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Case Laws
Showing 81 to 100 of 2925 Records
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1989 (12) TMI 190 - CEGAT, NEW DELHI
Demand - Short-levy ... ... ... ... ..... , the First proviso to the new Section 4(1)(c) must be read into old Section 4(a). In 1978 E.L.T. J 564, the Karnataka High Court held that the assessable value in major sales should not be disturbed by prices for small minority sales. 36. In this view we hold that the show cause notices for periods prior to 1-10-1975 are not valid. Appeal Nos. 527, 528 and 531/81-A (Show Cause Notice Nos. 11015, 11021 and 11013) are accordingly allowed on merits also. (Appeal No. 528/81-A is allowed on time-bar also and the two other appeals were given the benefit of time-bar to the relevant extent). The decision on the remaining appeals is contained in paras 25 and 26 supra. 37. As a result all the 7 appeals are allowed. The appellants are, however, directed to credit to the Central Excise Department whatever amounts were collected by AOC from Castrol as excise duty on surcharge relating to the clearances of the products BOC 400, AG 140 and BOC 250 without contesting the same on limitation.
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1989 (12) TMI 189 - CEGAT, BOMBAY
MODVAT Credit ... ... ... ... ..... The department objected to the extension of credit only on the ground that it does not get identified in the finished product. Shri K.M. Mondal, the learned SDR, fairly conceded that the department are agreeable to extension of the MODVAT benefit and the Ministry have issued instructions in this regard. He cited the same trade notice as referred to earlier. 20. We observe that flourspar is fed into the furnace after the scrap is melted. The lime stone and flux form the basis which help in removing the impurities from metal. In view of the aforesaid position, this item of input goes directly in the manufacturing process and cannot be denied MODVAT benefit. 21. Thus summing up, while we allow the appeal with regard to acetylene gas and flourspar holding that they are eligible inputs used in the process of manufacture of steel castings, we reject the appeal with regard to the MODVAT benefit claimed in respect of other inputs. 22. The appeal is disposed of in the aforesaid terms.
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1989 (12) TMI 188 - CEGAT, NEW DELHI
... ...
... ... ..... have not filed even a cross objection with reference to the Department rsquo s appeal. As such, Section 35-F is not applicable in their case. 5. If in terms of the order of Collector (Appeals), some amount became due to the Department it was open to the Department to proceed in terms of the said order unless the operation thereof was stayed. If the respondent was aggrieved of the order of the Collector (Appeals), it was open to him to have filed an appeal within the time provided by law. It is not possible for us to entertain the request of the applicant (respondent). We concede that the learned Departmental Representative is correct in pointing out that the stay application filed by the respondent was in fact not maintainable in terms of Section 35-F in the aforesaid circumstances. 6. In view of this position, we dismiss the application. However, we accept the alternative prayer by both the sides for an early hearing of the matter and fix the appeal for hearing on 19-2-1990.
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1989 (12) TMI 187 - CEGAT, CALCUTTA
Stay of recovery of duty, fine and penalty ... ... ... ... ..... flats which was not the case earlier. Thus, the relevant entry in Notification No. 202/88 reads - ldquo Sheets of thickness not exceeding 5 mm, strips of thickness not exceeding 5 nun and flats of thickness not exceeding 5 mm. rdquo Such a separate mention of thickness for each of the inputs not being there in the earlier Notification 90/88, it appears that the department was probably in error in importing that criterion for the other inputs like strips and skelps whereas the same was mentioned only with reference to flats. 7. Thus, the applicants seem to have a prima facie case in their favour which would justify the grant of stay of operation of the order appealed against and stay of recovery of the amounts involved by way of duty, fine in lieu of confiscation and penalty. 8. As the appeal itself pertains to interpretation of exemption Notification and consequently the rate of duty, the Registry is directed to transfer the papers to Special Bench of the Tribunal, New Delhi.
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1989 (12) TMI 186 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... On this score also the appellant cannot plead that their manufacture was exempted and hence they had not taken out a licence. 10. In view of these observations, the Tribunal is of the view that the appellant has contravened the provisions of the Act and the rules rendering him liable for payment of duty under the extended period and his product is not ldquo mere forged product rdquo but an identifiable product with a prescribed specification, and is classifiable under T.1.68 of the erstwhile Central Excise Tariff. The appeal preferred by the appellant on these grounds has therefore no merits. However, in respect of the penalty amount the same calls for a reduction in view of the mitigating circumstances that the appellant had at one stage during the inception of the production intimated to the department about the manufacture of the product, the penalty is therefore reduced to Rs. 3 lakhs (Rupees three lakhs only). But for this modification, the appeal is otherwise rejected.
