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Case Laws
Showing 101 to 120 of 242 Records
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1993 (4) TMI 155 - CEGAT, NEW DELHI
Appeal - Additional evidence ... ... ... ... ..... evidence to substantiate their case in accordance with law. We further order that re-adjudication will be done within three months from the receipt of this order. 11. In view of the above discussion, we set aside the impugned Order and remand the matter to the adjudicating authority having jurisdiction to re-adjudicate the matter in accordance with law. Both sides are at liberty to adduce fresh evidence in accordance with law. While re-adjudicating the matter, the adjudicating authority shall observe principles of natural justice and shall also grant personal hearing. It is further directed that the adjudicating authority shall verify the genuineness of the additional evidence filed before the Tribunal. 12. Since we have remanded the matter to the adjudicating authority and as such we are not touching other merits of the matter. In the result, the application for grant of permission for admission of additional evidence is allowed. The appeal is also allowed by way of remand.
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1993 (4) TMI 154 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... e issue of classification whether the item in question is classifiable under Heading 8431.00 as claimed by the appellants or it was held by the Department that this was classifiable under Heading 4009.92. We observe that Heading 40.09 refers to Hose assembly other than hardened rubber and in this case, whether the product was made of unhardened rubber or hardened rubber was neither considered nor dealt with in the impugned order as it was pointed out by both sides. Accordingly, we are of the view that this matter will have to go back for re-consideration on this limited issue to the concerned Collector (Appeals). Collector (Appeals) is directed to examine this issue particularly with reference to the product whether it was made of hardened rubber or unhardened rubber and in the light of the decision of the Tribunal in the case of Aerolex Hose Pvt. Ltd. (supra) may decide the issue after giving an opportunity to the appellants. 9. Thus, these two appeals are allowed by remand.
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1993 (4) TMI 153 - CEGAT, NEW DELHI
Demand - Limitation ... ... ... ... ..... emand of duty on 7.265 reams of self-copying paper valued at Rs. 3,409.80 found short in the Bonded Store Room and also the order holding the unaccounted 1236 rolls of self-copying paper valued at Rs. 25,89,894.00 as liable to confiscation under Rule 173Q. The order confirming the demand of duty of Rs. 1,99,151.00 on printing charges incurred on duty-paid self-copying paper during the period 15-7-1987 to 24-11-1988 is, however, set aside. We also set aside the penalty of Rs. 1 lakh each on three Directors of the company and the penalty of Rs. 25,000/- on the Administrative Officer. Having regard to our findings and the overall facts and circumstances of the case, we reduce the redemption fine in respect of the confiscated 1236 rolls of self-copying paper weighing 47,668 kgs. from Rs. 6,47,473.50 to 1,00,000.00 (Rs. one lakh only) and the penalty on the appellants from Rs. 2,00,000.00 to Rs. 50,000.00 (Rs. fifty thousand only). 13. The appeal is disposed of in the above terms.
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1993 (4) TMI 152 - CEGAT, NEW DELHI
Demand - Show Cause Notice ... ... ... ... ..... g the assessment, in fact, no grounds had been given and hence we cannot presume that the Department could have been having in their mind this ground for reopening the assessment. When the reasons are not spelt out in clear terms in the show-cause notice for rejecting the claim for the benefit of the notification claimed by the importer then it would be reasonable to hold that the show-cause notice is vague and unsustainable. As rightly contended by the ld. Consultant, we find the appellate authority has also gone beyond his jurisdiction in giving a finding that the appellant had not satisfied the terms of the notification. We also note that the appellate authority has not given any reasons for rejecting the DGTD certificate and end use certificate placed by the importer in the first instance. Hence the reasons given by the ld. Collector is also not sustainable in law. In the result the importers contentions requires to be accepted by allowing the appeal we order accordingly.
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1993 (4) TMI 151 - CEGAT, NEW DELHI
Rectification of mistake ... ... ... ... ..... against the order of the Tribunal. Further, it is clear that a later order of the Tribunal giving a different interpretation does not make its earlier order a mistake. In the instant case, since the issue with reference to Rule 9(2) was neither argued nor considered, it does not arise out of the order and, accordingly, it cannot be said that it is a mistake apparent from the record. It is a well settled proposition of law that a mistake which is sought to be rectified in the order of the Tribunal must be one which is apparent on the face of the record and not the one which is required to be established by a long drawn out process of reasonings or the point on which there may conceivably be more than one opinion. Since we are not convinced with the arguments advanced by the learned Counsel for the applicants on any point at issue, we do not find any merits in this application, and accordingly, application for rectification of mistake filed by the applicants is hereby rejected.
