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1993 (8) TMI 196
Manufacture ... ... ... ... ..... the Second Show Cause Notice a perusal, thereof, shows that it is not in the nature of a corrigendum. On the other hand, it sets up a new case for the appellants to answer by proposing to change the classification of the product from sub-headings 3204.30 to 3204.90. In such a situation, the second notice cannot be called corrigendum. The fact that in such a situation the rate of duty is the same under both the headings, will make no difference to the necessity of undertaking fresh proceedings as has been found by the Tribunal in the case of Bright Brothers (supra). Therefore, on this point also, it is to be stated that the demand based on such a show cause notice will be hit by limitation. In the result, the order proposed by the Hon rsquo ble Member (Judicial) is concurred with. Dated 6-8-1993 Sd/- (K.S. Venkataramani) Member (T) FINAL ORDER 152. In terms of the majority order, the appeal is allowed. Dated 12-8-1993 Sd/- (S.L. Peeran) Member (J) Sd/- (Lajja Ram) Member (T)
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1993 (8) TMI 195
Confiscation - Misdeclaration as to description of goods ... ... ... ... ..... e of Rs. 5,00,000/- in lieu of confiscation. 15. emsp As regards the personal penalty of Rs. 5,00,000/- imposed on the appellants, the appellants have pleaded absence of knowledge as also that they were not to gain anything as the goods have already stood sold, on High Sea Sale basis. The party who have reportedly purchased the goods on high sea sale basis have not chosen to intervene in the proceedings, and as such the entire alleged deal appears to be not free from doubt. As is indicated above, absence of knowledge on the part of the appellants cannot be accepted The liability of the appellants vide Sec. 112(a) of the Customs Act, therefore has to be held as established. Thus the liability to penalty is upheld. However, considering the facts and circumstances, the personal penality is reduced to Rs. 2,50,000/- Rupees two lacs fifty thousand only . 16. The appeal is thus disposed of in the above terms. The cross-objection, bieng in the nature of reply also stand disposed of.
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1993 (8) TMI 194
Valuation - Wholesale sale and retail sale ... ... ... ... ..... independently examining the issue in the light of the interpretation as given, and which even otherwise is obvious, to the word ldquo whole-sale trade rdquo and considering that what is not a transaction in the ldquo whole sale trade rdquo is the one under ldquo retail trade rdquo , subject transactions have to be held as those in ldquo retail trade rdquo . The finding given by the authority below therefore, cannot be upheld and is, therefore, set aside. 12. emsp When the sales have been accepted as in the nature of ldquo retail sale rdquo and when eligibility of deduction at the rate of 7.5 has already stood approved, the issue of re-consideration of the assessable value, as wholesale price, and demanding differential duty accordingly, does not arise, and hence, the demand raised also cannot be sustained and is therefore set aside. 13. emsp In the result, the appeal is allowed, and the order passed by the authority below is set aside. Consequential reliefs if any, to follow.
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1993 (8) TMI 193
Exemption subject to observance of Chapter X procedure ... ... ... ... ..... tiate that non-duty paid goods are used in the manufacture of excisable goods in their Calcutta Works. Since they have not discharged this burden, the only conclusion is that the goods were not used in the manufacture of other excisable goods but were clandestinely removed from their Hide Road Extension factory with an intention to evade payment of duty. Hence in terms of Rule 196, the appellants are required to pay the Central Excise duty on the goods which had not been accounted for and the plea of time-bar cannot be upheld. Issue No. (d) is also answered accordingly. 81. Issue No. (e) - In view of the above findings, we are of the opinion that the demand of duty of Rs. 21,78,399.10 on non-duty paid goods valued at Rs. 2,72,29,239.36 is in accordance with law and we confirm the same. The penalty of Rs. 5,00,000 (Rupees five lakhs) only imposed on the appellant company in this case is not in any way excessive and the same is confirmed. In the result, the Appeal is dismissed.
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1993 (8) TMI 192
Confiscation - Woollen/Synthetic rags ... ... ... ... ..... ement on the bill of lading. Thus all the required formalities regarding the shipment had been complied within 60 days from the date of the issue of the ITC public notice on 28-4-1989. It is also pertinent to note that although ITC public notice was issued on 28-4-1989, the Calcutta Customs House issued public notice only on 16-6-1989, after more than 1 frac12 months from the date of the ITC public notice. 14. The Additional Collector, Customs, Calcutta had gone by the date of the bill of lading which had been issued on 29-6-1989 at Chicago. As all the formalities regarding the shipment of the goods had been completed within the stipulated period and there was a delay of 2 days only in the preparation of the bill of lading, I consider that the order of the confiscation by the Additional Collector, Customs, in the circumstances of the case, was not justified. 15. Accordingly, I vacate the impugned order and accept the appeal with consequential relief to the appellants, if any.