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1989 (12) TMI 185 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... aring No. 15-95/80-DC, dated 2-1-1982, D-phenothrin is to be considered as a drug under the Drug and Cosmetic Act, 1940. rdquo 21. A disease may affect the outside or inside of a person rsquo s body. Causes for diseases may vary these can be micro-macro organism, insects, worms, bacteria, etc. Any preparation containing active ingredients to remove the root causes, whether they are used for internal consumption or external application has to be considered as a medicament. Therefore, we conclude that Mediker is a medicament. We further observe that the medicinal use of the product is not its subsidiary function but is the only function. Therefore, the classification of the product under 33.05 is ruled out. Since we have already held that the product is classifiable as medicament under 30.03 by virtue of note 1(c) to Chapter 38 the product cannot be classified under Chapter 38. 22. We, therefore, dismiss the appeal and for the reasons stated above dismiss the cross-appeal also.
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1989 (12) TMI 184 - CEGAT, NEW DELHI
Clasification ... ... ... ... ..... to Harmonised Commodity Description and Coding System (HSN) to which the Customs Tariff is aligned, under Heading 49.01(c) textual matter in the form of sheets for binding in loose binders is covered and it further says that such publications as scientific thesis published by or for industrial firms may fall in this heading. From the discussion of the nature of the material above, we find that the goods imported are technical documents in loose leaf kept in binders consisting of technical manuals and brochures published by the foreign collaborators of the appellants being supplied as part of transfer of technical know-how relating to the product in terms of the collaboration agreement. In this view of the matter, it is held that having regard to the nature of the goods, and the contents thereof, and the form in which the goods imported in the context of a collaboration agreement, classification of the goods under Heading 4901.99 is in order. The appeal is, therefore, allowed.
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1989 (12) TMI 183 - CEGAT, CALCUTTA
MODVAT Credit ... ... ... ... ..... terms of Section 11A vis-a-vis Rule 57-I had been examined in the South Zone Collector rsquo s Conference, and that it had been decided that, for the recovery of wrong credit taken in terms of provisions of Rule 57-I, the time limit prescribed in Section 11A could be applicable. This accords with our view. Actually when any credit taken under the Modvat scheme in the RG 23A Part 2 account is held to be inadmissible and is sought to be expunged, the same is regulated in terms of Rule 57-I itself, but the effect of that expunction would be if duty has already been recovered by debit to that account, duty has to be recovered afresh and that will come squarely within the scope of Section 11A. In view of the foregoing discussions, we are inclined to uphold the decision taken by the Collector (Appeals) applying the provisions of Section 11A in these cases. Accordingly, the three appeals filed by the Collector of Central Excise, Patna would fail. Accordingly, we dismiss the appeals.
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1989 (12) TMI 182 - CEGAT, NEW DELHI
Rectification of Mistake ... ... ... ... ..... tta High Court in the case of M/s. Shew Paper Exchange v. Income Tax Officer, lsquo C rsquo Ward, Dist. V (1), Calcutta and Others reported in 1974 (93) ITR 186 had held as under ldquo That the normal rule is that the remedy of review is a creature of a statute and if the statute does not contain powers for review, then the power cannot be exercised. Review proceedings of this kind are those where a party as of right can apply for re-consideration of the matter already decided upon after a fresh hearing on the merits of the controversy between the parties. Such a remedy must be provided by the statute. The inherent power to rectify a wrong committed by itself, by a court or Tribunal, is not, really speaking, a power to review. The two powers operate in different fields and are different in essential quality or nature. rdquo In view of our above observations, we do not find any error in the order passed by the Tribunal. The application for rectification of mistake is rejected.
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1989 (12) TMI 181 - CEGAT, NEW DELHI
Redemption One ... ... ... ... ..... to ascertain how many bags were pilfered from the warehouse itself and how many were actually cleared from the warehouse. 19. Further, no particulars are available to us regarding any extension of time for re-export that may have been granted by the Asstt. Collector in terms of the proviso to Notification 97/79-Cus., dated 2-5-1979. The bond executed by the appellants (guaranteeing re-export) is also not before us to enable us to arrive at any conclusion on the issue of limitation. The question whether limitation is applicable at all in this case is also to be examined. 20. In the light of the above discussion we remand the matter to the Assistant Collector for de novo adjudication on the issue of whether the demand for duty on the cement bags is time-barred or within time. The Assistant Collector is directed to pass orders within 3 months from the date of receipt of this order after affording a personal hearing to the appellants. 21. The appeals are disposed of accordingly.
