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Showing 61 to 80 of 3458 Records
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1991 (12) TMI 180 - CEGAT, BOMBAY
Reference to High Court - Duty paid damaged cigarettes returned to factory from the dealers ... ... ... ... ..... reference because of the fact that we have not refused refund on the ground that damaged cigarettes have not been sold or offered for sale. On the contrary, we have observed that in all the cases of damaged goods, the goods may not be sold or offered for sale but there is an intrinsic value of the damaged goods and their intrinsic value or scrap value in the market should be more than the duty paid at the time of clearance, in the circumstances, reference on Question No. 4 is not called for. 14. In the result, we refer the following one question only to the Hon rsquo ble High Court of Bombay, in terms of Section 35G of the Central Excises and Salt Act, 1944 - ldquo Whether the amount of reimbursement of the cost of cigarettes originally cleared but returned in a damaged condition by way of issue of credit notes to the dealers, could be taken to be market value of the damaged cigarettes returned, for purpose of Clause (vi) of Rule 97(1) of the Central Excise Rules, 1947 rdquo
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1991 (12) TMI 179 - CEGAT, BOMBAY
Modvat credit ... ... ... ... ..... ots received by the appellants and supplied to M/s. Bansal Steel Rolling Mills for the manufacture of flats (This factual position is subject to verification). It appears that this case would fall within the purview of Rule 57E of the Central Excise Rules, inasmuch as there has been a variation in respect of the duty paid on flats consequent on the demand made by the Department on the supplier of inputs. This duty demand has been paid by them. Such a variation in duty consequent on a subsequent demand could be taken by way of credit under Rule 57E. Since the credit is reported to have been taken in July, 1988, much after the amendment of Rule 57E, the case merits to be examined under Rule 57E. Since the lower authorities have not examined the issue from this angle, I remand the case back to the Asstt. Collector for considering the eligibility for credit in terms of Rule 57E of the Central Excise Rules and pass orders in accordance with law. Appeal is allowed by way of remand.
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1991 (12) TMI 178 - CEGAT, BOMBAY
Penalty on Airlines ... ... ... ... ..... ht not be imposed, and that, there is no mention therein of the penal liability under Section 117 of the Act. However, as per the basic tanets of law, it is permissible to punish a person for a minor offence though charged to have committed a graver offence, provided of course, both of them fall within the same family group. The allegation against the appellants, even going by the show cause notice, is of transporting unmanifested cargo, containing narcotics, and non-compliance of the statutory requirements, and if penal consequences vide Section 114 cannot be attributed. Section 117 of the Act, even though not specifically mentioned in the show cause notice, can be invoked. There is no legal bar against the same. 10. Penalty that could be imposed under Section 117 of the Act is Rs. 1000/- and the quantum of penalty as proposed by my Learned Brother incidently, happens to be the same. 11. Under the circumstances, I concur with the final order proposed by Brother R. Jayaraman.
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1991 (12) TMI 177 - CEGAT, BOMBAY
MODVAT Credit ... ... ... ... ..... lso an instrument for payment of dues to the Government and the same is prescribed under the Treasury Rules. The only difficulty could be that TR 6 Challans may not have the column for indicating the particulars of goods, in respect of which the sum has been collected as duty. Hence, the TR 6 Challans as such may not be correlatable to the goods cleared. Hence, I find that payment under TR 6 challan is duly correlated to the goods cleared under the invoices consigned to the appellants by the certificate issued by the Range Supdt. This certificate also specifically mentions the exigency under which duty collection was made under TR 6 challan. Hence, the certificate and TR 6 challan are as good as GP 1 and are to be accepted even under Rule 57G. I, therefore, allow the appeal and direct the Assistant Collector to extend the Modvat credit on production of original copy of certificate of duty payment on inputs issued by Range Supdt. and TR 6 challan as received by the appellants.
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1991 (12) TMI 176 - CEGAT, NEW DELHI
Stay - Rectification of mistake ... ... ... ... ..... he President to make a reference where members of a Bench find themselves unable to decide a case according to what they perceive to be the correct law and fact because of an impediment arising from an earlier decision with which they cannot honestly agree. In such cases, it is necessary for the healthy functioning of the Tribunal that the President should have the requisite authority to refer the case to a large Bench. That is a power which is implied in the express grant authorising the President to constitute Benches of the Tribunal for effective and expeditious discharge of its functions. 11. However, in the case before us, the final order has already been passed. Therefore, the only course open to the appellants is to avail of the statutory remedy provided under Section 35L of the CESA and this has in fact been availed of by the applicants. The miscellaneous application is rejected for the above reasons. 12. Accordingly, both the miscellaneous applications are dismissed.
