... ... ... ... ..... has clearly held that the respondents had discharged their duty liability in respect of the goods in question at the rates normally applicable to the scrap and stampings and had also cleared the goods lying unutilised as such in terms of Rule 57F(1)(i). At the time, therefore, when the respondents started their operation in terms of Notification 1/93 it cannot be said that there were any inputs on which MODVAT credit had been taken were lying as such or any non-duty paid goods were lying in the factory. The question of reversal of MODVAT credit in question therefore would not arise. Notification 1/93, as rightly contended by the learned Consultant, does not place any fetter that the benefit of notification has to be taken to be applicable right from the beginning of the financial year and the respondents cannot avail this benefit at a date later than 1-4-1993. In view of the above, I hold that there is no merit in the appeal of the revenue and the same is therefore rejected.
Penalty for transporting and handling smuggled goods
... ... ... ... ..... le of Shri Satya Narayan has not been specifically mentioned by anybody. These two persons could not be found out by the Customs officers. It appears that further enquiry was necessary but was not made. In these circumstances, on the evidence on record, it is not practical to impose any personal penalty on Shri Swapan Chakraborty and Shri Satya Narayan. rdquo It is thus seen from the above order that Swapan Chakraborty who actually loaded the goods is let off by the adjudicating authority. The case of the Depart- ment is that he loaded the goods at the instance of Swapan Saha, the appellant herein. But Swapan Saha never loaded the goods into the lorry. If Swapan Chakraborty himself is let off there is no reason to find the appellant guilty and that too only on the statement of the co-accused which in turn is contradictory. In that view of the matter, the benefit of doubt is extended to the appellant. The penalty of Rs. 30,000.00 is set aside. The appeal is acordingly allowed.
... ... ... ... ..... 5. emsp We have considered the submissions made before us. The lower authority has given a clear finding that the appellants goods were not affixed with the brand name of Sintex. He has held that the appellants on their own have held out the goods to be of sintex brand and hence the appellants are not eligible for the benefit of Notification 175/86. We are afraid, the interpretation of the lower authority on the scope of para 7 of the Notification cannot be accepted. Para 7 clearly envisages affixation of brand name on the goods. It does not cover the goods which are merely invoiced under the brand name of other person. Para 7 will come into operation only when goods actually bear the brand name. In the present case the goods have not been affixed with the brand name of any person. In view of above, we hold that the appellants will not be hit by the provisions of para 7 of the Notification. The appeal therefore has to be allowed with consequential reief. Ordered accordingly.
Modvat Scheme - Declaration on opting out of scheme
... ... ... ... ..... ing with the requirments of the central excise law in regard to filing of the returns, maintaining of the records in respect of the goods manufactured by them and cleared under the benefit of exemption notification, his prayer for leniency has to be considered in the light of the pleas advanced in this regard. I find that the appellant is a small scale manufacurer and it is possible that he was not fully aware of all the legal requirements. It is enjoined upon an assessee to seek a clarification in case the appellant is not fully informed about the requirments under the Rules for the purpose of manufacture and clearance of the excisable goods. The appellant having failed to do so is certainly liable to penalty. However, taking into consideration the pleas urged and in the facts and circumstances, ends of justice would be served if the penalty is reduced to Rs. 500/- (Rupees five hundred). I order accordingly. But for the above modifications, the appeal is otherwise dismissed.
... ... ... ... ..... lector (Appeals) has taken note of this irregularity in availing of the MODVAT Credit which was not available to them under law. It appears that there was some misunderstanding in the minds of the appellants in regard to the stage at which MODVAT Credit could have been taken. However, inasmuch as the penalty levied is to the extent to take care of the interest accrued to the appellants, and that the appellants are liable to penalty under Rule 173Q and 226 of the Central Excise Rules, 1944 for violation of rules as held by the lower appellate authority, we hold no further reduction in penalty is called for. We also take note of the plea of the appellants that the appellants are paying duty to the tune of Rs. 35 crores per annum to the Government and there was no need for the appellants to have wrongly availed of the MODVAT Credit nor was there any compulsion on their part in this regard and the mistake was more on account of misunderstanding and can be considered as bona fide.
