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Case Laws
Showing 101 to 120 of 382 Records
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1990 (11) TMI 286 - CEGAT, NEW DELHI
Drugs - Life saving drugs ... ... ... ... ..... form of capsules, syrups, and tablets and INH Capsules/Tablets. This only goes to confirm that Refampicin can be administered in the form of capsules, syrups, tablets etc. Thus Notification No. 321/85 is, in our view, in the nature of clarificatory notification. Therefore, as long as the imported material finds its place in the exemption notification, the exemption cannot be denied by giving a narrow interpretation which has been the case in the impugned order. The impugned order is not sustainable and is set aside. 6. The other ground given by the Collector that the appellants should have appealed against the order of the enforcement of bond, is also not correct application of law. The appellants have filed their claim within 6 months of the date of payment of duty. Therefore, it cannot be said that the refund claim is not maintainable in law. Therefore, the Collector rsquo s finding on this aspect is also not sustainable. 7. The appeal is allowed with consequential relief.
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1990 (11) TMI 285 - CEGAT, MADRAS
Demand - Limitation ... ... ... ... ..... said to have been properly communicated to the Respondent only on the issue of corrigendum dated 5-8-1988. The only course available for the Department was to file an application before the Collector (Appeals) under Section 35E(4) pending decision, to safeguard the Revenue and no fault therefore could be found for the issue of demand notice pending decision by Collector (Appeals) on the application of the Department. The demand however could be said to have been raised only on 5-8-1988 in view of what we have held above. Therefore, the period of demand has to be reckoned from the date of receipt of the corrigendum by the Respondent and the demand raised which falls within this period has to be held to have been properly raised and since the classification of the goods under heading 2102.10 is not in dispute the Respondent is required to pay the demand which falls within the period of six months as above. The Revenue rsquo s appeal is thus partially allowed in the above terms.
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1990 (11) TMI 284 - CEGAT, CALCUTTA
Demand - Limitation ... ... ... ... ..... ch appeals which could be disposed of without going into the merits of the classification or valuation dispute on the preliminary point of erroneous invocation of the extended period of 5 years for recovery of short-levied or non-levied duties of customs or Central Excise by an officer not competent to invoke the extended period will also be allocated to Regional Benches sitting as Special Bench. This power has been delegated to the East Regional Bench also vide Amendment No. 3 dated 26-4-1990 to Cegat Public Notice No. 4/86 dated 14-10-1986. 7. In line with the decisions referred to, the ratio of which squarely applies to the present matter, we allow the appeal and set aside the order appealed against on the question of the notice having been issued by an officer not empowered in terms of the proviso to Section 11A(1) of the Central Excises and Salt Act, 1944. 8. The operative part of the order was announced in the open court on 6-11-1990 after the conclusion of the hearing.
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1990 (11) TMI 283 - CEGAT, BOMBAY
Appeal - Observation at personal hearing not an appellable order ... ... ... ... ..... ng, there is no need to insist on a separate authorisation for Sr. Counsel. Once an advocate is permitted to appear in the proceedings before the adjudicating authority, it is governed by the provisions of the Advocates Act and the Bar Council of India Rules, which are required to be accepted. Accordingly, a senior advocate cannot accept briefs directly and he is entitled to appear only with the advocate on record. Hence separate authorisation is not called for in his favour. We also would like to observe that the adjudication proceedings, being a quasi-judicial nature and when the learned advocate Shri Hidayatullah admits that it is a complicated one requiring an expert advice to the assessee, it is also but natural that the Department or the prosecuting agency engages an advocate for assisting the adjudicating authority. Hence, no objection can be taken on this by the other side. With these observations, we dispose of these two matters styled as stay application and appeal.
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1990 (11) TMI 282 - CEGAT, NEW DELHI
Demand - Show cause notice for non-payment or short payment of duty ... ... ... ... ..... notice under reference was without jurisdiction, even for other purposes also was the part of the question referred to the Third Member by the Referring Bench and on receipt of the Reference the Hon rsquo ble President constituted a 3-Member Bench to determine the question as referred to above by the Referring Bench, and this Bench held by Majority that the show cause notice was not only without jurisdiction for the purposes of demand of duty but the entire proceedings for the other purposes were also without jurisdiction. In the presence of these peculiar facts and circumstances of the case, we in consonance with the opinion expressed by the 3-Member Bench, as aforesaid, allow the appeal on the short ground that the show cause notice under reference was without jurisdiction. Hence without entering into the merits of the case, we set aside the impugned Order with consequential relief to the appellants, if any. (G.P. Agarwal) Member (J) Dated 25-3-1991 (P.C. Jain) Member (T)
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1990 (11) TMI 281 - MADRAS HIGH COURT
Adjudication and criminal prosecution ... ... ... ... ..... t retained any foreign exchange to their credit with M/s. Menrad, West Germany, the petitioners cannot be stated to be immune from criminal prosecution and further it is open to the Criminal Court to arrive at a finding different from the one given by the Adjudicating Authority, on consideration of the materials and evidence placed before it. 14. Of course, resorting to prosecution in such a situation appears to be highly illogical and paradoxical tending to absurdity as rightly contended by learned Counsel for the petitioners. But notwithstanding such a situation having been created, there is no other go except to obey the command or dictates of law, in spite of the fact that the application of the law in this regard did create illogical situation, for the obvious reason while enacting such a provision, such a situation could very well have been in contemplation of the Legislators. 15. In this view of the matter, the petition deserves to be dismissed and is hereby dismissed.
