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Case Laws
Showing 81 to 100 of 285 Records
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1992 (3) TMI 220 - CEGAT, NEW DELHI
‘Ocean going vessels’ includes drill ship “Sagar Prabhat” of ONGC ... ... ... ... ..... een that the notification includes in the Explanation thereto certain types of vessels like tugs, dredgers, fire-floats, floating factories of all kinds for processing whales or for preserving fish etc. These vessels may not be considered as ocean-going vessels if one were to apply the ratio of the Supreme Court decision which is to the effect that the vessel will be an ocean-going vessel depending upon its primary intended use whether for home consumption or as ocean-going vessel per se. In this view of the matter it has to be held that the goods imported for the repair of the drill ship ldquo Sagar Prabhat rdquo are eligible for exemption under Notification 211/83 in the light of the extensive definition of the term lsquo Ocean-going vessel rsquo for the purposes of the exemption under that notification as contained in the Explanation thereto. There is, therefore, no reason to interfere with the order passed by the Collector (Appeals) and the Appeal is accordingly rejected.
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1992 (3) TMI 219 - CEGAT, NEW DELHI
Undervaluation ... ... ... ... ..... ll the relevant factors about the use to which it has been put and the further life that a second-hand machine would have. In fact no mention has been made by the Assistant Collector as to how much further life these machines have. We are also inclined to agree with the learned Advocate that the Assistant Collector has assumed here the role of an expert in evaluating second-hand machines, which he is not. He has, therefore, fallen into an error in imposing his own judgment, while adjudicating the case on the basis of his own opinion, without disclosing the said opinion in a show cause notice. We also note that the appellant on the other hand has produced a certificate from a Chartered Engineer, though based in India, about fairness of the declared value. In view of the aforesaid discussion, we are of the view that enhancement in value by the Department is arbitrary and without any cogent evidence. Accordingly, the appeal is allowed with consequential relief to the appellants.
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1992 (3) TMI 218 - CEGAT, NEW DELHI
... ...
... ... ..... ial whether the duty paid on inputs is from PLA or from RG 23 Part II, for in either of the cases it should be taken into account for calculating the credit amount available as incentive under Notification No. 116/84, dated 11-5-1984. Thus, we hold that the respondents were entitled for the benefit of the said Notification. 5. Before we part, it may be stated that Smt. Ananya Ray, learned SDR, also made a positive prayer that the case be remanded to the Collector (Appeals), since she has not dealt with the said issue specifically. To which it was submitted by the Assistant Manager of the respondents rsquo Co. that since the law is clear it would be futile to remand the case to the Collector (Appeals). Keeping in view the said settled position, we thought it proper to decide the issue ourselves instead of remanding the case to the Collector (Appeals). 6. In the result, both the appeals are rejected being devoid of any merit. Cross objection also stands disposed of accordingly.
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1992 (3) TMI 217 - CEGAT, NEW DELHI
... ...
... ... ..... toms authorities under different tariff headings at the highest rate. The first item is ldquo Bellow for Hydraulic Speed Governor rdquo and in the B/E it is shown as ldquo Spares for Siemens Turbine 1550 KWT-1960 having part No. 43, Drawing No. JB-1899-0925. The fourth item in the Bill of Entry is lsquo Turbine Thrust Bearing rsquo turbine front journal bearing and turbine rear journal bearing. The customs have assessed them under Heading 83.01/15(2) and 84.63(2). The appellants by this application are seeking reassessment of the goods under Tariff Heading 84.04/05 on the ground that they are spares and they are easily recognisable as parts of steam turbine. 12. We reject the above application as the assessment was made long time back and the assessee has not filed any appeal against the assessment. If at all any remedy is available, they should have gone in appeal to the Collector. This is not the forum to challenge the assessment order. Therefore, we reject the application.
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1992 (3) TMI 216 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... etween the functions of lsquo fastening rsquo and lsquo fixing rsquo in respect of a lsquo nut rsquo so as to justify classification of tie bar nuts differently from other nuts on the basis of its function . In the Elecon Engineering case decided by the Tribunal (supra), also the above two Supreme Court decisions have been followed and it was held that the finding of a fact cannot be reversed by appellate authority without fresh facts being brought on record. It is also not possible to accept the argument that the Asstt. Collector cannot change an approved classification because it is now well settled that such a modification is permissible within the ambit of Section 11A Central Excises and Salt Act, 1944. Therefore, there is a lot of substance in the Appeal of the department. The goods in the present case will be classifiable under Item 52 CET read with its explanation which specifically covers screw hooks. The impugned order is, therefore, set aside and the appeal allowed.