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1993 (4) TMI 150 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... im for refund of duty in case an order of assessment has been made by an officer of Customs, lower in rank than an Asstt. Collector of Customs. Admittedly, the assessment order has been made here by an Asstt. Collector of Customs. The procedure for filing a refund claim therefore under Section 27 was not available to the appellants. Therefore, the observation of the lower appellate authority in denying the benefit of additional ground taken by them before the said authority is ......... on correct facts. The appellants have followed the right procedure in making an appeal before the lower appellate authority and claiming the benefit of the notification. 6. On going through the notification, we find that it is clearly applicable to the appellants as rightly submitted by the ld. advocate in as much as the goods have been held to be classifiable under Tariff Heading 90.31. We therefore set aside the impugned order and allow the appeal with consequential relief to the appellants.
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1993 (4) TMI 149 - CEGAT, NEW DELHI
... ...
... ... ..... f after hearing the parties on merits. In the matter before us we are told that the dispute is in respect of the 7 Show Cause Notices but for calculation of the duty relating to earlier 5 Show Cause Notices has also been calculated to Rs. 44,08, 368.80. We accept the prayer of the learned DR for the remand of the matter to the jurisdictional adjudicating authority to compute the duty payable in accordance with the decision of the Tribunal which has been upheld by the Hon rsquo ble Supreme Court, Accordingly, we set aside the impugned Order and remand the matter to the jurisdictional adjudicating authority. Jurisdictional adjudicating authority shall calculate the duty in accordance with law. We further order that he will observe principles of natural justice and grant opportunity of personal hearing. Since the issue is very old, we shall appreciate if the re-adjudication is done within 3 months from the date of the receipt of the order. The appeal is allowed by way of remand.
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1993 (4) TMI 148 - CEGAT, BOMBAY
Confiscation ... ... ... ... ..... of the total import. The authority below has also taken the view that there could be no mala fide in finding the excess to this extent. All the same it remains as the excess and not declared in the Bill of Entry filed. Mala fide or otherwise would be a ground for considering whether personal penalty under Sec. 112 of the Customs Act should be imposed or not but the goods being excess to the declaration, it becomes liable to confiscation. However, considering the duty element involved, as also in the absence of mala fide on the part of the appellants, this appears to be a just case where for an unintentional lapse a strict action ought not be taken. Therefore, while sustaining the order of confiscation, the redemption fine is further reduced to Rs. 1000/- (Rupees One thousand only). With this modification the order of authorities below in relation to 290 kgs. of scrap found excess is sustained. The order of confiscation of 5 M.T. is set aside. Consequential reliefs to follow.
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1993 (4) TMI 147 - CEGAT, NEW DELHI
SSI exemption - Clearances of a proprietary firm and a limited company not clubbable ... ... ... ... ..... 2-1987 is based on the searches carried on in the premises of the appellant on 10-9-1987. After adjudication, the order was passed on 12-6-1990. We have already given our findings against the order-in-original, dated 12-6-1990 in the other appeals in our main order. The findings on various issues are noted in the order above. 39. As regards the plea of time bar, raised in this appeal, we are inclined to agree with the arguments of the learned Advocate. The impugned order itself states that the show cause notice is based on the previous show cause notice, dated 18-12-1987. The appellants rsquo premises was raided and searches carried on 10-9-1987. The Department was fully aware of all facts, when first show cause notice, dated 18-12-1987 was issued. Subsequent show cause notice passed on the previous show cause notice has been issued dearly after a period of six months and hence the demands are time barred and we therefore allow this appeal by setting aside the impugned order.
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1993 (4) TMI 146 - CEGAT, BOMBAY
... ...
... ... ..... reshipment. However, the Asstt. Collector informed vide his letter dated 1-10-1987 that their request for reshipment could be examined at the time of adjudication of the same. Subsequently, they have got the money from the bankers and import value was not paid to the suppliers. Thus from these correspondences, we are satisfied that there was no overt or deliberate action on the part of M/s. Industrial Components to give a wrong date of Bill of Lading before the Customs. Moreover, at the first point of query memo raised by the Customs authorities, even before the issue of show cause notice, they have indicated that they are only interested in reshipment, because of the violation of the L/C condition by the shippers. In view of these documents, we find that the Collector (Appeals) rsquo s finding to the effect that the penalties are not justified on the respondents M/s. Industrial Components Agencies, do not call for interference. Hence, we dismiss the appeal from the Revenue.
