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Case Laws
Showing 401 to 420 of 577 Records
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2001 (3) TMI 209
Foreign Exchange - Adjudication ... ... ... ... ..... ing aside the impugned order. Ld. Counsel, therefore, prays that the appeal may be rejected. 8. I have heard the rival submissions. On careful consideration of the submissions made I note that in the instant case the facts are that the foreign exchange were purchased and sold in the country and therefore, the case falls within the purview of sub-section (1) of Section 8 of FERA. I note that Section 8 with its sub-sections is not extended as a prohibition under Section 11 of Customs Act. I, therefore, find that Customs had no jurisdiction to act in the instant case. I further note that in the case cited and relied upon by the appellants, the facts were different and the question of jurisdiction was neither used nor came up for decision. On the other hand I find that the case of Shri Ramlal Soni fully covers the present case. In the circumstances, I do not find any reason to interfere with the impugned order. The impugned order is, therefore, upheld and the appeal is rejected.
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2001 (3) TMI 206
Confiscation, fine and penalty (Customs) ... ... ... ... ..... ly on 23-1-1995 when the shortage and excess were determined. They were as it appears from the record determining the reasons for the same. If the reconciliation statement prepared by the importer is looked at the difference is excess over shortage would be Rs. 10,261.61 in value terms which would be 0.3 of the total assessable value of the goods under import. It is a fact that shortages of certain goods were also noticed. No findings are arrived at by the adjudicator on these vital aspects and of the importers conduct in not clearing the goods itself, goods being small watch parts, which were relevant to arrive at determining the conduct of the importers and their bona fides. Confiscation arrived at and penalties imposed, without considering these vital facts cannot be upheld. 4. In view of our findings, we reject the appeal of Revenue. The appeal of the importer is allowed only as regards redemption fine and penalty which are set aside. Appeals disposed off in these terms.
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2001 (3) TMI 205
Valuation Central Excise ... ... ... ... ..... Rules. Sub-rule (b) of Rule 6 provides that the value shall be based on the value of comparable goods sold by the manufacturer of the goods being valued, or any other assessee. It is the first of these values that has been applied. 5. We are unable to accept the contention that the order of the Assistant Collector was not an appealable order under the relevant provisions. No evidence is cited in support of the claim that the product is exempted under Chapter 30 of the tariff. The last ground is that the profit earned by the appellant should be deducted in arriving at the value. The provision for including the profit is contained in Rule 6(b)(2) which provides that the value of goods captively consumed shall be determined on the cost of their production. This sub-rule applies where sub-rule (1) does not apply. The value having been determined under sub-rule (1), the second sub-rule would not come into the picture. We therefore see no reason to interfere. 6. Appeal dismissed.
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2001 (3) TMI 204
Valuation (Customs) - EXIM Policy - REP licence ... ... ... ... ..... tion fine. Such a course of action is not permissible. The Collector was entitled to fix a redemption fine and to recover it in terms of the bond that must have been executed when the goods were cleared pending adjudication. However, the provisions of Section 112 of the Act cannot be used as a substitute for those of Section 111 of the Act. Therefore, we set aside the penalties imposed in lieu of confiscation. However, we are not able to interfere with penalties imposed on partners or authorised representative on account of misdeclaration of value. We do not find those penalties to be disproportionate, except in one case, in Appeal C/712/92, the penalty of Rs. 10.00 lakhs for import of goods valued at Rs. 38.00 lakhs approx. is not in keeping with the ratio that he has adopted in other orders. In view of this and other relevant factors, we reduce the penalty from Rs. 10.00 lakhs to Rs. 5.00 lakhs. 8. Appeals are accordingly disposed of. Consequential relief according to law.
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2001 (3) TMI 201
Appeal - Limitation ... ... ... ... ..... ed the reason for one day s delay (seven days according to Commissioner (Appeals) s. The salient law as laid down by the Hon ble Supreme Court in the cited case is that for marginal delay, appeal should not be dismissed as it would cause serious injury and hardship to the party. This aspect of the matter has been laid down by the Tribunal also. However, I notice that the appellate authority has not accepted the judgment of the Hon ble Supreme Court and the direction of this Tribunal. In the circumstances, accepting the explanation given by the appellant that there was no delay and even if there was delay, it was only marginal, in view of the law laid down by the Hon ble Supreme Court, the marginal delay of one day (according to the Commissioner, seven days), is required to be condoned. Accordingly the impugned order is set aside and the matter remanded to the Commissioner (Appeals) to decide the appeal on merits expeditiously as the matter is an old one. Ordered accordingly.
