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Case Laws
Showing 161 to 180 of 410 Records
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1998 (12) TMI 260 - CEGAT, , MUMBAI
Natural justice - Penalty ... ... ... ... ..... hat they were nominated by Ashit Shipping Services and that he was present when the vessel was loaded by the Customs on arrival. He also says however that he has not done any personal verification to what the master of the vessel declared. Clause (f) of Section 111 would apply if the goods were not declared in the manifest, which, it is not disputed, they were not. However, this manifest was signed not by the agent but by the master of the vessel who is required to file it under Section 30. There would, in such situation, be no question of the agent doing something which the master has done. It is also to be noted that penalty has been imposed on the master of the vessel under Section 112 in the same proceedings. The facts of this case therefore do not justify applying the provision of clause (f) of Section 111. Penalties were not imposable on them. Their appeals are allowed with consequential relief. 10. emsp Accordingly, all the appeals allowed and impugned order set aside.
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1998 (12) TMI 259 - COMMISSIONER OF CENTRAL EXCISE (APPEALS), MUMBAI
Penalty - Removal of goods on pre-budget day ... ... ... ... ..... find that the confiscation of the seized goods and the imposition of fine, in lieu of confiscation has also been extremely excessive in the absence of any mens rea to evade excise duty. 6. emsp Since the maximum penalty imposable under Rule 223B is the one correctly deserving in this case, I set aside the impugned order and reduce the quantum of penalty from Rs. 1,00,000/- to Rs. 2,000/-. Since the assessee has not contravene any of the provisions of the Central Excise Act other than Rule 224, nor are in any way involved in any attempt to evade excise duty, I do not find any justification for imposing redemption fine of Rs. 50,000/-, which is, therefore, set aside. I also set aside the redemption fine of Rs. 50,000/- for releasing the truck which has carried the offending goods. Since the offence in this case is only non-compliance to Rule 224, I consider that the punishment given is too excessive and shows total lack of application of mind on the part of the lower authority.
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1998 (12) TMI 258 - CEGAT, NEW DELHI
Valuation - Demand - Limitation - Penalty ... ... ... ... ..... at the time of fixing the job charges. Even if the value was taken into consideration for fixing job charges, then the duty thereon was not paid. Thus there was a suppression and mis-statement and hence the proviso to Section 11A of Central Excise Act, 1944 has rightly been invoked. We sustain this invocation of extending the period of demand beyond 6 months. 9. emsp Insofar as the imposition of penalty is concerned, we find that the penalty has been imposed on M/s. V.K. Oils (P) Limited and M/s. Hindustan Lever Limited. Looking to the fact that the value of goods is considerable, Spent Nickel Catalyst was not returned to M/s. Hindustan Lever Limited who had taken Modvat credit on Nickel Catalyst as also there was intention not to declare Spent Nickel Catalyst by M/s. V.K. Oils (P) Limited, we hold that the penalty is sustainable in law. Quantum of penalty does not appear to be unreasonable. In the circumstances, the impugned order is upheld and the two appeals are rejected.
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1998 (12) TMI 257 - CEGAT, MUMBAI
Stay/Dispensation of pre-deposit - Penalty ... ... ... ... ..... on notification and imposed penalty. 2. emsp After hearing the Departmental Representative, we are totally at a loss to understand prima facie how conditions of either clause (m) or (o) of Section 111 are attracted. For clause (o) to apply, the goods would have to be exempted at the time of import and the benefit of exemption notification later not fulfilled. That is not the case here. There is no finding that the imported goods were misdeclared. We therefore find a very strong prima facie case in favour of the applicant with regard to waiver of penalty, in addition to the fact that the entire duty of Rs. 1.71 crores, except to the extent of Rs. 4.00 lacs has been deposited. We therefore waive deposit of penalty and stay its recovery.
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1998 (12) TMI 256 - CEGAT, MUMBAI
Stay - Modification of stay order ... ... ... ... ..... t of the demand from Nasik and Waluj plants with which we are concerned. This would, in effect, reduce the deposit to be made even on the basis of the earlier order to Rs. 8.00 crores approx. Taking into account the three orders cited of the Chennai Tribunal, we consider that interest of justice would require a further reduction on the basis of the order in the MFR Ltd rsquo s case. A total of Rs. 6.00 crores would be appropriate. This would be appropriated in the following manner - Rs. 5.28 crores towards stay application E/Stay-1618/98, Rs. 42.00 lacs towards stay application E/Stay-1622/98 and Rs. 30.00 lacs towards stay application R/Stay-1620/98. 7. emsp The amount in question is to be paid within three months from today if necessary by instalments. On deposit of this amounts, we waive deposit of the remaining amounts of duty and penalties imposed on all concerns and of the fine to redeem the plant and machinery ordered to be confiscated. 8. emsp Compliance on 12-1-1999.
