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1991 (11) TMI 145
MODVAT Credit Reversal of
... ... ... ... ..... nputs which were in stock prior to issue for being manufactured as amounting to Rs. 90,496.50. They have also relied upon a few decisions to bring home the point that the Trade Notices cannot be ignored by the quasi-judicial authorities. Accordingly, I hold that the appellant is entitled to utilise the modvat credit taken on the inputs which have actually been issued and were damaged in the fire accident while in the manufacturing process. However, they are not entitled for the credit of the amount on the inputs which have not even been issued for manufacture but which got damaged in the fire accident. I therefore set aside the impugned order and allow this appeal with the above directions. The appellant is required to reverse the modvat credit only to the extent of inputs not even been issued for manufacture and not the entire amount as demanded. The Asstt. Collector will determine the quantum of credit to be reversed on the inputs which have not been issued for manufacture.
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1991 (11) TMI 144
Proforma Credit ... ... ... ... ..... ce is led, storage thereof in the BSR was a patent violation of the statutory provisions. The letter dated 9-4-1983 does not seek permissible to store the goods in BSR without entry in RG-1. It only seeks permission to defer making entry in RG-1, till testing was done. Such a permission even if presumed to have been granted, such items ought to have been stored at the place other than BSR. Entry in RG-1 register before storage in BSR being a must, non-compliance thereof renders the goods liable to confiscation, and the appellants are liable to imposition of penalty. 8. However, considering the circumstances prevailing, we deem it proper to show some leniency and while upholding the order of confiscation and imposition of penalty, reduce the quantum of fine in lieu of confiscation to Rs. 10,000/- (Rupees Ten thousand only) and personal penalty to Rs. 5000/- (Rupees Five thousand only). 9. Appeal is disposed of in the above terms, with consequential relief, wherever called for,
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1991 (11) TMI 143
Confiscation ... ... ... ... ..... ent, a reply should have been given to the appellant in this regard. In such circumstances, no useful purpose will be served by remanding the case merely on the ground that the arguments of the appellant were not fully dealt with in the Order. Since the Order is passed merely on the visual examination of the learned Additional Collector, the same could not be upheld to hold that the timber in question is not a processed one. Under the circumstances, it is the fit case where the benefit of doubt should be given to the appellant. The arguments advanced by the learned S.D.R., Shri Biswas that it is not question of extending the benefit of doubt cannot be accepted by me. Accordingly, the appeal is allowed, and the confiscation of the goods in question under Section 113(b) Should be ldquo Section 113(d) rdquo - Ed. and (i) of the Customs Act is hereby set aside. The penalty imposed on the appellant is also set aside. The appellant is, thus, entitled for the consequential benefits.
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1991 (11) TMI 142
Classification ... ... ... ... ..... mand under Rule 10A was not sustainable because Rule 10A was deleted on 6-8-1977 by Notification 267/77-C.E., we observe that when Rule 10A was deleted, its provisions were incorporated in a modified form in amended Rule 10 which simultaneously came into force. We also note that Collector (Appeals) has, by accepting this to be a demand under Rule 10, restricted it to a period of six months. The Tribunal, while relying on the decision of the Supreme Court in. the case of M/s. J.K. Steel Ltd. held in the case of Verma Industrials Ltd. v. Collector of Central Excise, Bangalore 1984 (18) E.L.T. 403 that, if a mistake is made in mentioning Rule 10A instead of Rule 10, the demand is not vitiated. Since Collector (Appeals) has already decided to limit the demand for a period of six months prior to the service of the show cause notice, there is no justification for interfering with the orders of the lower authorities which have been validly made. 11. The appeal is therefore rejected.
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1991 (11) TMI 141
Remission of duty ... ... ... ... ..... ken as approximate. The said fact has been incorporated in the original survey to the effect that the survey is conducted in the heavy swell. It is, therefore, not understood as to what was the purpose of issuing the addendum as late as on 14-8-1980 i.e. after a period of about nine months when all procedures of receipt delivery were completed, is also relevant. We find that in respect of the goods in question there is no evidence of any survey having been carried out by any recognised agency or firm of surveyors either in the port or shortly after clearance to determine the actual weight of goods cleared by the appellants. Under these circumstances, we do not find any justification in remanding the matter to the lower authorities to consider the issue with reference to the certificate issued by the Regional Iron and Steel Controller and other evidences, as urged by the appellants rsquo counsel. 11. In the view we have taken, the appeal filed by the party is hereby dismissed.
