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Case Laws
Showing 81 to 100 of 272 Records
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1993 (7) TMI 206 - CEGAT, DELHI
Stay/Dispensation of pre-deposit ... ... ... ... ..... tirety. 5. emsp We are satisfied on hearing the learned Counsel that the applicant has made out a strong prima facie case for waiver - the Department has not prima facie adduced any evidence to prove that the goods exported by Rajdhani Electronics were different from what was actually declared. We also find that the consignments were examined before the drawback was allowed and we also note that the enquiries with the consignee in Singapore have not culminated in any report against the applicant. It is only in the event of the Department being able to establish that the goods exported were not of the declared description, that the question of contravention of Section 76(i)(b) which deals with prohibition of drawback in respect of any goods the market price of which is less than the amount of the drawback due thereon and contravention of Section 114(iii) would arise. We, therefore, waive the predeposit of the penalty and stay recovery thereof during the pendency of the appeal.
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1993 (7) TMI 205 - CEGAT, MADRAS
Demand on goods provisionally released subject to payment of duty ... ... ... ... ..... ould serve the ends of justice and we order accordingly. Likewise the penalty for this offence in the facts and circumstance has to be, therefore, taken to be for a technical breach and for that purpose the end of justice would be served if the penalty is reduced to Rs. 5,000/- (Rs. Five thousand). 8. emsp So far as the denial of Modvat credit in respect of countervailing duty suffered by the goods imported is concerned the learned lower authority in the show cause notice has not set out the violation of the Central Excise rule(s) of procedure which disentitles the appellants to the benefit of the Modvat credit in respect of the C.V. duty paid on the inputs. The learned lower authority rsquo s order in this regard is not a reasoned one and has to be set aside. The learned lower authority should decide the case de novo after giving the appellants an opportunity in regard to any alleged breach of rule or procedure which would disentitle them to the benefit of the Modvat credit.
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1993 (7) TMI 204 - CEGAT, BOMBAY
Import Licence - Omission therein ... ... ... ... ..... in the month of March, 1984. Moreover, had the appellants pointed out this to the licensing authority, this end-product pigment binder also would have been endorsed in the import licence as per the provisions of the aforesaid para. However, the Customs authorities cannot go beyond what is specified in the licence and it is a settled law that the Customs authorities cannot seek to insert, what is not contained in the licence. Hence, when the end-product lsquo pigment binder rsquo is not endorsed on the import licence, lsquo monomer rsquo imported cannot be said to be raw material permitted under the import licence. Hence, we are to uphold the order of confiscation. But the circumstances discussed above call for leniency, by treating it as a technical infringement. In this view, we reduce the redemption fine from Rs. 2,60,000 to Rs. 25,000/- (Rupees twenty five thousand only) and from Rs. 1,60,000/- to Rs. 15,000/- (Rupees fifteen thousand only) and grant consequential relief.
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1993 (7) TMI 203 - CEGAT, BOMBAY
Import Licence - Omission therein ... ... ... ... ..... in the month of March, 1984. Moreover, had the appellants pointed out this to the licensing authority, this end-product pigment binder also would have been endorsed in the import licence as per the provisions of the aforesaid para. However, the Customs authorities cannot go beyond what is specified in the licence and it is a settled law that the Customs authorities cannot seek to insert, what is not contained in the licence. Hence, when the end-product lsquo pigment binder rsquo is not endorsed on the import licence, lsquo monomer rsquo imported cannot be said to be raw material permitted under the import licence. Hence, we are to uphold the order of confiscation. But the circumstances discussed above call for leniency, by treating it as a technical infringement. In this view, we reduce the redemption fine from Rs. 2,60,000 to Rs. 25,000/- (Rupees twenty five thousand only) and from Rs. 1,60,000/- to Rs. 15,000/- (Rupees fifteen thousand only) and grant consequential relief.
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1993 (7) TMI 202 - CEGAT, NEW DELHI
Additional customs duty equal to excise duty ... ... ... ... ..... r completing the assessment, no additional duty could be demanded as the earlier assessment has become final, also cannot be accepted. Very recently, the Madras High Court in the case of Cannon Steels Pvt. Ltd. v. Union of India, 1993 (41) ECC 161, after considering the entire case law on the point including the case of Union of India v. Popular Dyechem, 1990 (26) ECC 334 (Bom.) Jain Shudh Vanaspati Ltd. v. Union of India, 1982 (10) E.L.T. 43 and Euresian Equipments and Chemicals v. Collector of Customs, 1980 (6) E.L.T. 138 (Cal.), held that it is difficult, however, to accept this as a law, as once there is a clearance under Section 47 and/or Section 51 of the Act is ordered, unless that order is set aside, the proper officer cannot act on his reasonable belief under Section 110, 111 or 113 of the Act (paras 12 and 13). 8. In the light of the aforesaid discussion, we uphold the Order-in-Appeal passed by the Collector (Appeals) and consequently reject all the appeals in hand.