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1993 (4) TMI 145 - CEGAT, BOMBAY
Stay/Dispensation of pre-deposit ... ... ... ... ..... his case and since they are exempted, the notification is not available for bars and rods. If we are prima facie to be persuaded to take such a view, as pleaded by the ld. SDK, then the object of the notification extending exemption to bars/rods manufactured out of duty paid copper scrap is frustrated and such a view is not permissible at this stage, especially when the entire chapter relating to copper is covered by modvat scheme averting multiple taxation of inputs at each stage of conversion. Hence prima facie grounds appear to be strong in favour of the applicants. We have also taken a similar prima facie view in the case of the same applicants earlier. Accordingly, we direct the applicants to furnish a bond for the duty amount, within a period of 4 weeks undertaking not to dispose of their fixed assets, or hypothecate or transfer the said assets, pending final disposal of the appeal for furnishing such a bond, there shall be stay and waiver of deposit of the duty amount.
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1993 (4) TMI 144 - CEGAT, MADRAS
Records - Private Records ... ... ... ... ..... goods have been cleared from the appellant rsquo s godown as evidenced by the delivery challan signed by the Central Excise Inspector on 23-5-1984. It would be difficult for us to accept the contention of the learned DR that merely because the Central Excise officer has attested the document which is not statutory, the same should be ignored. We find that the Inspector of Central Excise on 23-5-1984 had made endorsement on the delivery challan as under ldquo Checked with delivery challan and ledger rdquo . In our view, the above documentary evidence should be taken into account in considering the question as to whether clearance referred to therein related to the period 1983-84 as contended by the appellant or not. Since this aspect has not been properly considered by the adjudicating authority, we set aside the impugned order and remand the matter to the adjudicating authority for reconsideration in the light of the aforesaid evidence. In the result the appeals are remanded.
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1993 (4) TMI 143 - CEGAT, NEW DELHI
Stay/Dispensation of pre-deposit ... ... ... ... ..... er - 3. We are told that the factory is closed since Dec., 1991. During the course of hearing, we enquired from the learned Advocate whether the factory is closed till this date. To the Bench rsquo s query learned Advocate stated that the factory is closed till this date and appellants are not in a position to pay this penalty and duty amount. Accordingly, keeping in view the decision of the Hon rsquo ble Supreme Court in the case of Spencer and Co. Ltd., Madras which was followed by this Tribunal in the case of Sonodyne Television Company v. Collector of Central Excise, Calcutta reported in 1985 (22) E.L.T. 582 (Tribunal), we are of the view that in case the appellants are desired to deposit the duty amount and penalty amount, it would amount to undue hardship. We dispense with the pre-deposit of the same and further order that during the pendency of the appeal, the revenue authorities shall not pursue the recovery proceedings. In the result, the stay application is allowed.
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1993 (4) TMI 142 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... t the items excluded from the Heading 28.47 and also the notes under Heading 28.47 of the CCCN. 11. In support of their case the respondents have relied on the Order No. 190/91 BCH dated 7-2-1991 passed by the Collector (Appeals). We find that in this order the Collector (Appeals) while allowing four appeals filed by the respondents had held that lsquo Calcium Tungstate rsquo as classifiable under Heading 2841 CTA,1975 mainly on the grounds that the test reports furnished by the Custom House laboratory were not found to be reliable. Hence, we are inclined to agree with the learned JDR that this order of the Collector (Appeals) cannot be of any assistance to the respondents. 12. We, therefore, hold that the imported lsquo Calcium Tungstate rsquo which was meant for the manufacture of X-Ray screens was correctly classifiable under Heading 32.04 as originally assessed. We, therefore, set aside the order passed by the Collector (Appeals) and allow the appeal filed by the Revenue.
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1993 (4) TMI 141 - CEGAT, NEW DELHI
Classification of goods ... ... ... ... ..... ition was not rebutted by the Department. Tariff Item No. 18 does not define yarn although it refers to monofilament without explanation unlike specific item under the new Tariff Entry 54.04 with Explanation. Further, this does not conform to the definition of the term yarn given in the Glossary of Textile Terms relating to the man-made fibre and fabrics industries IS 1324-1966 as it was rightly argued by the appellants. In view of the discrepancies and in the absence of sufficient prescriptive or descriptive detail of the product in question, under old Tariff Item 18, we feel that there is some ambiguity on the issue of classification. Since it becomes ambiguous and doubtful whether the item in question was classifiable under old Tariff Item 18 or not, we feel that benefit of doubt should be given in favour of the assessee as it is a rule under the fiscal statute. With this view, we set aside the impugned order and accordingly the appeal is allowed with consequential relief.