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1998 (12) TMI 255 - CEGAT, MADRAS
Modvat - Capital goods ... ... ... ... ..... otally distinguishable. The revenue also referred to judgment rendered in the case of P.C. Conductors v. C.C.E. as reported in 1996 (81) E.L.T. 336 (Tribunal) is also distinguishable, as in that case the finding given was pertaining to filing of declaration being a mandatory act and not a procedural or technical one. In the present case, there is no dispute of the assessee having filed the declaration, but it is only the filing of intimation to the jurisdictional Superintendent under Rule 57T(2) with regard to the time of availment of Modvat credit. The Commissioner has noted that even otherwise, the rule provides for condonation of delay and has noted that the Assistant Commissioner could have condoned the delay in the present case, hence the finding is sustainable. 6. emsp Taking over all facts and circumstances of the case and considering that there are no grounds made out by the revenue for interference, therefore, the impugned order is sustained by dismissing the appeal.
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1998 (12) TMI 254 - CEGAT, MADRAS
... ...
... ... ..... recommend any concentration of the Vitamins in the Vitamin Mixes used for this purpose. Therefore, this document even though it is only recommendatory and in no way prescribed in the Import Export Policy, is of not much help to the department for the purposes of challenging the transaction value in the present consignments under consideration. Therefore, we find that there are no prescribed standards let alone even recommended standards of concentration of Vitamins in the Vitamin Pre-Mix issue by any competent authority or by the Import Export Policy on record. 15. emsp We have also considered the Order-in-Appeal impugned in detail and find that the ld. Commissioner (Appeals) had independently arrived at these very conclusions in his Orders-in-Appeals impugned on this issue. 16. emsp We, therefore, do not find any infirmity in the said Orders-in-Appeals impugned which compel us to interfere with the same. Therefore, the Revenue appeals are rejected as being without any merit.
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1998 (12) TMI 253 - CEGAT, CALCUTTA
Stay/Dispensation of pre-deposit - Motor vehicles ... ... ... ... ..... s, we find that there is a dispute about standard fitment in chassis number 1612. We note that the declaration was filed by the applicants and that this declaration continued for quite some time. We note also that the invoice did not show any additional collection for fitment of higher value engine or higher value gear box. We also note that the department has not brought any evidence on record to show that the applicants had collected by any means an amount higher than the one shown in the invoice. Without discussing the merits of the case at this stage and looking to the facts and circumstances of the case, we direct the applicants to deposit a sum of Rs. 10 lakh on or before 30-1-1999 and to report compliance on 9-2-1999. On compliance of the above order, deposit/recovery of the balance amount of duty and penalty shall remain stayed during the pendency of the appeals. 5. emsp Non-compliance of the order shall lead to the dismissal of the appeals without any further notice.
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1998 (12) TMI 252 - CEGAT, NEW DELHI
Fents and rags of man-made fabrics - Notification No. 6/88-C.E., ... ... ... ... ..... ired to be construed as it is. The words used in the Notification are ldquo from any factory rdquo . Therefore, we cannot read them to mean ldquo any one or more factories rdquo in the absence of such words and the word aggregate quantity can only be taken to mean total quantity cleared during the year. Ld. DR is also right in drawing our attention to the case law cited by him to show that wherever it was intended to cover one or more factories of a manufacturer, it was explicitly so mentioned in the notification. In the present case, in the absence of such a provision, any factory could only be taken to mean or refer to the factory of the appellant from which the goods in question have been cleared during the year. The other points mentioned by the appellants are hyper-technical and are of no consequence in view of the above position regarding the basic issue. I, therefore, agree that there was no cause to interfere with the impugned order. The appeal is, therefore rejected.
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1998 (12) TMI 251 - CEGAT, MADRAS
Import of squids as bait for catching Tuna fish ... ... ... ... ..... nst this, I find the Revenue has not been in a position to lead any such technical evidence except the World Book Encyclopedia which shows that some people eat squids. It also shows that squids are also used as fish bait. I find that the said evidence is not specific to this issue. ldquo Some People rdquo does not necessarily mean all people or people in India. It is common knowledge that squids are consumed in European countries. Further, in view of the certificates of the Directorate of Fisheries as well as Directorate of Animal Husbandry, both being Government organisations giving their opinion of the dietary habits of the Indian citizens, therefore, I find that the word ldquo some people rdquo would not necessarily apply to human beings who are citizens of India. Clearly, the balance of convenience lies in favour of the appellants. 9. emsp I, therefore, set aside the impugned Orders-in-Appeal and the appeal succeeds accordingly with consequential relief if any as per law.