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1989 (12) TMI 179 - CEGAT, NEW DELHI
... ...
... ... ..... ity and assessments were duly completed. The appellants did not take up the matter in appeal which was the proper course open to them as has been held by this Tribunal in the case of Herschel Rubber (P) Ltd. v. CCE, Calcutta 1987 (30) E.L.T. 454 . 7. Learned Consultants rsquo reliance on the decision reported in 1989 (25) ECR 47 (CCE Meerut v. Muzzaffarnagar Steels) does not further the case in any way, as in that case, the Tribunal was dealing with the question of mention or non-mention of a particular Notification in a classification list and rejected the appeal of the Department as time-barred. In passing, the Tribunal in that case observed that the Department has to bear the consequences of approval of classification list by the Assistant Collector. 8. In the light of the above discussion, respectfully following the ratio laid down in the decision reported in 1987 (30) E.L.T. 454, we see no reason to interfere with the impugned order. As a result, the appeal is dismissed.
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1989 (12) TMI 178 - CEGAT, NEW DELHI
Clandestine removal ... ... ... ... ..... nd the appellants have undergone the litigation for a period of 12 to 13 years, therefore, we are reluctant to remand. We observe that the lower authorities have not followed the matter properly right from the stage of issuing the show cause notice. Various circumstances and discrepancies pointed out by the appellants, though do not conclusively decide the matter in their favour, entitle them to benefit of doubt. We extend this benefit. Accordingly, the appeal is allowed. 10. Before parting, we would like to observe that the case highlights deficiency in procedural law insofar as Audit Parties of the Accountant General are concerned in such cases inspection and audit of records and stocks of goods is a routine procedure and one of substantial importance in the Excise system. It is time that a suitable procedure on appropriate foundation of rules is evolved so that Revenue Audit parties are able to discharge their due duties and the cases do not flounder for lack of procedure.
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1989 (12) TMI 177 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... relies upon the chemical test report for his conclusion that the products are Polymethyl Methacrylate Co-polymer Synthetic Resin obtained from Methyl Methacrylate Monomer and other monomers (Butyl Methacrylate) by co-polymerisation and as such they can be technically regarded as polymethyl methacrylate copolymer resin. 8. Serial No. 8 of Notification 241/82 mentions ldquo Polymethyl methacrylate rdquo . The Notification does not stipulate that the concessional rate of 15 ad valorem duty is applicable only to Polymethyl Methacrylate in its pure form or only to polymethyl Methacrylate Homopolymer Resin (and not to copolymer resin). The concessional rate of duty cannot be denied to the appellant rsquo s products which are admittedly Polymethyl Methacrylate merely because they are copolymer resins, containing some other methacrylate monomers in addition. 9. As a result, we set aside the order of the Collector Appeals dated 20-1-1986 and allow the appeal with consequential relief.
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1989 (12) TMI 176 - CEGAT, NEW DELHI
Checking and measuring instruments ... ... ... ... ..... ed anywhere what is the mathematical principle involved in its design and application and the presence of the dial therein would not by itself satisfy this principle. A gauge is by its very meaning an instrument for testing and verifying dimensions of tools, wire, etc. (Concise Oxford Dictionary). Even in the Notification 55/75, the entry appears along with goods which are students rsquo requirements as it is seen entry lsquo Drawing and mathematical instruments rsquo is followed by lsquo Exercise Books rsquo , rsquo writing slates and slate pencils rsquo , lsquo pencils and erasures rsquo , lsquo Pens including ball point pens and refills therefor rsquo . From this, it can reasonably be concluded that dial gauges and pneumatic gauges in question cannot be considered as mathematical instruments covered by the entry in the Notification 55/75. In this view of the matter, we see no reason to interfere with the orders of the lower authority and the appeal is accordingly rejected.
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1989 (12) TMI 175 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... id down therein is fulfilled, the benefit of the same should be extended to the appellants rsquo products. 9. The learned advocate for the appellants has raised the question of limitation. This has also been raised in the ground of appeal before us. Although this point was not agitated before the lower authorities, this being a point of law, we allow the appellants to raise this contention. We observe that the show cause notice was issued on 26-10-1982 for the period from 1-3-1982 to 30-9-1982. The Department has not made out a case that there was suppression of facts or wilful mis-statement on the part of the appellants. The demand for duty, if at all leviable (see paragraph 8 of this order), should, therefore, be limited to a period of six months only under Section 11A of the Central Excises and Salt Act, 1944. Demand for duty should be worked out accordingly. 10. In the light of the above discussions, we set aside the impugned order and allow the appeal in the above terms.
