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Case Laws
Showing 101 to 120 of 291 Records
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1990 (9) TMI 195 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... ted the observations of the learned Additional Collector and has not been able to show any material evidence in support of department rsquo s contentions. From the materials referred to above it is apparent that in common parlance, the word ldquo Objective(s) rdquo refers to the lenses normally used in microscope or telescope which generally have a specified magnification. On the other hand the lenses for microfilm readers are simply referred to as lenses. This is even otherwise quite understandable as in the case of microscope and telescope, etc. There are two sets of lenses one constituting eye piece and another constituting the objective and the objective is used in relation to (or rather in contrast to eye-piece) to indicate those lenses or set of lenses which are nearer to the object in contrast to the lenses of the eye-piece which is nearer to eye. In view of the above position, I set aside the impugned order and accept the appeal as already announced in the open Court.
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1990 (9) TMI 194 - CEGAT, CALCUTTA
Stay - Pre-deposit of penalty pending appeal ... ... ... ... ..... a notice for personal hearing to the present appellant. This, according to us, has violated the principles of natural justice. Therefore, we set aside the impugned order and allow the appeal by way of remand, as far as the present appellant is concerned. Here, we would like to note the submission of the learned Counsel for the appellant to the effect that as per changed jurisdiction, the case would fall under the competence of the Additional Collector of Customs (Preventive), Indo-Nepal Border, Lucknow. Accordingly, we remand the matter to the Additional Collector of Customs (Preventive), I.N.B. Lucknow with a direction that he should consider the reply given by the appellant on merits, i.e. either furnish the copies of documents prayed for by the appellant or reject the same by giving sufficient reasons and to adjudicate the matter afresh after giving the appellant an opportunity of personal hearing, and decide the matter in accordance with the principles of natural justice.
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1990 (9) TMI 193 - CEGAT, CALCUTTA
Penalty - Offence ... ... ... ... ..... rtment has proved that the appellant is the owner of the Khalihan in question. Even in the order, the learned Additional Collector stated that in all probability the appellant had abetted attempt to export the goods to Nepal. This clearly shows that on some surmises and conjectures, the learned Additional Collector had come to the conclusion that the appellant is the owner of the said Khalihan, There was also no material available in the Order-in-Original to show that the appellant had abetted in the illegal attempt to export the goods in question to Nepal. The order is vague and is not supported by any evidence in this regard. So also there is no discussion with respect to the evidence, to arrive at the conclusion which the learned Additional Collector had in this case. In the circumstances, we extend the benefit of doubt to the appellant and accordingly this appeal is allowed with consequential benefit if any. A copy of this order may be sent to all concerned expeditiously.
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1990 (9) TMI 192 - CEGAT, CALCUTTA
Evidence - Penalty ... ... ... ... ..... ion to pay in lieu of confiscation of the conveyance a fine not exceeding the market price of the goods which are sought to be smuggled. In this case, admittedly, the truck in question was used for the carriage of goods. Therefore, the appellant should have been given an opportunity to redeem the same by fixing a redemption fine which should not be in excess of the value of the smuggled goods. 9. Taking into consideration the facts and circumstances of this case, we fix the redemption fine in a sum of Rs. 50,000/- (Rupees fifty thousand) only. In the result, the imposition of penalty on the appellant under Section 112 of the Customs Act, 1962 is hereby set aside. The order of absolute confiscation of the vehicle in question is also set aside and the appellant is given an option to redeem the vehicle on payment of a redemption fine of Rs. 50,000/- within a period of three months from the date of receipt of this order by him. 10. The appeal is partly allowed in the above terms.
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1990 (9) TMI 191 - CEGAT, MADRAS
Modvat Credit ... ... ... ... ..... earned SDR. This Bench in the case of M/s. Steel Industrials Kerala Ltd. in Appeal No. E/932/89/MAS decided on 13-8-1990 has taken the view that the inputs in question would be eligible for MODVAT Credit if used in or in relation to the manufacture of the end-product. East Regional Bench in the case of Collector of Central Excise v. Hindustan Development Corporation - reported in 1990 (47) E.L.T. 376 has also taken the similar view. Besides these, there is a trade notice issued by the Calcutta-II Central Excise Collectorate in No. 126/GK-72/CE/Cal.-II/90 dated 12-7-1990 to the effect that MODVAT Credit on the Oxygen and Acetylene gases used for cutting runners and risers in the castings and for welding purposes and similar process of cutting and welding should be permitted. 5. In view of the above, while setting aside the impugned order, we hold that the appellants would be eligible for MODVAT Credit in respect of the inputs in question towards manufacture of the end-product.
