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Case Laws
Showing 81 to 100 of 217 Records
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1993 (11) TMI 144 - CEGAT, BOMBAY
Reference to High Court when there are divergent views of the authorities on the subject ... ... ... ... ..... ent views thus necessitates referring the matter as prayed for. It however appears that the composite question as formulated may be bifurcated into two so as to facilitate the Hon rsquo ble High Court to answer the same. 13. emsp Under the circumstances, the prayer is granted vide Section 35G(1) of CESA, 1944. Reference be made to the High Court of Gujarat at Ahmedabad, under whose jurisdiction the Collectorate and the factory are situated on the following two questions - (i) emsp Whether the date for commutation of the period of limitation, for the refund claim based on the annual turn over, should commence from the date of end of the financial year or from the date of payment of duty? (ii) emsp If yes, whether it is open to the CEGAT to commute the period of limitation from the date on which the financial year ended? 14. emsp The Registry may prepare the statement as contemplated under Section 35G(1) for reference to the High Court and submit the same before the said Court.
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1993 (11) TMI 143 - CEGAT, MADRAS
Stay/Dispensation of pre-deposit ... ... ... ... ..... the interests of justice would be met if the petitioner company M/s. Ramachandra Resins Pvt. Ltd. is directed to pre-deposit a sum of Rs.15 lakhs (Rs. Fifteen lakhs) and we order accordingly. 6. Petitioner M/s. Subramanian and Co. is directed to pre-deposit a nominal sum of Rs. 2500/- (Rs. Two thousand five hundred). The above pre-deposits are directed to be made on or before 28th February, 1994 and compliance reported, subject to which pre-deposit of the balance of duty and the entire penalty on all of the petitioners would stand dispensed with pending appeal. We also grant stay of recovery, subject to the petitioners complying with this order. 7. The learned Counsel at this stage prayed that after complying with this order the petitioners may be permitted to take out an application for early hearing since vital questions of law are involved and the learned D.R has no objection. 8. The matter will be called on 28-2-1994 for reporting compliance. Pronounced in the open Court.
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1993 (11) TMI 142 - CEGAT, BOMBAY
Importer - Definition of ... ... ... ... ..... conspiracy. In view of this, we could not go into the merits of the arguments from either side. Moreover, even if a show cause notice is waived, it is necessary as per the provisions of Sec. 124 of the Customs Act, that such a notice has to be oral. Hence it is necessary to record the specific allegations which were put across to the appellants orally and hear them on these allegations. Hence in the absence of specific allegation being mentioned and in the absence of discussion of evidences against each of them by the adjudicating authority we would deem it proper to remand both the cases for de novo consideration by the Collector, preferably after issue of a show cause notice or after giving a hearing, where charges and supporting evidences can be specifically spelt out to the appellants orally (recorded in the order) and after considering their representation may pass orders in accordance with law. Both the Appeal Nos. C/632/92 and 633/92-Bom. are allowed by way of remand.
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1993 (11) TMI 141 - CEGAT, NEW DELHI
... ...
... ... ..... lso not be possible to expect the Customs authorities to find the age of the engines, and, therefore, the arguments now put-forth, are of no avail. In such circumstances, as has been pointed out by the ld. DR, the value arrived at by the Additional Collector in his best judgment on the basis of material before him has to be held as reasonable and well-founded in terms of Section 14 of the Customs Act, 1962 and the Rules, thereunder, and not arbitrary. Therefore, we uphold the validity of the order of confiscation and determination of the assessable value of the imported goods in this case. 8. We, however, find that having regard to the fact that the appellants have no past record of such offence, there is a case for relief in the matter of fine and penalty. Accordingly, we reduce the fine in lieu of confiscation from Rs. 5 lakh to Rs. 3 lakh and the penalty from Rs. 50,000/- to Rs. 30,000/-. The order of the Additional Collector is, otherwise, upheld. Order dictated in Court.
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1993 (11) TMI 140 - BEFORE THE COLLECTOR OF CENTRAL EXCISE (APPEALS)
Re-entry of goods ... ... ... ... ..... earlier . Therefore, the receipt of the goods after substitution of Rule 173H w.e.f. 11-9-1990 also i.e. receipts dt. 20-10-1990, 2-11-1990 and 18-12-1990 also would not be hit by the proviso clause with reference to the one year or six months period as held by the Asstt. Collector. The Trade Notice 37/91 dt. 20-3-1991 relied by the Asstt. Collector refers to the goods so remade, reconditioned etc. vide clause (j) and so does not apply here. Since testing does not amount to manufacture, the appellants bringing into the factory the impugned duty-paid goods and subsequent removal thereof duty free after carrying out the testing, would be covered by sub-rule (2) earlier to 11-9-1990 and by sub-rule (3) after 11-9-1990 and the demand therefore cannot be sustained. The cited case laws are also in the appellant rsquo s favour. 10. In view of the above discussion, the impugned order deserves to be set aside on both the counts. 11. For the aforementioned reasons, I allow the appeal.