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1992 (3) TMI 215 - CEGAT, NEW DELHI
... ...
... ... ..... -2-1991 to the Asstt. Collector, the appellants have said that the Asstt. Drugs Controller in the Bombay Custom House on testing the sample of the product confirmed that the lactose conforms to the standard laid down in Homeopathic Pharmacopoea of India and that ADC Bombay has also written to ADC Delhi that the sales of lactose should be monitored by ADC Delhi and reported to ADC Bombay. The Collector (Appeals) has in his order also observed that the Custom House could verify end-use through the ADC. In such circumstances, we hold that the order of the Collector (Appeals) prescribing end-use bond as a measure of abundant caution that the exemption is not misused, cannot be considered unreasonable. We will only direct that the appellants in executing the bond should not be bound to account for sales beyond the first sale from them to a party. In this we also bear in mind the monitoring of sales by Asstt. Drugs Controller, Delhi. 4. The appeal is disposed of in the above terms.
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1992 (3) TMI 214 - CEGAT, NEW DELHI
Demand - Limitation ... ... ... ... ..... recourse is sought to Rule 10A on the ground that there was suppression of facts on the part of the respondents. We do not know how the latter argument is at all admissible, unless in the first instance, it is accepted that the amount in question relates to duty refunded. So far as the nature of rebate is concerned, this Tribunal had repeatedly held that rebate is nothing but refund of duty. (Collector of Central Excise, Chandigarh v. Malva Sugar Mills Co., Dhuri - 1986 (23) E.L.T, 144 (1985 ECR-2487-CEGAT) and Collector of Central Excise, Allahabad v. M/s. Tulsipur Sugar Co. Ltd. - 1987 (12) ECR 1210). In view of these findings, we uphold the decision of me Collector (Appeals) that the demand of duty in this case is barred by limitation. 4. In view of the above discussions, we hold that the demands were hit by limitation. It is, therefore, not necessary for us to go into further merits of the case. The appeal is, therefore, allowed for consequential relief to the appellants.
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1992 (3) TMI 213 - CEGAT, NEW DELHI
Demand - Limitation ... ... ... ... ..... -3-1985. However, it has been held by this Tribunal in its order No. C/530/91-D, dated 31-12-1991 in the case of M/s. C.L Jain Hosiery Mills v. Collector of Customs, Bombay that giving notice is not complete unless it reaches the person concerned and where the less charge demand has not reached the importer concerned within six months the notice is barred by limitation. In giving this decision, the Tribunal had not accepted the plea of the Department, that the less charge demand notice had been served on the Customs House Agent on the date of its issue. In the present case also, it has not been shown by evidence that the show cause notice under Sec. 28 for short levy had been served on the respondents importer within limitation and mere serving them on Customs House Agent, being not sufficient following the ratio of the above-cited present Cegat decision, there is no reason to interfere with the impugned order of Collector of Customs (Appeals), Bombay. The appeal is rejected.
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1992 (3) TMI 212 - CEGAT, NEW DELHI
Manufacturer ... ... ... ... ..... son without the customer giving any technical guidance or supplying raw materials or labour provided for the manufacture of such goods and in the absence of any further processing being undertaken by the appellants herein they cannot be treated as manufacturers of the goods. Therefore, no duty liability on the goods manufactured by M/s. Rainbow Ribbons would fall on the appellants herein. On the same analogy, Shri Mukherjee points out that they cannot be treated as manufacturer of the goods in the present case. He, therefore, urges that the appeal be allowed. 2. Shri Prabhat Kumar, learned JDR reiterates the findings of the lower authorities. 3. We have carefully considered the pleas advanced on both sides. It is well settled position in law now by a series of judgments of the Supreme Court that the brand name owner is not the manufacturer of the goods, that these are manufactured by another person. Accordingly, we allow the appeal with consequential relief to the appellants.
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1992 (3) TMI 211 - CEGAT, BOMBAY
Confiscation and Penalty ... ... ... ... ..... d by the East Regional Bench, and even the North Regional Bench in Re Sat Pal (Supra) has taken a contrary view. In any case, we are bound to follow the decision of the Bombay Court, in preference to the one of the Tribunal. 16. Yet another technical objection is also raised, namely non-service of Show Cause Notice to the firm which has claimed the diamonds. Notice to both the partners was duly served and as such, there was a substantial compliance for issue of notice, and when both the partners have received the notice non-serving the same separately in the name of the firm, would be only a technical lapse. 17. Thus the objections raised cannot be made available for any benefit to the appellant, who otherwise is duly proved to have contravened the provisions and hence I hold that there is no merits in the appeal. There is also no ground to extend any leniency in the order of the Authority below. 18. I therefore concur with the final order as proposed by Brother R. Jayaraman.
