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Case Laws
Showing 161 to 180 of 492 Records
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1998 (2) TMI 337 - CEGAT, NEW DELHI
Demand - Yarn - Variation in Count - Evidence ... ... ... ... ..... f yarn. These instructions issued in May, 1987 have to be held as indicating what should be the correct tolerance limit while determining the count of yarn. We therefore, hold that tolerance limit which is 5 up to 40 counts and 3 for counts of 40 and above, has to be adopted in determining the count of yarn and also duty leviable. 8. emsp In regard to other counts, there is no corroborative evidence and the statement relates specifically only to yarn of 34 and 35 counts and therefore, following the ratio of the Tribunal rsquo s order, we hold that entries made in the Wrapping register cannot be relied upon. We therefore, set aside the order and remand the matter remanded to the Adjudicating authority for re-determining the demand in regard to counts of 34 and 35 after allowing tolerance limit in case of such yarn of 34 and 35 counts. Collector shall thereafter, pass such orders as deemed fit including the order relating to penalty, if any, leviable for the period in question.
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1998 (2) TMI 336 - CEGAT, CALCUTTA
Lean gas/Off gas emerged during the process of manufacture of carbon black is not an excisable product
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1998 (2) TMI 335 - CEGAT, NEW DELHI
Stay/Dispensation of pre-deposit ... ... ... ... ..... ut a prima facie case for waiver on the merits of the matter namely on classification which is the subject matter of another appeal before the Tribunal. As far as the financial position is concerned, we note that the appellants has applied to the BIFR for being considered as a sick unit. Under these circumstances, we are of the view that the interests of justice would be met if the appellants are directed to deposit a sum of Rs. 15 lakhs within a period of 12 weeks from the date of receipts of this order and on such deposit being made, the requirement of pre-deposit of balance duty (duty due in this case is Rs. 40, 01,363/- out of total demand of Rs. 82,94,863/- a sum of Rs. 42,93,500/- has already been recovered) and penalty amount of Rs. 1 lakh shall be dispensed with pending the appeal. Failure to comply with this order shall result in vacation of stay and automatic dismissal of appeal without further notice. Matter to come up for ascertaining compliance on 8th June, 1998.
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1998 (2) TMI 334 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... their own case, the minor procedural infriction, if any, would not be of any material significance. In any case, since show cause notice itself holds that they are licence holders, there could conceivably no contravention of Rule 174. The appellants could have had bona fide belief in view of trade Notice 35/86 which indicates that such units are exempt from requirement of daily production and the requirement regarding removal of goods for operations outside the factory. The trade notice therefore grants a general permission under Rule 56-B for carrying out operation such as fitting electric wires etc. The expression lsquo electric wiring rsquo is only illustrative and would not exclude such minor operations like panelling. In these circumstances, we are satisfied that procedural infraction even assuming it was an infraction of little significance considering that there would be no intention in evading duty. In the result, we set aside the impugned order and allow the appeal.
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1998 (2) TMI 333 - CEGAT, NEW DELHI
Watch cases with bracelets - not eligible for benefit of exemption under Notification No. 44/85-Cus. and No. 65/87-Cus.
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1998 (2) TMI 332 - CEGAT, NEW DELHI
... ...
... ... ..... Tribunal rsquo s judgment in the case of Heal Well Pharm (supra) in which the dropper enclosed with the medicament was meant to ensure that the correct dose would be administered to the child. The danger of over dose being more in the case of a child than in the case of adult, such dropper would be held as part of the medicament. However, where a dropper is enclosed with the bottle of ink to ease the filling of a pen, an identical dropper would have to be held as an accessory and not as a part. Seen in this manner, the Collector was correct in drawing the analogy of a dropper supplied with eye drops. 21. emsp On consideration of the location of haemorrhoids in the human anotomy as also the fact that in the absence of the applicator, the subject ointment could not be applied in hygienical manner, we hold that in this particular case, the canula was a part of the medicament and not merely an accessory. On this observation, we up-hold the impugned order and dismiss this appeal.