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1993 (7) TMI 201 - CEGAT, NEW DELHI
Appeal - Condonation of delay ... ... ... ... ..... e facts of this case in view of the peculiar circumstances. It is not possible to lay down precisely as to what facts or matters would constitute sufficient cause rsquo , under Section 35B(5) of the Central Excises and Salt Act, 1944. The delay in filing an appeal should not have been for reasons which indicate the party rsquo s negligence in not taking necessary steps which it would have or should have taken. What would be such necessary steps will again depend upon the circumstances of a particular case, but the expression sufficient cause rsquo cannot be construed too liberally, merely because the party was busy in consulting and preparing the appeal papers. In our view the applicants were not diligent for the subsequent period on receipt of the revision order passed by the Government of India and, accordingly, condonation of delay application filed by the applicants is hereby rejected. Consequently, the stay application and the appeal are also dismissed as barred by time.
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1993 (7) TMI 200 - CEGAT, NEW DELHI
Valuation - Second-hand machinery ... ... ... ... ..... iod 1982-83 but could not do so for the reasons given. In that view of the matter, and with the allegations of undervalution as not proved, there appears some scope of showing some leniency in relation to quantum of redemption fine. In that view of the matter the fine in lieu of confiscation is reduced to Rs. 1,00,000/- (Rupees One lac only). 9. emsp The authority below has not imposed any penalty vide Section 112(a) of the Customs Act and there is no appeal by the department on that count. 10. emsp Under the circumstances, the appeal is partly allowed. The order fixing the value of the machine at Rs. 5,62,984/- is set aside and the value is directed to be fixed at the equivalent of SEK 350,000/- as per exchange rate prevailing on the date of import in Indian currency. The order of confiscation vide Section 111(d) of the Customs Act, 1962 is confirmed. The fine in lieu of confiscation is however reduced to Rs. 1,00,000/- (Rupees One lac only). Consequential reliefs to follow.
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1993 (7) TMI 199 - CEGAT, NEW DELHI
Manufacture ... ... ... ... ..... preparation goes to show. In this context learned DR rsquo s extensive exposition of the technical aspects of the matter and her explanation as to why these materials are added as ingredients only in very small quantities assumes significance. From our point of view, whatever may be the proportion or purpose, the net result of an apparently simple process of blending is that a chemical called Dextrose gets converted into a food product and a new commodity with a distinct identity of its own emerges as apparent from the way, it is marketed or is known and treated in the market place. The fact that a larger percentage of it is still chemically dextrose and calcium phosphate or Vitamin D have been added only in micro quantities or traces does not make any difference as the latter were expected to serve the required purpose only in such proportions. 30. emsp In view of the above position, concurring with the conclusion of the Hon rsquo ble Judicial Member, the appeal is rejected.
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1993 (7) TMI 198 - CEGAT, NEW DELHI
Value of clearances ... ... ... ... ..... respect of which there is no mention about confiscation or redemption fine in the Order-in-Original. 85. emsp As regards penalty, the Additional Collector, Central Excise, Meerut had imposed personal penalty of Rs. 10,000/- on the appellants under Rule 173Q of the Rules. Under Show Cause Notice, the party was required to show cause as to why the penalty should not be imposed on them under Rules 174, 210 and 226 of the Rules. There was no reference to Rule 173Q. Although there is no irregularity in imposing penalty under Rule 173Q as the Additional Collector was fully competent to do so refer Honourable Supreme Court rsquo s judgment in Roche Products Ltd. v. Collector, Customs, 1989 (44) E.L.T. 194 (SC) 1990 (25) ECC 171 (S.C.) , however, in the interest of justice, we reduce the amount of penalty from Rs. 10,000/- to Rs. 2,000/-. 86. Subject to above, the appeal is otherwise rejected, and the Order-in-Original of the Additional Collector, Central Excise, Meerut is confirmed.
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1993 (7) TMI 197 - CEGAT, MADRAS
Appeal - Condonation of delay ... ... ... ... ..... delay whether the Department would be able to independently sustain the order de hors the alleged concession by the Counsel, the learned D.R. in the peculiar facts and circumstances of the case sumitted that the only and proper course would be to remand the matter for fresh adjudication. We agree with the submissions of the learned D.R. In view of the above while granting waiver of pre-deposit and taking up the appeal we set aside the impugned order and remand the matter to the adjudicating authority for disposal of the matter afresh in accordance with law, after due notice to the parties. We take note of the fact that the present Collector of Central Excise to deal with this matter is different from the officer who passed the impugned order. It is open to the appellant to put forth all his contentions in accordance with law and inasmuch as the matter is pending for a fairly long time, we direct the adjudicating authority to dispose of the matter as expeditiously as possible.
