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Showing 101 to 120 of 274 Records
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1990 (1) TMI 206 - CEGAT, MADRAS
Interest on amount of duty due on warehoused goods ... ... ... ... ..... rticular date and once the duty payable with reference to that date has been paid it has to be held that necessary duty for the purpose of clearance of the goods has been paid. Any shortfall that may occur on account of removal of the goods on a date subsequent to the date of payment of duty will not impinge upon the duty paid character of the goods and the order for clearance that has been passed. In the above view of the matter, therefore, we hold that the appellants were required to pay interest on the component of the duty which was due to be paid upto the date of the out of charge order passed by the proper officer for clearance of the goods for home consumption and in case because of subsequent removal of the goods some further duty became payable in respect of the goods which are still lying in the warehouse, the additional interest liability on that component of further duty which was required to be paid can be collected. The appeal is thus allowed in the above terms.
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1990 (1) TMI 205 - CEGAT, BOMBAY
Reference to High Court ... ... ... ... ..... has on the contrary, argued both the appeals simultaneously, and on account of that, both the appeals have come to be disposed of by common judgment. The applicants have not attempted to show at this stage that the facts were contrary. Further from the dealing of both the appeals by the Tribunal, there does not appear any ground to suspect that the Tribunal is prejudiced against the applicants. On the contrary, both the matter appear to have been dealt with on their own merits. 27. Considering all these factors, and also the arguments advanced by the learned advocate, it clearly emerges out that by taking recourse to some of the judgments of the Supreme Court and the High Courts, the applicants desire to take up the matter before the High Court, for reassessment of the factual position. The provisions of Sec. 35G of the Central Excises and Salt Act, however, do not permit the same. 28. The application, under the circumstances merits no consideration and is therefore rejected.
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1990 (1) TMI 204 - CEGAT, MADRAS
Stock taking - Accounts ... ... ... ... ..... ether the plates had been manufactured by them and, if so, why the same had been brought in their office located in the appellants rsquo factory. The appellants have disowned the ownership of the same and no evidence has been adduced that the plates in fact belonged to them. In asmuch as they had given their explanation right at the outset in regard to these plates, action against the appellants cannot be taken merely on the presumption that the plates belonged to them. In view of the above, we hold that while the shortage of the sheets as held by the Collector has not been satisfactorily explained taking the figure of shortage as reflected in the register, allowance should be given for the wastage to be determined by the Collector in the light of our above observation and order passed in de novo proceedings by him after giving the appellants an opportunity of hearing. We, therefore, set aside the order of the lower authority by remand for de novo decision in the above terms.
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1990 (1) TMI 203 - CEGAT, BOMBAY
Refund - Excess payment ... ... ... ... ..... ion prescribed under Sec. 27 of the Customs Act and Sec. 11B of the Central Excises and Salt Act. Mere short endorsement made by the assessee on RT-12 returns regarding excess payment can not be taken to be a claim for refund, in the absence of any protest thereof, for purposes of saving the limitation under Sec. 11B. 6. In the case of demand and the time limit for demand under Sec. 11A, following the ratio of the Supreme Court judgment in the various cases - the latest being the case of Kosan Metal Products (1988 (38) E.L.T. 573) - the Tribunal has been holding that short endorsement on RT-12 returns cannot save the limitation for purposes of demand under Sec. 11A. On the same principle being adopted mutatis mutandis for Sec. 11B, we are to hold that short endorsement made on RT-12 without a regular refund claim under Sec. 11B, or without lodging a protest cannot save the limitation under Sec. 11B. 7. We, therefore see no merit in the appeal and accordingly dismiss the same.
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1990 (1) TMI 202 - CEGAT, BOMBAY
Import - Refund ... ... ... ... ..... . rdquo 6. From the above it is clear that any duty paid by the importer in pursuance of an order of assessment can be claimed as refund. In this case, it is admitted that the package in question was not cleared by them and was left with the Customs custody, from where shipment was made. There was no occasion for them to take the possession of the goods. In view of this, it has to be construed that the package has not been delivered to them at all. When it is admitted that the duty has been paid on the package, which has not been delivered to them, the question of claiming drawback under Sec. 74, does not arise merely because it was re-exported. It is a case of duty paid on goods but not delivered. In this view of the matter, we do not find anything wrong in the appellants claiming refund of duty under Sec. 27 of the Customs Act. We, therefore allow the appeal and remand the matter to the Asstt. Collector for considering the refund claim and granting the consequential relief.