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1998 (12) TMI 250 - CEGAT, MADRAS
Refund - Return of defective goods ... ... ... ... ..... t the first appellate stage a detailed statement regarding the value of the actual goods received back under Rule 173L, the Revenue in this appeal has not led evidence or calculations to controvert the same. As against this, they have merely proceeded on the assumption that what was received was scrap and have therefore applied wrongly the value of scrap available in the local market. This assumption would have had some weight had the Revenue led evidence to show that before it was returned the prime goods cleared by the appellants had undergone some process or use so as to convert them into scrap. No such evidence is on record and the goods have been returned only on the ground of being of lower quality than what is acceptable to the buyer. This by no stretch of imagination can make these goods as scrap. 7. emsp In view of the aforesaid findings, I find no infirmity in the Order-in-Appeal which compels me to interfere with the same. The Revenue appeal is therefore dismissed.
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1998 (12) TMI 249 - CEGAT, MUMBAI
Demand for Modvat - Declaration filed in broad terms ... ... ... ... ..... at the duty paid nature of the inputs is in question or that their use in the final product is in doubt. The appellants have also cited decisions by the Tribunal wherein it has been held that where the audit has been conducted, it will be inadmissible to raise a demand invoking the longer period for recovery of duty. The Asian Paints decision of the Tribunal cited by the learned DR is more on the issue on merits of the case about the mandatory nature of the declaration under Rule 57G, whereas in this case we are still in the threshold situation whether the demand will be hit by limitation or not under Rule 57-I thereafter only will arise the question of merits. In this view of the matter we are satisfied, as observed earlier, that the appellants have made out a case that the demand is hit by limitation under Rule 57-I of the Central Excise Rules. 5. emsp The impugned order is set aside and the appeals are allowed. The appellants be entitled to consequential relief as per law.
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1998 (12) TMI 248 - CEGAT, CALCUTTA
Rectification of Mistake ... ... ... ... ..... s refund claim of interest barred by limitation of time. rdquo 5. emsp The aforesaid question is not worth referring to the concerned High Court because what has been made retrospective, as held by the Tribunal in its order dated 19th May, 1998, is sub-section (3) of Section 27 of the Customs Act on the authority of Jain Spinners lsquo case 1992 (61) E.L.T. 321 . Sub-section (3) of Section 27 only points out that the refund has to be given in terms of sub-section (2) of Section 27. Sub-section (2) of Section 27 incorporates the doctrine of unjust enrichment both in respect of refund of duty and interest. Therefore, it is only the doctrine of unjust enrichment that has to be applied retrospectively with regard to any refund of duty and interest. Limitation has not been held to be retrospective. It is not so on the plain reading of the provisions of Section 27. Consequently, the question of law is frivolous and need not be referred. Hence, the Reference Application is rejected.
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1998 (12) TMI 247 - CEGAT, MADRAS
Modvat - Capital goods ... ... ... ... ..... several matters which were not raised before the two Members. I feel that for the purpose of dispensing the justice in this case, it is not necessary for me to refer to those points as they are unnecessary. I am bound by the decision rendered by the learned two Members in Singaravelar Spinning Mills case and I cannot but agree with the same. As far as Cheran Spinners case decided by me is concerned, that is the decision where I have remanded the matter. I have not considered the judgment of the Tribunal in the case of Singaravelar Spinning Mills because it appeared to have been reported in the issue of 26th October RLT and the judgment was rendered by me, in 27th August 1998. I therefore feel that the judgment of Singaravelar Spinning Mills Pvt. Ltd. case in 1999 (105) E.L.T. 630 1998 (28) RLT 872 is applicable to the facts of this case. Following the said judgment, I allow the appeal of the Department and reject the contentions raised by the assessee. Appeal stands allowed.
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1998 (12) TMI 246 - COMMISSIONER OF CUSTOMS & CENTRAL EXCISE (APPEALS)
Demand - Limitation ... ... ... ... ..... ise reported in 1989 (43) E.L.T. 195 (SC), it was held by the Hon rsquo ble Supreme Court that extended period of 5 years is inapplicable for mere failure of negligence of the manufacture to take out licence or pay duty where there was scope for doubt that goods were not dutiable. 9. emsp Thus in the facts and circumstances of the present case as discussed above, I hold that there was no suppression of facts on the part of the appellants and hence extended period of 5 years in terms of proviso to Section 11A of the Central Excise Act, 1944 cannot be invoked in the present case. Consequently, the demand is time barred as the show cause notice demanding the duty was issued beyond a period of six months. 10. emsp As regards the imposition of penalty, since the Department was already having the knowledge of the manufacturing activity of the appellants, therefore, no penalty is imposable on them. 11. emsp In view of above, the impugned order is set aside and the appeal is allowed.
