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Case Laws
Showing 121 to 140 of 310 Records
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1992 (2) TMI 211 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... ision of the Tribunal in the case of Hindustan Petroleum Corporation (supra) cited by the appellants. That decision was in respect of sludge which was formed in a bonded tank and was removed and destroyed whereas the present proceedings are in respect of sludge which was cleared without payment of duty and sold in the market. The facts of the two cases being different, the decision of the case cited by the appellants is not on all fours with the facts of the present case. 10. We notice from the order of Collector (Appeals) that he has talked of ldquo high oil content being recoverable on clearance of sludge for home consumption rdquo as the ground for rejecting the appeal. Nowhere in the Chemical Examiner rsquo s report is there any mention that oil is recoverable from sludge. The order which has been passed without reference to the facts on record and without reference to past precedents based on Board rsquo s Tariff Advice is, therefore, set aside and the appeal is allowed.
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1992 (2) TMI 210 - CEGAT, NEW DELHI
Adjudication - Jurisdiction of Collector ... ... ... ... ..... nt in adjudication proceedings under the Customs and Central Excise laws, there is a system of communicating the Order to the parties concerned and such communication can be made only of a final order signed by the adjudicating authority. Applying the principles of Surender Singh rsquo s case cited supra to orders passed in adjudication proceedings, it would be legitimate to say that the order communicated in this case would have been valid if Shri Gowri Shankar had also signed the fair copy as per his own direction recorded on 10-4-1990 in the file. Since he had only signed a draft, it cannot be said that what has been communicated was the final order. In this view of the matter, we feel that prima facie the order issued to the petitioners was not the final order of adjudication. Thus, the appellants have prima facie case and we stay the operation of the impugned order and allow all the stay applications. Misc. applications stand also disposed of in terms of the above order.
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1992 (2) TMI 209 - CEGAT, MADRAS
Rectification of mistake ... ... ... ... ..... has not been disposed of. We also take note of the fact that the statement ofManoharlal Jain does not show that he sold gold biscuits to Radhe Shyam and received money in question. Therefore, in the above factual background and considering the entire materials on record, in the interests of justice, we recall our order No. 436/1988 dated 5-9-1988 passed in appeal No. C/26/88/MAS filed by Radhe Shyam Agarwal. 7. Since the rectification of mistake application has been allowed and the order recalled, reference application C/ROM/117/89 filed by Radhe Shyam Agarwal is dismissed as not maintainable in law in the above circumstances. 8. C/Misc/387/89 filed by Manoharlal Jain for calling the currency is dismissed and this may be filed when the appeals are listed. 9. Since the order has been recalled in the above circumstances, in the interests of justice, we direct both the appeals be listed for hearing after due notice to both the parties in accordance with law. Ordered Accordingly.
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1992 (2) TMI 208 - CEGAT, NEW DELHI
Valuation- Related persons ... ... ... ... ..... tween the two parties does not cease to be one as on arm rsquo s length. Paras 6 and 7 relied upon by the learned advocate in Cibatul rsquo s case, mentioned supra, are quite apt in the facts and circumstances of this case. 5.1 Similarly, on the question whether the said M/s. VOLTAS LTD. are lsquo related persons rsquo of the appellants reliance placed by the learned advocate on the Supreme Court rsquo s judgment in the case of Atic Industries is correct in the facts and circumstances of this case. Relevant extracts have already been reproduced from the said judgment and we respectfully follow the ruling of the Apex Court and hold that the appellants and the M/s. VOLTAS are not lsquo related persons rsquo in terms of Section 4(4)(c) of the said Act. The authorities have not been able to show that the appellants have any interest in the business of the VOLTAS. Thus there is no mutuality of interest. Accordingly, we allow the appeals with consequential relief to the appellants.
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1992 (2) TMI 207 - CEGAT, NEW DELHI
Project Import ... ... ... ... ..... l expansion thereof since they do not claim it as an auxiliary equipment for registered contract. The Tribunal remanded the matter to the lower authorities for de novo adjudication. Similarly, in the case of Bharat Heavy Electricals Ltd. v. Collector of Customs, Bombay - Order No. 273-B/84, dated 10-4-1984 - it was held that it was for the appellants to satisfy the Customs authorities at the time of import and before clearance that the Project for which the goods had been imported was eligible for the concessional rate of duty. Therefore, the facts of the cases cited by the Learned Consultant are distinguishable from the facts herein and the Tribunal in the cases supra did not have any occasion to deal with the controversy in this case namely clearance at concessional rate of duty after the imported goods had been deposited in a warehouse. 5. In the light of the above discussion, we see no reason to interfere with the impugned order. We uphold the same and dismiss the appeal.