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1990 (1) TMI 201 - CEGAT, MADRAS
Manufacture ... ... ... ... ..... for the same would be component part for the end product. rdquo 6. In the present case it is not in dispute that the use of anti-rust and anti-corrosion oil is essential and the products are invariably sold after the application of the said oil on the tools and the accountal of the goods is also done after the application of the said oil. The very nature of the goods is such that these require to be protected from corrosion and rust, if they are to retain their utility and also for the reason of durability. In view of the above, following the ratio of the Hon rsquo ble Supreme Court rsquo s rulings in the cases cited supra, we hold that application of oil is a process incidental and ancillary to the manufacture of the tools and in that view of the matter we hold the use of the said oil is in relation to the manufacture of the tools. We, therefore, hold that the learned lower appellate authority was in error, set aside the impugned order and allow the appeal of the appellants.
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1990 (1) TMI 200 - CEGAT, MADRAS
Proforma credit ... ... ... ... ..... pellant-Collector wants the Tribunal to read the Rule literally. The Rule has to be read in a manner to advance the purpose of the Scheme and in this case I observe that the appellant was eligible to the benefit of Rule 56A before coming into force of the MODVAT Scheme and credit with reference to the period prior to that had been given to them. This credit has to be deemed to be available before the coming into force of the MODVAT Scheme and the respondents have rightly been allowed this benefit of transfer by the learned Collector (Appeals). The respondents could not have taken this credit in the R.G. 23 and had necessarily to await the decision of the authorities. Once the credit was allowed it has to be held that the same will have to be deemed to be available in R.G. 23 as envisaged under Rule 57H(3) for the purpose of transfer of the same to R.G. 23A register. In the above view of the matter I find no merits in the appeal by the Revenue and, therefore, dismiss the same.
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1990 (1) TMI 199 - CEGAT, NEW DELHI
Demand and Adjudication ... ... ... ... ..... uthority rsquo s order that the product was not classifiable under T.I. 8 then he should have remanded the matter back to the lower authorities because it would have been classifiable under any other Item i.e. Item No. 11-A or B as the case may be and it is only the proper officer who is having jurisdiction over the respondent can classify the product and pass necessary orders in the matter. By doing so the Collector (Appeals) has exceeded his jurisdiction. This contention hardly requires any discussion because when the classification matter comes in appeal the Appellate Authority has to decide the matter and that is exactly what the learned Collector (Appeals) has done. It may be noted that in the present appeal only prayer is for declaration that the impugned order is not proper and legal but no other relief for classification is sought. We do not find it necessary to discuss various other contentions raised by Mr. Mehta. For the reasons stated we have dismissed the Appeal.
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1990 (1) TMI 198 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... his amended definition and it may be noted that the words ldquo Drug Intermediates rdquo have been omitted. 14. One more point may be noted that at pages 24, 25, the appellants have produced list of preparations manufactured by the appellants, but we do not find mention of the goods, in question, in any of these preparations and it is not explained in written brief in which manner and to what extent these goods are used in any of these preparations. 15. As discussed above, these goods are lsquo drug aid rsquo and in view of the amended definition of the Notification No. 234/82, the goods would not be covered under the definition and would not be eligible to claim exemption under Notification No. 234/82. In the same manner, the product would not be classifiable under heading 29.01/45(13) CTA, but would be rightly classifiable under 29.01/45(1) CTA and so, would not be entitled to benefit of Notification No. 33/83. 16. In view of our above opinion, this appeal stands dismissed.
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1990 (1) TMI 197 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... such clarification in this letter. Any way apart from that also the record suggests that the appellant had not mis-declared the product nor the appellant committed any mischief or fraud or suppressed any facts. 10. In view of the above discussion there is no case for demanding any duty for the period 1983-84 as the product in question which was classifiable under T.I. 68 was at the relevant time exempted from payment of Central Excise duty under provisions of Notification No. 182/82, dated 11.5.1982 which was in force at relevant time. In these circumstances the appellant was not required to pay anything. So there was no question of imposing penalty which requires to be set aside. So we pass the following order - (i) Appeal No. E/1514/85-C is allowed and impugned order is set aside. The correct classification of the product in question would be under T.I. 68. (ii) Appeal No. E/320/86-C is allowed and the impugned order is set aside with consequential relief to the appellant.