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1990 (9) TMI 190 - CEGAT, NEW DELHI
Manufacture and dutiability ... ... ... ... ..... ly strawboard into multiple strawboard as a process of manufacture is not correct. What the notification says in plain terms is that ldquo if paper or paperboard is used within the factory of production for further manufacture of paper or paper board, the whole commodity leviable at the first stage is exempted provided the duty leviable on the product is paid after such conversion/manufacture. The notification merely brings out the well-known principle of charging duty at the later stage, known as lsquo later the better rsquo in respect of the same commodity. It cannot be concluded on the said Notification No. 62/82-CE dated 28-2-1982 that the two stages of strawboard in the instant case that is, single ply strawboard and multiple strawboard are different commodities having been different name, character or use and thereby conversion from one stage to another would mean manufacture of one commodity from another. 8. In view of the foregoing discussion, the appeal is dismissed.
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1990 (9) TMI 189 - CEGAT, NEW DELHI
Demand - Clandestine removal ... ... ... ... ..... the department about the availability of the expression under Notification No. 119/66, and the demand should be restricted to the period of three months from the date on which duty ought to have been paid, which in this case is the date of issue of the gate-pass. 10. On the issue of show cause notice having been issued under Rule 9(2) and not under Rule 10, the citation quoted in respect of M/s. J. K. Steel Ltd. v, UOI is very relevant, reported in 1978 (2) E.L.T. J 355, that even if show cause notice was issued for demand under Rule 9(2), the demand under Rule 10 will be in order, clinches the issue and if demand was made under Rule 9(2) and not under Rule 10, yet the demand is held to be valid under Rule 10, as the officer who made the demand was competent to make demands both under Rule 9(2) as well as under Rule 10. 11. There being no clandestine removal, the penalty imposed is set aside. The appeal is modified to the extent indicated and consequential relief is ordered.
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1990 (9) TMI 188 - CEGAT, CALCUTTA
Confiscation ... ... ... ... ..... rcumstances, it cannot be said that the four trucks in question belonging to appellants were used as a means of transport in the smuggling of goods, and hence Section 115(2) of the Customs Act, 1962 is not attracted in this case and consequently we hold that their confiscation is bad in law, and point No. 2 is answered accordingly. 9. Point No. 3 In view of the above discussions, so far as Point No. 3 is concerned, we hold that there is no material to hold that appellants are in any way concerned in the carrying of or removing the smuggled goods in question and the imposition of penalty under Sec. 112 of the Customs Act, 1962 on the appellants is not justifiable in law. 10. In the result, as per Point No. 4, we hereby allow these two above-captioned appeals and set aside the orders of confiscation of indigenous goods, and the trucks in question, and the imposition of penalties on the appellants. The appellants are entitled to consequential reliefs in terms of the above order.
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1990 (9) TMI 187 - CEGAT, NEW DELHI
Appeal - Condonation of delay of 103 days ... ... ... ... ..... counsel for the first respondent, is certainly well-found in his contention that the expression lsquo sufficient cause rsquo cannot be construed too liberally, merely because the party in default is the Government. It is no doubt true that whether it is a Government or a private party, the provisions of law applicable are the same, unless the statute itself makes any distinction. But it cannot also be gainsaid that the same consideration that will be shown by courts to a private party when he claims the protection of S. 5 of the Limitation Act should also be available to the State rdquo . 4. In view of these observations, we are of the view that the appellant was not prevented by sufficient cause in the late filing of the appeal. The appellant rsquo s application for Condonation of Delay is rejected. 5. Since we have rejected the prayer of the appellant for condonation of delay, the appeal is dismissed being hit by limitation, and we are not going into the merits of the same.
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1990 (9) TMI 186 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... on of their having a bore diameter does not arise. It is not permissible to ignore the actual condition of the goods imported and assess them on the basis of some deemed condition. As the subject goods do not fulfil the requirements of sub-heading (2), there is no scope to invoke the Interpretative Rule 3(c) and since by common agreement the goods are bearings, they fall squarely under sub-heading (1) of Heading 84.62. When an appropriate heading for themselves is available in the Tariff, the question of invoking the Interpretative Rule 4 to search for some other heading appropriate to the akin goods does not arise. We, therefore, hold that the subject spindle bearings were correctly classifiable under Heading 84.62(1). We follow the earlier decision of the Tribunal and hold that spindle bearings or bearings with integral shaft are correctly classifiable under Heading 84.62(1) of the Customs Tariff Act, 1975. We do not find any merit in the appeals. The appeals are dismissed.