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1991 (11) TMI 140
Demand - Classification of goods ... ... ... ... ..... ould be held enforceable only with effect from the date of issue of show cause notice. The learned Senior Counsel however fairly stated that for the purpose of this case it would be sufficient if the demand covered by the show cause notice is held to be time barred. Following the ratio of the Tribunal rsquo s decisions supra, we hold that the demand for the period upto 1-3-1986 is barred by limitation. However, in view of the change in the Tariff from 1-3-1986 and in view of the fact that the assessees were put on notice regarding classification for the post March 86 period by provisional approval of the classification list for the period subsequent to 1-3-1986 and further, in view of the fact that the appellants have not challenged the impugned order on merits, we hold that duty is payable for the period from 1-3-1986 to 14-4-1986. 6. We make it clear that we are not expressing any opinion on the classification of the product. 7. The appeal is disposed of in the above terms.
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1991 (11) TMI 139
Paper - Concession for new factories for 5 years ... ... ... ... ..... germane to the dispute and has no bearing thereon. 8. The judgment of the Hon rsquo ble Supreme Court in the case of Union of India v. Suksha International reported in 1989 (39) E.L.T. 503 does not advance the appellants rsquo case - the Court held therein that an interpretation that unduly restricts the scope of a beneficial construction is to be avoided so that it may not take away with one hand what the Import-Export Policy gives with the other. In the present appeal, however, such a situation does not exist. The appellants are not denied the benefit of concession and in fact they have been availing of it from 19-8-1979 i.e. from the date of first clearance of kraft paper till 23-4-1986 i.e. till the end of the period of 5 years from the date of issue of Notification 108/81 dated 24-4-1981. 9. In the light of the above discussions we hold that the respondents are eligible for concession only upto 23-4-1986. We, therefore, set aside the impugned order and allow the appeal.
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1991 (11) TMI 138
Classification ... ... ... ... ..... ause this is a machinery item, a complete unit by itself specially designed and for the specific function of burning the hydrogen with chlorine and thereby make hydrochloric acid in liquid form and since this carbide chamber is a complete unit, the classification should not go on the basis of material of which it is made but the function it does. We have also taken note of the fact that similar parts of combustion chambers made of graphite which were imported in 1964 by the respondents for their caustic soda plant were assessed under Chapter 84 by the Customs House and the licensing authority had also considered the present imported parts as classifiable under Heading 84.59 in consultation with DGTD. 10. In the view we have taken, we uphold the findings of the Collector (Appeals) that the imported items are correctly assessable to customs duty under Heading 84.17(1) and not under Heading 68.01/16(1) of CTA, 1975 and accordingly the appeal filed by the Department is dismissed.
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1991 (11) TMI 137
Stay - Predeposit of penalty ... ... ... ... ..... od of limitation. 6. The learned DR, however, would contend that suppression is established as the declarations do not indicate the Heading No. of the Schedule to the Central Excise Tariff Act under which the goods are classifiable. 7. We have perused the Collector rsquo s order dated 7-8-1986 holding identical goods manufactured by M/s. Crystal Plast to be non-excisable as they are not ldquo goods rdquo . We have also gone through the declarations filed by the applicants. Against Sl. No. 4 of the declaration the full description of the goods has been stated by the applicants PVC Portfolio, PVC Partition PVC Hinge Flaps PVC Pouch Elastic Belts etc. 8. In this background the applicants have made out a prima facie on the limitation aspect and therefore, we waive the predeposit of the duty and penalty and stay the recovery of the same during the pendency of the appeal in E/Stay/2361/91-C in E/4033/91-C. 9. In the result all the 3 stay applications are allowed in the above terms.
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1991 (11) TMI 136
Interpretation of Statute ... ... ... ... ..... quo aforesaid period rdquo contained in Notification 124/87 should be read to mean only the commencement date i.e. 1st January, 1982, in a harmonious construction of Notification 124/87 and 36/87 wherein the same words ldquo aforesaid period rdquo figure in relation only to one date, namely 1st April, 1986. Such a construction is not permissible, as it would result in violence to the plain language of the Notification. The rule of harmonious construction is to be applied only in the event of ambiguity in a notification or if the ordinary interpretation of the notification results in an absurd construction. This is not the case, here. The language of the Notification 124/87 is clear, admits of no ambiguity and the ordinary interpretation of the words ldquo aforesaid period rdquo does not give room to absurdity. We, therefore, see no force in the appellants rsquo submissions. 7. We see no reason to interfere with the impugned order and confirm the same. The appeal is dismissed.