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1990 (1) TMI 196 - CEGAT, CALCUTTA
Confiscation of goods by the Collector ... ... ... ... ..... the reasonings which we have already mentioned above. So also the imposition of the penalty on the appellant is not justified as there is no evidence to show that these goods are smuggled goods. The learned Advocate for the appellants have also contended that the imposition of penalty without mentioning the specific clause under Section 112 of the Customs Act is not proper. However, we have come to the conclusion that since there was no evidence to show the smuggled character of the goods, imposition of the penalty is also not in accordance with the law. 10. In such circumstances, this Appeal is allowed and the orders of confiscation passed by the learned Collector in confiscating the goods in question, giving an option to appellant to redeem the same on payment of Redemption fine of Rs. 1,50,000/- is hereby set aside. The imposition of the penalty in a sum of Rs. 15,000/- against the appellant is also hereby set aside. The appellant is entitled for the consequential reliefs.
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1990 (1) TMI 195 - CEGAT, MADRAS
Adjudication - Evidence ... ... ... ... ..... ortunity of cross-examination of third parties on whose statements reliance is placed. The proceedings are penal in nature, I also find from the judgment of the Additional First Class Chief Judicial Magistrate, Madurai dated 20-5-1987 that the Public Prosecutor in the criminal prosecution against the appellant in respect of the same subject matter has conceded that there was no case or evidence against the appellant. I am hereunder extracting the relevant portion of the judgment which is in Tamil. ldquo I therefore, hold that the penalty levied on the appellant in the circumstances, is not sus-tainable in law. I do not think that useful purpose would be served by remanding the matter once again when the Department has alredy expressed helplessness in getting the witnesses for cross-examination. I am therefore, constrained, in the above circumstances, to set aside the penalty on technical grounds of law. In the result, the impugned order is set aside and the appeal is allowed.
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1990 (1) TMI 194 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... ulp and Timber Directorate, Development Officer, was also taken note of. The Tribunal noted that the process of pleating did not bring about any fundamental change in the filter paper except to make it possible to have a large surface area in a given volume due to the paper being pleated. On the same line of reasoning, it can be said that the process of slitting larger width gummed paper into strips or tapes of smaller width does not bring about any fundamental change in the paper. It continues to remain gummed paper of smaller dimensions, more convenient and ready to use in certain applications. In this view of the matter also, the strips or tapes made out of gummed paper of larger widths continued to be gummed paper falling for classification under Item 17(2), CET. 11. For all the above reasons, I agree that the lsquo gummed paper tapes rsquo in question are appropriately classifiable under Item No. 17(2), CET and that the appeal should be allowed with consequential relief.
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1990 (1) TMI 193 - CEGAT, NEW DELHI
Dutiability ... ... ... ... ..... entral Excise Rules, 1944. The longer time-limit has been invoked as the appellants did not disclose the existence of the three contracts. It has been alleged in the show cause notice that the proviso (iii) and (iv) of the Notification No. 120/75-C.E. were not complied with. We are of the view that non-disclosure of the existence of the contracts has amounted to suppression of facts on the part of the appellants. The time limit of five years is, therefore, applicable in this case. 11. We have earlier observed that the matter is required to be examined de novo by the lower authority. Accordingly, we set aside the impugned order and remand the matter to the Assistant Collector of Central Excise, having jurisdiction over the appellants for de novo examination of the matter in the light of our foregoing findings. The appellants should be allowed to produce evidence and they should be given opportunity of personal hearing before the matter is re-decided by the Assistant Collector.
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1990 (1) TMI 192 - CEGAT, NEW DELHI
“Dough moulding compound” ... ... ... ... ..... noted, the Tribunal held had no application to the facts and circumstances of the Indian Cable Co. case. It may be noted that the Andhra Pradesh High Court has held that there cannot be any levy of excise duty on phenolic moulding powder and that the manufacturers are entitled to the benefit of Notification No. 122/71. This would mean that the classification of moulding powder under Item No. 15A(1) was not doubted. As far as Notification No. 122/71 is concerned, it was no longer in force during the period material to the present dispute. 14. In the circumstances, we hold that the dough moulding compound in the present case was liable to be charged to duty under Item No. 15A(1) of the CET. However, the respondents will be eligible for the benefit of availment of Central Excise Rule 56A. In other words, they will be eligible to take credit of the duty paid on the resin towards payment of duty on the dough moulding compound. 15. The present appeal is allowed in the above terms.