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1993 (7) TMI 196 - CEGAT, NEW DELHI
Manufacture ... ... ... ... ..... can only be treated as a preparation of mango prepared by a method other than mere chilling, and preserved). 20. emsp In view of the above, I hold that mango pulp marketed by the appellant is a manufactured product classifiable under 20.01. 21. emsp In view of the above findings, the appeal is allowed only in respect of peas. It is remanded in respect of shelled corn for de novo consideration and rejected in respect of mango pulp. Dated 20-7-1993 Sd/- S.K. Bhatnagar Vice President 22. emsp Order per G.A. Brahma Deva, Member (J) . - I have gone through the two different orders written by Hon rsquo ble Member (Judicial) and Hon rsquo ble Vice President. On going through the reasoning given in their respective orders, I concur with the view taken by the Hon rsquo ble Member (Judicial). Accordingly, the appeal deserves to be allowed. Final Order 23.In view of the majority opinion, the appeal is accepted. Sd/- G.A. Brahma Deva Member (Judicial) Sd/- S.K. Bhatnagar Vice President
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1993 (7) TMI 195 - CEGAT, BOMBAY
Modvat - Credit availed inputs cleared as such ... ... ... ... ..... the same inputs in his factory. Hence we could not persuade ourselves to agree with the reasoning of the NRB. 11. emsp Notwithstanding the aforesaid reservations expressed by us on the reasoning adopted by the NRB, we are to agree with Shri Sorabjee that this is a point of law, on which a divergent view has been taken by another Bench. For making a reference, it should be a point of law and a divergent view has been taken on the same point of law by two different Benches and no authoritative pronouncement is available either from the High Court or from the Apex Court. Hence, whatever be our personal views, the matter calls for a reference to the High Court as pleaded by the learned counsel. 12. emsp Accordingly, we allow the reference for getting the authoritative views of the Hon rsquo ble High Court on the question raised before us vide Para 4. 13. emsp The Registry should draw the statement of facts and send the connected files to the High Court of Bombay at the earliest.
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1993 (7) TMI 194 - CEGAT, NEW DELHI
... ...
... ... ..... advised. Kindly aknowledge receipt of this letter. In the amended notification since the expression used was miconazole nitrate rsquo shall be substituted and in the subsequent clarification issued by the Government of India that provisional assessment may be finalised as per the guidelines of Notification No. 455/86, we are of the view that amended Notification No. 455/86 is clarificatory in nature and intention of the Govt. of India was to grant exemption from the inception of Notification No. 122/86, dated 1-3-1986. In the facts and circumstances of the case and taking into consideration of the nature of amending notification, we hold that Notification No. 455/86 is only clarificatory. Accordingly, the appellants are justified in claiming the exemption in respect of the product in question in terms of Notification No. 122/86 since its inception. In the view we have taken, we do not feel it necessary to go into other issues raised by both sides. Thus, the appeal is allowed.
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1993 (7) TMI 193 - CEGAT, CALCUTTA
Modvat credit - Input ... ... ... ... ..... een questioned in the application for the reasons discussed by the Collector and the question actually posed for reference to the Honourable High Court, that has to be considered as a question of law arising from the Tribunal rsquo s order which does not get whittled down by the absence of a specific question of law framed as to whether the Tribunal was right in holding that sand moulds are not goods and based its decision on such a finding. We, therefore, refer the following question to the Honourable High Court of Calcutta for their valued ruling - ldquo Whether resins used in the preparation of sand moulds which are used in the manufacture of iron/steel casting are entitled to modvat credit and whether such resins can be treated as inputs in or in relation to the manufacture of final products rdquo casting for grant of such benefit? 14. emsp The Registry is directed to send a copy of this order along with necessary enclosures to the High Court of Calcutta for their action.
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1993 (7) TMI 192 - CEGAT, BOMBAY
Confiscation ... ... ... ... ..... hat under Section 121 of the Customs Act, sale proceeds of smuggled goods shall be liable to confiscation, where such smuggled goods are sold by the person having knowledge or reason to believe that the goods are smuggled goods. In this case, even in his statement the appellant has not indicated that the amount represents the sale proceeds of smuggled wrist watches. He has also claimed part of the currency as his personal savings and given by his mother. No other evidences have been brought forth by the department to prove that the appellant was selling wrist watches of smuggled nature and the money has been acquired by way of sale of the same. In the circumstances, the benefit of doubt is required to be extended to the appellant with regard to the Indian currency seized. Without prejudice to the liability of these currency for any action under the Income Tax Act or other Acts, the currency is ordered to be released. But for this modification the appeal is otherwise rejected.