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1991 (11) TMI 135
... ... ... ... ..... Assistant Collector is directed to allow cost of transportation and delivery charges, turnover tax and octroi-duty as deductions from assessable value. rdquo 4. In view of the above observations, we are of the view that turnover tax is allowable as a deduction from the assessable value. Accordingly, we set aside the impugned order and remand the matter to the Assistant Collector having jurisdiction to readjudicate the same in the light of the Supreme Court decision in the case of Union of India and Others v. Bombay Tyres International Ltd. reported in 1984 (17) E.L.T. 329 and the decision of the Tribunal in the case of Associated Pigments Ltd. v. Collector of Central Excise reported in 1989 (40) E.L.T. 186 following the Supreme Court decision. We further order that while readjudicating the matter, the adjudicating authority shall observe principles of natural justice and shall grant an opportunity of personal hearing. 5. In the result, the appeal is allowed by way of remand.
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1991 (11) TMI 134
... ... ... ... ..... some other matter but even now they have not explained as to how it is connected and in any case it was for them to have taken the precaution properly and obtained the orders of the Bench in case the matter was connected with another. Similarly their contention that they have taken the question of non-appearance of their counsel with the Ministry of Law and Justice is by itself not sufficient. Again merely sending an Assistant without any letter of authority or power of attorney shows that the appellants were not careful or cautious. Furthermore the Bench had taken into account their past conduct and noted past several adjournments and the fact that they had been cautioned on 22-1-1991 that no further adjournment may be given. Therefore their contention that they were under the impression that they may be granted adjournment was incorrect. In the above circumstances we are of the opinion that sufficient cause has not been shown. As such we dismiss the restoration application.
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1991 (11) TMI 133
Classification ... ... ... ... ..... ad not only it must be identifiable as being suitable for use solely and it must be principally with such vehicle and not part of the part of such article. Next, it was contended that brake lining is not excluded from Item 87 as per Para 2 of Notes to Section XVII of the Customs Tariff. The question of considering the issue of exclusion under this head does not arise since we are holding that it does not fall under this head but under the general category Item 68.01/16. Though the Explanatory notes have no legal force but only persuasive value since only mounted linings has been specifically included for claim under the Heading 87.06 but not under the general description item, the observations made by the Collector (Appeals) in the impugned order are relevant and strengthened our view. Accordingly, we hold that imported items are correctly classifiable under Heading 68.01/16. 6. In the view we have taken, we uphold the impugned order and, accordingly, the appeal is dismissed.
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1991 (11) TMI 132
Valuation - Related person ... ... ... ... ..... the prices have fallen down in Feb. 1990. Therefore, the Collector is justified in determining the assessable value on the basis of the appellants rsquo own imports in Nov. 1989. We, therefore, agree with the Collector and confirm the order in so far as the valuation in respect of two bills of entry. 16. As regards the 3rd bill of entry, the Collector himself on physical examination found that the part of the goods are coloured variety. There is no evidence produced by the Department as to the value of ldquo Mixed rdquo variety. Therefore, the transaction value is to be accepted at US 2500. 17. As regards the penalty, since we are accepting the invoice value in respect of the one Bill of Entry, we reduce the penalty to Rs. 2.5,000/-. The question now is confiscation. We found that in respect of two bills of entry there is mis-declaration and we have also confirmed higher valuation. However, we reduce the redemption fine to Rs. 1 lakh. The appeal is, therefore, partly allowed.
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1991 (11) TMI 131
Appeal - Order whether passed by Assistant Collector or Collector ... ... ... ... ..... eferred to in the Assistant Collector rsquo s communication, the other grounds consist of citing of certain Custom House Public Notice and not on any independent reasoning. Hence it is possible to hold, on the facts of the present case, that the Assistant Collector rsquo s communication is in effect only the order of Collector, as held by Member (Technical), and when once this is so, it follows that an appeal against such an order would lie to the Tribunal, and the appeal, for the reasons recorded in Member (Technical rsquo s) Order has to be remanded to Collector. 3. The views expressed by Member (Technical) are concurred with, and the papers forwarded to the Registry (B-2) for placing the matter before the Bench for final order. FINAL ORDER In view of the majority opinion the impugned order is set aside and the matter is remanded to the Collector of Customs, Calcutta who will decide the matter de novo in accordance with law after observing the principles of natural justice.
