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Case Laws
Showing 81 to 100 of 482 Records
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2000 (12) TMI 806
Demand and penalty - Shortage - Confiscation - Clandestine removal ... ... ... ... ..... goods were subsequently cleared after taking provisional release of the same. 4. emsp I have also heard Shri A. K. Mondal, ld. JDR for the Revenue. 5. emsp It is admitted in the order of the Assistant Commissioner that the goods were packed only in paper packing and the bundles were not further packed in hessian which is normal course of packing of the appellants rsquo unit. The impugned orders have also not referred to any evidence to show that there was any efforts made on the part of the appellants to clear the goods in a clandestine manner. As such, I am of the view that the confiscation of the goods which was still in the factory premises is not warranted and the same is accordingly set aside. 6. emsp As regards the personal penalty of Rs. 1,000/- in view of the fact that the duty of Rs. 493/- is confirmed against the appellants, I reduce the personal penalty of Rs. 1,000/- to Rs. 500/-. Appeal is thus disposed of in the above terms. Stay petition also gets disposed of.
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2000 (12) TMI 801
Refund - Duty paid under protest - Unjust enrichment - Burden of proof - Interpretation of Statute - Retrospective effect - Doctrine of unjust enrichment
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2000 (12) TMI 796
Whether the craft paper manufactured by the petitioner is a "packing material" or it is "paper"?
Held that:- Set aside the order made by the High Court in the case of appellants and remit the matter to it for a fresh decision in accordance with law after allowing the parties to place the necessary material before the court to take the view one way or the other.
The burden lay upon the person claiming the exemption or concessional rate to establish that fact and in the absence of any pleading and material to show the manufacturing process involved and its usage not being clear took the view that the "craft paper " does not cease to be "paper" merely because it is also used for packing purposes. If it is shown that "craft paper" can be used only for packing purposes or mainly for packing purposes and in commercial parlance understood to be packing material and if the facts can be established the concessions arising under the law can be claimed.
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2000 (12) TMI 790
Whether the levy of sales tax at the rate of 8 per cent was within the competence of the State or not?
Held that:- Appeal dismissed. It is not a case for interference with the orders passed by the High Court of Jammu and Kashmir and to issue any such direction to the respondents not to realise the balance amount of the sales tax for the reason that it had not been realised by the appellants, nor due to the fact that exemption granted to the local manufacturers was quashed but with effect from a prospective date, viz., April 1, 1997.
Conceding to the request made by the appellants in this case, would also amount to granting relief in the teeth of order quoted above. The appellants had been throughout under a statutory liability to realise the sales tax at the rate of 8 per cent.
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2000 (12) TMI 789
ADMINISTRATIVE TRIBUNALS — POWER TO PUNISH FOR CONTEMPT — NATURE OF — NOT EXCLUDED BECAUSE OF POWER OF HIGH COURT UNDER ARTICLES 226 AND 227
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2000 (12) TMI 775
Rate of duty ... ... ... ... ..... ench of Five Members of this Tribunal in Final Order No. 369/2000-D, dt. 6-11-2000. 2000 (122) E.L.T. 700 (Tribunal - LB) . The Larger Bench held that ldquo A close reading of Notification No. 63/87-C.E. shows that finished products falling under Tariff sub-heading 5903.19 made out of base fabrics of cotton should be liable to duty leviable on base fabrics falling under Chapter 52 plus Rs. 7 per square metre. rdquo This Larger Bench decision is binding on us. The learned Departmental Representative has no case that the Larger Bench decision is distinguishable on facts. We, therefore do not find any merit in this appeal and is accordingly dismissed.
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2000 (12) TMI 774
Demand - Change in ownership of assessee ... ... ... ... ..... e specific condition under No. 5 and 15, Central Board of Excise and Customs has set aside the fine and penalty on the appellant and confirmed the duty demand. Tribunal order dated 8-1-88 has also observed in Para 13 of the order that if the Collector finds that there had been only a change of management, then there is no illegality in the order passed, and the appellant will be liable to pay duty, subject however, to the actual quantification by excluding the weight of the sizing materials. Annexure I and III to the agreement describes the shares and list of books and documents, which clearly shows only the entrustment of management of company, and not the transfer of assets of the company in toto to confer ownership of the company on the appellant. So the contention of the appellant, that he has become new owner of the company cannot be upheld. It is rejected. Hence I pass the following order. ORDER For the reasons discussed above, appeal cannot be allowed. It is dismissed.
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2000 (12) TMI 762
Deductions - Exporters ... ... ... ... ..... r name called received or receivable by any person against exports under any scheme of Government of India as per section 28(iiib). It is thus evident that by virtue of proviso to sub-section (3) of section 80HHC, 90 per cent of the premium paid by the Government on surrender of exim-scrips granted to the assessee is to be included in computation of profits derived from exports. It may be pertinent to mention that 90 per cent of the profits on account of exim-scrips and amount received through Engineering Export Promotion Council should first be excluded from the export profits and then by virtue of the proviso the same amount is added as profits. The result is that the assessee gets a deduction on entire export profits including cash assistance received by them by whatever name called. The disallowance made by the Assessing Officer of Rs. 3,11,783 under section 80HHC is thus unnarrated. The same is accordingly deleted. 4. In the result, the appeal of the assessee is allowed.