... ... ... ... ..... aring below 85 mm as identifiable parts of roller bearing below 85mm and specifically covered by Chapter Heading 84.62(3) of the Customs Tariff Act, 1975. When this aspect was specifically brought to the notice of Shri Jain, the learned Counsel for appellant while not disputing this factual position, he merely contended that the dimension of the goods imported namely outer Ring rsquo merely coincided with the description given under Heading 84.23 and 84.62(3) and the same cannot be the sole basis for adopting classification. We are not able to accede to this plea of the learned Counsel. Therefore, having regard to the evidence on record and the findings, taking note of the fact that the supplier of the goods in the invoice referred to the company as Diary manufacturing company and also keeping in mind the nature of the goods found on examination we confirm classification in terms of the impugned order and consequently reject the appeal. In the result, the appeal is dismissed.
... ... ... ... ..... t the present appeal has been filed against the said order of the Collector (Appeals) without obtaining any stay order from the Bench and that on account of the said attitude of the Department the respondents are losing the market in the sense that the respondents have to pay higher duty demanded vide Show Cause Notice though not confirmed by the two authorities below in comparison to these.
... ... ... ... ..... ovided under Rule 57F for these units cannot be extended to this unit. Interest of revenue is safeguarded by the specific provision under the notification issued under Rule 191B for recovery of duty both in respect of the finished goods and the non-duty paid goods out of which the same are manufactured in bond in case the goods are not exported. We therefore hold that notwithstanding the absence of any specific mention in the proviso to Rule 57F(3) in regard to the finished goods in respect of which input credit is taken and which are cleared without payment of duty to a unit functioning under Rule 191B, the second proviso to Rule 57F(3) would cover such units also, as we do not find any reason to differentiate the operations in the unit functioning under Rule 191B from the operations carried out in the unit functioning under a free trade zone or to a 100 export oriented unit. In view of above, we hold that the appellants rsquo plea has to be allowed and we order accordingly.
... ... ... ... ..... ants without clearing the consignments with mala fide intention, to enable the appellants to take duty credit without receipt of the goods. Contradictory statements of the appellants as well as M/s. Anu Cables clearly establish this finding of the lower authority. In such circumstances taking credit on the abovesaid gate pass No. 23, dated 25-10-1986 is not permissible and reversal of the same in my opinion is in accordance with law. The learned Member (T) has held that payment of duty at a later date does not validate credit wrongly taken earlier. In that view of the matter I agree with the finding given by learned Member (T), in this regard. 11. The file may be placed before the regular Bench for passing necessary orders in this regard. Sd/- emsp (T.P. Nambiar) Dated 7-6-1995 Member (J) FINAL ORDER In view of the majority decision, the appeal filed by M/s Bharat Conductors (P) Ltd. is dismissed. Sd/- emsp Sd/- (S. Kalyanam) (V.P. Gulati) Vice President Member (T) 15-6-1995
... ... ... ... ..... uty required to be paid for the specified notified finished product declared under Rule 57G of the Central Excise Rules, 1944. As pointed out in the order of the Tribunal there is no one-to-one correlation envisaged in the rules for Modvat purposes and all that the rules envisage is that once Modvat Credit has been correctly taken the same can be utilised in respect of the finished excisable goods for which the inputs credit in question is permissible. If that be the position the credit which was originally taken would be available for payment of duty in respect of the notified finished product. It is not a pre-condition for utilisation of Modvat Credit that the inputs for which Modvat Credit was taken should be contained in the finished product towards which the credit is used for discharging the duty liability. In view of the above, we hold that no case has been made out by the Revenue. The case law cited by the Revenue is distinguishable. The appeal is therefore dismissed.