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1992 (2) TMI 206 - CEGAT, NEW DELHI
... ...
... ... ..... ication nor has the Additional Collector indicated as against which serial No. in the notification, the Central Excise duty was sought to be levied. Therefore, it has to be held that the Additional Collector was not justified in confirming the demand for short levy towards the additional Customs duty leviable under Additional Duty Rules, 1976 and this demand has therefore be set aside. 11. As regards the penalty imposed on the appellants herein on the same issue of enhancement of declared value the other appeal C/3163/90-D, the Dy. Collector has imposed only a nominal penalty of Rs. 500/- whereas in the impugned order of the Additional Collector, the penalty of Rs. 10,000/- has been imposed. The records do not disclose a deliberate strategy by the appellant for declaring a lower value and as such it has to be held that the penalty in the circumstances is harsh and it is accordingly set aside, in both the appeals. 12. The appeals are, therefore, disposed of in the above terms.
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1992 (2) TMI 205 - CEGAT, NEW DELHI
Stay of operation of order granting refund ... ... ... ... ..... onclusion as to whether the incidence of duty was passed on or not. We observe admittedly, the matter will have to be gone into indepth and arguments will have to be heard in detail to come to a conclusion with regard to passing on of the duty element to the buyers by the respondents. Prima facie, it has not been shown before us that the reasoning of the original authority was wrong nor the D.R. has distinguished the ratio of the decision of the Tribunal relied upon by the learned Collector, while granting the refund. In fact, he fairly concedes that the ratio of that decision would be applicable. 5. In view of the above, we hold that prima facie, there is no infirmity in the learned Collector rsquo s order and we find that it would not be difficult for the Revenue to recover the duty in case the decision is given in favour of the respondents. We, therefore, dismiss the stay application. It is open to the department to file an application for early hearing, if they so desire.
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1992 (2) TMI 204 - CEGAT, NEW DELHI
Project Import ... ... ... ... ..... paper making machinery and component parts thereof when goods falling under Heading 84.66 were specifically mentioned under Notification No. 61/83. Since the goods falling under Heading No. 84.66 were specifically figuring in Notification No. 61/83, it was correctly held by the High Court that auxiliary duty on the goods was leviable in terms of this Notification. 9. In view of the above discussion, we are of the view that the Multilayer Extruding Machine imported by the appellants in accordance with the Project Import Regulations, 1986 has to be deemed as covered by the Project Import Heading 98.01 even though it was assessed at the concessional rate of duty in terms of Notification No. 125-Cus., dated 17-2-1986. For this reason, in view of the specific provision under Heading 98.01 essential maintenance spares imported alongwith the machine have also to be deemed as covered by Heading 98.01. 10. The appeal is, therefore, allowed with consequential relief to the appellants.
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1992 (2) TMI 203 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... that there was any mis-statement or suppression of facts. In this view of the matter, the charge of mis-declaration cannot be said to have been established, and the orders of confiscation and penalty are liable to be set aside. We, accordingly, allow the appeal and set aside the order. The authorities may takes steps to recover the duty for the period of six months prior to the date of issue of the show cause notice i.e. 4-2-1983. 11. The appellants have made a grievance in the appeal that the show cause notice did not indicate how the amount of demand had been calculated. In the light of our order, the calculation of the duty demand will have to be made afresh and the Assistant Collector is directed to do so and clearly indicate the basis of the calculation, provide to the appellants an opportunity of being heard and expeditiously pass the order. The appellants are expected to provide such further information as may be necessary for expeditiously completing the proceedings.
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1992 (2) TMI 202 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... rits. From the copies of the classification list said to have been approved at Bombay and Ahmedabad it appears that they relate to the year 1978 and were approved without any adjudication. Whereas the present case relates to the Classification List No. NIL dated 4-5-1986 filed by the appellants consequent on the introduction of the new Central Excise Tariff Act, 1985. Even otherwise, it is settled law that there is no estoppel in law in such matter. The Department may change the classification and the only condition is that before doing so the affected party should be given an opportunity to defend. In the instant case, admittedly Show Cause Notice was issued and after usual adjudication proceedings, the product in question was classified as aforesaid. 7. In the light of the foregoing discussion and agreeing with the findings recorded by the authorities below, we do not find any substance in the arguments raised by the learned counsel. 8. In the result the appeal is rejected.