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1990 (9) TMI 185 - CEGAT, NEW DELHI
Search and seizure ... ... ... ... ..... ould therefore be drawn against the accused that he had secreted them on the ......... they have been found in the almirah which at best ......... recorded as being in the joint possession of himself and his father, even an inference of joint possession will not be legitimate . 22. In the instant case also the department has not been able to show any evidence which would go to prove that the watches in question were in the exclusive possession of the appellant and even an inference of joint possession could not be legitimately drawn And therefore, following the ratio of the above two judgments it is apparent that the appellant could not be held as liable to penalty in the circumstances of the case. Hence .......... order as already announced in the open court. 23. The appeal is accordingly allowed with the direction that consequential relief due ......... to the legal representative on record Shri Anil Kumar Bhandari, S/o. Shri Sharad Chandra Bhandari, the original appellant.
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1990 (9) TMI 184 - MADRAS HIGH COURT
Cancellation of - Bail ... ... ... ... ..... onsidered for granting bail viz., that the respondent is in detention for more than one month since his arrest is altogether an irrelevant consideration for grant of bail. The learned Judge had also failed to take note of the character of the accused, the serious nature of the offence, the reasonable possibility of the presence of the accused not being secured for trial, etc., and in these circumstances as rightly contended by Mr. P. Rajamanickam, learned counsel for the petitioner, it is not far wrong to say that the order passed by the learned II Additional Sessions Judge is a sad reflection of the improper exercise of judicial discretion vested in him. In view of what has been stated above, the order of the II Addl. Sessions Judge in Crl. M.P. No. 2240/90 dated 8-8-1990, deserves to be set aside and accordingly bail granted therein shall stand cancelled. Petition is allowed and the respondent, if out on bail, is directed to be secured forthwith and put in judicial custody.
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1990 (9) TMI 183 - CEGAT, CALCUTTA
Smuggling of goods ... ... ... ... ..... t count it cannot be said that the statement of Sajjan Lal can be relied upon against this appellant without independent corroboration. There is also no evidence to show that Mehdi Hossain loaded these goods in the bus with the knowledge that they were smuggled goods. Merely because a worker had loaded some goods in the bus which were found to be smuggled later on, he cannot be implicated in the offence by stating that he has abetted the commission of the offence. There must be something more to show that he had knowledge that these goods were smuggled in character and were liable to confiscation under Section 111(d) of the Customs Act. On the above said reasonings we are of the opinion that the department has not brought home the guilt of the above said appellants, and accordingly, we extend the benefit of doubt to the appellants. The appeals are accordingly allowed and the imposition of penalties on these appellants under Section 112 of the Customs Act are hereby set aside.
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1990 (9) TMI 182 - CEGAT, NEW DELHI
Manufacture ... ... ... ... ..... notice that there was no allegation of suppression or wilful mis-statement of the facts. Show cause notice was issued on 28-4-1973 proposing to recover duty for the period from 28-11-1969 to 30-3-1970. The appellants contended that the process of calendering adopted by them was disclosed in the classification list filed by them and the Central Excise officer approved the classification list. It is also contended in the appeal memorandum that the Central Excise Officer visited the factory and saw the damping and calendering operation undertaken by the appellants. These statements have not been rebutted by the learned Departmental Representative during the hearing before us. In the circumstances, the longer period of limitation of 5 years is not applicable in the present case. The entire demand for duty is, therefore, barred by limitation. 10. In the light of the above discussions, we set aside the impugned order and allow the appeal with consequential relief to the appellants.
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1990 (9) TMI 181 - CEGAT, NEW DELHI
Confiscation of goods and redemption fine ... ... ... ... ..... d amount to awarding punishment before arriving at a definite conclusion or finding with reference to the charges. 13. Probably the Adjudicating officer wanted to help the appellant to take the goods pending adjudication so that they do not get spoiled in the meanwhile, but in that case the correct procedure was to have allowed provisional release of the goods as per the prescribed procedure. It was not proper to order confiscation or impose redemption fine pending finalisation of the proceedings. 14. Since no appeal lies against an ad-interim order we dismiss the petition as non-maintainable. 15. However, before parting we may observe that the action of the learned Additional Collector was...... and bad in law, and in all fairness the learned Additional Collector should not insist upon such conditions as have been imposed on the contrary he should continue with the proceedings and concluded the same before passing the final order. 16. The petition is accordingly disposed of.