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2000 (12) TMI 757
Rectification of mistake ... ... ... ... ..... n Shri Rajesh Chibber, Advocate, appearing for the appellants had submitted that M/s. Kay Aar Biscuits (Pvt.) Ltd. owned the brand name lsquo Meghraj rsquo in the year 1989 and during the period under consideration, M/s. Kay Aar Biscuits (Pvt.) Ltd. were not a working unit. The submissions of the learned Advocate are mentioned in Para 3 of the order. The matter was examined in detail and in the light of the agreement between M/s. Kay Aar Biscuits (Pvt.) Ltd. and M/s. Rich Food Products Pvt. Ltd., and in the light of the case law on the subject, the view taken was that the benefit of small-scale exemption under Notification No. 175/86-C.E. was not available to the appellants. 4. emsp After carefully considering the ROM application and after giving due consideration to the pleadings of the learned Advocate, we do not find any mistake which may call for rectification in terms of the relevant section of the Central Excises Act. We dismiss the ROM application. Ordered accordingly.
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2000 (12) TMI 748
... ...
... ... ..... because of the delayed payment. As a result of decision of Hon rsquo ble High Court and the Tribunal, Department had to refund money to the assessee. Since the refund took place after a long lapse of time, they claimed interest. The Adjudicating Authority refused to pay the interest. They took up the matter in appeal. Appellate Commissioner awarded interest for the period during which money was illegally detained by the Department. I do not find any ground to interfere with the said order passed by Commissioner (Appeals) which is strictly in tune with the provisions contained in Section 11BB of Central Excise Act, 1944. 2. emsp Appeals fail and are accordingly dismissed.
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2000 (12) TMI 747
Modvat - Packing material ... ... ... ... ..... t of packing material was to be allowed. He was following his earlier Order-in-Appeal No. 360(KDT)CE/JPR-II/99, dated 29-11-1999, while passing the impugned order, The present appeal of the Revenue submits that it was on a misconstruction of Modvat rule that the credit has been allowed by the Commissioner. 2. emsp We have heard the learned Departmental Representative who reiterated the contention raised in the appeal The appellant has not appeared for hearing despite notice. We are therefore disposing of the appeals after perusing the records and taking into consideration the submissions made by the learned Departmental Representative. 3. emsp There is nothing in Modvat rules which makes assessees ineligible for credit in respect of duty paid on packing materials. In fact, rule specifically includes them as eligible inputs. In the circumstances, we are unable to find any legal basis to the present contention raised in the appeals of the Revenue. Appeals fail and are rejected.
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2000 (12) TMI 746
Appeal - Limitation ... ... ... ... ..... of being sick and being not in a position to move out and file the papers. He had explained that the party had given the papers in time but on account of his illness, he could not file the appeal within the stipulated time. The Commissioner (Appeals) has noted that there is negligence and carelessness on the part of the Advocate and hence he has dismissed the appeal. 2. emsp Heard both the sides in the matter. 3. emsp In view of the explanation submitted by the Counsel in the Affidavit filed, we grant waiver of pre-deposit of the amount, condone the delay and take up the appeal, and remand the case to the Commissioner (Appeals) in view of the judgment in the case of Shree Malliga Mills (P) Ltd. v. C.C.E. as reported in 1997 (92) E.L.T. 196 and the Hon rsquo ble Supreme Court rsquo s judgment in the case of Collector v. Mst. Katiji reported in 1987 (28) E.L.T. 185. Thus the appeal is allowed by remand with a direction to the Commissioner (Appeals) to decide the case on merits.
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2000 (12) TMI 745
Demand - Adjudication ... ... ... ... ..... pecified in it. 2. emsp The order of the Commissioner, adjudicating on this notice, has confirmed duty of Rs. 17,93,974/-. Such an order is clearly not maintainable. Accordingly, we waive deposit of the duty demanded and penalty imposed, take up the appeal itself for disposal, allow it and set aside the impugned order. The Commissioner shall adjudicate on the notice issued to the appellant in accordance with law.
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2000 (12) TMI 744
Modvat credit ... ... ... ... ..... ellants have failed to produce any evidence showing receipt of the inputs in original packed condition are outside the scope of the show cause notice inasmuch as no such allegation was made therein thus disabling the appellant from placing any evidence on record to that effect. In any case the invoices having been defaced by the superintendent reflects upon the factum of receipt of the inputs in their factory. 4. emsp After appreciating the submissions made by the ld. Consultant I agree with him that the credit should not be denied on the ground that the invoices were in the name of head office, when there is no dispute about the receipt of inputs in the appellants rsquo factory. The above position is settled by catena of judgments delivered by the Tribunal and also get supported from the Board rsquo s circular relied upon by the ld. Consultant. 5. emsp In view of the foregoing I set aside the impugned order and allow all the four appeals. Stay petitions also get disposed of.
