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Showing 81 to 100 of 281 Records

• 1988 (2) TMI 342 - CEGAT, NEW DELHI
  

  Classification

  
  
  ... ...
  ... ... ..... tain the position. 4. When the hearing was resumed today, Shri Lakshmikumaran, Counsel for the respondents, drew our attention to the judgment of the Division Bench of the Bombay High Court in the above matter reported in 1985 (21) E.L.T. 668 (Bom.). The Court upheld the judgment of the single judge and took the view that the cloth manufactured by the petitioner (the respondents before us) should be classified as water-proofed cloth rather than as water-repellant cloth. 5. Both Shri V.M. Doiphode, Sr. D.R. and Shri Lakshmikumaran stated that on the facts and in the circumstances of the present case, the ratio of the Bombay High Court judgment would be applicable. 6. On going through the said judgment, we are satisfied that the ratio of the said judgment is applicable and accordingly, we dismiss the appeal and direct that the goods should be classified as water-proofed cloth and not as bleached or/and dyed or water-repellant cloth, with consequential relief to the respondents.

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• 1988 (2) TMI 341 - CEGAT, NEW DELHI
  
  ... ...
  ... ... ..... nly clear thing is that M/s HMM kept altering their prices, to suit the immediate exigencies in order to obtain a lower assessable value. If one ground is not accepted, they immediately bring forward another. But too little is known about the ingredients of the abatement asked for that it would not be possible to judge them with any accuracy. 9. There is the fact that M/s. GAC was a related person with whom the selling agency agreement terminated only in November, 1975, was executed, and to whom M/s HMM sold all their products. The test of market condition came to be applied only when the goods were sold by the selling agent M/s GAC, and it is this price which needs to be the basis for the assessable value, subject of course to permissible deduction for central excise duty and sales tax. 10. There is not enough corroborating material to come to a conclusion that the order of the Appellate Collector dated 24-12-1979 needs revision or modification. 11. The appeals are rejected.

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• 1988 (2) TMI 340 - CEGAT, NEW DELHI
  

  Adjudication - Cross-examination

  
  
  ... ...
  ... ... ..... involved since they purchased (either old or new) grinding wheels and after altering the shape thereof (when necessary) mounted them and supplied them to customers. The lower authorities have held that since such further operations have been carried out a new product had emerged and there was manufacture involving liability for payment of excise duty. While we express no opinion at present on the said matter, we will only indicate that the adjudicating authority will have to consider the issue from this aspect also that if the purchased material and the supplied material fall under the Tariff Entry the question whether there had been manufacture, calling for excise duty, will have to be considered with reference to that point also. 7. For the above reason we are not recording any finding or any of the issues. The order of the lower authorities is set aside and the matter is remitted to the adjudicating officer for adjudication afresh in the light of the observations earlier.

  ---

• 1988 (2) TMI 329 - CEGAT, NEW DELHI
  

  Demand - Limitation

  
  
  ... ...
  ... ... ..... ty. In the facts and circumstances of the case and the pleas made, it is reasonable to accept that the appellants were under the bona fide belief that there was no duty leviable on the goods. For the reasons set out in that order, we hold that in the present case also, there was no warrant for demanding duty beyond the period of 6 months from the date of the receipt of the show cause notice. 9. We find in the present case a penalty of Rs. 5,000/- has been levied on the appellants. In the case of Singareni Collieries, we observe that in similar circumstances, the Collector refrained from levying any penalty. In view of this inasmuch as the facts and circumstances are similar to those in the other case and also in view of our findings, we do not find that it is a fit case where penalty should be levied. 10. In view of this, we set aside the order of penalty and allow the appeal, with this regard. The appeal is thus partially allowed in the above terms with consequential relief.

  ---

• 1988 (2) TMI 328 - CEGAT, NEW DELHI
  

  Paper - Waxed printed paper and unwaxed printed paper

  
  
  ... ...
  ... ... ..... 3-1975 and No. 122/75, dated 5-5-1975. Sh. Sunder Rajan generally defended the impugned order. 7. We do not think that Sh. Sunder Rajan rsquo s submissions have the effect of making the two decisions relied on by Sh. V. Lakshmi Kumaran not applicable to the present appeals. In view of the decision of the Tribunal in Vikrant Packers Ltd rsquo s case (supra), waxed printed paper must be held classifiable under Tariff Item 17(2) and benefit of exemption under Notification No. 63/82, dated 28-2-1982 be accorded to them, subject to fulfillment of conditions, if any under the notification. As far unwaxed printed paper, in view of the Tribunal decision in M. Wadilal and Co. rsquo s case (supra), the same is held as classifiable under Tariff Item 68 and as being product of printing industry. Benefit of exemption under the notification to be accorded to the appellants subject to fulfillment of conditions, if any, under the notification. 8. The appeal is allowed in the foregoing terms.