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1993 (7) TMI 191 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... t this basic position. 18. The Headings 85.35, 85.36, 85.37 get excluded in the face of a specific mention of such systems in 85.17. 19. emsp The Heading 85.41 covers the electronic devices mentioned therein as they are whether or not assembled or made up into panels but once they are integrated into a carrier current line system, then they become part thereof and hence are required to be classified under Heading 85.17 and the Chapter Note 5 does not come to their rescue. 20. emsp In view of the above position, I find that learned DR rsquo s detailed technical and legal exposition is correct. I therefore, accept the Department rsquo s appeals and dismiss the cross-objections. ORDER In view of the majority opinion, it is held that the item is classifiable under Heading 8537. Appeals and Cross objections are disposed of accordingly. Sd/- emsp emsp (S.K. Bhatnagar) Vice President emsp Sd/- emsp emsp (Jyoti Balasundaram) Member (J) Sd/- emsp emsp emsp G.A. Brahma Deva Member (J)
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1993 (7) TMI 190 - CEGAT, MADRAS
Demand - Clandestine removal ... ... ... ... ..... ain whether the quantum of other raw materials used could be such as to result in additional production of tread rubber by using the alleged short quantity of 1000 Kgs of reclaimed rubber. No evidence regarding clandestine removal of tread rubber has also been produced. Other parameters such as electric power consumed and other raw materials used for production of excess tread rubber are also not there. The appellant has relied upon the judgment of the Tribunal and also of the High Court of Kerala in the case of George Varghese v. CCE - reported in 1992 (60) E.L.T. 361 (Ker.) in support of his plea that based on the evidence of shortage of one raw material, clandestine manufacture and removal of tread rubber cannot be taken to be established. As mentioned above, in the absence of any conclusive evidence, and in the facts and circumstances of the case, benefit of doubt has to be given to the appellant. We, therefore, allow the appeal of the appellant with consequential relief.
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1993 (7) TMI 189 - CEGAT, BOMBAY
Modvat - Transitional credit ... ... ... ... ..... nsitional credit is to allow the benefit of duty paid on inputs received prior to filing declaration. Rule 57H cannot be read in a disjointed manner, giving the benefit only to inputs lying as such and denying the credit in respect of goods lying in the process. Hence I do not find any serious reasons to differ from the order passed by the Collector (Appeals). However, I accept the plea of the Ld. JDR that the Asstt. Collector has not gone into the factual position as to whether the duty-paid inputs were contained in the semi-processed goods and factual verification is required to be done. In view of this plea, while rejecting the appeal of the Revenue, on the issue, I allow liberty to the Asstt. Collector to verify the duty payment documents and records maintained by the Respondents to arrive at the satisfaction as to whether the goods in process are covered by the duty payment documents and if so the credit should be allowed in terms of the order of the Collector (Appeals).
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1993 (7) TMI 188 - CEGAT, NEW DELHI
... ...
... ... ..... eld that the monetary value of the additional consideration should be added to the cum-duty price and the duty amount should be arrived at after working backwards. The respondents have cited the case of R. Gac Electrodes v. Collector of Central Excise reported in 1988 (33) E.L.T. 485 (Tri.) in which the Tribunal held that the monetary value of the additional consideration should be added to the assessable value. Having regard to the fact that the judgment in the VST Industries case is a recent one, coupled with the fact that while considering the issue the Tribunal had examined the ratio of the judgment in the case of R. Gac Electrodes, we would like to respectfully agree with the judgment in the case of VST Industries and order that the amount shall be added to the declared cum-duty price and then duty to be calculated by working backwards. 21. emsp The appeals are rejected except to the extent stated above. Consequential relief, if any, shall be paid in accordance with law.
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1993 (7) TMI 187 - CEGAT, BOMBAY
Baggage - Confiscation ... ... ... ... ..... ealed from the baggage declaration but also admitted by the ld. counsel. We also find that a few items like gas lighters, spring knives, U-matic cassettes, Nail cutters are in trade quantities. The appellant has also admitted that these were concealed to evade duty thereon. Dr. Kantawala rsquo s plea that the appellant lost sight of these items, does not convince us. Since they are not declared with an intention to evade duty, we do not propose to interfere with the order of absolute confiscation of these items. In other words, we uphold the order of absolute confiscation of items at S. Nos. 1 to 10 under the heading lsquo undeclared goods rsquo in the inventory, totally valued at Rs. 21,610 /- CIF. 7. Since there is a deliberate non-declaration of certain items and their value is Rs. 21,610 CIF, the appellant is also liable to penalty. While we uphold the penal liability, we deem it proper to reduce the penalty to Rs. 5,000/-only. 8. Appeal is disposed of in the above terms.
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