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1993 (4) TMI 140 - CEGAT, NEW DELHI
SSl units - Exemption to SSI units ... ... ... ... ..... kept the department informed that they were a unit of the Kerala State Small Industries Development and Employment Corporation Ltd. It is also noteworthy that a show cause notice dated 1-12-1983 issued to the appellants by the Superintendent of Central Excise, Trivandrum on the same grounds was later withdrawn. In fact, even the findings of the Collector in the proceedings, which have been challenged before us are in favour of the appellants. Under these circumstances we hold that there could be no charge of wilful mis-statement or suppression with the intent to evade duty against the appellants and the demand issued on 8-10-1984 for the period 6-12-1977 to 21-6-1981 by invoking the extended period of limitation was time barred. 10. The impugned order being entirely in favour of the respondents the cross-objection filed by them is not maintainable. 11. In view of the above discussion both the appeals are rejected. The cross-objection being not maintainable is also dismissed.
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1993 (4) TMI 139 - CEGAT, CALCUTTA
Demand - Modvat Credit ... ... ... ... ..... the cheaper varieties or vice versa, but this problem can be looked into with proper data being made available by the appellants. Since they are taking advantage of modvat credit and as they have to conform to the statutory requirements including the provisions of Rule 57C, they have to make available sufficient data to the authorities to the extent practicable as the same will be in their own interest rather than leave the matter to the vagaries of percentage based on value, as originally adopted by the department or on number of pairs as subsequently held by the Collector in his own adjudication order. We feel, however, that if certain inputs are generally used in the manufacture of all the varieties and sizes and varieties are different and numerous, the formula based on number of pairs may be a less reliable guide than the value criterion originally adopted. A final decision may be taken by the Collector after necessary additional data is made available by the appellants.
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1993 (4) TMI 138 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... subject goods under Heading 40.16. Repelling the contention of the importer therein, that there has been no further work carried on the rectangular rubber sheets and the mere fact that metal strips have been fixed on the edges, cannot be considered as lsquo cut to shape rsquo or lsquo further worked rsquo to be excluded from the Heading 40.08. In the instant case, as aforesaid, the imported goods ldquo Rubber Blanket Sheets rdquo were found to contain Rubber Blanket with metal bars attached to the edges. Thus, following the ratio of the said decision rendered in the case of Kerala Books and Publication Society, supra, we agree with the Assistant Collector that the subject goods are classifiable under Heading 40.16 and not under Heading 40.08. 5. In the result, we allow the appeal and set aside the impugned Order- in-Appeal and restore the Order-in-Original passed by the Assistant Collector. In this view of the matter, no Order is required to be passed on the Stay Application.
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1993 (4) TMI 137 - CEGAT, BOMBAY
Modvat Credit ... ... ... ... ..... pex Court in the case of Collector of Central Excise v. Ballarpur Industries -1989 (43) E.L.T. 804 (S.C.) (vide Para 5) have held that the valid test to be applied is whether the ingredient is essential for the chemical process culminating in the emergence of the final product desired. Having regard to its importance and indispensibility for the process, if it is found necessary for chemical process, it should be regarded as an input. The relevant test is not the presence of the input in the final product. Applying this test laid down by the Apex Court, we find that in this case, liquid nitrogen is purged into the reactor vessel only for ensuring the chemical reaction to take place for obtaining the desired final product. It is not an item required for operational need of the reactor vessel. It is a consumable item required to be purged into the vessel for getting proper chemical reaction to achieve the final product. Hence we allow both the appeals with consequential relief.
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1993 (4) TMI 136 - CEGAT, BOMBAY
Demand - Limitation ... ... ... ... ..... d as proved to that extent, also does not appear convincing inasmuch as, for all the earlier periods this was the practice followed by the appellants with due declaration before the authority and mere not filing an RT 12 Return for the month of November before detection, would not tantamount of an act of suppression of the fact which was already known to the department much before the same. In that case, that argument does not appeal to me to hold that the demand restricted to a particular period be held as within the extended period of limitation. 7. With specific observation of the adjudicating authority that the in-voices were submitted alongwith RT 12 Returns to the department, the reasonings adopted by him in invoking the extended period are not sustainable under law. The demand is beyond a period of six months and the extended period is not available and hence the same cannot be raised. The order raising the demand is therefore set aside. Consequential relief to follow.
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