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1991 (12) TMI 175 - CEGAT, NEW DELHI
Stay/Dispensation of pre-deposit ... ... ... ... ..... s appeared on behalf of the applicant for payment of interest at the rate of 12 in the event of their losing the appeal. While exercising our inherent powers in view of the decision of the Hon rsquo ble Supreme Court in the case of Income Tax Officer, Cannanore v. M.K. Mohammed Kunhi reported in AIR 1969 S.C. 430, we accept the offer of the learned Senior Advocate as to the payment of interest at the rate of 12 in the event of their losing the appeal. 6. In the result, the stay application is allowed and disposed of accordingly. 7. Hon rsquo ble Gujarat High Court had expressed the view for the disposal of the appeal preferably within a period of four months from the date of the order i.e. 10th September, 1991. In the interest of justice, we order that the matter to be heard on merits on 6th February, 1992. It is further ordered that the matter be placed on the top of the list and no outstation matters should be listed. In any case, no adjournment will be granted to any side.
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1991 (12) TMI 174 - CEGAT, NEW DELHI
... ... ... ... ..... rgument of the revenue is on the basis that invoices have been issued by the buying agent. We have perused the sample letters of credit filed before us. The same are in favour of the foreign supplier. Invoice carries no necessary implication of ownership, but accompanies goods consigned in the case of purchaser. This was so observed in the case of Dows v. Bank, 91 U.S. 618,23 L. Ed. 214. It was observed that an invoice is not evidence of a sale it is a mere statement of the nature, quantity and cost or price of the things invoiced and is as appropriate to a bailment as to a sale. In view of these observations, we are of the view that in terms of Rule 9(l)(i) buying commission paid to the buying agent Tata Ltd., London and Tata Incorporated, New York cannot be included in the assessable value. It fully falls within the exception. Accordingly, we set aside the impugned orders and allow 177 appeals. The revenue authorities are directed to give consequential effect to this order.
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1991 (12) TMI 173 - CEGAT, NEW DELHI
Refund - Duty paid under protest ... ... ... ... ..... t pending revision petition and this is sufficient compliance with the requirement of Rule 233B. The rules are procedural and cannot be treated as mandatory rdquo Similar is the view expressed by this Tribunal in Andhra Cement v. C.C.E. (supra). Therefore, following the above, we hold that the failure to endorse ARs/ RT-12 returns and gate passes indicating that the duty is paid under protest does not effect the refund claim on the facts and circumstances of this case and the appellants are entitled to the refund of the amount claimed. We may also in this context refer to the order of this Tribunal in C.C.E. v. Prestige Engineering (supra) wherein it has been held that the Asstt. Collector is under duty to dispose of the letter by a speaking order. In this case, the Asstt. Collector disposed of the letter of protest by a speaking order only on 17-2-1989. Therefore, for the reasons recorded above, the appeal is allowed and the Asstt. Collector is directed to refund the amount.
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1991 (12) TMI 172 - CEGAT, BOMBAY
... ... ... ... ..... he was ignorant of the entire incident. Mr. Bhatia, the officer, clearly involves this appellant besides admitting, that he prepared ante-dated Letter of Credit. The statement of Mr. Bhatia has remained un- rebutted. Further, corrections in the bank records could not have remained unnoticed by him. The things, as they have happened at the bank, indicates his participation and connivance, and as such he has been rightly held liable for imposition of penalty. However, when M/s. Jaggat Singh Sons and Brothers, are imposed a personal penalty of Rs. 3,000/- and another officer in the bank is imposed a penalty of only Rs. 1000/- and also considering the other consequences that this appellant is likely to suffer, we take a liberal view and reduce the penalty to Rs. 2000/- (Rupees Two thousand only). 34. Under the circumstances, while dismissing Appeal No. 515/89 and 513/89, Appeal No. 514/89 is partly allowed and personal penalty is reduced to Rs. 2000/- (Rupees Two thousand only).
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1991 (12) TMI 171 - CEGAT, NEW DELHI
Rectification of mistake ... ... ... ... ..... the appellants advanced an argument that if the goods are imported over and above a particular quantity they are entitled to quantity discount. This aspect we have by oversight not considered in the order. Therefore, we consider the said argument now. While holding the assessable value should be on the basis of 1159 Yen, we referred to the offer dated 5-6-1990 made by M/s. Bhalla and Co. to the appellants. In the said offer it is mentioned, ldquo goods worth Japanese Yen 600000 per shipment, of discount will vary upon the quantity over and above the minimum quantity. rdquo 5. Admittedly the appellants have purchased more than the minimum quantity i.e. 6 lakhs Japanese Yen. Therefore, they are entitled to discount as claimed by them. We accept the contention of the appellant that after giving the discount the price declared by them is more or less the same. Therefore, we accept the invoice price and set aside the redemption fine. We accordingly rectify the Order No. 293/91-A.