  ---

• 1988 (2) TMI 327 - CEGAT, NEW DELHI
  

  Defective documents not a basis for holding under-valuation

  
  
  ... ...
  ... ... ..... the U.S. only to be melted. It is obvious that their value would be considerably higher than the value of offcuts. We however take note that according to the Board rsquo s order-in-appeal the appellants have reduced the sheets into less than 3 ft. so that, it appears, they can only be melted and not used otherwise. All the same what is in issue is the value of the sheets at the time of importation. The appellants claim that the value of the sheets is 375 per M.T. whereas the Collector fixed it at 720 per M.T. Taking all the circumstances into consideration and applying our best judgment we order that the sheets should be valued at US 550 per M.T. We are conscious that this is an ad hoc decision but the value of practical approach and the absence of any material, except the circumstantial evidence, leads us to such a conclusion. 13. The goods involved in these three consignments should be re-assessed accordingly. Consequential relief if due should be granted to the appellants.

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• 1988 (2) TMI 326 - CEGAT, NEW DELHI
  

  Under-valuation

  
  
  ... ...
  ... ... ..... that the quality of the present importation is the same or is comparable to the quality of the moulding powder covered by the two invoices produced by the appellants. It is very dangerous, indeed, to lay down a law which absolves the assessee of his obligation fully to declare all particulars, including quality, grade and value of his goods, and, in such circumstances, requires the department to make assessments on the basis of assumptions. 15. If an assessee leaves the department guessing as regards nature and quality of the goods imported then his intention is prima facie suspect, and he cannot be given the benefit of suppression of the facts. 16. Tribunal rsquo s orders in Walia Enterprise, Amritsar v. C.C. and C.E., Chandigarh, cited by the appellants in their favour, and considered by my learned brothers in the foregoing judgment, to my mind, has no applicability at all in the given facts of this case. 17. I uphold the order, including the penalty and dismiss the appeal.

  ---

• 1988 (2) TMI 325 - CEGAT, BOMBAY
  

  Non-sparking non-magnetic rust proof corrosion resistant tools

  
  
  ... ...
  ... ... ..... valid for import of non-permissible spares and not for non-permissible-tools. The Additional Collector was also justified in ordering confiscation since the goods in question were not eligible for clearance under Appendix 10 (4) of the Policy. They require specific licence but then the importers did not produce such a licence. 11. The only other aspect that remained for consideration is as to the quantum of fine levied in lieu of confiscation. The cif value of the goods is Rs. 1,44,744/-. The goods imported could not have been for trade purpose. There is no likely misuse of the goods having regard to the fact that the company in question is controlled by a State Government. In the circumstances, some leniency is called for. I, therefore, reduce the fine amount from Rs. 50,000/- to Rs. 25,000/- (Rupees Twenty Five Thousand). 12. Subject to the above modification in the quantum of fine, this appeal fails and the same is rejected. The appellants be granted consequential relief.

  ---

• 1988 (2) TMI 324 - CEGAT, NEW DELHI
  

  Prepared explosive -Dutiability

  
  
  ... ...
  ... ... ..... item falling under Chapter 36 as it answers to the specific description of prepared explosives for the purpose of Central Excise levy. The appellants rsquo grievance is also that the lower authority has not considered their plea for Modvat relief in terms of Rule 57-A. We observe that the lower authority has not given any findings on their this plea. In the circumstances, their this plea for Modvat in terms of Provision 57-A and other provisions in (his regard has to be considered. The facts regarding the eligibility of the appellants to the benefit of Modvat under Rule 57-A etc. are not available on record for giving our findings on this plea of the appellants. We, therefore, find it a fit case for remand for this limited purpose. We, in view of the above, upheld the order of levy of duty on ANFO and remand the case to the lower authority for consideration of the appellants rsquo plea for benefit of Modvat in terms of Rule 57-A and other provisions of the law in that regard.

  ---

• 1988 (2) TMI 323 - CEGAT, NEW DELHI
  
  ... ...
  ... ... ..... e the seller or buyer have no interest in the business of each other and the price is the sole consideration for the sale or offer for sale. In the matter before us the origin of goods in the invoice has been shown as South Korea and the Collector has based his valuation on the basis of an invoice No. SKM 801017 dated 17-10-80 of the manufacturer and supplier M/s. Sunkyong Magnetic Ltd., Korea. Undoubtedly there is a gap of seven months. The appellant has not brought any evidence on record to the effect that the prices in May 1981 were lower than those in October 1980 He has also not brought any evidence to the effect that the goods imported by the appellant were not similar to the instance mentioned by the Collector in his order. The value declared by the appellant is ridiculously low. Accordingly we hold that the Collector was right in adopting the value at US 12984.25 cif equivalent to Rs. 107530.00 cif. We confirm the findings of the lower authority and reject the appeal.