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1993 (11) TMI 139 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... or the appellant and the plea now raised is not acceptable. The rulings relied are clearly distinguishable. The ld. Advocate had further contended alternately that if the cold sections are considered as parts of motor vehicles then also they would be entitled to the benefit of Notification No. 239/86-C.E., dt. 3-4-1986. The lower authorities have not considered this plea. The matter, therefore, requires consideration and we direct the original authorities to consider the plea of exemption notification and grant the benefit, if available. 17. emsp As regards galvanisation of sheets with Zinc coating, the ld. Advocate conceded on this point and in view of this matter, no further findings is required. 18. emsp As regards packing charges, the appellant rsquo s evidence has not been appreciated and we direct the original authorities to reconsider the appellant rsquo s plea. With this modification, otherwise there is no merit in the appellant rsquo s plea and the same is dismissed.
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1993 (11) TMI 138 - CEGAT, NEW DELHI
Jurisdiction to reassess imported goods ... ... ... ... ..... selves. This reassessment in fairness could be reopened only by those authorities who made the original assessment and not by Asstt. Collector Chandigarh, as analysed and discussed in para 15.3 of Ferro Alloys Corporation rsquo s case. On this question alone, the appeal is liable to be set aside and we order accordingly. 6. emsp In view of the above finding it is not necessary to pronounce upon the 2nd issue whether spares/consumables are included within the Notification 13/81 before its amendment in 1984. However, we would like to record that merely because a subsequent amendment has taken place, it cannot be inferred that the introduction by subsequent amendment could not be read in the original notification. An amendment at times may be deemd to be by abundant caution for setting at rest any controversy that may arise it may be for any other reason. We are to interpret the law, as it stood without its amendment at the relevant time. 7. Accordingly, the appeal is dismissed.
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1993 (11) TMI 136 - CEGAT, CALCUTTA
Proforma Credit - Auxiliary duty and regulatory duty ... ... ... ... ..... sought by the appellants was for utilisation of the credit amounts in question which was clearly admissible and should have been granted by the Assistant Collector. His failure to give the permission deprived them of the chance to utilise the credit when it was open to them to do so. As the permission which was thus wrongly withheld was later on granted to them, it has to be held that the credits in question were available to them when the same were due to them. As held by the Tribunal in the MRF decisions referred to above, if the credit cannot be utilised by them now it should be deemed to have been available to them at the material time when they wanted to utilise the same and when it was also permissible for them to do so. In that event, the utilisation of their Personal Ledger Account would be released to an equivalent extent and that would be available to them for being utilised now. We uphold the orders of the Collector (Appeals). The Appeals are dismissed accordingly.
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1993 (11) TMI 135 - CEGAT, NEW DELHI
Appeal - `Aggrieved person’ ... ... ... ... ..... y represented by its Secretary Dr. Om Prakash who is already on record, also as a party and disposed of the writ petitions on their merits. rdquo Emphasis supplied The question involved before the lower appellate authority was whether the penalties imposed on the individual appellants herein are liable to be sustained or not. It was, therefore, imperative on the basis of the aforesaid citations, for the lower appellate authority to call upon the two appellants and give an opportunity to appellants to joint the proceedings. That having not been done by the said authority, cannot make their appeals now before the Tribunal as non-maintainable. 10. emsp I am, therefore, of the view that the appeals of the two individuals, namely, C.R. Salian and H.C. Choksi are fully maintainable. Majority Order 11. In terms of the majority order the appeals are dismissed as not maintainable. Dt. 22-11-1993. Sd/- (G.P. Agarwal) Member (J) Sd/- (P.C. Jain) Member (T) Sd/- (S.L. Peeran) Member (J)
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1993 (11) TMI 134 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... hannels and bottom plates, cutting them into required lengths and welding with 20 mm or 16 mm with MS sheets brackets and welding of cleats. Similarly, in the case of bottom plates section, the same are to be cut to smaller lengths and strengthened by using reinforced angles which are rivetted to the plates. Further, on either side of the plates a slot is made where the latches are welded for backing purposes. 16. emsp Considering the evidence on record, the observations of the learned Adjudicating Authority that sections under reference have been ldquo prepared for use in structures rdquo as required for classification under heading 73.08 appears to be a mere ldquo ipse dixit rdquo not backed by any evidence. 17. emsp In view of this there is no scope for invoking Rule 3 of the interpretation Rules on the ground that it provides a more specific description than the heading 72.16. 18.For the above reasons, we uphold the Order-in-Appeal and reject the Appeal of the Department.