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1991 (12) TMI 170 - CEGAT, NEW DELHI
Valuation - Related person ... ... ... ... ..... parties themselves, the Supreme Court had earlier held in two judgments 1985 (22) E.L.T. 302 - Cibatul Ltd. and 1985 (22) E.L.T. 324 -Food Specialities Lid. that just because the goods were manufactured under a brand name and sold entirely to the brand name owner, it could not be concluded that the transaction was not at arm rsquo s length. 3. The only point which the learned representative of the department made was that the sale prince of the brand name owners was almost double their purchase price and that this fact alone showed that the price charged by the appellants from the brand name owners was a favoured price. In reply, the appellants invited attention to the judgment of the Bombay High Court (single judge) wherein this point had already been agitated by the department but overruled by the High Court . 3. In view of the above discussion we find no merit in the appeals. The appeal is dismissed and the miscellaneous application is also disposed of in the above terms.
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1991 (12) TMI 169 - CEGAT, BOMBAY
Demand - Limitation ... ... ... ... ..... nction in the wordings between ldquo issue of notice rdquo and ldquo service of notice rdquo . Hence, were the wording of the statute specifies only issue of notice, the authorities are well within their powers to invoke the statute as prevalent at the time of issue of notice. However, I find that Rule 57-I contemplates service of notice within a period of six months. Hence, when such a notice has been served only on 6-10-1988, that notice ought to be in accordance with the provisions of the amended Rule 57-I. In this case, when show cause notice has been served on 6-10-1988, that notice could have been served only in the context of the amended Rule 57-I. In the absence of any allegation of suppression, fraud etc. made in the show cause notice, the normal time limit of six months is applicable. Since the credit has been taken during the period from 1-6-1987 to 30-6-1987 and the notice has been served on 6-10-1988, the demand is hit by time bar. I, therefore, allow the appeal.
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1991 (12) TMI 168 - CEGAT, MADRAS
... ... ... ... ..... like to record the plea of the Revenue that the letter was given by the appellant only for discharging the duty liability of the goods in question irrespective of the person who has to pay it. We leave that question open for the reasons seated above. 7. Before parting with this case, we should like to observe that when the High Court has already granted stay of the demand, the Departmental authorities have effected seizure of the vehicles during the continuance of the stay. The remarks of the adjudicating authority in para (iii) of the operative portion of the impugned order as extracted above, in our view, are not called for and lack restraint and sobriety and the Authority would apparently appear to find fault with the appellant for having moved the High Court, which is a remedy available to the appellant under Article 226 of the Constitution of India. 8. Sine there is no duty liability or penalty imposed on the appellant under the impugned order, this appeal is dismissed.
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1991 (12) TMI 167 - CEGAT, MADRAS
MODVAT Credit ... ... ... ... ..... ted by the respondents without the film coated on to the sheet. There is also no dispute that the sheets of the type manufactured require a coating of the film as affixed as pleaded by the respondents. The question, therefore, to be considered is whether the use in such circumstances could be considered to be in or in relation to the manufacture of the same. A film coated on to the sheets cannot be considered as a packing material as such. We have considered the scope of the term lsquo in or in relation rsquo to the manufacture rsquo in our judgment in the case of Addison Tools, reported in 1990 (48) E.L.T. 281 and relying on the judgment of the Hon rsquo ble Supreme Court we have held that anything which would be used to render the goods marketable would be considered to be used in or in relation to the manufacture of finished product. Following the ratio of our decision in the case of Addison Tools, we hold that the respondents are eligible for the benefit of Modvat credit.
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1991 (12) TMI 166 - CEGAT, NEW DELHI
Confiscation of goods in transit ... ... ... ... ..... e notice or notice of hearing. In case of other appellants also it lis apparent from the reply to show cause notice filed by the appellants read with Collector rsquo s order that all their submissions have not been duly taken into account. 24. From the above discussion it is apparent that the department rsquo s case is entirely misconceived. Neither the correct or relevant provisions have been invoked nor the benefit of the applicable provisions has been extended or even considered and the department rsquo s case is entirely based on assumption and presumption having no basis in fact or law In fact the entire matter has been dealt with rather cursorily on the basis of mere apprehensions and surmises and this is simply not permissible. 25. In view of the above position, the impugned order is set aside and the appeals of all the appellants are accepted with consequential relief and it is directed that the amount recovered as fine from the appellants may be immediately refunded.