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1993 (8) TMI 191
Appellate Tribunal - Jurisdiction of Benches ... ... ... ... ..... Benches of the Tribunal for effective and expeditious discharge of its functions. 3. In view of the above discussion, we do not find any reason to accept the preliminary objection raised by the learned SDR. Accordingly, we overrule the preliminary objection raised by the learned SDR. 4. During the course of arguments, Shri Lachman Dev brought to the notice of the Bench that in the present matter there are three ladies and 3 boys who were sleeping partners and the Revenue authorities have started criminal proceedings against them and as such the matter may be heard earlier as also the appellants are suffering great mental agony due to the hearing in the criminal proceedings is coming for hearing sometime in October, 1993. Shri B.K. Singh, the learned SDR, does not object. After hearing both the sides we adjourn the matter to 1-9-1993 at 2.00 PM. It is made clear that no adjournment will be granted to any side in any case. Let a copy of this order be supplied to both the sides.
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1993 (8) TMI 190
Reference to High Court ... ... ... ... ..... e impugned order being in confirmity with the case law as has developed subsequent to the decision in Re Hindustan Motors Ltd. (supra) given by a Single Member Bench, in the year 1983, and that too, as indicated above, being ex facie based on reading of the statutory provisions, not in conformity with the actual wordings of the specific section, and which in effect, with the subsequent contrary decisions from the Benches comprising of more than one member, cannot be accepted as the one providing any cogent reason for referring the issues as framed, to the High Court, under Section 35G of CESA, 1944. 13. Even the questions of estoppel against statutory provisions could not arise or call for any reference, as the statute only provides for ldquo making an application rdquo and does not speak of ldquo filing before rdquo and makes the filing of an application merely a procedural affair. 14. In the result, the application seeking reference on the issues as formulated, is rejected.
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1993 (8) TMI 189
Modvat credit ... ... ... ... ..... benefit of set off in respect of raw materials classifiable under the erstwhile Tariff Item 68 is available, notwithstanding the fact such raw materials are first used in the manufacture of masticated rubber (which was free of excise duty) and the masticated rubber was used in the dutiable final product. This was in the context of Notification 201/79 and in that case also the rubber was transferred to another unit of the assessee. The provision of Notification 201/79 with regard to denial of credit being analogous to Rule 57C, the said decision seems to be squarely applicable in this case. 7.8 Thus viewed from all angles, we are not persuaded to accept the plea of the ld. JDR to interpret Rule 57C in the manner as pleaded by him. We are also not persuaded to treat the facts as well as the issue in this case as analogous to the case of Kirloskar Oil Engines calling for a reference to the larger Bench. 8. In the result, the appeals are allowed with direction to restore credit.
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1993 (8) TMI 188
Penalty - Evidence ... ... ... ... ..... ble to be returned to him under Section 110 of the Customs Act, 1962 read with Section 124 of the Customs Act, 1962. This view was taken by the Tribunal in the case of Shyamlata Sharma reported in 1992 (57) E.L.T. 415 (Tri.). In that view of the matter, even if penal proceedings can be continued against the appellant, the confiscation of the same is not permissible as the vehicle was to be returned to the appellant, Shri Kundu in view of the fact that the show cause notice was not served on the appellant, Shri Kundu within six months from the date of seizure. Accordingly, the order of confiscation of the vehicle in question is set aside and the same is ordered to be returned to the appellant, Shri Jiban Kundu. He was not penalised by the Adjudicating Authority as it was found that he was not involved with the transport of the foreign synthetic yarns. The confiscation of the synthetic yarns valued at Rs. 1,63,620.00 is hereby confirmed. The appeals are disposed of accordingly.
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1993 (8) TMI 187
Limitation - Condonation of delay ... ... ... ... ..... lear terms that such period on sufficient cause being shown may be extended, in the maximum, only upto a specified time limit and no further then the Tribunal concerned has no jurisdiction to treat within limitation an application filed before it beyond such maximum time limit specified in the Statute by excluding the time spent in prosecuting in good faith and due diligence any prior proceeding on the analogy of Section 14(2) of the Limitation Act. 6. These observations will be fully applicable to the present case where the discretionary extension of the normal time period is limited to a specific span of 30 days in terms of the proviso to Section 35G(1). 7. For the foregoing reasons, we hold that the delay in filing the Reference Application is not condonable. We reject the Miscellaneous Application. In view of the same, the Reference Application itself is rejected as time-barred. 8. The operative part of the order was pronounced in the open court at the end of the hearing.