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2001 (3) TMI 199
EXIM - Importer ... ... ... ... ..... claim that they were the importers in view of their having paid for the goods. There is a letter from the Development Corporation of Goa to the Manager of the State Bank of India authorising payment of sums towards certain invoices. One invoice mentions a figure, which shows the buyers on M/s. Wai Wai Stationary. The bill of lading however, does not refer to that invoice I therefore find force in the submission that Shri A.K. Jain that there is no co-relation and therefore no support in the claim of M/s. Wai Wai Stationary that they were and should have been acknowledged to be the importer. I therefore accept this plea that the appeal filed by M/s. Wai Wai Stationary can be dismissed as having been filed without any status. 12.Accepting that M/s. Nisu Products were the importers and that they were capable of importing machinery under paragraph 25. I allow their appeal with consequential benefit. The appeal filed by M/s. Wai Wai Stationary is dismissed as without jurisdiction.
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2001 (3) TMI 198
Adjudication ... ... ... ... ..... What is clear is that in terms of the show cause notice Commissioner of Customs, Nhava Sheva, was the designated authority. The list showing that the case was pending with the Commissioner of Customs (Adj.) was in error not capable of transferring jurisdiction. 10.Shri Balani was asked as to why in the face of this doubt the appellants had appeared before the Commissioner and had made their submissions. Shri Balani submitted that the jurisdiction could not be transferred by consent. This is a valid point. 11.Prima facie, therefore, we find that the Commissioner of Customs (Gen.) did not have jurisdiction to adjudicate the case. Consequently, the order passed by him does not sustain. 12.The preliminary objection raised by Shri Balani having been accepted by us, we allow these two appeals and remit the proceedings back to the Commissioner having the correct jurisdiction for re-adjudication. The appellants are directed to cooperate. The stay applications also stand disposed of.
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2001 (3) TMI 196
Modvat - Accumulated credit ... ... ... ... ..... Ltd. 6. We observe that although the appellants were wrong in resorting to the provisions of Rule 57H, there is no denial of the claim for the rightful benefit, especially in view of the fact that they had made due and proper declaration with regard to such inputs well before controversy. The substantive benefit available to them cannot be denied on the ground of procedural inadequacies. At the same time, we take cognizance of the submission that the Department should have facility to examine the claim of receipt of the physical inputs etc. 7. We therefore allow this appeal and remit the proceedings back to the Jurisdictional Assistant/Deputy Commissioner. The appellants shall place before him records as to the physical inputs and utilisation of the contested inputs during the material period. The Assistant/Deputy Commissioner shall examine the adequacy thereof and also permit the assessees to appear before him to state their case. He shall thereafter pass appropriate order.
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2001 (3) TMI 195
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... ... ..... C.E. reported in 1994 (72) E.L.T. 770 wherein it is held that when there is apparent conflict between the two provisions of law, it is for the Court to draw a harmonious interpretation which avoids one of them being rendered redundant. 5. On consideration of the submissions made and on perusal of the order of the Commissioner (Appeals), I find that the Commissioner (Appeals) has noted that the inputs had been received on paying duty although on proforma invoice. Proforma invoice is also invoice and the invoice is a specified document for taking credit under the rules. Be that as it may, the regular invoice has been received within three days. There is no discrepancy found. Therefore, the findings arrived at by the Commissioner (Appeals) that the inputs were covered by the proforma invoices which is also an invoice is correct. There is no infirmity in the order of the Commissioner (Appeals). In this view of the matter, there is no merit in the appeal and the same is rejected.
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2001 (3) TMI 194
Appeal to Appellate Tribunal - SSI Exemption ... ... ... ... ..... y. The imposition of penalty was called for and in the facts and circumstances of these cases was justified. However, in the facts and circumstances of the case, the amount of penalty in Appeal No. E/3034/2000 D is reduced from Rs. 4,01,517/- to Rs. 2,00,000/- (Rupees Two lakhs only), and in Appeal No. E/3035/2000D from Rs. 4,00,000/- to Rs. 3,00,000/- (Rupees Three lakhs Only). As regards Appeal No. E/3077/2000D, a penalty of Rs. 50,000/- (Rupees Fifty Thousand only) was imposed when the duty liability was of Rs. l,23,555/-.No change in the amount of penalty of Rs. 50,000/- (Rupees Fifty Thousand only) is called for in this appeal. 13. As a result, both the impugned orders-in-appeal are set aside and the orders-in-original are restored subject to the reduction in the amount of penalties in the two cases as above. 14. All the three appeals filed by the Revenue are thus allowed in the above terms. The cross objections filed by the respondents are also disposed of accordingly.