  ---

• 1988 (2) TMI 308 - CEGAT, BOMBAY
  

  Change of constitution of proprietary firm into partnership firm

  
  
  ... ...
  ... ... ..... of the proprietor. If all aspects are taken into consideration, there is hardly any justification for the Collector to impose penalties on the appellants. I, therefore, set aside the penalties on both the appellants. As regards, the fine, the father who was a dealer in gold should have known that he was required to obtain a fresh licence when he took his son as a partner. His plea that he was not aware of his obligation to inform the Gold Control Authority cannot be believed because he had informed all other authorities, who are required to be informed. However, having regard to the later Trade Notice issued in the year 1986 which permitted taking of son or daughter as partners without prior permission of the department, I reduce the fine from Rs. 10,000/- to Rs. 2,500/-(Rupees two thousand five hundred). 9. emsp Subject to the modification in the quantum of fine and penalties, these appeals fail and they are rejected. The appellants, however, be granted consequential relief.

  ---

• 1988 (2) TMI 307 - CEGAT, NEW DELHI
  

  Exemption subject to filing of a bond at the time of the entry of goods

  
  
  ... ...
  ... ... ..... I cannot imagine anybody would want a bond when he could have cash. 3. To miss the wood for the tree is all too easy in a case like this, but however important form may be, the substance is even more so. It is good to do the correct thing it is far better to do the right thing. 4. The importers say that they have proved the end use by means of a certificate from the central excise and that such certificates were being accepted. It should be accepted this time also unless there are strong reasons for not doing so. If that is the case, the department must record them in writing in detail. 4A. I now remand the case to the Assistant Collector to retry the case and in the retrial, the importer shall produce all requisite certificates that are necessary to prove their claim to exemption. But in so doing, the Assistant Collector shall not insist on a bond as the Collector (Appeals) did. He shall take the payment of full duty in cash as that bond. 5. The impugned order is set aside.

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• 1988 (2) TMI 306 - CEGAT ,NEW DELHI
  

  Classification

  
  
  ... ...
  ... ... ..... would appear that article should be sufficiently machined and work to go outside the respective chapters and to be considered as machinery parts. From Note 2(c) of Section XVI read with exclusive Note (G) under Item 84.65 it would appear that articles which can be identified as machinery parts, but cannot be identified as parts of a particular machine fall under Item 84.65 or 85.28. Since the imported unmachined plastic cutting boards cannot even to be identified as machinery parts to qualify for classifying them under Item 84.82 does not arise. In the instant case the goods imported are admittedly plastic sheets cut to size. Thus even though these goods may be essential to the use in machinery that by itself does not make them assessable under Chapter 84 as spare parts. Being capable to general use, sub-clause (G) would be applicable. Hence in our opinion goods were correctly assessed and does not call for any interference at this end. In the result the appeal is dismissed.

  ---

• 1988 (2) TMI 305 - CEGAT, NEW DELHI
  

  Appeal by Department - Limitation of one year

  
  
  ... ...
  ... ... ..... t Collector under 129D(2) that 10.1.1985 forms the grievance date, the real grievance arose from the action taken on 18.7.1984. The Collector Appeals was therefore, right and I will not interfere with his order. 11. The applicant says that the Collector Appeals travelled beyond the scope of the appeal, but this is not so. The order given to the Assistant Collector directed him to apply to the Collector of Customs Appeals for determination of the validity of the order of the release of goods covered by bill of entry No. 757/783. It is only in the form CA62 filed by the Assistant Collector before the Collector Appeals that he showed the date of the decision as 10.1.1985 this decision does not form part of the direction by the Collector to him for determination by the Collector Appeals. 12. I note that the order of the Collector of Customs does not bear any date. The date 5.9.1985 is given only by the Assistant Collector rsquo s application to the Collector Appeals. 13. I agree.

  ---

• 1988 (2) TMI 304 - CEGAT, MADRAS
  

  Gold dealer’s licence

  
  
  ... ...
  ... ... ..... icence shall be cancelled unless the holder thereof has been given a reasonable opportunity of showing cause against the proposed action. Therefore, it follows that even if the adjudicating authority were to give a finding against the appellant in regard to contraventions under the Act for cancellation of the licence in terms of Section 50(1A) of the Act, the appellant will have to be given a show cause notice afresh and be heard. Therefore, we feel that the Collector himself may go into the question with reference to the advisability or otherwise of ordering suspension of the licence pending enquiry before him. 7. We, therefore, set aside the impugned order without express in any opinion on the merit of the issue. We make it clear that it is certainly open to the Collector of Central Excise, who is now in seisin of the issue as adjudicating authority, to exercise the powers as per law under Section 50(1) of the Gold (Control) Act, 1968. The appeal is accordingly disposed of.