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1990 (9) TMI 180 - BOMBAY HIGH COURT
Import - Issue of delivery note for aluminum ingot by canalising agency to actual user ... ... ... ... ..... ot go by mere speculation assumes that the petitioners were not refused delivery though they had sought for it before the date on which the retention price was enhanced. This enhancement took place on 9th May 1984. After this date, the consignment was delivered in two lots on 17th May and 29th May 1984. Consequently, while delivering these two lots, the MMTC did not say that it was entitled to the benefit of the enhancement in the price though the delivery in both the lots was effected after the date on which the retention price had been increased. Therefore, I see no reason to not to give the petitioner the benefit of the first portion quoted from Pendse J rsquo s decision. Hence the order - ORDER Exhibits lsquo B rsquo and lsquo C rsquo are quashed. The goods figuring in this petition shall be charged at the price quoted in Exh. A and adjustments made accordingly if the same be necessary. Rule in these terms is made absolute, with parties being left to bear their own costs.
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1990 (9) TMI 179 - CEGAT, NEW DELHI
Exemption - Intermediate products ... ... ... ... ..... same process of manufacture or in a different process of manufacture in the same factory. It is admitted that Coke Oven Gas and Blast Furnace Gas arise in the course of manufacture of steel products in the steel plant itself and then these are used in the manufacture of products in that plant itself. Accordingly, the appeal is allowed on merits. 4. In view of our finding, we need not go into the question of a plea of time bar raised by the appellants. Further, the material is not adequate enough to give a finding on the question of time bar inasmuch as there is no material on record whether the production of Blast Furnace Gas and Coke Oven Gas were mentioned in the classification list filed by the appellant. In the absence of a copy of approved classification list on record we are unable to give any finding on the other mixed question of law and facts. 5. Having regard to the findings on the merits regarding entitlement to notification 58/75 as amended, the appeal is allowed.
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1990 (9) TMI 178 - BOMBAY HIGH COURT
Import - Imprest licence ... ... ... ... ..... ich figures in the instant case. Here the endorsement made on 18th March 1983 is clear that an importation permitted under AM 82-83 could be negotiated and the imports made thereunder would be valid. That changes in Import Policy are prospective has been held in a number of cases which point has also been considered by a Single Judge of this Court in Writ Petition No. 1809 of 1984 decided on January 9, 1986. Mr. Rege submits that the judgment should not be relied upon as it under an appeal. I do not see how the binding nature of the judgment is affected merely because an appeal is pending. The result of the foregoing discussion is that the refusal to allow clearance impugned in this petition has to be declared as illegal. The importation has already been effected and what remains to be done is to grant approval to the interim relief and discharge the bank guarantee furnished by the petitioners. Rule in these terms made absolute with parties being left to bear their own costs.
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1990 (9) TMI 177 - CEGAT, NEW DELHI
Recovery of refund ... ... ... ... ..... d under Section 11A without setting aside the order granting erroneous refund under Section 35E(2), no erroneous refund can be recovered. Therefore, the department should initiate proceedings simultaneously under Section 11A within the time limit prescribed therein and also under Section 35E(2) within the time limit prescribed therein. 9. In the instant case, the refund cheque was issued on 19-5-1987 and the show cause notice ought to have been issued under Section 11A within six months from 19-5-1987. Since it was not issued, though the appeal under Section 35E(2) for setting aside the order of refund is maintainable, before the Collector, the order cannot be enforced as no notice was issued under Section 11A for the recovery of erroneous refund. 10. From the above, it follows that though the appeal before Collector (Appeals) was maintainable, refund erroneously made cannot be recovered. The appeal is, therefore, allowed and the order of the Collector (Appeals) is set aside.
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1990 (9) TMI 176 - CEGAT, NEW DELHI
... ...
... ... ..... nnot be the basis for invoking the larger period of limitation. Consequently, we hold the show cause notice is barred by limitation. 19. As regards addition of 14 towards expenditure incurred under clauses 2.01 to 2.10, it is based on no material and is an arbitrary finding. There are no statistic available as to the actual expenditure incurred under the relevant clauses referred to above. As pointed out by Shri Hidayuttalah the buyer is selling not only the product of the appellants, but also the products of various other manufacturing units. Therefore, it is difficult to apportion any expenditure exclusively in so far as the appellants rsquo products are concerned. Therefore, we set aside the finding of the Collector. Consequently, we allow the appeal and remand the same to the Collector for the limited purpose of ascertaining the nature of transaction in the light of the contract of the sale and purchase orders and the price-lists filed by the appellants from time to time.
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