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2001 (3) TMI 193
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... ... ..... nal product did not emerge out of machine. This was the ratio of the decision in the case of Fertilizer Corporation of India, supra, wherein it was held that the designated goods used in the premises of the recipients during the period, when its plant was being put through trial runs prior to its commissioning would also be eligible for the benefit of the relative notification even though the designated end product had in fact not been produced. 6. Further Rule 57D of the Central Excise Rules clearly provides that credit shall not be denied or varied on the ground that part of the inputs is contained in any waste or refuse arising during the manufacture of the final product or the inputs have become waste during the course of manufacture of final product. As the inputs were used in the manufacture of final product, though in trial production, the Respondents are eligible to avail of credit of duty paid on such inputs. Accordingly, the appeal filed by the Revenue is rejected.
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2001 (3) TMI 189
100% EOU - Demand - Customs Valuation ... ... ... ... ..... icated after giving the appellants an opportunity to present their case. 8.In view of what has been stated above, the impugned order inasfar as it relates to the present appellants is set aside and the case is remanded for a fresh adjudication to the jurisdictional Commissioner. We make it very clear that the appellants plant and machinery shall be released to them immediately so that they can resume production activity at the earliest. The manufacture and sale of the goods from both the EOU and DTA unit shall in no way be affected by the remand proceedings. 9.The appellant had made a deposit of Rs. 1.5 lakhs pursuant to our order in their stay application. Since even according to appellant, certain amount of duty would payable by them, we considered it appropriate in the facts of the case that the said deposit remains with the Revenue during the pendency of the adjudication proceedings. The same can be appropriated towards the duty adjusted at the time of final adjudication.
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2001 (3) TMI 187
Modvat credit - Penalty ... ... ... ... ..... s of the notification. The above cited Board s instructions dated 10-9-1998 though provide that the restrictions of credit to 95 duty paid on inputs shall not apply in case of petroleum products and in the case of such products the credit shall be restricted to the extent of the amount of excise duty calculated 10 ad valorem, but, these instructions are not clarifying the position in respect of the petroleum products which are not to be subjected to the 10 restriction. In my view such goods will naturally fall under the category of restriction of credit to 95 duty paid on inputs and I hold it so. The ld. Counsel for the appellants submits that since this is only a case of interpretation of a particular provisions of law there is no warrant to impose penalty. I agree with it and set aside the penalty imposed on the appellants. 6. But for the above modification the appeal otherwise fails and the same is accordingly rejected upholding the orders passed by the lower authorities.
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2001 (3) TMI 186
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... ... ..... o make entry in that register at the end of the day on receipt of inputs of excisable goods. It is not only a procedural technical condition so as to hold that its violation by making endorsement on the invoice by not maintaining the relevant record as required under Rule 57G or Rule 57GG referred to above, is condonable under the law. A distinction has to be made between a procedural condition of a technical nature and a substantive condition. It is the non-observance only of former which is condonable while that of later is not condonable as the same is likely to facilitate commission of fraud and introduce administrative inconvenience and misuse of the Modvat credit. 7.After taking note of the facts and circumstances of the case and in the light of above discussion, we agree with the view taken by the ld. Commissioner of Central Excise (Appeals) with regard to the issue before us. We do not find any merit in the present appeal and the same is rejected. Ordered accordingly.
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2001 (3) TMI 183
Kar Vivad Samadhan Scheme ... ... ... ... ..... hat the proceedings against the co-noticees will abate when the main noticee has filed a declaration under the Kar Vivad Samadhan Scheme and it is accepted by the Department, as a result of which, the adjudication order does not survive in view of the full settlement under the Kar Vivad Samadhan Scheme. Consequently, any penalty imposed on the co-noticees will also not survive. We observe that the same position is reiterated in the latest decision of the Tribunal in C.C.E. Mumbai-III v. Shri Bhai Chand U. Doshi and Ors. - 2001 (128) E.L.T. 472 (T) 2001 (43) RLT 176 (CEGAT-Del). 5. Following the legal position arrived at in the above decisions, we hold that since the action against the principal noticee viz., M/s. Om Metal and Minerals Pvt. Ltd., Kota is ended in the settlement in favour of them under the Kar Vivad Samadhan Scheme, the penalties imposed on the appellants have also abated. Accordingly, the present appeals are infructuous and the same are accordingly, dismissed.