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1992 (2) TMI 201 - CEGAT, NEW DELHI
S.S.I. exemption ... ... ... ... ..... as symbol, monogram, label, signature or invented word or writing which is used in relation to such specified goods for the purpose of indicating or so as to indicate a connection in the course of trade between the said goods and some person using such name or mark with or without any indication of the identity of that person. In my view, the word ldquo Synthiko rdquo has to be treated as a brand/trade name keeping in view the definition as given in Explanation VIII of the notification. I agree with the conclusions given by the learned brother, Shri P.C. Jain, Member Technical. Accordingly, I am of the view that benefit of Notification No. 175/86-CE dated 1st March, 1986 is not available to the goods under consideration. 20. In the result, the appeal is rejected. Sd/- (Harish Chander) Vice President February 14,1992. FINAL ORDER 21. In view of the majority opinion the appeal is rejected. Sd/- (P.C.Jain) Technical Member 20-2-1992 Sd/- ( S.L. Peeran) Judicial Member 21-2-1992
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1992 (2) TMI 200 - CEGAT, NEW DELHI
Smuggling - Foreign marked gold biscuits recovered from appellant’s premises ... ... ... ... ..... tation of the goods was adduced by the department, it had made available to the Collector several circumstances of a determinative character which coupled with the inference arising from the dubious conduct of Baboothmull and Bhoormull, could reasonably lead to conclusion drawn by the Collector that they were smuggled goods. These circumstances have been set out by us earlier in this judgment. We may recapitulate only the most salient among them. 20. The learned Collector has imposed a penalty of Rs. 5,000/-. The value of the gold seized is Rs. 2,26,000/-. Therefore, the penalty imposed is not on the higher side. I do not see any reason to interfere with the order. There is no merit in the appeal and the same is rejected. 21. The appellants have filed G-38/87 under Gold (Control) Act. The appellants have not been charged under any provisions of the Gold (Control) Act nor there is any order under the Gold (Control) Act. Therefore, this appeal is infructuous and it is rejected.
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1992 (2) TMI 199 - CEGAT, NEW DELHI
Aluminium extrusions manufactured from duty paid aluminium ingots/billets ... ... ... ... ..... ixed with non-duty paid pig iron, the set off cannot be refused on the ground that non-duty paid material has also been used, and further reaffirmed the view in the case of Aluminium Corpn. of India Ltd. v. Union of India 1978 (2) E.L.T. (J 452) observing that if the Notification does not exclude from exemption altogether manufacture made partly out of duty paid and partly out of non-duty paid crude, the exemption cannot be denied on the reasoning that the sheets, circles, etc. had not been manufactured wholly, and solely out of duty paid slabs (para 11). Following the ratio of the aforesaid decisions, we hold that benefit of exemption cannot be denied in terms of Notification No. 271/82 dated 13-11-1982 on aluminium extruded shapes and sections. Since we are allowing the appeal on this issue, we do not feel it necessary to go into other issues raised by both sides. 12. In the result, we set aside the impugned order and accordingly appeal is allowed with consequential relief.
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1992 (2) TMI 198 - CEGAT, NEW DELHI
Interpretation of statute ... ... ... ... ..... hould go back to the Tribunal for final decision. The Tribunal, when finally disposing of the appeal, may, no doubt, allow other points to be raised before it, if they consider it proper. The third Member, however, can only answer the point or points that were referred to him for decision and on which there was a difference of opinion. 26. In view of these observations, the argument of the learned advocate for granting benefit for 33 which passed through the sieve 16 test cannot be accepted. Ac accordingly, I am of the view that Ammonium Nitro Phosphate imported by the appellants is not eligible for the benefit of duty exemption in terms of Notification No. 115/73-Cus., dated 11th August, 1973. I agree with the views of Shri G. Sankaran, the then President. 27. In the result, the appeal is dismissed. Sd/- (Harish Chander Vice President February 10,1992 In view of the majority opinion, the appeal is dismissed. Sd/- (K.S. Venkataramani) Member (T) Sd/- (S.L. Peeran) Member (J)
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1992 (2) TMI 197 - CEGAT, NEW DELHI
Machines for manufacturing audio cassettes ... ... ... ... ..... or assembling of cassettes to suit the tailor made. We find on the leaflet that it was specifically mentioned that under the heading Automatic Compression Revetters with Quick Return Mechanism - innovative Screw Driving Machine specially designed for magnetic tape cassette and full automatic mechanism with effective connection. Rejection by the Collector was not based on valid reasons nor was substantiated. In view of this technical literature and since it was not disputed that machine could be used for manufacturing Audio Cassettes and in the absence of evidence to show that it could be used for general purpose, we do not find any justification in classifying the items in question under general category of 84.59(1). In the view we have taken it would be more appropriately classifiable under Heading 84.59(2) as it was rightly argued by the Counsel for the appellants. 7. In the result, we set aside the impugned order and accordingly appeal is allowed with consequential relief.
