to give the details of specification as laid down in the Policy, so that the suppliers can comply with. As seen from the sale confirmation order of the suppliers, goods are generally described as old synthetic rags completely pre-mutilated. Even the special instructions for opening the L.C. do not contain any requirements as to how the pieces are required to be pre-mutilated. In view of this, while we do not agree with the learned advocate that no penalty can be imposed on the appellants, we deem it proper to reduce the penalties to Rs. 20.000/- (Rupees Twenty thousand only) for each consignment (total Rs. 1,20,000/- (Rupees One lac and Twenty thousand only). We do this only on the ground that the appellants are actual users and the goods have been allowed clearance after proper mutilation. The appellants may be granted consequential relief. But for this modification, the appeals are otherwise rejected.
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1990 (2) TMI 204
Base paper for waxing, impregnating and coating not decorative paper ... ... ... ... ..... y also be a decorative paper but all the decorative papers need not always be the base paper. 10. The learned JDR submitted that the meaning as understood in commercial field ought to be accepted and the base paper is understood as decorative paper. The submission made however, cannot be sustained as the Policy itself has not understood the base paper as decorative paper and has made distinction between the two. What is laid down in the Policy has to be given appropriate interpretation. 11. Here when the department itself does not challenge the items imported being not the base paper for waxing / impregnating / coating paper, there is no justifiable ground not to permit the import under Appendix 5, The order passed under the circumstances deserves to be set aside. 12. In the result, the appeal is allowed. The order passed by the Additional Collector is set aside. It is directed that import be permitted under Appendix 5 of the Policy AM 1983-84. Consequential reliefs be given.
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1990 (2) TMI 203
Refund claim for Higher Production Incentive ... ... ... ... ..... t circumscribed to any specific type of refunds. When the provisions are applicable to all categories of refund, and the credit available under Rule 56AA read with Notn. No. 150/83, is also a refund, the provisions thereof do stand attracted. 21. We are conscious of the position that what is intended is to give impetus to the manufacturer to produce more, and give higher production, and the view that we take, of rejecting the claim merely on technical grounds, may provide contra-effect. The Tribunal however is a creation of statute and has to work within the framework of the statute, without taking any liberty therewith. 22. When the appellants themselves fail to satisfy us on their claim, we do not consider necessary to consider other arguments advanced by the learned SDR. 23. Under the circumstances, we hold that the claim has been rightly rejected as hit by the provisions of limitation and we sec no reason to interfere with the same. 24. The appeal is accordingly rejected.
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1990 (2) TMI 202
Confiscation - Smuggled goods ... ... ... ... ..... r that near Balurghat there is no Railway Workshop and they could not be got from any Railway Workshop in India. If it could not be got from any Railway Workshop in India, it cannot be said that it could be smuggled from Bangladesh without any evidence in this regard. Even assuming that these are parts of Railway Engines, the offence, at best, will be under the protection to Railway Properties Act, which is in force in India. There cannot be a presumption that these are smuggled from Bangladesh. In such circumstances we are of the opinion that, at best, the facts may constitute a suspicion against the appellant, and suspicion, however strong cannot take the place of proof. In these circumstances, the confiscation of the goods in question, except 5 paisa Pakistani coins weighing 750 grams, is hereby set aside, and the appeal is thus partly allowed. The confiscation of the Pakistani coins is hereby confirmed. The rest of the goods in question shall be released to the appellant.
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1990 (2) TMI 201
Coils - Hot rolled coils imported are “semi-finished” as is evident from certification given by a firm of Consulting Engineers
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1990 (2) TMI 200
Dutiability ... ... ... ... ..... ments were addressed, and considered, in much greater detail. It has been noted therein that SO3 (Sulphuric anhydride) exists in three solid modifications and in liquid form. SO3 gas or SO3 gas-air mixture is not known as Sulphuric anhydride i.e., the anhydride of fuming Sulphuric acid. 12. In the light of the foregoing discussion, we are of the opinion that the airgas mixture (or pure SO3 gas) which emerged as an intermediate product in the appellants rsquo factory in the course of a continuous integrated process of manufacture of organic surface active agents (OSAA) was not marketable and as such, was not classifiable under Item No. 14-G of Central Excise Tariff for the purpose of levy of excise duty. 13. In the view we have taken, we do not consider it necessary to go into the issue of extended period of limitation under Section 11-A of the Act. 14. In the result, we set aside the impugned orders and both the appeals are allowed with consequential relief to the appellants.