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1998 (2) TMI 331 - CEGAT, CALCUTTA
Confiscation and penalty ... ... ... ... ..... zed currency of Rs. 50,000/- was attempted to be taken to Bangladesh. The discrepancy referred to in the impugned order in the two statements of Emajuddin does not lead to the conclusion as drawn by the original authority. The fact remains from the reading of two statements that the money belongs to Lutfal Haque. A slight discrepancy of getting hold of this money whether from the wife of Lutfal Haque or from Lutfal Haque does not make much of a material difference. I am, therefore, of the view, that no case has been made out by the lower authorities that the Indian currency of Rs. 50,000/- was attempted to be exported by the appellant Emajuddin. In the circumstances and discussions as aforesaid, I quash the impugned order and allow the Appeals with consequential relief to the appellants. 6.2. emsp In short, Indian currency of Rs. 50,000/- be restored to the rightful owner i.e. Lutfal Haque and penalty of Rs. 5,000/- each of them is set-aside. Appeals are allowed as aforesaid.
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1998 (2) TMI 330 - CEGAT, NEW DELHI
Valuation - Notional interest ... ... ... ... ..... . Hence the necessary inference is that the receipt of advance amounts clearly influenced and depressed the price. It is contended that the rate of notional interest adopted at 18.5 was too high. This contention raised before the Collector (Appeals) was overruled on the ground that it was not raised before the Assistant Collector. This does not appear to be the correct approach. We are dealing in this case with the period 1989-90. The adjudicating authority should have made some enquiry with the banks as to the interest they pay on receipt of advance and the interest they charge for commercial loans. Having regard to the present rate of interest and the period in question, we reduce the percentage of notional interest to 15 . Demand will be re-quantified on this basis. The impugned order is set aside to the extent indicated above and the case is remanded to the jurisdictional adjudicating authority for passing a fresh order after granting the appellant opportunity of hearing.
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1998 (2) TMI 329 - CEGAT, NEW DELHI
Demand - Limitation - Suppression of facts - Penalty ... ... ... ... ..... 1992. 8. emsp This shows that they had continued to indicate the factual position and reported to the Department regularly month after month. Therefore, no suppression of facts or mis-statement of facts could be alleged and it is surprising that month after month, the officers concerned failed to notice an important fact which they were required to keep in mind while checking the monthly returns. The normal period of time has been made available to the department by the legislature to take care of such omissions and making such corrections and verifications, if any necessary. In the circumstances, we hold that the longer period of limitation is not available to the department. However, the appellants are also at fault in continuing to claim the benefit which was no longer available and cannot be excused and therefore, imposition of penalty on them was justified. 9. emsp We, therefore, set aside the demand but confirm the penalty. The appeal is disposed of in the above terms.
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1998 (2) TMI 328 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... f any, stipulated in the Notification has not been satisfied by the respondent. On this short ground it must be held that benefit of Notification 45/82 would be available. The Notification No. 245/83 arises only in relation to PP medicines in respect of which statutory retail price had been fixed. It was a condition of the Notification that the benefit of notification cannot be claimed unless it is claimed in respect of all medicines covered by the statutory price list. The contention of the department is that the respondent was not claiming the benefit of Notification 245/83 in respect of medicines supplied to Government departments and therefore, violated the conditions stipulated therein. If the respondent had violated any condition stipulated in Notification 245/83, consequence should the denial of benefit of that Notification and not the denial of Notification 45/82. We find no ground to interfere with the decision of the Collector (Appeals). 4. emsp Appeal is dismissed.
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1998 (2) TMI 327 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... ating components in an emergency, e.g. failure of an engine driven pump. rdquo 13. emsp On a reading of the entire literature, it is clear that the item in question does not fall within the ambit of hydraulic accumulator. Therefore, the classification to be adopted under Heading 84.79 as ldquo machine and mechanical appliances having individual functions, not specified or included elsewhere in this Chapter rdquo gets excluded in terms of the Explanatory Notes to HSN (page 1317) referred to by the Assistant Collector. As the said Explanatory Notes refers to hydraulic accumulators, while in the present case the item not being a hydraulic accumulator but only a hand pump which has got a specific entry under Heading 84.13. Therefore the claim of party is required to be accepted. There is no infirmity in the order of the Collector (Appeals), hence accepting the plea of the assessee on the basis of the write up and the technical details furnished, the appeal is therefore, rejected.