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1990 (11) TMI 280 - CEGAT, NEW DELHI
Plaster of Lime ... ... ... ... ..... d to conform to ISI specification. For a commodity like cement qualities like compressive strength are important and there is no conclusive finding that the goods in question were subjected to test and found to conform to the prescribed standard. The fact that the goods were differently described in different documents cannot be interpreted to mean that they were Ordinary Portland Cement. 16. We agree with Shri Gujral on the basis of the authorities cited by him that the result of test could have only prospective application. No presumption can be made on this point. 17. No allegation of suppression or mala fides was made in the show cause notice and the Collector could not therefore have recorded a finding to that effect. Since the tests do not establish that the goods in question were Ordinary Portland Cement, the basic charge itself fails. The appeal is allowed and the order of the Collector is set aside. The operative portion of the order was pronounced in the open Court.
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1990 (11) TMI 279 - CEGAT, CALCUTTA
... ...
... ... ..... ecessary particulars. From a perusal of the copy of the said letter submitted in the appeal paper book, it is seen that they had requested the departmental authority to exempt them from Central Excise duty but that they were paying duty under protest till their exemption case was finalised. This letter which should be available in the departmental records will have a vital bearing on the disposal of the refund claim. We allow the appeal and set aside the order in appeal. The ldquo order rdquo of the Assistant Collector is a non-starter and that stage of the proceedings has to be gone over again paying attention to the submissions made by the appellants and disposing them of on merits. We, therefore, remand the matter to the jurisdictional Assistant Collector for disposal in accordance with law. 8. The operative part of the order, namely, setting aside of the order in appeal and allowing of the appeal by way of remand was announced in the open court at the time of the hearing.
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1990 (11) TMI 278 - CEGAT, NEW DELHI
Rectification of mistake ... ... ... ... ..... point, the point shall be decided according to the opinion of the majority, if there is a majority but if the members are equally divided, they shall state the point or points on which they differ and the case shall be referred by the President for hearing on such point or points by one or more of the other members of the Appellate Tribunal and such point or points shall be decided according to the opinion of the majority of the members of the Appellate Tribunal who have heard the case including those who first heard it. Now, this Bench had made a reference to the President vide order dated 30-01-1990. We hold that where a matter has been referred to the President, where there is a difference of opinion amongst the Members, Rectification of Mistake Application is not maintainable. We accept the prayer of the Ld. Consultant for the grant of necessary permission for the withdrawal of the same. For statistical purposes, the Application for Rectification of Mistake is dismissed.
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1990 (11) TMI 277 - CEGAT, NEW DELHI
... ...
... ... ..... stified. The department rsquo s case is that the value for the purpose of calculating the exemption limit should be the value of the clearances from the sales depot whereas the appellants contends that the value should be the value from the factory. The issue involved is the interpretation of the notification and how to calculate the value for the purpose of exemption limit. Therefore, it is not a case warranting levy of penalty on the ground that there is violation of rules. It is true, under rule 173F the assessee has to determine the duty on the goods and to remove them on payment of the said duty. In this case the appellants have paid the duty according to their calculation and there is no violation of Rule 173F. The only dispute here is as to the method of calculating the value for the purpose of determining the exemption limit. Therefore, there is no justification for imposing the penalty. We, therefore allow the appeal and set aside the orders of the lower authorities.
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1990 (11) TMI 276 - CEGAT, NEW DELHI
Stay/Pre-Deposit of duty and penalty ... ... ... ... ..... , There is force in the argument on violation of the principles of natural justice. The Tribunal has time and again held that denial of opportunity to cross-examine witnesses whose statements are relied upon by the Department amounts to violation of the fundamental principle of natural justice. The cases cited by the adjudicating authority are also not applicable to the facts of the present case in as much as the Supreme Court decision held that principles of natural justice do not require that persons who have given information (Emphasis supplied) should be allowed to be cross-examined on the statements made before Customs authorities and the Madras High Court decision contained no finding on this issue. 6. In the above circumstances, we feel that this is a fit case for grant of waiver of pre-deposit. The requirement of pre-deposit of duty and penalty is dispensed with and stay of recovery thereof granted, pending disposal of the appeal. 7. The application is hereby allowed.
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1990 (11) TMI 275 - CEGAT, NEW DELHI
Valuation - Packing charges ... ... ... ... ..... the Tribunal rsquo s order in the case of Hindustan Gas and Industries Limited (supra) wherein the cost of packing of compressed oxygen gas per cubic metre in cylinder worked out to 0.68 paise and urged us to infer that the cost of Rs. 2.30 per cubic metre was unduly high, thereby establishing that the cost of oxygen gas had been deflected by increasing the cost of packing. We are not able to accept this contention as this is not the case of the Department - the case of the Department is only that the cost of packing on the basis of life period has no means with the actual cost of the cylinders ldquo since it carries with it the stigma of consumable packing rdquo . 11. In the light of the above discussion, we hold as follows (i) The show cause notice dated 7-12-1983 is barred by limitation for the period prior to 6-6-1983. (ii) The cost of packing is to be excluded from the assessable value. 12. We set aside the impugned orders and allow the appeals with consequential relief.