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1990 (2) TMI 199
MODVAT credit ... ... ... ... ..... inal product - namely scrap of various iron or steel items. Usage of oxygen gas along with the LPG through the medium of gas cutter is for the purpose of breaking the ship and cannot be construed to have been used in or in relation to the manufacture of final product. If the input (viz. ship) is required to be disintegrated and for that purpose gas cutting is resorted to, it only amounts to usage for proper dressing of input to the required level of disintegration and cannot be said to have been responsible or used in relation to bringing out a particular final product. We, therefore, conclude that though oxygen gas is also a consumable item and used for cutting, the nature of use being what it is, as discussed above, does not get the benefit of MODVAT credit mainly on the ground that it is not used in or in relation to the manufacture of the specified final product but is used in or in relation to breaking of an input - namely the ship. 16. We, therefore, dismiss the appeal.
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1990 (2) TMI 198
Condonation of delay ... ... ... ... ..... se advanced by the petitioners defendant that he entrusted the matter to advocate Sree Makwana and he had not informed him about the matter having been transferred to another advocate is substantiated by the affidavit of Sree Makwana. Once this is accepted it follows that the petitioner was never negligent. He was never inactive or indolent. Because there was some lapse on the part of the advocates the litigant should not be made to suffer. 10. In view of the above discussions, we hold that the applicants have been able to establish that they were prevented by sufficient cause in filing their appeal within the permissible time limit. Therefore, we condone the delay and the application is accordingly allowed. 11. Registry is directed to fix the Stay Petition for hearing on 25th April, 1990. A copy of this order may also be sent to the advocate on record. Service of this order will also be treated as notice for hearing of the Stay Petition and no separate notice need be issued.
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1990 (2) TMI 197
Export - Duty Exemption Scheme for import of raw materials for use in goods to be exported ... ... ... ... ..... djudicating Authority. 15. We have considered the submissions. From the impugned order we find that the goods were confiscated with an option to redeem the same for passing back in town on payment of a redemption fine of Rs. 1,20,000/- besides a personal penalty of Rs. 50,000/-. It was stated at the Bar that the goods have already been redeemed. In other words no duty was demanded from the appellants. From the statement filed before the Tribunal by the appellants it appears that the duty liability in the instant case would come to the extent of Rs. 42,986.55 and not Rs. 1,17,846.20 as found by the Additional Collector. However, even if we agree with the appellants that duty liability which the appellants according to the Additional Collector, tried to evade comes to Rs. 42,986.55, the redemption fine and the penalty imposed do not appear to be on higher side in the peculiar facts and circumstances of the case. 16. In the result we dismiss the appeal being devoid of any merit.
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1990 (2) TMI 196
Re-export of Rough Diamonds ... ... ... ... ..... of the conditions and right created under Paragraph 207, makes it clear that the D.T.C. licence holder in case performs export obligations and in addition exports some more diamonds, then in respect of such additional export the advantage of replenishment licence under paragraph 207 can be obtained. Indeed in the present case the petitioners have exported diamonds in addition to performance of their export obligations under D.T.C. licence and the Department has given advantage of that additional export and granted replenishment licence to the extent of the value of additional export. The petitioners cannot claim replenishment licence under paragraph 207 of the Policy in respect of export obligations required to be performed under D.T.C. licence. In my judgment, the action of the Department does not suffer from any infirmity and the petitioners are not entitled to any further advantage. 4. Accordingly, petition fails and rule is discharged. There will be no order as to costs.
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1990 (2) TMI 195
MODVAT Credit - Eligibility of to decorative laminated sheets ... ... ... ... ..... t the inputs should be used in or in relation to the manufacture of the final product. In view of these considerations, we find that the order of the Collector (Appeals) does not call for any interference. Incidentally we also observe that the benefit was given to these films under Rule 56A, where requirements are more restricted than the MODVAT scheme and that has not been challenged by the Department, when the Collector (Appeals) held that they are inputs for producing lamination. We are, therefore, unable to appreciate the challenge now made with regard to the eligibility of the same inputs under MODVAT scheme. We make this observation, in the passing, and would like to make it clear that even viewing strictly from the eligibility under Rule 57A, we are satisfied that the inputs, namely BOPP film used in the manufacture of laminates is eligible for MODVAT credit. We, therefore, dismiss the appeal of the department and sustain the order of the Collector (Appeals) on merits.
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1990 (2) TMI 194
Valuation - Misdeclaration of value by importer ... ... ... ... ..... licence entitled to issue letter of authority under Import Policy 1978-79 not debarred from such facility under Import Policy 1985-88. rdquo 12. In the matter before us, the goods were shipped within the grace period. The import licence was not filed along with the Bill of Entry and was filed during the course of adjudication proceedings. In these circumstances, we are of the view that the benefit of import licence cannot be extended to the appellants. However, it appears that the appellants had imported items in dispute bonafidely, as in the past clearances had been allowed. Keeping in view our observations as to undervaluation and ITC regulation and the gravity of offence, to meet the ends of justice, we reduce the fine in lieu of confiscation from Rs. 2 lakhs to Rs. 1 lakh and penalty from Rs. 15,000/- to Rs. 7,500/-. The Revenue Authorities are directed to give consequential effect to this order. Except for this modification in the order, the appeal is otherwise rejected.