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1992 (2) TMI 196 - CEGAT, CALCUTTA
Import control - Plastics ... ... ... ... ..... In such circumstances by no stretch of imagination, can it be held that ABS Powder included A.B.S. Extrusion Granules also. In that view of the matter, we hold that A.B.S. Moulding Powder and A.B.S. Extrusion Granules are not one and the same commodity during the relevant period for the purposes of the Import Policy of 1985-86. In the result, we are of the view that the Finding of the Adjudicating Authority that A.B.S. Moulding Powder and A.B.S. Extrusion Granules are one and the same commodity, is not sustainable in law and we accordingly set aside the order of the confiscation of the impugned goods and the imposition of redemption fine of Rs. 2,50,000.00 (Rupees two lakhs fifty thousand only). In view of our finding that it is not established that the goods are imported unauthorisedly we also set aside the penalty of Rs. 50,000.00 (Rupees fifty thousand only) imposed on the appellants. The appeal is thus allowed and the appellants are entitled to the consequential reliefs.
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1992 (2) TMI 195 - CEGAT, MADRAS
Rectification of mistake ... ... ... ... ..... Deputy Purchase Manager of the appellant company brings to our notice that a substantial amount of Rs. 5,39,040.70 is involved in the appeal and we should confess that we are surprised at the casualness with which the entire matter is being dealt with by the appellant which happens to be a Public Sector Organisation notwithstanding the fact that a substantial sum of money is involved. We cannot help observing that a Public Sector Organisation like the Appellant has lost a valuable right of appeal by sheer laches on its part. rdquo We do not find any jurisdictional error at all as contended by the Ld. Counsel. Assuming for the purpose of argument it is a jurisdictional error, the Tribunal cannot commit another jurisdictional error and exercise jurisdiction. Be that as it may, the petition filed as one purporting to be for rectification of an error apparent on the face of records, in our view, is totally misconceived in law. In this view of the matter the petition is rejected.
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1992 (2) TMI 194 - CEGAT, NEW DELHI
Stay/Dispensation of predeposit of duty ... ... ... ... ..... exported as they were detained and subsequently confiscated by the Customs Department and the matter is still under consideration of the Tribunal on one hand and on the other the bond taken by the Excise Department was still said to be alive (as per by the learned counsel) there is no cause for requiring either pre-deposit of duty or realisation thereof at this stage. In fact, the Collector himself could have used his discretion and granted extension subject to appropriate conditions. 6. In the above circumstances, we grant waiver of pre-deposit of the amount in question and stay recovery thereof till pendency of the appeal subject to the condition that Export Bond given by the appellants to the Excise Department is kept alive and in full force during the pendency of the appeal. In case by chance the bond has expired, the appellants would be required to give fresh bond on the same terms and conditions, subject to the satisfaction of the Collector, for duration of the appeal.
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1992 (2) TMI 193 - CEGAT, MADRAS
Demand - Limitation ... ... ... ... ..... uct would be covered under a particular heading and not by general observation that going by the trade parlance and it has to be shown that the items manufactured by the appellants are parts of Air Conditioning and Refrigerating machinery with reference to the manufacture. We also observe that the authorities themselves were in doubt in regard to the classification of the items which would pass muster as the Air Conditioning and Refrigerating machinery parts. We, therefore, hold in view of the above that the learned lower authority has not applied his mind in depth and has not examined the issues with reference to the specific pleas put forth by the appellants. The learned lower authority rsquo s order is therefore not a proper one. In view of the above, we set aside the impugned order and remand the matter to the learned lower authority for reconsideration in the light of our above observations, after affording the appellants an opportunity of hearing in accordance with law.
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1992 (2) TMI 192 - CEGAT, NEW DELHI
Adjudication - Defective ... ... ... ... ..... Notice was issued at all before confirming the demand and in this premises, it was held that even the case is remanded no useful purpose would be served because the maximum time limit of five years for raising the demand under Section 11A of the Central Excises and Salt Act, 1944 has already expired. This is not the case here. Thus, for the reasons mentioned by the learned Technical Member in his proposed Order, which I need not repeat here, since I am agreeing with him, I answer the question referred to me as follows - ldquo In the facts and circumstances of the case, the case requires to be remanded as proposed by Shri S.K. Bhatnagar, V.P. (J) (then Member-Technical) rdquo . 14-1-1992 Sd/- (G.P. Agarwal) Member (J) FINAL ORDER 30. In view of the majority opinion, the matter is remanded to the adjudicating authority for de novo consideration in accordance with law and our observations. Sd/- (S.K. Bhatnagar) Vice President Sd/- (G.A. Brahma Deva) Member (Judicial) 06-02-1992
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