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2000 (12) TMI 740
Reference to High Court ... ... ... ... ..... n rsquo ble Karnataka High Court may not arise out of the impugned order before us. Moreover the instant application has been filed under Section 35G seeking a reference to the Bombay High Court for its opinion. When there is a conflict of decisions of the two High Courts the only course open to the aggrieved party (whether the department or the assessee) is to file an application for making a statement of case for the opinion of the Supreme Court under Section 35H of the Central Excise Act. When confronted with this situation we asked repeatedly to the DR whether application has been filed under Section 35H. He further looking into the papers said in the negative. We are therefore of the view that the instant application cannot be made for a reference to the Bombay High Court for its opinion because the impugned order has followed the only judgment of the Calcutta High Court and the decision of the Larger Bench of the Tribunal. Hence the instant application stands dismissed.
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2000 (12) TMI 738
Stay application by Department ... ... ... ... ..... pite of the aforesaid notice. Further, in answer to a query from the Bench, ld. JDR admits that the prayer in the stay petition for stay of operation of the impugned order is not supported by any grounds. He has also not been able to explain as to what purpose would be served by a grant of stay as prayed for. We therefore, reject the stay petition of the appellant on the ground that the stay petition is not duly verified as required by rules and on the further ground that it is based on no ground whatsoever. Since the defect in the appeal memorandum stands cured, the same will arise for regular hearing in the due course of time.
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2000 (12) TMI 737
Remand - Re-adjudication in violation of remand order ... ... ... ... ..... record to suggest if the relevant material was supplied to the appellants before relying on the same. The appellants also obtained opinion from the IIT but the Collector failed to consider the same. The Tribunal directed the Collector to re-decide the issue regarding classification of the goods in question and the duty liability of the appellants in respect thereof, afresh. But the perusal of the impugned order shows that the Commissioner had failed to comply with these directions of the Tribunal and only reproduced the earlier order. Therefore, the impugned order passed by him cannot be sustained and deserves to be set aside. 10. emsp Accordingly, the impugned order of the Commissioner is set aside. The matter is sent back to the adjudicating authority for fresh decision in accordance with the directions given by the Tribunal in the earlier remand order dated 21-1-1994 and to pass fresh order in accordance with law after affording an opportunity of hearing to the appellants.
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2000 (12) TMI 736
Stay/Dispensation of pre-deposit ... ... ... ... ..... eks from today. On depositing the above sum of Rs. 30,000/-, the balance duty amount will be waived and recovery stayed till the disposal of the appeal. At this stage, the ld. Advocate submitted that on depositing the above sum as directed by the Tribunal, the matter may be remanded to the jurisdictional Commissioner of Central Excise (Appeals) as he has not gone into the merits of the case. 5. emsp The ld. JDR has no objection. 6. emsp With consent of both the sides, the appeal is taken-up for disposal and I direct the appellants to pre-deposit the above sum of Rs. 30,000/- within a period of 12 weeks from today and submit proof of compliance to the jurisdictional Commissioner of Central Excise (Appeals), who thereafter would take up the matter for re-adjudication after giving an opportunity to the appellants to present their case. For the sake of records, the compliance will also be reported to be Tribunal and for that purpose, the matter is posted for mention on 15-3-2001.
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2000 (12) TMI 735
Imports from preferential countries - Customs duty ... ... ... ... ..... this certificate by making a reference to the agency that has issued the certificate rather than banking upon the discrepancies in the packing list, markings on the gunny bags etc. The argument of the appellant that as long as the certificate of origin issued by the designated authority was produced by them and its genuineness has not been disputed, the Customs should accept the certificate and allow clearance, is valid and well founded. Any amount of circumstantial evidences the correctness of which have also not been proved to the hilt without proving that the certificate produced by the appellant duly issued by the designated authority is not a genuine document or obtained by fraud, mis-declaration etc. is of no consequence. The lower authority therefore is not right in solely relying on the circumstantial evidences. Therefore, the case falls on account of a serious lapse in investigation. 11. emsp Accordingly, the Order-in-Original is set aside and the appeal is allowed.
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2000 (12) TMI 734
Rectification of mistake - Maintainability ... ... ... ... ..... and Chemicals Limited is squarely applicable to the facts of the present case. 8. emsp Further we find that a second ROM filed against an impugned order is not maintainable. Further from the study of the impugned order, we find that in sub-para of para 34, the Tribunal had observed that ldquo It was contended for the appellants that since there was no violation of Section 111(j) and 111(o), therefore imposition of penalty was not warranted. We have considered the provisions of the above Sections of the Act. We are satisfied that there was contravention of these sections and we hold that imposition of penalty is sustainable in law. rdquo Thus we find that it is not only the sustainability of penalty under Section 111(o) but also under Section 111(j). 9. emsp Following the ratio of the judgment of the larger bench of this Tribunal in the case of Gujarat State Fertilizers and Chemicals Limited, we hold that the ROM application is not maintainable, therefore the same is rejected.
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