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1992 (3) TMI 210 - CEGAT, NEW DELHI
Additional evidence ... ... ... ... ..... observed in para 4 of the order that lsquo the question whether a manufacturer was availing of the exemption would depend upon whether it was liable to avail of the exemption on the basis of the conditions set out in any of the notification listed in para 4(b) rsquo . The Bench was having all the material facts regarding clearances which had not been denied by the department and basing on those figures had upheld the assessee rsquo s contentions. In this case, the learned Collector has proceeded to base his findings solely on the letter he has received from the Jt. Director of Industries informing him about the cancellation of the registration. Now that the assessee has produced the three noted letters, the matter requires to be remanded to the Collector (Appeals) to consider the case afresh in the light of the fresh documents produced and also in the light of the ruling of Accura Industries case. 8. The appeal is remanded to the Collector (Appeals) for de novo consideration.
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1992 (3) TMI 209 - BEFORE THE COLLECTOR OF CENTRAL EXCISE & CUSTOMS (
Classification ... ... ... ... ..... ve remanded the matter back to the lower authorities because it would have been classifiable under any other item i.e. Item No, 11A or B as the case may be and it is only the proper officer who is having jurisdiction over the respondent can classify the product and pass necessary orders in the matter. By doing so the Collector (Appeals) has exceeded his jurisdiction. This contention hardly requires any discussion because when the classification matter comes in appeal the Appellate Authority has to decide the matter and that is exactly what the Learned Collector (Appeals) has done. rdquo 18. Having settled the classification of the impugned products, I order that the Assistant Collector shall determine the differential amount of duty, if any, payable by the Appellants in terms of classification as ordered here-in-before after issue of a show cause notice to the Appellants as mandatorily required under Section 11 A of the Central Excises and Salt Act, 1944. Ordered accordingly.
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1992 (3) TMI 208 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... taken into consideration only when the two sub-headings 5504.31 and 5504.32 under section note ldquo yarn in which acrylic or modacrylic staple fibre predominates by weight rdquo , is not satisfied. The goods having satisfied all the conditions of Heading 5504.31 cannot be taken out from it and classified under Heading 5504.39 by a mere presence of a small quantity of natural fibre cellulosic and non-cellulosic, so long as the goods have the predominance of synthetic staple fibre in the form of waste or in the form of fibre produced out of such waste. The ruling relied by Shri Nair, DR in the case of Doypack Systems (P) Ltd. (supra) does not deal with this tariff entry and it deals to an interpretation of the provisions of Swadeshi Cotton Mills Ltd. (Acquisition and Transfer of Undertakings) Act, 1986. Therefore, this ruling is of no help to determine the facts of the present case. In view of the finding given by us, the assessee succeeds on merits and the appeal is allowed.
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1992 (3) TMI 207 - CEGAT, NEW DELHI
Valuation - Normal price ... ... ... ... ..... gnment agents. It is only the price in respect of industrial consumers alone that is established at the factory gate under Section 4(l)(a) by virtue of sales by the appellants to the industrial consumers. The price to other classes of buyers was not established and the sales to such other classes of buyers has been made for the first time by the consignment agents at a higher level. Therefore, the 1st proviso to Section 4 comes into play at once inasmuch as there are different prices of the assessee for different classes of buyers. Hence, the prices charged by the consignment agents of the appellants to Trading Corporations, which form a class different from that of industrial consumers, would form the basis of value in respect of sales to such Trading Corporations/Concerns. 21.3 As observed by the learned sister in para 19 that since the position is not clear, the matter is remanded to the Collector to predetermine the assessable value in the light of the above observations.
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1992 (3) TMI 206 - CEGAT, MADRAS
S.S.I. Exemption ... ... ... ... ..... rity, in spite of a claim having been made in this regard, has not given a factual finding on fact as to whether the appellants were in fact availing of this exemption in the previous years. We observe that the judicial process of adjudication before administrative authority can be meaningful only if all the norms of judicial propriety are observed and first among the norms in dealing with all the pleas in depth as otherwise the whole exercise will become infructuous and no finality can be reached at the appellate stage. In the present case we find that so far as the facts of availing of the exemption in the previous years is concerned the learned lower authority has not given any finding and if this is found to be correct the appellants would be eligible for the benefit of the exemption notification. We, therefore, have to remand the matter for the limited purpose for the authorities to verify this fact and to pass consequential orders in the light of the observations above.
