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Case Laws
Showing 41 to 60 of 220 Records
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1991 (5) TMI 182 - CEGAT, NEW DELHI
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... ... ..... ought on record that similar goods have been imported both in Bombay and Madras at near about the same price as theirs. The learned lower authority has not given any reason for not taking cognisance of the same. The learned lower authority on the other hand has relied on the price in the computer printout of similar imports without furnishing the appellants with the details of the same. The learned lower authority rsquo s basis for fixing the price for assessment purpose is, therefore, not acceptable in law. In the above view of the matter we hold that the learned lower authority rsquo s order is not maintainable in law and we set aside the same. We order that the learned lower authority should adjudicate the matter de novo in the light of the above. The learned lower authority before deciding the case should furnish the details of the imports at Bombay relied upon by him and after giving the appellants an opportunity of hearing. The appeals are, therefore, allowed by remand.
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1991 (5) TMI 181 - CEGAT, CALCUTTA
Penalty - Classification list filed but not approved ... ... ... ... ..... the department as far as this particular case is concerned. Even otherwise, it is seen that when a party removes the goods by payment of duty after assessing the duty by himself, he sends the classification list to the proper officer and the proper officer can always approve the classification list submitted by the party or do the same by making some modification promptly. If that is done within six months period and if the classification list, which is so approved, is sent to the party by mentioning the rate of duty, then the assessee cannot remove the goods until that rate of duty so fixed by the proper officer is paid by him. In all such cases, this classification list must be approved as expeditiously as possible, and not wait for years together. In such circumstances, I cannot accept this argument advanced by the learned JDR in this case. Accordingly, this appeal is allowed and the imposition of penalty of Rs. 6,000/- on the appellant under Rule 173Q is hereby set aside.
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1991 (5) TMI 180 - CEGAT, NEW DELHI
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... ... ..... n of the appellants that under Rule 5(3) of the rules, if more than one transaction value of identical goods is found, the lowest such value shall be used to determine the value of imported goods need not be considered in the light of the view which we are expressing namely, that the uniform contemporary price of identical goods is available. 18. As regards the penalty, we set aside the order of the Collector. The appellants have been penalised sufficiently. For non-compliance with principles of natural justice, the appellants have to approach this Tribunal and the appeal was allowed and remanded to the Collector. This is the second round of litigation. In view of the fact that the appellants have to face litigation twice, we do not propose to impose penalty. 19. The Collector is directed to assess the goods at 1159 Japanese Yen and the appellants may be given an option to redeem the goods on payment of a redemption fine of Rs. 25,000/-. The appeal is disposed of accordingly.
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1991 (5) TMI 179 - CEGAT, CALCUTTA
Confiscation of silver ... ... ... ... ..... ional Collector stated as follows - ldquo Later on his brother Girish Chandra Agarwal turned up claiming ownership of seized silver slabs and stated that these slabs were manufactured out of old ornaments in a refinery at Mathura. As seized slabs do not bear any mark, this statement is acceptable. rdquo A bare reading of this finding by the Adjudicating Authority goes to show that he has accepted the statement of Shri Girish Chand Agarwal that these slabs were manufactured by melting old ornaments at Mathura. If he had accepted that statement it is difficult to understand as to how he could come to the conclusion and that too, without any evidence in this regard, that the seized slabs are transhipped from Dumariaganj region of U.P. Therefore, no contravention of Section 11K is made out. The confiscation of the silver slabs under Section 113(1) of the C.A. lsquo 62 is not sustainable. The appeal is accordingly allowed and the appellant is entitled for the consequential relief.
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1991 (5) TMI 178 - CEGAT, NEW DELHI
Demand - When duty recovery partially stayed by High Court ... ... ... ... ..... tion No. 203/87 between the appellants and the assessing authorities. There was, therefore, no question of issuing any notice as required under Section 11A for determining the short levy on the goods. Assessment under Rule 173(1) of the Central Excise Rules in terms of the approved classification list was perfectly in order. Demand of duty made consequent to Andhra Pradesh High Court rsquo s direction dated 3-2-1981 was correct in law when the High Court rsquo s stay order was vacated. The demands made on the R.T. 12 returns were automatically revived. In such a situation on the facts and circumstances of this case a question of operation of Section 11A does not arise and therefore, I do not find any force in the plea of the learned counsel for the appellants. 12. The judgment of Madras High Court relied upon by the learned JDR mentioned in the learned Sister rsquo s order is on all fours of this case and ratio of this case is squarely applicable. Hence I dismiss this appeal.