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1998 (12) TMI 245 - CEGAT, MADRAS
... ...
... ... ..... ad been shown in the name of dealer. The dealer has taken the stand that there was only a mistake in the address written in the invoices, however, they had received the goods and there are connecting documents like purchase invoice and sales invoices of their transactions reflected in RG 23D Register and the same had been verified by the department. This aspect of the matter has not gone into in great detail. I, therefore, find that the order impugned is not a speaking order, inasmuch as, the defence of the appellants had not been taken into consideration and records maintained by the appellants have not been scrutinised to verify the allegations. 6. emsp In that view of the matter, I set aside the impugned order and remand the case to the original authority for de novo consideration. The appellants shall be given full opportunity to display all the records and submit their case. The original authority shall re-examine the issue and pass an appropriate order, in terms of law.
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1998 (12) TMI 244 - CEGAT, MUMBAI
... ...
... ... ..... mination of Price of Imported Goods) Rules 1988. To explain this, it is relevant to mention the provision of Rule 4 of the Rules. In the Rule 4, it has been specifically provided that the transaction value of the imported goods shall be the price actually paid or payable for the goods when sold for export to India, adjusted in accordance with the provisions of Rule 9 of these rules. When we look into Rule 9, Clause (2) of the said rule, inter alia provides that in the case of goods imported by air, where the cost referred to in Clause (a) is ascertainable, such cost shall not exceed twenty per cent of free on board value of the goods. The mere reading of the said provision clearly will show that the Rules provide for capping of the value regarding air freight. We, therefore, are of the view that the claim made by the appellant in this case is legally tenable. Hence, we allow the appeal and set aside the impugned order, with consequential relief, if any in accordance with law.
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1998 (12) TMI 243 - CEGAT, NEW DELHI
Valuation - Demand - Limitation ... ... ... ... ..... ince contracts entered into by the appellant made a clear mention of the test charges that were recoverable from the customer and such contracts must have been inspected by the visiting Central Excise Officers and the Audit parties. In the case before us the appellants have taken a stand from the beginning that contracts entered into between them mentioned recovery of test charges from customers. Therefore, the basis of the Tribunal rsquo s earlier order would be applicable to this case. Following the ratio of the Tribunal rsquo s order as contained in para 10 thereof, we hold that the appellants are not guilty of suppression of recovery of testing charges. Therefore, extended period of limitation is not attracted. In the result, while holding that testing charges form part of the assessable value of the transmission towers, we hold that the present demand is barred by limitation. The demand is thus set aside as time barred. The penalty is also set aside. Ordered accordingly.
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1998 (12) TMI 242 - CEGAT, MUMBAI
Valuation - Loading and unloading charges ... ... ... ... ..... ctor - 1997 (91) E.L.T. 540 (S.C.) had held that expenses incurred by a dealer towards advertisement of the product of a manufacturer sold by him would not be includible in the assessable value of these goods for the reason that such advertisement benefited the dealer as well as the manufacturer. The contention of the departmental representative that paragraph 10 of the Bombay Tyre International judgment provides that all expenses incurred by an assessee upto the date of delivery of goods would be includible in the assessable value ignores this later judgment of the Supreme Court on the specific issue. It is also to be noted the Bombay Tyre International referred to the expenses incurred by the assessee, whereas Philips India Ltd. v. Union of India was concerned (as we are in this appeal) with the expenses incurred not by the assessee but by the dealer. These expenses therefore would not be includible in the assessable value. 15. emsp Appeal allowed. Impugned order set aside.
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1998 (12) TMI 241 - CEGAT, MUMBAI
Modvat - Reversal of ... ... ... ... ..... in this case. No recovery can be ordered. The stand taken by the Respondent is proper and correct. 6. emsp But in view of the undertaking it is necessary to verify whether the final products are destroyed by the Respondent, after the receipt of permission of Collector dated 21-4-1992, as he has undertaken to pay the cash amount in default towards the credit availed. Apart from it, Assistant Collector should consider the case afresh, and hear the Respondent, and dispose of the case in accordance with the proper provision under the Central Excise Act and Rules. So point raised is answered in the affirmative and the following order is passed. ORDER For the reasons indicated above the appeal is allowed, and impugned order is set aside. The case is remanded to the adjudicating authority to verify the undertaking of the Respondent and its compliance as observed above, and hear the Respondent, and dispose of the case under the specific provision of the Central Excise Act and Rules.
............
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