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1991 (12) TMI 165 - CEGAT, CALCUTTA
Refund for returned goods ... ... ... ... ..... e first consignment on 23-5-1984. For the reasons discussed by me earlier, this is the correct position. The Collector (Appeals) fell in error in treating the refund claim as pertaining to the subsequent payment of duty which, as discussed above, was not made either in their letter dated 8-4-1984 or the subsequent claim filed in Form Appendix I, but only in their letter dated 21-9-1987 in reply to the show-cause notice. The refund claim and the claim made in this latter letter relate to different payments of duty and this latter claim cannot be read into the earlier one. In that view of the matter the Assistant Collector rsquo s finding about the claim is correct in law and in the facts of the case and must be upheld by allowing the appeal and setting aside the impugned order-in-appeal. I order accordingly. 7. The cross-objection of the respondents, i.e. M/s. Indian Chain (P) Ltd. filed by their Counsel on 7-5-1990 in the open Court stands disposed of in terms of above order.
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1991 (12) TMI 164 - CEGAT, NEW DELHI
Import - Misdeclaration of goods ... ... ... ... ..... rried out by the department to consider this 5.4 of fibrous mass to be soft waste. It is now well settled that the goods have to be classified according to the understanding in the trade and commercial parlance. There is no dispute with regard to the classification of the goods but it is only with regard to a small portion which is disputed as soft waste and the benefit of Notification No. 32/86 dated 7-2-1986 as amended by Notification No. 126/86-Cus., dated 17-2-1986, is being denied to that negligible portion. The department has not placed any evidence that this negligible quantity has not arisen in the spinning section of hard waste and is not unavoidable and also could be separated as has been pleaded by the importer. In the circumstances, the charge of suppression has not been proved and the benefit of doubt has to be granted to the importer. In the result, the appellants rsquo contention is accepted and the impugned order is set aside with consequential relief, if any.
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1991 (12) TMI 163 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... ated writing and printing paper other than poster paper. This decision in the context of the erstwhile CET cannot be applied to the facts of this case. The Department has classified the goods under the present Tariff which provides specific entries for papers in rolls/sheets and paper cut to size and shape and also provides for classification based on width of paper. In the case of Collector of Customs v. New India Industries Ltd. reported in 1990 (47) E.L.T. 83, the Tribunal was only concerned with the eligibility of Document Raw Base Paper to the benefit of Notification 55/86-Cus. and the classification of the goods was not in dispute as both sides affirmed that the correct tariff sub-heading is 4802.02 of the CTA, 1975 as amended in 1985. Therefore, the Tribunal had no cause to look into that aspect. This is not the case before us where the classification itself is under challenge. 7. In the light of the above discussion we uphold the impugned order and dismiss the appeal.
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1991 (12) TMI 162 - CEGAT, NEW DELHI
Rectification of Mistake ... ... ... ... ..... para 6 of the Tribunal rsquo s order, the Tribunal has taken up the question of limitation in the first place and after analysing the evidence on record, had found that the department cannot be said to be unaware of the activities of the appellants of manufacture of M.M. monomers as an intermediate product and on this ground, the demand was hit by limitation. In the face of such a finding, which goes to the very root of the sustainability of the demand, the rest of the issues now sought to be raised become largely academic and even on the question of dutiability of M.M. monomers emerging at the intermediate stage, the President rsquo s separate order has clearly observed that it may be safely presumed that M.M. monomers were marketable and, therefore, goods for the purpose of excise levy. In the result, therefore, there is no error apparent on the face of the record to be rectified arising out of the impugned order of the Tribunal and the application is accordingly rejected.
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1991 (12) TMI 161 - CEGAT, NEW DELHI
Mica paper - Manufactured or reconstituted ... ... ... ... ..... .. (e) .............................................. 11. Under these circumstances we are unable to accept the respondents claim that Mica Paper could be considered as Processed Mica Powder which was exempt from payment of export duty under Notification No. 329-Cus., dated 2-8-1976 (as amended). In view of the finding that Mica Paper is a manufactured or reconstituted mica item it has to be held that it was covered by Heading No. 8 of the Export Tariff. The finding that Mica Paper and Processed Mica Powder are distinct commodities and Mica Paper being a manufactured item of Mica was classifiable under Heading 8 of the Export Tariff finds confirmation from the amending Notification No. 106/87-Cus., dated 1-3-1987 which was issued to extend the exemption from payment of export duty to Mica Paper falling under Heading No. 8 of the Second S.C.hedule to the Customs Tariff Act, 1975. 12. In view of the above discussions, the impugned order is set aside and the appeals are allowed.
........
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