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1991 (5) TMI 177 - CEGAT, NEW DELHI
Manufacture ... ... ... ... ..... ng the tea-chests, it is not really necessary to go into the other question as to who was the manufacturer. The Gujarat High Court judgment in the case of Jamnadas Chhotalal Desai and Others v. C. L. Nagia and Others (AIR 1965 Guj. 215), cited by the learned Departmental Representative in which it was decided that a person engaging in production or manufacture through independent contractor is also a manufacturer for purposes of Section 2(f) of the Act is of no relevance in deciding the controversy which has arisen in the appeals before us. 15. In view of the discussion above, and respectfully following the decision of the Tribunal in its order E/272/90-D dated 12th April, 1990, that no manufacture was involved in re-assembling the tea-chests, we conclude that it was immaterial whether this was done in the appellants rsquo own premises or through a job worker. The orders of the lower authorities are set aside and both the appeals are allowed with consequential relief, if any.
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1991 (5) TMI 176 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... cess and as such the pits, wherein sludge is gathered have to be vacated. Sludge cannot also be measured, weighed or accounted for. Therefore, the Bench held that carbide sludge is not also marketable commodity but only industrial waste and hence excisable. 6. The Tribunal again took up the matter of spent bleaching earth and held it to be a waste material and hence excisable. In the present case, the sulphur sludge also emerges while melting sulphur for use in the production of sulphuric acid, carbon-di-sulphide and SO2 for bulk production. This sulphur sludge is in the nature of scrap material and did not have any characteristic of sulphur and that this sulphur sludge is also not a manufacturing item. Therefore, it cannot be considered as goods to attract duty under Section 2(f) and Section 3 of Central Excises and Salt Act, 1944. The above said ratio applied to the facts of this case and applying the said ratio the impugned order has to be set aside by allowing the appeal.
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1991 (5) TMI 175 - CEGAT, BOMBAY
Demand - Remission of duty ... ... ... ... ..... om the duty liability, he is also interested in realising the value thereof. Molasses, being subject to State Excise control and the goods get deteriorated, if they are not cleared in time they have become unfit for marketing or for consumption. Once they become unfit for marketing or consumption before its clearance, 2nd proviso to Rule 49 would be squarely applicable and it is incumbent on the proper officer not to demand duty. But he is at liberty to prescribe such conditions as may be imposed for ensuring that the goods claimed to be unfit for marketing do not go into consumption. Though, the wording used in the proviso is lsquo may rsquo , when there is no allegation that the goods are marketable and the manufacturers also seeks for permission to destroy, the proper officer cannot demand duty. Such a view has also been held by us in another similar case. Hence, the appeal is required to be allowed. We, therefore, allow the appeal and set aside the order of the Collector.
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1991 (5) TMI 174 - CEGAT, NEW DELHI
Samples - Drawal of for test for verifying denier of nylon yarn on which rate of duty dependent
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1991 (5) TMI 173 - CEGAT, NEW DELHI
Manufacture ... ... ... ... ..... he judgment of Bombay High Court in Garware rsquo s case was pronounced on 7th December, 1990 and has taken into account all the case law on the subject till the hearing of that case. The High Court has concluded that there was no material which would show that as a result of lacquering/metallising of polyester film, any new distinct commercial commodity, comes into existence having different identity or name. In view of this conclusive finding of the High Court, it is evident that the activity of metallising/lacquering undertaken by the appellants could not be said to have constituted the process of manufacture as understood in the Central Excise Law. This being so, the proceedings initiated against the appellants by the Central Excise authorities culminating in the passing of the impugned order cannot be sustained. In this view of this matter, and, following the decision of Garware rsquo s case, we set aside the impugned order and allow the appeal with consequential relief.
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1991 (5) TMI 172 - CEGAT, NEW DELHI
Capital investment on plant & machinery ... ... ... ... ..... is seen that the adjudicating authority has held that in the appellants rsquo case the factory and the industrial unit have to be deemed as one and the same. He has also held that the appellants are engaged only in the manufacture of items falling under Item 68 of the Central Excise Tariff. He has, however, not given any finding in regard to 130 electric motors which according to the appellants were excludible while computing the investment on plant and machinery. Since the dispute in respect of these items persists, we would have been inclined in the normal course to remand the matter to the Collector with the directions to give his clear findings on each of the points on the basis of the facts. However, on account of the long and tour-tous history of the case and also in view of our findings in this order, we are of the view that further examination of these points is not necessary. 17. In view of the foregoing, we set aside the order appealed against and allow the appeal.