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1992 (3) TMI 205 - CEGAT, NEW DELHI
Valuation - Estoppel ... ... ... ... ..... e rejected the invoice value of Japanese Yen at 3.10 as the invoice is more than one year and the said price is for organ brand whereas the imported goods are not branded at all. He also found that the imported goods are of inferior quality when compared to the organ brand needle. In view of the findings of the Collector on physical examination of the goods we have to hold that the department failed to establish that the price of identical or similar goods are imported at higher price than the price at which the appellants have imported the goods. In the absence of imports at higher price of identical or similar goods there is no other go except to accept the transaction value. We, therefore, hold that the assessable value should be on the basis of transaction value. 17. Since we are accepting the transaction value the question of levy of penalty and confiscation of goods does not arise. 18. The appeal of the importer is allowed and the Department rsquo s appeal is dismissed.
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1992 (3) TMI 204 - CEGAT, CALCUTTA
Appeal by Department ... ... ... ... ..... ground of principles of natural justice taken by the Collector in his authorisation. The said ratio is equally applicable in the present case. While the grounds stated in the appeal are within the parameters of the authorisation given by the Collector, that does not, however, entitle the appeal to consideration on the grounds stated therein, namely the grant of higher notional credit in respect of Special Excise Duty also, it may tantamount to allowing more credit than what is leviable under the Finance Act. This is not the ground on which the Collector (Appeals) had decided the appeal. Instead, he had decided it on the question of time-barred nature of the demand. The ground taken up in the appeal has to be considered in the light of the applicability of time bar against the demand, which had been decided by the Collector (Appeals) against which aspect, no objection had been taken up in the appeal. Accordingly I find no merit in the appeal. I, therefore, dismiss the appeal.
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1992 (3) TMI 203 - CEGAT, BOMBAY
... ...
... ... ..... her than a person drawn from the department and empowered to adjudicate, and when the department feels the record submitted to be sufficient enough to make their stand clear, may not choose to make further personal representation, as the authority adjudicating is bound to look into the same, but that by itself, cannot be taken as the one which indicates that they have no right to representation. 26. This being also the position, it is not possible to accept the plea that the department has no right to be represented, and when the right of representation exists and specifically demanded, the adjudicating authority would be justified in allowing the same, and when Section 35Q of the Act permits representation through a lawyer also, the order of the adjudicating authority cannot be held as bad in law. 27. The appeal, thus merits no consideration and hence I concur with the finding as proposed by my learned brother Shri R. Jayaraman, Member (Technical) that it has to be rejected.
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1992 (3) TMI 202 - CEGAT, NEW DELHI
... ...
... ... ..... , learned JDR, has nothing to comment. 3. We have considered the submissions. It is an admitted fact on the record that the only ground for raising the demand of differential duty was not approved by the Collector (Appeals) in his Order. If that is so, the Collector (Appeals) had no jurisdiction to make out a new case for the Department for confirming the demand. That apart, on merits we also find that if the goods were cleared by the Department after payment of duty as assessed by it, the appellants cannot be blamed for that and for the same reasons the demand cannot be confirmed. It is on the record that as per Invoice the imported goods were Thermo graphic Powder. In the case of Collector of Customs, Bombay v. M/s. Law Publishers, Allahabad, supra, this Tribunal held that the Thermo graphic Printing Powder are assessable under Heading No. 32.13. 4. Thus following the ratio of the said judgment delivered by the Tribunal we allow the appeal with consequential relief, if any.
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1992 (3) TMI 201 - CEGAT, NEW DELHI
Appeal by Department ... ... ... ... ..... uation. The department ought to make out a case for undervaluation with sufficient evidence and to prove that value shown in the invoice was not the real value. There is no evidence to show that similar goods were sold at higher price or that the collaborators acted as agents to the foreign suppliers in getting commission or due to their services resulted in reduction of value. Further payment made to the collaborators for transfer of technical know-how and such lump sum payment was made to their services where it is not possible for that reason to allocate the charges to individual consignments imported through them, no notional value can be added to the invoice value on account of buying commission or handling charges as it was rightly dealt with in the impugned order. We do not find any infirmity in the impugned order. 5. In the light of above we uphold the impugned order and, accordingly, the appeal is dismissed as it was already pronounced in the open court on 17-3-1992.
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