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1998 (2) TMI 326 - CEGAT, NEW DELHI
... ...
... ... ..... consideration of the submissions and on perusal of the judgment cited, we are of the considered opinion that the matter is required to go back to the original authorities for de novo consideration to reconsider the pleas raised by the appellants that the manner in which it is imported in coils was not in a transportable condition and it required to be sheared for the purpose of easy transportation and it is the same inputs which has been received by them and that all the documents are co-relatable. However, they admit that there has been a procedural violation for which the nominal penalty could be imposed. 10. emsp Taking into consideration the overall facts and circumstances of the case, we remand the matter to the original authority to re-hear the appellants and give them an opportunity to establish their case in terms of the ratio laid down in the case of Roshan Tin Printers. The matter could be determined in the light of the said ratio. The appeals are allowed by remand.
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1998 (2) TMI 325 - CEGAT, NEW DELHI
Natural justice - Non-speaking order ... ... ... ... ..... der is also violative of principles of natural justice. The Asstt. Collector has also not looked into the various citations referred to before, which lays down that Modvat credit cannot be denied and were procedural lapse. Ld. DR submission is that these lapses are not procedural ones but are substantive violation is a new point raised, which has not been dealt with the lower authorities. It is for the lower authority to spell out the mandatory and substantive provision of the Modvat rules and it is for them to show how there is a procedural irregularity. As both the orders are violative of principles of natural justice, therefore, I set aside the impugned orders and remand the matter to the adjudicating authority to pass a detailed speaking order in terms of principles of natural justice and after considering the submissions made by the Counsel. The appellant shall be heard by grant of personal hearing before passing the order. Appeal allowed by remand to original authority.
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1998 (2) TMI 324 - CEGAT, NEW DELHI
Demand - Deposit of duty with Central Government ... ... ... ... ..... by the Commissioner of Central Excise in the impugned order. No appeal was filed by the respondents against this order. Therefore by virtue of this order of 4-5-1994, the balance credit on inputs lying in RG 23A Part II stand lapsed. In these circumstances, there is no balance in RG 23A Part II after 4-5-1994. Therefore the arguments of the respondents that they have paid the duty by debiting the amount in RG 23A Part II has no force as there is no credit in the RG 23 Part II on or after 4-5-1994. 6. emsp The respondents collected Rs. 24,776.77 from the buyers as Central Excise duty after 4-5-1994 (sic) and they have not deposited the amount as the goods manufactured by the respondents were exempted from payment of duty with effect from 4-5-1994. The respondents cannot take the benefit of notification and collect the duty on behalf of the Revenue without depositing the same. In these circumstances the impugned order is set aside and the appeal filed by the Revenue is allowed.
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1998 (2) TMI 323 - CEGAT, NEW DELHI
Manufacturer - Hired labourer - Demand - Limitation ... ... ... ... ..... .L.T. 161 (S.C.) and 1985 (22) E.L.T. 302 (S.C.) appellant cannot be treated as the manufacturer of the goods in question. It is noteworthy that though duty has been computed on a higher value than that declared by DIPL, no charge of short payment of duty has been levelled against them. On the contrary, it has even been indicated in the order that duty was wrongly collected from them which should be refunded to them in accordance with the provisions of law. This part of the order will be infructuous as any action for refund was time barred at the time of passing of the Collector rsquo s order. Duty has been paid by DIPL and accepted by the department and rightly too. No disturbance of the department rsquo s action on the lines adopted by the Collector is called for. Action regarding possible short payment of duty at the hands of DIPL has, however, remained unexplored. In the circumstances, we hold that the impugned order is unsustainable. We set it aside and allow the appeal.