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1993 (11) TMI 133 - CEGAT, NEW DELHI
... ...
... ... ..... no enhancement in the price paid or payable was legally permissible in view of his own finding that the transaction between the appellants and M/s. Konica were on principal to principal basis and also for the reason that the price at which they were importing the goods was a negotiated price, offered to them by M/s. Konica having regard to the bulk order which the appellants were able to place on account of their pre-eminent position in the Indian Photographic Industry. For these reasons we are of the view that the Additional Collector failed to examine and give reasoned findings on all the points raised by the appellants and accordingly the impugned order is not a reasoned and speaking order and shows non-application of mind. We, therefore, set aside the impugned order and remand it to the adjudicating authority for de novo adjudication in accordance with law after granting hearing to the appellants. 13. For the reasons outlined above, the appeal is allowed by way of remand.
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1993 (11) TMI 132 - CEGAT, CALCUTTA
Avoiding summons - Effect of - Penalty ... ... ... ... ..... case. In order to fix the suitable redemption fine we must determine the market price of the goods as on the date of the seizure. The date of seizure was on 17-4-1988. In the reply statement filed by the applicant, he had stated that he purchased the car for a sum of Rs. 15,000/- and the registration was transferred to his name on 18-9-1987. Therefore, the value of the car on 18-9-1987 was Rs. 15,000/- as stated in the reply filed by him. The date of seizure was 17-4-1988. Even assuming that he had spent certain amounts the market price as on 17-4-1988 can be determined as Rs. 25,000/-. In such circumstances, we fix the redemption fine of Rs. 15,000/- and if he pays the redemption fine of Rs.15,000/-, the car in question shall be returned to him. In case the department had already sold the car, then the appellant should be paid back the sale proceeds of the car after deducting the abovesaid sum of Rs. 15,000/- on the abovesaid proceeds. The appeal is disposed of accordingly.
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1993 (11) TMI 131 - CEGAT, CALCUTTA
Exemption to S.S.I. Units ... ... ... ... ..... has held that the confiscation of the goods in question is not warranted. Their Lordships had relied on the decision of the Supreme Court in case of Hindustan Steel Limited and held that the imposition of penalty is not in accordance with the law. Thereafter, in the concluding portion of the order, their Lordships held as follows - ldquo For the reasons aforesaid, the question in this Reference must be answered in the affirmative. rdquo 8. emsp On the above reasonings, their Lordships have already answered the reference in the affirmative by holding that in the facts and circumstances of the case, the redemption fine as well as penalty are not justified. In that view of the matter, the Appeal is disposed of by holding that the confiscation of the goods in question is not in accordance with the law and the imposition of penalty on the appellants is also not in accordance with the law. Therefore, the same are set aside. The appellants are entitled for the consequential relief.
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1993 (11) TMI 130 - CEGAT, NEW DELHI
Demand - Show cause notice ... ... ... ... ..... would be more appropriate to leave their declaration undisturbed is even otherwise out of the two headings the classification under Chapter 49 would be more appropriate going by the principle of classification under later heading, in the case of two headings found equally appropriate. 41. emsp In view of the above position, it was not necessary to go into the time bar aspect, save to say that the charge of deliberate mis-declaration having failed and the Department rsquo s knowledge in evidence from exchange of correspondence, the demand was in any eventuality time barred beyond the normal period of time and much water has flown since the Tribunal rsquo s order in case of Alcobex Metals. 42. emsp In view of the above discussions, I hold that in the facts and circumstances of this matter, Department rsquo s case remains unsubstantiated on all counts and the impugned order is liable to be set aside. 43. The appeal is, therefore, accepted as already announced in the open Court.
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1993 (11) TMI 129 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... Notification 175/86 is set aside. 9.9 Similarly, demand of duty against M/s. Kisan Enterprises to the tune of Rs. 16,17,548.00 on account of clubbing their clearances with LMP Precision Engg. Co. and thereby denying the benefit of Notification 175/86 is set aside. 10. In view of the aforesaid findings, penalty on LMP Precision Engg. Co. is reduced to Rs. 1,00,000/- (Rupees ones lakh only) from Rs. 50,00,000/- in view of the finding of evasion of duty against them to the aforesaid extent. Similarly a penalty against LMP Drilling and Mining Equipment is reduced from Rs. 7,50,000/- to Rs. 25,000/- (Rupees twenty five thousand only). 10.1. Penalties imposed on Bharat Iron Works and Kisan Enterprises and the four individuals are set aside. 11. Lastly, the order of confiscation of land, building, plant and machinery of the four units is set aside and consequently, the redemption fines imposed on them in lieu of confiscation are set aside. 12. Appeals disposed of in the above terms.