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1991 (5) TMI 171 - CEGAT, NEW DELHI
Refund - Customs ... ... ... ... ..... or exemption under Notification 228/76. In such a view of the matter, there is no reason to interfere with the order passed by the lower authorities because the eligibility for exemption under Notification 71/71 is not supported by test result or by factual data regarding whether the goods were flexible or rigid, and because the claim for Notification 228/76 never formed part of the original refund claim at all, and was raised only during the de novo proceedings, and the scope of such de novo proceedings was confined to the consideration of the evidence of the certificate from the Central Excise authorities regarding the non-availment of proforma credit, and there was no direction in the de novo order for considering exemption under Notification 228/76, and a perusal of the Collector (Appeals rsquo ) order of remand also shows that no such ground was taken even before that authority. In the circumstances, there is no substance in the appeals, which are, accordingly, rejected.
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1991 (5) TMI 170 - CEGAT, NEW DELHI
Classifcation ... ... ... ... ..... this basis it has to be held that specific mention of dies for wire drawing and extrusion dies for metal after the word lsquo including rsquo in Heading 82.05 was only to remove doubts about these items being covered by the main part of the Heading. 11. We also find sufficient force in the appellant rsquo s claim that on the analogy of spinnerets for extruding man-made fibres and dies for drawing glass fibre which are excluded from the scope of Heading 82.05 in terms of CCCN. Explanatory Notes to this heading, dies for plastic extruders for the manufacture of plastic tapes would be classifiable as parts of extruders. 12. We, therefore, hold that the dies in question were classifiable under Heading 84.59(2) as parts of plastic extruders for the manufacture of plastic tapes and could not be deemed as interchangeable tool for machine tools. 13. In view of the foregoing, the appeal is allowed and the order appealed against is set aside with consequential relief to the appellants.
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1991 (5) TMI 169 - CEGAT, BOMBAY
Confiscation and redemption Fine ... ... ... ... ..... hat it is not powder. In this view of the matter, the order of the Deputy Collector is sustainable, holding the goods as not covered by Appendix 6 List 4 of AM 84-85 Policy, but the respondents rsquo pleadings cannot also be altogether dismissed, mainly because the goods imported are admittedly of non-jewellery quality and there is no dispute on this by the department. The goods are in the form of broken pieces of irregular shapes and sizes. The goods, after clearance, are found to have been supplied to an Ayurvedic Drugs manufacturer. In this view of the matter, even as I am to restore the order of confiscation passed by the Deputy Collector, I would deem it necessary to reduce the redemption fine. Redemption fine of 100 is not called in these circumstances. Accordingly, while setting aside the order of the Collector (Appeals) and confirming the Deputy Collector rsquo s order, I reduce the redemption fine from Rs. 37,000/- to Rs. 10,000/- only and grant consequential relief.
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1991 (5) TMI 168 - CEGAT, NEW DELHI
Adjudication ... ... ... ... ..... t comes to the notice of the Department subsequent to clearance that such clearance was in violation of the governing conditions therefore and seizure is effected, then though there is no bar for such seizure of the goods anywhere in India by the jurisdictional officer, the adjudication of the case will properly fall within the jurisdiction of the Customs House through which the goods were originally cleared. It is also not possible to agree that the Additional Collector having adjudicated the case on direction by the High court, such adjudication is valid because the High Court order was not per se one of conferring jurisdiction. In such a view of the matter, the view expressed by the Member (Judicial) in this case is concurred with. (K.S. Venkataramani) Member (T) FINAL ORDER In view of the majority opinion the appellants succeed on the point of jurisdiction. Accordingly all these appeals are allowed. (S.K. Bhatnagar) Vice President and (G.A. Brahma Deva) Member (Judicial)
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1991 (5) TMI 167 - CEGAT, NEW DELHI
Demand - Limitation ... ... ... ... ..... in computing the period of six months. The Assistant Collector had jurisdiction to issue the show cause notice. 19. As regards the classification of the goods, though we heard extensive arguments advanced by Shri Jain, the ld. Advocate for the appellants and Shri Chakrawarthy, we are not expressing any view as the Collector has not considered the classification on merits and remanded the same for de novo consideration to the Assistant Collector. Therefore, it is not proper for us to consider the arguments on the question of classification and give a finding in the absence of a finding by the Collector. Therefore, we are remanding the matter to the Collector to consider the issue of classification afresh, and the appellants as well as the Department is directed to produce before the Collector all the material that is produced before us along-with the miscellaneous application filed by the appellants. The appeal is, thus, remanded to the Collector for disposing it of on merits.