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1998 (2) TMI 322 - CEGAT, NEW DELHI
Refund - Unjust enrichment ... ... ... ... ..... uty has been paid from their own account or any separate account has been maintained in respect of the duty paid from their own account. Further they simply produced the record showing the duty has been mentioned in their expenditure account. The record produced by them further shows that the duty has been paid from their income account. It shows that they have received the duty from their customers. 9. emsp The Hon rsquo ble Supreme Court in the case of Mafatlal Industries v. Union of India held that all claims of refunds under the Central Excise Act should subject to claims establishing that the burden of duty has not been passed on to the buyers. In view of our discussion, we do not find any merits in these appeals. The appeals are dismissed. 7. In the present case, the appellants have not produced any evidence to show that the burden of duty has not been passed on to the customers. Therefore, I do not find any infirmity in the impugned order and the appeals are dismissed.
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1998 (2) TMI 321 - CEGAT, MUMBAI
Classification ... ... ... ... ..... as accepted the decision of the Larger Bench of the Tribunal and the Supreme Court further observed that the decision of the Tribunal in Sikka Heat Treatment Centre case is more appropriate view to take in the facts of the case. It was submitted by the department before the Supreme Court that the Larger Bench decision had been accepted by the department and therefore the same has not been challenged before the Supreme Court. It follows, therefore, that the decision of the Commissioner (Appeals) in this case following Aravali Forgings Limited decision of the Tribunal to classify the articles in dispute under Heading 72.08 is sustainable as the decision on the classification has been endorsed by the Supreme Court as noted above. In this view of the matter, the question of going into the limitation aspect does not arise as the Commissioner (Appeals) decision on merits itself is correct in law. 7. emsp Appeal is therefore, rejected. Cross-objection is also treated as disposed of.
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1998 (2) TMI 320 - CEGAT, NEW DELHI
Confiscation, fine and penalty ... ... ... ... ..... that they had not filed any declaration nor had maintained any accounts. The learned Counsel submits that note books have not been seized nor shown to them. While we agree that any findings arrived at on the basis of such exercise books which were not seized cannot be sustained, we are of the view that this by itself would not affect the outcome of the case since we have held that circles as such would be eligible to exemption. This however does not absolve the appellants from the contravention resulting from non-accountal of goods or not making a declaration. In view of this, confiscation and redemption fine and penalty would appear to be justified. Since however, no duty is involved and the appellants are not liable to pay any duty, we consider that ends of justice would be met if penalty is reduced to Rs. 5,000/-. 9. emsp Subject to this modification, the demand of duty as already indicated is not sustainable and is therefore, set aside. Appeal disposed of in these terms.
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1998 (2) TMI 319 - CEGAT, MUMBAI
Modvat - Declaration - Incorrect sub-heading ... ... ... ... ..... re declared in the declaration and defective CRGO sheets were received under invoice. As regards scrap I find that the declaration shows waste and scrap of steel and of other alloy steel. The heading given is under 7204.30. The scrap received under invoice from BHEL is classified under 7204.90. In a number of judgments the Tribunal held that mere variation in sub-heading is not sufficient for the denial of Modvat credit. In fact the circular of the Board No. 219/53/96-C.X., dated 4-6-1996 on which reliance has been placed by the appellants directs the field officers not to deny credit on the ground of minor variation in the classification of the goods at six-digit level. 5. emsp I find that in the proceedings the fact of the receipt of the goods and their utilization has not been challenged. In view of the situation I set aside the impugned order and allow this appeal and grant consequential relief to the extent warranted. 6. emsp The stay application also stands disposed of.
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1998 (2) TMI 318 - CEGAT, CALCUTTA
... ...
... ... ..... ) order dated 29-3-1996. Relevant extract from which has already been set out above. We also observe that Revenue has not gone in Appeal against the order of the Commissioner (Adjudication), Delhi. Keeping in view the aforesaid facts and circumstances of the case, we dismiss this Appeal of the appellants herein with the following directions (i) Rs. 3,12,27,638.40 will be paid by the appellants either in cash or through PLA. Simultaneously, they can take credit of the same amount in the Modvat account for utilisation towards the payment of duty on BCT subject to following of the procedure of Modvat scheme as directed in Commissioner (Adjudication) Order, Delhi at para 9. 6. emsp In view of the facts and circumstances of the case, we do not find that there is a case for imposition of penalty. Consequently, we set aside the penalty of Rs. 1,00,000/-. 7. emsp Appeal is disposed of in the above manner. 8. emsp Since Appeal has been disposed of, Stay Petition also gets disposed of.
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