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1993 (11) TMI 128 - CEGAT, CALCUTTA
Stay/Dispensation of pre-deposit ... ... ... ... ..... cture of such vehicles and eligible for Modvat Credit. On that basis, Regulators supplied along with Fans can also be said to be an input in relation to such Fans. If this view is correct, the Regulators cannot be treated as cleared as such and Rule 57F(l)(ii) will not come into play. The petitioners have a prima facie case in that event. Stay is granted accordingly. 6. In view of the fact that the question for decision will be whether the rate of duty to be applied for the Regulators on their clearance will be Rs. 2.19/-per piece as demanded by the Department or Rs. 1.35/- per piece as paid by the petitioners/appellants, the jurisdiction will be for the Special Bench. We are referring this to the Honourable President of CEGAT to refer this question to a larger Bench of the Tribunal (Special Bench) for deciding the matter in view of the conflicting views in the matter referred to supra which has led to the reference by the West Regional Bench of the Bajaj Auto Limited matter.
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1993 (11) TMI 127 - CEGAT, CALCUTTA
Modvat Credit ... ... ... ... ..... xercise. In fact, the case of the goods in question will not be jeopardised even by applying that factor but the authorities have erred in that. The only packaging materials that will stand excluded will be those specifically excluded in the Explanation under Rule 57A. The very argument used by the Collector (Appeals) in this regard to distinguish the present case from the Rasoi decision of this Bench and the Ponds India Limited judgment of the Honourable Madras High Court would, on the contrary, justify the decision to grant Mod-vat benefit to such materials. The final products in the present case are chargeable to specific rate of duty and the question of inclusion or non-inclusion of their value in the assessable value thereof is not relevant. On account of all these factors, the appellants rsquo case is fully justified. I , therefore, allow the Appeal and set aside the impugned order. 5. The operative part of the order was announced in the Court at the end of the hearing.
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1993 (11) TMI 126 - CEGAT, NEW DELHI
Exemption to goods used captively ... ... ... ... ..... used by the appellants, herein, are used for processing of the material in the sense to bring about a change therein. So long as this is not established, it cannot be held that such inputs are hit by the Explanation for being excluded from the exemption. In this context, the decision of the Tribunal in the case of W.S. Industries in relation to Rule 57A wherein also the exclusion clause is identically worded can also go to support the case of the appellants. In the other case of Amrit Banaspati also this Tribunal had applied the criterion what would amount to process and then came to the conclusion that the retrieval of lost fibres from waste materials would not amount to such processing. In this view of the matter, the order proposed by the Vice President is concurred with. 10-11-1993 Sd/- (K.S. Venkataramani) Member (T) FINAL ORDER 30. In the light of majority opinion, the appeal is accepted. emsp Sd/- (G.A. Brahma Deva) Judicial Member Sd/- (S.K. Bhatnagar) Vice President
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1993 (11) TMI 125 - CEGAT, MADRAS
Stay/Dispensation of pre-deposit ... ... ... ... ..... similar circumstances on the waste or the yarn contained in the waste generated at the job workers rsquo premises. In this context we also record the plea of the learned Counsel from the Bar that similar manufacturers in similar situation are not paying duty. The department was also directed to verify and enquire and report on this aspect and the Department has not received any instruction that similarly placed manufacturers have been paying duty. Therefore, taking note of the above facts and the totality of the facts and circumstances of the case and keeping in mind the applicability of prima facia the ratio of the ruling of the Madras High Court, we are inclined to think that the petitioner is entitled to grant of waiver of pre-deposit of duty and penalty pending appeal and stay of the recovery of the same pending appeal, and we order accordingly. 5. The appeal being a special Bench appeal, the papers are directed to be transmitted to the Central Registry, CEGAT, New Delhi.
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1993 (11) TMI 124 - CEGAT, NEW DELHI
Project Import ... ... ... ... ..... e divergence between the Madras High Court decision in the case of Dass Labs and subsequent decisions relied upon by the learned Member (T). However, no subsequent judgment of the Tribunal does and, in fact, could not have negatived the Madras High Court decision in Dass Labs case, in the absence of contrary decision of any other High Court. 30. Following the said decision of Madras High Court in the case of Dass Labs, which has interpreted the scope of Heading 84.66, I agree with learned Member (J) that the matter has to be remanded to the Adjudicating Authority to decide the fulfilment of the said conditions laid down by the Government and upheld by the Madras High Court in the case of Dass Labs (supra). I order accordingly. FINAL ORDER 31. In view of the majority opinion the matter is remanded to the original authority for de novo adjudication in the light of direction of the majority opinion. Sd/- (S.L. Peeran) Judicial Member 18-11-1993 Sd/- (P.C. Jain) Technical Member
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