  ---

• 1988 (2) TMI 303 - CEGAT, NEW DELHI
  

  Proforma Credit

  
  
  ... ...
  ... ... ..... the utilisation of credit during the period 1.4.1981 to 31.3.1982. The Collector restricted the demand to six months, but he did so in respect of credit ldquo utilised for payment of central excise duty on electric fan during the period from 25.12.1981 to 31.5.1982 through RG 23 register rdquo . It is clear that the department proceeded by viewing the six months from the date of utilisation of the credit, which is the same date or approximately the same date, as the date of clearance of the finished goods, viz., the fans. This is not correct. The six months must be counted from the date of the credit, that is to say, the date on which credit on the stampings and laminations was taken in the RG 23 register, and not the date on which this proforma credit was utilised for clearance of the finished goods. For this lack of clarity on this point, we would like the Collector to re-adjudicate once more keeping in mind our observations above. For this purpose, his order is set aside.

  ---

• 1988 (2) TMI 302 - CEGAT, NEW DELHI
  

  Castings not describable as identifiable machine parts

  
  
  ... ...
  ... ... ..... hether the goods are rough machined or completely finished and that the castings were clearly identifiable as machine parts even at the time they are made as castings. This is not enough for founding a decision that the castings are machine parts and for assessing them under Item 68.I accordingly direct assessment of the goods as castings. Assessment under Item 68 is not correct and the department shall not proceed to do so. 11. Since the department assessed the rough machined parts as finished machine parts under Item 68, the learned counsel for the department was asked if they had assessed the castings as castings. The learned counsel said he did not have any information on this. We would have appreciated if the appellant collectorate had made this information available, as we would have liked to understand the problem fully. We have been given only partial information on the dispute and our understanding of the matter is, therefore, necessarily only partial and incomplete.

  ---

• 1988 (2) TMI 301 - CEGAT, NEW DELHI
  

  Pump - Sand piper pump with combination filter, lubricator and regulator

  
  
  ... ...
  ... ... ..... presses, demand special attention. 7. In industry pumps are adapted for various kinds of work. They are also adapted to pump liquids carrying solids suspended in them. In the case we are judging now it would be a mistake to say that the sand piper pump pumps the solid. It does not pump the solid it pumps the liquid which in operation carries the solids. It is true that the object of the operation is to move the solid, but is so doing the engineers are only taking advantage of the movement of the liquid to suspend solids in it to transfer them from one place to another. The pump is, therefore, not a pump for solids, but a pump for liquids. Its principle works on the movement of the liquid. 8. Heading 84.10 ldquo Pumps for liquids rdquo is more appropriate then Heading 84.59 for ldquo Machines and mechanical appliances, having individual functions, not falling within any other heading of this chapter. rdquo 9. The assessment should be made in accordance with orders given above.

  ---

• 1988 (2) TMI 284 - CEGAT, BOMBAY
  

  Gold liable to confiscation for non-maintenance of accounts

  
  
  ... ...
  ... ... ..... quantity of 245.900 gms. The party had taken a contention that certain quantity of gold seized are less than 9 carat. The Department ought to have tested the gold for its purity. This had not been done without carrying out the test and without ascertaining the purity the contention of the dealer cannot be brushed aside. 11. In the result, this appeal is allowed in part. The confiscation of 585.300 gms. of gold ornaments belonging to the customers is set aside. The confiscation of 145 gms. out of 254.950 gms. is also set aside. The confiscation of the remaining quantity is however confirmed. 12. Since I had set aside the confiscation of gold amounting to 730.300 there should be proportionate reduction in the quantum of fine and penalty. The fine is reduced from Rs. 25,000/- to Rs. 12,500/- (Rupees twelve thousand five hundred only) and the penalty is reduced from Rs. 5,000/- to Rs. 2,500/- (Rupees Two thousand five hundred only). The appellant be granted consequential relief.

  ---

• 1988 (2) TMI 283 - CEGAT, MADRAS
  

  MODVAT credit

  
  
  ... ...
  ... ... ..... place, become eligible for MODVAT Scheme by complying with the provisions relating to such eligibility contained under Rule 57G. The Collector has also given a finding after examining the statement containing particulars of scrap received by the appellants that these include turning and boring scrap, MS Heavy scrap and MS pressed bundles which by their nature are clearly recognisable as non-duty paid. In the face of this factual finding of the Collector, the material being clearly identifiable as non-duty paid from their nature, the deemed credit order will not apply. In the result, we find that the Collector rsquo s order is well founded and is upheld. However, the amount ordered to be recovered under Rule 57-I needs to be re-determined as there apparently seems to be overlanding in the amount demanded in respect of Ramming mass and MS-Scrap as already pointed out above in the submissions made before us by learned Counsultant. The appeals are disposed of in the above terms.

  ---

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