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1993 (8) TMI 186
Interpretation of taxing statute - Tariff and exemption notification ... ... ... ... ..... eques, stamps, bank notes or the like. It is evident that Base Papers including the disputed lsquo Document Raw Base Paper rsquo which are used as a base for photo-sensitive, heat-sensitive, electro-sensitive and other similar varieties of paper and paper boards are distinct from lsquo paper and paper board of a kind used for writing and printing rsquo on account of different characteristics and usage. 11. In view of the above discussion we are of the view that the disputed lsquo Document Raw Base Paper rsquo could not be deemed as lsquo Printing and Writing Paper rsquo for the purpose of exemption under Notification No. 55/86 (as amended). 12. Since in the appellants rsquo own case reported in 1990 (47) E.L.T. 83 the Tribunal had arrived at a different finding by holding that lsquo Document Raw Base Paper rsquo could be deemed as lsquo Printing and Writing Paper. The matter is, therefore, referred to the Hon rsquo ble President for constituting a larger bench for a decision.
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1993 (8) TMI 185
Modvat credit - Gate pass ... ... ... ... ..... ld to that extent. 10. As we have dismissed the Appeals on the question of grant of credit on merits, we are not deciding the plea of the learned Counsel for the respondents that the show cause notices for recovery of the credit amounts were barred by limitation. From the copy of the order dated 28-2-1992 of the Superintendent of Central Excise, Balasore, we find that their RT-12 returns were assessed provisionally due to non-approval of classification lists and that after their approval by the Assistant Collector on 9-11-1990 accepting the rate of duty declared by them, the RT-12 returns were finally assessed. Since the goods were finally assessed only as per this order, the issue of notice for alleged irregularly availed Modvat Credit for the period prior to the amendment of Rule 57-I if claimed to be regulated under Section-11A of the Central Excises and Salt Act, 1944 would not be time-barred, as the relevant date is the date of finalisation of the provisional assessment.
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1993 (8) TMI 184
Classification ... ... ... ... ..... it can be used as mineral fuel. This also is supported by the fact that it is added to furnace oil which is used as a fuel for heating water for production of steam. The product is a group of isomers and contained high octane rating. When examined in the light of the Explanatory Note (B) of HSN read with the chemical description of the product we find that Di-isobutylene and Tri-isobutylene is a mixture of isomers is combustible is used for alkylation and therefore will qualify for Chapter Heading 27.10, because this chemical description fully answers requirement of Explanatory Note (B) of HSN. Having regard to the above discussion, we hold that Dimer-Trimer described as mixture of Di-isobutylene and Tri-isobutylene shall be classifiable under Chapter Heading 2710.99. In view of this we do not consider it necessary to examine its scope under Chapter 33 or 38. In the light of this discussion, the order of the lower authorities is upheld and the appeal is accordingly rejected.
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1993 (8) TMI 183
Value of clearances ... ... ... ... ..... d supervision in respect of all the four units as envisaged in the Tribunal rsquo s decision relied upon by the appellants in the case of Meteor Satellite Ltd. and Telestar Electronics v. CCE Baroda - reported in 1985 (22) E.L.T. 271 (T) which is confirmed by the Apex Court - reported in 1989 (41) E.L.T. A105. Hence, even if it is accepted that the test of mutuality is relevant only for the purpose of valuation, the clearances of the above four units have been rightly clubbed vide the Order-in-Original under reference as the test for ldquo clubbing rdquo as envisaged in the above case, is satisfied in the instant case. 10. In the impugned order, duty has also been demanded in respect of certain quantity inputs/finished goods found short. No arguments against the demands of duty for the same have been advanced and in fact the appellants had agreed to pay the duty on the same even before the Adjudicating Authority. 11. In view of the foregoing all the four appeals are rejected.
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1993 (8) TMI 182
Valuation - Natural justice ... ... ... ... ..... ppellants have also not produced copies of the invoices, statements etc., as they were directed to do, during the course of the hearing on 14-1-1993. The copy of the Cost Accountant rsquo s report is also not on file. In the absence of all these documents/information/reports etc., we find it difficult to come to a conclusion. 50. In the circumstances, we consider that in the interest of justice, the matter requires to be remanded back to the lower authorities for de novo adjudication. Accordingly, we accede to the prayer of the appellants, and the alternative prayer of the respondents, and set aside the impugned order and remand the case to the competent adjudicating authority for de novo adjudication, in the light of our above observations. While re-adjudicating the case, the adjudicating authority shall provide an opportunity to the appellants to explain their case, and will follow the principles of natural justice. 51. In the result, the appeal is allowed by way of remand.