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2001 (3) TMI 182
Import - Advance licence ... ... ... ... ..... of justice to the appellant. 5. When we look into the findings of both the authorities, we cannot find fault with the impugned order. The licence does not specify the nature of the sewing thread allowed to be imported. In other words it does not prohibit importation of the silk sewing thread of Chinese origin. The licence, as admitted by both sides before us, states that sewing thread in a generic way would be allowed to be imported. In the absence of the importation of a particular variety and of the origin we cannot accept the arguments made by the learned SDR which she tried to effectually put on behalf of the Department as much as possible. Moreover, the precedent decision cited by the learned Counsel for the importer, namely Alfa Exim and Sandeep Impex P. Ltd. 1997 (95) E.L.T. 366 (T) 1997 (71) ECR 287 , clearly clinches the issue in favour of the respondents. We are therefore of the view that the Department has not made out any case. Hence the appeal stands dismissed.
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2001 (3) TMI 181
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... ... ..... ocument evidencing payment of duty on the inputs as prescribed by Rules is not a technicality to be complied with for availing Modvat credit Observation made by the appellate authority that insistence on duplicate copy of invoice is purely a procedural requirement is against Rules so cannot be sustained. When a particular thing is directed to be performed in a manner prescribed by Rules, it should be performed in that manner itself and not otherwise. A combined reading of the provisions contained in the Rules makes it clear that a manufacturer who wants to take credit of the duty paid on inputs must base his claim on the duplicate copy of the invoice. In case the duplicate copy has been lost in transit, he can take credit on the basis of the original. This can be done only if he satisfies the concerned Asstt. Collector about the loss of the duplicate copy in transit. 10.In view of the above, I do not find any merit in this appeal and the same is rejected. Ordered accordingly.
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2001 (3) TMI 179
Import - Place of importation - Valuation (Customs) ... ... ... ... ..... equired to be added to the freight paid for the carriage of the goods from the port of exportation to the BFL. 24.If these costs were to be termed as handling charges i.e. landing charges, then the importer would have no problem. This is because in the bill of entry the handling charges are shown as 1 . The relevant rules lay down that where the actual landing charges are not available they should be charged 1 of the value. It is thus presumed that the actuals would be less than assumed cost. In that case the additional cost would not merit inclusion. On the basis of the analysis above we hold that - (1) The place of importation was not the BFL but that it was Dharamtar (2) The cost of transportation of the imported goods to the place of importation are required to be taken into account for computation of the valuation. The barge charges are a part of such cost of transportation and act of addition would sustain. (3) The impugned orders are upheld and the appeal is dismissed.
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2001 (3) TMI 177
Copper wire ... ... ... ... ..... the Assistant Commissioner was without issue of a show cause notice. His finding that there is no material on the basis of which the Assistant Commissioner has concluded that the goods were to be used as prongs for the filament within an electric lamp and therefore classifiable under Heading 85.39 as parts of such lamps is also not questioned. It is contended that the Assistant Commissioner had gone through the process of manufacture and use of the product. His order however does not cite any material on the basis of which he has concluded that the goods are identical parts of electric lamps. Further, for the wire to become part of an electric lamp, it must have been cut to size and shape so that it was solely or principally to be used only in that lamp. Copper wire in running length can have any number of uses, and it cannot be classified as a part of electric lamp solely on the basis of one of its possible uses. We therefore see no reason to interfere. 3. Appeal dismissed.
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2001 (3) TMI 175
Manufacture - Job work ... ... ... ... ..... one into in great detail by the Tribunal earlier in Final Order 1289/96, dated 19-8-1996 in appellants own case and on examination, it was noticed that the relationship between the appellants and the contractors were on principal to principal basis. Therefore, the Tribunal rejected the Revenue s contention that the contractors were hired workmen, and on such finding, allowed the TNEB appeals. Similarly, the said order was followed by this Bench vide Final Order Nos. 1660-1664/98, dated 21-8-1998. In the present case also we notice that the appellants have produced contract where the terms and conditions for manufacture of RCC poles are same as entered into by them earlier. Hence, the findings arrived by the Tribunal in the earlier cases that the contractors are not hired workmen, will apply to the present case also. Therefore, respectfully following the ratio of the Tribunal judgment, the impugned orders are set aside and the appeals allowed with consequential relief if any.
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