Bail - Applicant is a bank employee with no criminal history
... ... ... ... ..... vidence or create obstacles in the course of investigation. It is also necessary to ensure that he is available for the purpose of interrogation and trial. Therefore, some conditions need to be imposed on him and bail should be adequately sufficient to ensure his presence in the trial. 11. emsp The bail application is allowed. The applicant is hereby released on bail on furnishing security to the extent of Rs. 25,000/- (twenty five thousand) with one surety and PR bond with one or two sureties before the Additional Chief Judicial Magistrate (Economic Offence), Indore in respect of Crime No. 1/95. He shall not threaten, contact or induce any of the prosecution witnesses and shall not create any obstacles in the course of investigation. He shall attend office of Central Excise and Customs, Indore whenever he is called. He shall not leave India without prior written permission of A.C.J.M. (E.O.), Indore. C.C. to both to applicant and to Shri A.H. Khan, counsel for non-applicant.
... ... ... ... ..... seeds. The orders passed by the authorities below, therefore, have to be sustained to that extent. 14. emsp As to the quantum of redemption fine and the penalty amounts, though there does not appear any justifiable ground to interfere with the quantum of redemption fine, as the item imported is recognised also as a consumer product, and the appellants are not the actual users, so far as penalty amounts are concerned, because there did exist some doubt about the importability under such licences, of some type of consumable items, which could also be described as seeds, benefit of doubt as to their mala fides in causing the import, has to be given. The penalties are therefore set aside. 15. emsp In the result, the appeals are partly allowed, and while confirming the orders as to the confiscation and option to pay fine in lieu of confiscation, and the quantum thereof, are sustained, the penalties imposed on the appellants are set aside. Consequential reliefs, if any, to follow.
... ... ... ... ..... he law of limitation will apply for giving to the consequential effect to the order passed by the Tribunal rdquo . may be substituted by the following words i.e - ldquo There need not be any application from the appellant in this regard and as such, the law of limitation will not apply for giving to the consequential effect to the order passed by the Tribunal rdquo .
... ... ... ... ..... raised i.e. having referred the matter on the same issue earlier to a Larger Bench, the Tribunal should not have proceeded to pronounce on the merits of the issue, we observe that as it is this earlier reference to the Larger Bench was not brought to our notice by the learned Consultant. There is no plea that the order passed on merits is in any way contrary to any of our observations in the said order. No fault legally can be found if an order on an issue referred to a Larger Bench in another case is passed. This order can be as it challenged either by way of reference to Hon rsquo ble High Court or on appeal to the Hon rsquo ble Supreme Court as the case may be on the merits of the issue decided. There is no vested right for an appellant to have a matter heard by a Larger Bench. The reference to a Larger Bench does not legally preclude the Bench from taking a decision on merits in another case. In view of the above, the application for rectification of mistake is dismissed.
... ... ... ... ..... or it is possible to work out the possible date of clearance in respect of the clearances of goods. In the background of the facts of this case it would only be a conjecture. Duty is required to be charged in terms of the Central Excise law based on the actuality of the situation and where the date of clearance is not known under the specific provisions under Rule 9A(5) duty chargeable is as per the date of detection. 5. emsp In view of the above I hold that there is no infirmity in the order of the learned lower authority demanding duty based on the rate applicable in terms of Rule 9A(5). Taking into consideration the facts of the case and also the proceedings undergone for a long period, the original demand which was fixed at Rs. 59,98,788/- as a result of re-adjudication has been reduced to Rs. 62,313.70, I hold that the ends of justice will be served if the penalty is reduced to Rs. 5,000/- (Five thousand). But for the above modification the appeal is otherwise dismissed.