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1990 (1) TMI 191 - CEGAT, MADRAS
Demand - Limitation ... ... ... ... ..... production of yarn or testing of the count to show that the appellants in any way were aware of the fact that count of 37.5 was being on manufactured or it was intended to be manufactured. In the absence of any evidence in this regard, it cannot be said that the appellants are guilty of any suppression of facts. Following the ratio of the Hon rsquo ble Supreme Court rsquo s ruling and in the facts and circumstances of the case and the pleas made, I hold that no case of suppression of facts on the part of the appellants has been made out. In this view of the matter, the longer period of limitation of 5 years cannot be applied in the case of the appellants. Therefore, the demand is ordered to be restricted to six months reckoned from the date of receipt of the show cause notice by the appellants. In view of the above, I hold that the order of imposition of penalty is also not maintainable and I set aside the same. Accordingly, the appeal is partially allowed in the above terms.
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1990 (1) TMI 190 - CEGAT, NEW DELHI
Manufacture ... ... ... ... ..... manufacture. We respectfully bow to the judgment of the Hon rsquo ble Supreme Court in the case of M/s. Empire Industries and following the same, we are of the view that whether a particular process is a process of manufacture or not has to be determined having regard to the facts and circumstances of each case and in the present case we are convinced on the basis of the records including the uncontroverted submissions of the learned Counsel that all that was involved was erection of sheds on a vacant plot with the help of material supplied to a contractor and no manufacture was involved. 10. We are in full agreement with the views expressed by our brothers in the Tribunal rsquo s order in the case of M/s. Aruna Industries reported in 1986 (8) ECR 166 1986 (25) E.L.T. 580 (Tri.) and in the case of M/s. Steel Authority of India Ltd. reported in 1988 (36) E.L.T. 316. Following the ratio thereof and the reasoning given above we set aside the impugned order and accept the appeal.
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1990 (1) TMI 189 - CEGAT, NEW DELHI
Damaged goods ... ... ... ... ..... that once the appellants had informed the Customs that their goods had suffered damage, it was incumbent on the Department to assess the value as per the provisions of sub-section (3) of Section 22 and charge duty on such assessed value. In the present case also, the appellants had brought the fact of damage to the notice of the Customs authorities even while the goods were under clearance and their claim was also borne out by the certificate of examination report given by the Customs authority and their own Survey report in which the Customs had been present. The appellants had, as a precaution, further filed the refund claim. In these circumstances, the ratio of the Tribunal rsquo s decision above would fully apply to the facts of the present case. In this view of the matter, the appellant rsquo s claim for re-appraisement of the goods in accordance with the provisions of Section 22 of the Customs Act, 1962 and consequential refund is well founded and the appeal is allowed.
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1990 (1) TMI 188 - CEGAT, NEW DELHI
Condonation of delay ... ... ... ... ..... pers, whether by Government organisation or private party, is not a sufficient cause for condonation of delay in filing revision application (now appeals). The provisions of Section 129A(5) cannot be construed liberally in favour of the Government since they do not make any distinction between a private party and Government organisation but are the same for all (AIR 1972 Raj 161 and AIR 1972 S.C. 749 relied on). In view of the above discussion we are of the view that the applicants were not prevented by sufficient cause in the late submission of the appeal and it is not a fit case where the Tribunal should exercise its discretion in terms of provisions of sub-section (5) of Section 35B of the Central Excises and Salt Act, 1944, the application for condonation of delay is rejected. 4. Since we have rejected the application for condonation of delay the stay application as well as appeal are also dismissed being hit by limitation and we are not going into the merits of the same.
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1990 (1) TMI 187 - CEGAT, BOMBAY
Demand - Show cause notice ... ... ... ... ..... ade payment of duty, this notice ab initio becomes void. (Even otherwise it is found to be defective in other respect as discussed above). The Asstt. Collector should have rectified the show cause notice deleting reference to demanding duty before he proceeded to adjudicate on it. The show cause notice appears to be ab initio void On this ground, we agree with the Collector (Appeals) that the Asstt. Collector should not have proceeded to adjudicate on such a notice. All the same, we agree with the contention of Shri Arya that the department should have the opportunity to adjudicate on the case of non-accountal of goods. While we do not like to express any opinion on the merits of the case at this stage, we would only observe that the department is at liberty to adjudicate on the case of non-accountal of the goods and their liability to confiscation and imposition of penalty on the respondents by the competent authority after issuing appropriate notice, in accordance with law.
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