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1989 (12) TMI 174 - CEGAT, DELHI
Import - Small Scale Industries Certificate ... ... ... ... ..... under import should be used in an industrial undertaking for manufacturing process/operation. For that, there is no doubt in the instant case. A very narrow construction, as rightly pointed out by the learned advocate for the appellants is not called for in a beneficial provision like OGL unless the item under consideration is specifically prohibited elsewhere in the Policy. In the facts and circumstances of this case we do not find any doubt that the items imported by the appellants shall be used in the industrial undertaking of the appellants for the manufacture of further goods. Therefore, they satisfy the category of eligible importer for which the goods are permissible to be imported against S.No. 6, Entry No. 6 of the OGL. 6. In view of the foregoing, we do not find that there was any justification for treating the goods as requiring an import licence. Hence, we set aside the impugned order while allowing the appeal. Consequential relief to be granted to the appellants.
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1989 (12) TMI 170 - CEGAT, CALCUTTA
Seizure and confiscation ... ... ... ... ..... t rsquo s residence. The same was sought to be co-related to the product seized and identified after test as Thiamine Hydrochloride. The entries under the Chit are as follows - (1) ETHMBUTANOL 600/- (2) CHLORDIAZOPOXIDE emsp emsp BASE 800/- (3) Chlordiazopoxide HCL 750/- Sl. No. (3) contains the letters HCl which was preceded by the ditto. The significance of ditto would mean that this product would be CHLORDIAZOPOXIDE HC1. This product, thus, has got nothing to do with Thiamine Hydrochloride, which was seized. 7. In this view of the matter, the department rsquo s case has no legs to stand on and our rejection of their appeal stands fortified by the record subsequently made available to us in a very fair manner by the Departmental Representative. As the effect of this evidence is wholly in favour of the respondent, we did not consider it necessary to grant a further hearing to enable the respondent to make his submissions in this behalf. The Appeal is disposed of accordingly.
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1989 (12) TMI 166 - BOMBAY HIGH COURT
Exemption notifications ... ... ... ... ..... scrutiny of the Court. Undoubtedly, it is advisable that proper material be placed before the Court. This action on the part of the Government to file such cursory affidavits must be deprecated in the strongest terms. However, this cannot confer any right on the Petitioners. I see no substance in the argument of the Petitioners. There is no violation of any fundamental right. 12. In the circumstances, the Petition must be dismissed. However, I find that the Petitioners have obtained interim reliefs on the footing that they would furnish and keep alive a Bank Guarantee. The Bank Guarantee, even though initially furnished, has not been renewed. Having obtained an Interim Order in their favour, on this basis the Petitioners cannot be allowed to put the Respondents to a disadvantage by this method. The Petitioners are accordingly directed to forthwith renew the Bank Guarantee. The Petition to be kept pending for that purpose till 15th January 1990. To be on my board on that day.
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1989 (12) TMI 164 - SUPREME COURT
Why Central Excise duty amounting to ₹ 4,300 at ₹ 24 per Kg. leviable on 180 Kgs. [as applicable to base yarn under Tariff Item 18(i) of the Central Excise Tariff] should not be demanded under Rule 9(2) of the Central Excise Rules, 1944?
Held that:- In view of the facts and the circumstances of the case, the Tribunal was right in the view it took. In this connection, it is instructive to refer to Rule 49 of the Central Excise Rules, 1944, which deals with duty chargeable only on the removal of the goods from the factory premises or from an approved place of storage. Duty of excise is primarily a duty levied on a manufacturer or a producer in respect of the commodity manufactured or produced. Appeal dismissed.
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1989 (12) TMI 162 - CEGAT, NEW DELHI
Cast iron rolls ... ... ... ... ..... Sh. Mookherjee, learned counsel for the appellants in support of his arguments, are squarely applicable in the present case. The machining done at the appellants rsquo factory to the iron castings is negligible in nature except in the collar portion. The extent of machining done at the middle portion which was brought to our notice by the learned Departmental Representative is not of much importance. We think this was only done to reduce surface defects on the castings. We also agree with Sh. Mookherjee that this machining does not have the effect of bringing in any new product into existence, which is known in the market as such. Hence it would not be correct to say that the machining done has resulted in the manufacture of a new product. In view of the foregoing discussion, we hold that the appellants goods known as cast iron rolls, are correctly classifiable under Tariff Item 25 of the C.E.T. and not under T.I.68 ibid as done by the Department. The appeal is thus allowed.
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