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1991 (11) TMI 130
Appeal - Restoration of ... ... ... ... ..... on 21-9-1984. Though he has taken a lot of time to comply with the directions but in view of the explanation given by him that the file containing the papers was somehow detached from the case file and it remained untraced in spite of persistent efforts made by the Department is sufficient enough to restore the Appeal to its original number. 13. Under the circumstances, we hereby restore this appeal to its original number. The date of hearing be communicated to the parties as per the availability of the date in the working diary of the Bench keeping in view the fact that this appeal is of the year 1978. Hon rsquo ble Supreme Court in the case of ITO v. Mohd. Kunhi reported in 1969 SC 430 had held that the Tribunal has got inherent powers. We are of the view that it is a fit case where we should exercise our inherent powers. We recall the earlier order passed by the Tribunal and restore the appeal to its original number. The appeal to be heard on merits on 18th November, 1991.
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1991 (11) TMI 129
Whether the Magistrate has power to drop proceedings against an accused in a summons-case after process is issued?
Held that:- It is important to state that for a Magistrate to take cognizance of the offence as against the Chief Editor, there must be positive averments in the complaint of knowledge of the objectionable character of the matter. The complaint in the instant case does not contain any such allegation. In the absence of such allegation, the Magistrate was justified in directing that the complaint so far as it relates to the Chief Editor could not be proceeded with. To ask the Chief Editor to undergo me trial of the case merely on the ground of the issue of process would be oppressive. No person should be tried without a prima facie case. The view taken by the High Court is untenable. The appeal is accordingly allowed
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1991 (11) TMI 128
... ... ... ... ..... e family, it could not be said that the particulars of any gift had been concealed or that any inaccurate particulars whatsoever had been furnished deliberately. The learned Commissioner(A) was right in observing that the assessee could be under a bona fide belief that the amounts in question did not represent gifts. In fact, as already held by this Bench in its order dt. 20th Nov., 1990 in ITA No. 443/Jp/90 in the case of Harshvardhan Chemicals and Minerals Ltd., Jaipur, if an arguable, contestible or a debatable question is involved, the claim of the assessee could not be said to be false because if this were not so, it would become impossible for any assessee to raise any claims or contentions which are debatable. Therefore, on facts, we are of the view that the penalty was rightly cancelled by the learned CIT(A). The same is upheld. 16. In the result GTA No. 13/Jp/88 filed by the Department fails and is dismissed, whereas GTA No. 14/Jp/88 filed by the assessee is allowed.
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1991 (11) TMI 126
... ... ... ... ..... count, the sales may be estimated at Rs. 12,25,000 and gross profit rate at 1.60 per cent may be applied against 1.54 per cent disclosed by the assessee last year and 2 per cent applied by the Assessing Officer on estimated sales of Rs. 16,00,000. In the Onion account, since the assessee has itself shown a much higher turnover and a better gross profit rate than last year, no interference need be done. In the Garlic account, we find that the Assessing Officer is justified in the estimate of turnover as well as in application of gross profit rate and hence his estimate need not be interfered with. This would result in a relief of Rs. 15,490 to the assessee. 18. The last Ground of Appeal is regarding charging of interest under s. 217. The learned counsel requested that consequential relief may be given to the assessee. We find his request reasonable. The Assessing Officer is directed to allow consequential relief to the assessee. 19. In the result, the appeal is partly allowed.
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1991 (11) TMI 124
Assessment Notice, Reassessment Notice, Transfer Of Case ... ... ... ... ..... not assist the Department because it refers to the jurisdiction of an ITO within the limits of the area assigned to him, in respect of any person carrying on any business or profession. We are, therefore, of the view that the learned AAC was right in holding that the transfer from one ITO to the other belonging to two different charges of the CIT and in spite of objections raised by the assessee could be made only by the CBDT and is, therefore, bad in law. 7. The assessee had also filed cross objections, in which the grounds of the cross objections had not been specified. When we asked the learned counsel for the assessee about the grounds, he moved an application saying that the cross objections had been submitted to uphold the decision of the AAC and may be treated as not pressed or withdrawn. Therefore, they do not servive for our consideration. 8. In the result the appeals filed by the Department as well as the cross objections filed by the assessee are dismissed as above
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