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1990 (2) TMI 193
Refund - Limitation ... ... ... ... ..... ee, can, at the most, operate as a simple mechanism for rectifying apparent erroneous excess payment or short payment arising on account of arithmetical errors based on the assessment made. Even in such cases, they are to be made within the statutory time limit, laid down under Section 11A or Section 11B. The Supreme Court in the case of Kosan Metal Products - 1988 (38) E.L.T. 573 (S.C.) have already held that short endorsement made-on RT-12 Returns for short levy cannot save the limitation for the purpose of Section 11A. The statutory provision for claiming refund of duty being Section 11B, short endorsement made on RT-12 Return by the assessee claiming excess payment cannot be said to save the limitation prescribed under Section 11B, unless it is followed up by a proper refund claim within the time limit as laid down in Section 11B. 5. In this view of the matter, we find no reason for interference, with the orders of the authorities below. Accordingly we dismiss the appeal.
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1990 (2) TMI 192
Classification ... ... ... ... ..... Schedule to the CESA, 1944 and has asked for review of the same, and rectification of the mistake. They have not even stated as to what, according to them, was the correct classification. In our view, this letter cannot be regarded as a staking of the appellants rsquo claim for refund. It can only be treated as a representation to the Collector for re-classification of the product. It cannot be construed as a refund claim. The decisions relied upon by the appellants rsquo Counsel are not applicable to this case as the facts of those cases are distinguishable from the facts herein. We hold that the relevant date for computation of refund is 26-2-1986, i.e. the date on which the formal refund claim was filed. Therefore the appellants would be entitled to refund of excess duty paid during the period of 6 months prior to 26th February 1986. 13. The appeals are allowed with consequential relief of refund of excess duty paid during the previous 6 months prior to 26th February 1986.
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1990 (2) TMI 191
Stay/Dispensation of pre-deposit of duty and penalty pending appeal ... ... ... ... ..... es turnover of the petitioner is of the order of more than Rs. 7.02 crores. We further find that a sum of more than Rs. 1.28 crores is due to the petitioner from sundry debtors besides cash and bank balance of more than Rs. 28.05 lakhs. This is in addition to loans and advances of the petitioner of more than Rs. 64.38 lakhs. We also find that a sum of Rs. 60 lakhs has been set apart towards depreciation, which is only conceptual. Therefore, we find from the Balance Sheet presented before us that the petitioner rsquo s financial position is comfortable. Therefore, taking into consideration all the relevant facts and circumstances and the financial position of the petitioner, we direct the petitioner to make a pre-deposit of a sum of Rs. 2,00,000/- (Rs. Two lakhs) on or before 26th April, 1990 and report compliance, subject to which pre-deposit of the balance of duty and the entire penalty would stand dispensed with pending appeal. The appeal will be called on 26th April, 1990.
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1990 (2) TMI 190
MODVAT credit ... ... ... ... ..... he subsequent amendment of Rule 57-I did not adopt the time limit under Sec. 11 A and hence when the time limit was not prescribed under Rule 57-I, there was no necessity to have re-course to Sec. 11A does not have merits, mainly because of the fact that Rule 57-I contemplates recovery of MODVAT credit. The moment the credit is taken it would make inroad into the payment of duty on the final product by way of cash deposit because of the fact that the credit has to be utilised towards payment of duty. When the credit is allegedly taken irregularly, which would virtually result in short payment of duty on final product, the credit taken would come within the purview of Sec. 11A for purpose of applying time limit, even during the period when Rule 57-I does not prescribe time limit. Since we have taken this consistent view and disposed of many appeals, we have no reason to differ from the stand already taken by us. Accordingly we dismiss all these appeals filed by the department.
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1990 (2) TMI 189
Demand for irregular availment of MODVAT credit ... ... ... ... ..... s exported out of India or on excisable materials used in the manufacture of goods, which are exported out of India. This definition does not seek to include either MODVAT credit or proforma credit. Moreover, refund is granted to the manufacturer who has paid the duty. Here MODVAT credit is given to the recipient of the inputs and not the manufacturer of the inputs. The difference between MODVAT credit and refund can be further listed and the list can be longer. We, therefore, do not agree with the contention raised by the learned advocate that it is a case of refund and accordingly relevant date should be viewed. 5. In the circumstances, we agree with Shri K.M. Mondal, the learned SDR that the case calls for remand back to the Assistant Collector for determining the actual date of receipt of the RT-12 Return and accordingly decide whether the show cause notice dated 2-4-1987 is within the time limit of six months or otherwise. 6. The appeal is disposed of in the above terms.
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