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1991 (5) TMI 166 - CEGAT, NEW DELHI
Reference to High Court ... ... ... ... ..... could not be relied upon because they were transferred from Police custody to Customs custody, by observing in para 8.4 that - ldquo We do not find anything in the wordings of Section 108 of the Customs Act, 1962 which prohibits serving a summon to a person under custody for the purpose of recording a statement under Section 108 of the Customs Act, 1962 . A copy of the said Order No. A/448 to 451/89-NRB dated 30-10-1989 is enclosed as Annexure-B. 4. A Reference Application made by Shri Raj Kishore Gupta under Section 130(1) of the Customs Act, 1962 requiring the Tribunal to refer the aforementioned question of law and five more questions, was rejected by the Tribunal by holding that none of the questions was a question of law arising out of the order, vide order dated the 8th May, 1990. A copy of the said order is enclosed as Annexure-C. 5. In the light of the preceding paragraphs, we refer the aforementioned Question, as directed by the High Court for its considered opinion.
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1991 (5) TMI 165 - CEGAT, NEW DELHI
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... ... ..... of a bond in such form and for such sum as may be prescribed by the Assistant Collector of Customs, binds himself to pay on demand in respect of such quantity of the goods in question as is not proved to the satisfaction of the Assistant Collector of Customs to have been used in the manufacture of drugs, an amount equal to the difference between the duty leviable on such quantity but for the exemption contained herein and that already paid at the time of importation. TABLE S. No. Description of the goods 1. ..... 2. ..... 3. ..... 4. ..... 5. ..... 6. ..... 7. ..... 8. ..... 9. ..... 10. .... 11. Acetonitrile 12. .... 13. .... 14. .... 15. .... 16. .... 17. .... 8. On a careful consideration of the submissions of both sides and a consideration of the certificate of end-use we hold that the importers are entitled to the benefit of concessional rate of duty in terms of Notification 64/79-Cus. We set aside the impugned order and allow the appeal with consequential relief if any.
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1991 (5) TMI 164 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... he production of speciality polyurethane flexible foam and thermoplastic polyurethane elastomers and fibres are based on adipic acid. The appellants, admittedly, have imported PTMAG with adipic acid and are to use it as a raw-material, for the manufacture of thermo-plastic polyurethane. Therefore, the Collector (Appeals) conclusion on a detailed consideration of textual authorities and HSN Notes that PTMAG is correctly classifiable as other polyesters meriting classification under Heading 3907.99 and not under Heading 29.05 as other Diols is well founded and is upheld. The alternate claim made is for classification under Heading 38.23 covering residual products of chemical or allied industries not elsewhere specified. This claim is also not acceptable because the product as has been pointed out by the Collector (Appeals), is not a mixture of glycols. In the circumstances, there is no reason to interfere with the order passed by the Collector (Appeals). The appeal is rejected.
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1991 (5) TMI 163 - CEGAT, NEW DELHI
Stay - Dispensation of - Pre-deposit of duty ... ... ... ... ..... of Rs. 4,98,84,151.39, it will amount to undue hardship. We dispense with the pre-deposit of the duty amount of Rs. 4,98,84,151.39. 5. During the course of arguments, the learned Advocate had made a prayer for the hearing of the appeal and remanding of the matter to the Collector of Central Excise, Delhi. Shri M.K. Sohal, learned JDR, has got no objection to the hearing of the appeal and also remanding of the matter. 6. In view of the discussion, in the foregoing paras, we set aside the impugned order and remand the matter to the Collector of Central Excise, New Delhi having jurisdiction to re-adjudicate the same in accordance with law. While re-adjudicating the matter, he will observe principles of natural justice and also grant an opportunity of personal hearing. He will see and also examine the extension of the benefit of Notification No. 3/91-Central Excise (NT) dated 30th January, 1991. Accordingly, we set aside the impugned order. The appeal is allowed by way of remand.
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