... ... ... ... ..... ellants out of films falling under Heading 39.20 for the reasons that the films purchased by them themselves were manufactured out of materials falling under Headings 39.01 to 39.15. While I agree with the view of learned Brother that the matter should be remanded for reconsideration of the same afresh in the light of the clarification of the Board which has been extracted in the order, I observe that the lower authority should also while examining the matter afresh take into consideration the nature of the goods manufactured by them and examine whether the same are covered by the description films rsquo as set out under the said notifications for the purpose of the benefit of exemption. I observe that the appellants are manufacturing laminated products and the same by the very nature prima facie would appear to be formed by putting layers of the film together and therefore, may not be covered by the description films rsquo as understood technically and in the trade parlance.
... ... ... ... ..... e undertaking to Shri Manglesh Chawla, W.Z. 727 Kh. No. Palam to say that the sanction light of the connection is 20 H.P. have been produced. We note that before cancelling registration, the Director of Industries would have taken cognizance of these documents. Apart from the fact that there are unattested photocopies, they would not affect our decision either way. We are, therefore, unable to interfere in this regard. 11. emsp The show cause notice or the Order of the Collector do not spell out basis for saying that the import was only with a view to selling the machinery. The order for the machinery was placed in early 1988 and unless it can be shown that the import itself was commenced with a view to selling the goods, the fact of existence of the provisional certificate on the date to the date of import would support the claim. We, therefore, extend the benefit of doubt. Accordingly, we set aside the penalty imposed on Shri Chawla. The appeals are disposed of accordingly.
... ... ... ... ..... ision and on prima facie ground in the facts and circumstances of this case we grant waiver of pre-deposit of the duty and the penalty pending appeal and also grant stay of recovery of the amount in question in pending appeal. Taking into consideration the divergent views of the two Benches and also following the ratio of our order above, we grant waiver of the pre-deposit of duty and penalty. We also grant stay of the recovery of the same pending appeal. It is open to the Revenue to take out an application for early hearing if the issue has any recurring effect. Order per T.P. Nambiar, Member (J) . - In view of the fact that there are two divergent views of the Tribunal prima facie the applicant has made out a case for waiver of pre-deposit of penalty as well as duty under the impugned order. However, without expressing any opinion on the final merits of this case I also agree with the view expressed by the learned Member (T) that the stay as prayed is meritted in this case.
... ... ... ... ..... pay such duty. Department has not produced any evidence that it is the appellant as a manufacturer who within the meaning of Rule 173Q removed excisable goods in contravention of any of the provisions of the Rules or did not account for any of the goods manufactured or produced by them. There is only a presumption that since there is a shortage, it is the appellant who must be held responsible. In case of Rajen (Textile) Mills, Sholapur v. Collector, Central Excise (supra), it was held that successor was liable for duty. Apart from this, I find that Department has not placed any evidence at all proving the act of removal or evasion on the part of the manufacturer particularly when intimation of take over of the Appellant rsquo s unit was given in time and no action for nearly 11/2 year was taken thereafter. No case, therefore, can be made out against the appellants in regard to removal of goods. 6. In the result, therefore, I set aside the impugned order and allow the appeal.
Concessional rate of duty available only to goods imported
... ... ... ... ..... sification of the items under the policy. This certificate is valid for the period of 12 months from date of issue. rdquo We find that the request to DGTD was for importing various components for manufacture of 4000 pieces of teleprinters during the period April 1991 to March 1992. We, therefore, hold that the application dated 29-1-1992 was a valid document. On the basis of this letter we hold that the three appeals in which the goods were imported/cleared on or after 29-1-1992 will be eligible for concessional rate of duty under Notification No. 60/88, dated 1-3-1988 read with Notification No. 59/88, 1-3-1988. Therefore, the concessional rate of duty under Notification No. 60/88, dated 1-3-1988 read with Notification No. 59/88, dated 1-3-1988 will be applicable to the imports covered by Appeals Nos. C/391/93, C/392/93 and C/522/93. In this view of the matter, the appeals are partly allowed. Consequential relief, if any, will be admissible to the appellants according to law.