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1993 (8) TMI 181
Appeal - Substitution of respondents ... ... ... ... ..... inance and by general principles of law. We are not concerned with that question as we are confined to decide the issue whether substitution application under Rule 22 of the CEGAT (Procedure) Rules is permissible in the facts and circumstances of the case. We are of the view that application for substitution is not maintainable since the respondent is very much in existence. In the view we have taken, miscellaneous applications filed by the respondent M/s. Laxmiji Sugar Mills Co. (P) Ltd. are hereby rejected. Consequently, the purported Cross-Objections filed by the U.P. State Sugar Corporation Ltd. are dismissed as not maintainable since U.P. State Sugar Corporation Ltd., does not have locus standi to file the appeal or the Cross-Objection. The appeals are posted for hearing on 7-10-1993. Registry is directed not to send notice to U.P. Sugar Corporation Ltd., but only to Laxmiji Sugar Mills Co. (P) Ltd., at 1506, Hemkunt Tower, 98, Nehru Place, New Delhi -110019, henceforth.
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1993 (8) TMI 180
Finished leather - Export ... ... ... ... ..... d leather in the form of strips and slabs, we do not feel it is necessary to go into the issue whether leather includes leather scrap and the words lsquo all sorts rsquo in the Entry 14 include all forms in the instant case. But there is some force in the arguments advanced by the Consultant for the appellants with reference to the eligibility of exemption in terms of Notification No. 136/92 since it was held by the Department that the item is finished leather. Since the issue with reference to eligibility of exemption under Notification No. 136/92 was neither claimed by the appellants nor considered by the authorities below, we are of the view that this issue requires re-consideration. Accordingly, we are remanding the matter to the concerned jurisdictional Assistant Collector to decide the issue with reference to the eligibility of exemption in terms of Notification No. 136/92 after providing an opportunity to the appellants. 7. Thus, the appeal is allowed by way of remand.
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1993 (8) TMI 179
Proforma Credit - Additional duty of Customs ... ... ... ... ..... s, was held to be applicable. We respectfully follow the Karnataka High Court Judgment and uphold the Collector (Appeals) order. We, therefore, reject the Department rsquo s appeal. rdquo On the ratio of the Tribunal rsquo s decision quoted above we hold that notwithstanding the provision in Rule 56(2A) regarding the repayment without any demand being made of the provisional credit availed by the assessee in terms of Section 11A, the demand issued to the appellants for the period which was beyond 6 months from the date of the show cause notice was time-barred. 7. In view of the above discussion and having regard to the overall facts and circumstances of the case we hold that the demand in respect of credit availed by the appellants within the period of only 6 months from the date of the show cause notice dated 25-1-1985 was enforceable. We also set aside the penalties imposed on the appellants. 8. The appeal is disposed of in the above terms with consequential relief, if any.
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1993 (8) TMI 178
Stay/Dispensation of pre-deposit ... ... ... ... ..... the issue in their favour. Had a hearing been given to them, before rejection of the appeal for non-deposit, they would have been in a position to explain the position to the Collector (Appeals). 5. After hearing both the sides, prima facie the applicants/appellants seem to be having a case, if the ratio of this Bench Order No. 1655/92-WRB, dated 4-9-1992 is applicable. However, the facts are required to be gone into and the merits of the case are to be decided by the Collector (Appeals). In view of this and also having regard to the financial position, we direct the applicants to deposit Rs. 20,000/- (Rupees Twenty thousand only) in cash and report compliance before the Collector (Appeals), whereupon the order passed by the Collector (Appeals) shall stand vacated and he shall take the appeal on record and after giving the personal hearing to the appellants, pass orders in accordance with law. Both the appeal as well as the stay application are disposed of in the above terms.
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1993 (8) TMI 177
Appeal to Appellate Tribunal - Enhancement of fee for appeal ... ... ... ... ..... here. 10. The procedural provisions, which include payment of the fees prescribed for that purpose, as they exist on the date of filing of the appeal, have to be followed, and question of retrospective effect cannot even arise here. The law on the subject being clear, no authentication from any judicial pronouncement, to substantiate the view, is called for, and when the applicants have only pleaded vested right, invested in them before the amendment, and when their plea is based only on the judgment of the Supreme Court, discussed hereinabove, which for the reasons given, is held as not attracted here, the applicants have to be held as liable to pay the fees of Rs. 1000/- each. 11. The applicants are therefore directed to deposit the balance amount of Rs. 800/- (Eight hundred only) each within a period of fifteen days from the date of communication of this order. On their failure to do so, the appeals filed by them would be liable to be rejected, without any further notice.
........
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