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1990 (11) TMI 274 - CEGAT, NEW DELHI
Set-off of duty ... ... ... ... ..... herefore, the show cause notice issued on 12-12-1985 for recovery of duty credit irregularly taken on 8-5-1985, is beyond six months period and in such situation, as per provisions proviso to Sec. 11A only the Collector is the authority empowered to demand duty and not the Assistant Collector after the amendment of the Section in December, 1985. Here, the case under Sec. 11A invoking the longer period, has been adjudicated by the Assistant Collector in Feb., 1986 after the amendment had come into effect. This is clearly without jurisdiction because after the amendment to Sec. 11A, the law also provided for the transfer of pending cases with the Assistant Collector to the Collector vide Sec. 8 of the Central Excises and Salt (Amendment) Act, 1985. Therefore, the Assistant Collector rsquo s order is not maintainable in law being without jurisdiction which hits at the very authority for exercising such powers and hence the appeal is allowed on the ground of lack of jurisdiction.
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1990 (11) TMI 273 - CEGAT, BOMBAY
Modvat credit ... ... ... ... ..... ay be. rdquo Explanation (b)(ii) to Rule 57A is also reproduced below (b) (ii) - Packaging materials in respect of which any exemption to the extent of the duty of excise payable on the value of the packaging materials is being availed of for packaging any final products. 4. From the above, we observe that Not. No. 219/77 does not in any way grant exemption in respect of duty of excise payable on the value of the packing materials. Not. No. 219/77 is an exemption granted in respect of paints and varnishes packed in smaller packing for adopting the value proportionate to the quantities packed. It is not an exemption granted in respect of the duty of excise payable on the value of packing materials, which is sought to be covered by Explanation (b)(ii) to Rule 57A. In the circumstances, we do not find anything wrong in the view taken by the Collector (Appeals), which is legally sustainable. We do not see any merit on the Department rsquo s appeal and it is accordingly dismissed.
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1990 (11) TMI 272 - CEGAT, NEW DELHI
Appeal - Condonation of delay ... ... ... ... ..... to do. Nor had the appellant taken any step in that direction to remedy the situation it appears except to pursue this matter with the consultants. In the process, the appeal has become time-barred. In such a situation, it cannot be said that the appellants can totally shift the blame for delay on to the consultants, especially, when they were made aware of the position on 3-5-1990. In this context, it is relevant to recall the observation of the Supreme Court in the case of Ramagowda and Others v. Special Land Aquisition Officer, Bangalore -1988 (2) SCC 142 that negligence, gross inaction or lack of bona fides of a party or counsel is no reason to expose the opposite party to a time-barred appeal. In the circumstances, the delay in my view is not condonable and as a consequence, the appeal has to be dismissed as barred by limitation. FINAL ORDER OF THE BENCH The delay in filing the appeal is not condoned and as a consequence, the appeal is dismissed as barred by limitation.
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1990 (11) TMI 271 - CEGAT, NEW DELHI
SSI Exemption ... ... ... ... ..... -3-1986, there is no reason why the appellant should be denied the entitlement to the benefit extended to SSI Units and similar view was taken by this Tribunal in the case of Collector of Central Excise, Madurai v. M/s. Maharaja Paper Board (P) Ltd., Maharajapuram, para 7, reported in 1986 (23) E.L.T. 484. In giving such concessions to small-scale industries, the Government was contemplating the concessions that will accrue and so long as the notification does not specifically mention about the dates from which such certificate takes effect, the exemption cannot be denied. Clause 4 of Notification No. 175/86-C.E. makes it a condition that a factory should be registered with the Director of Industries as a small-scale industry and once such a certificate is issued with an emphasis that the unit has obtained the status of a SSI from 01-03-1986, it should be taken as a sufficient fulfilment of the condition to avail the benefit. 8. The appeal in consequence is therefore allowed.
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1990 (11) TMI 270 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... ading 84.59 indicates that such machines like purifying oil, washing, scouring and removing dust in the perspective fields are stated as for use in the production of commodities. The process of cleaning and washing of the parts to remove the dirt and foreign material for smooth functioning of the parts and components, by the Ultrasonic Machine should be regarded as being in the production line. The citations referred to by the ld. Consultant are found to be adopting the same line of thinking. In effect, therefore, the machine can be considered as designed for production of a commodity as it improves the functioning of the parts/components by cleaning, which is found to be an essential requirement for fitment of the components/parts to the motorcycle engines manufactured by them and its classification under Heading 84.59(2) is appropriate. 8. The appeal filed by the Revenue having no merits is therefore rejected. The Cross Objection filed by the Respondent is also disposed of.
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1990 (11) TMI 269 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... nd it is accordingly dismissed. Hon rsquo ble Madras High Court in the case of Shree Rajendera Mills Lid. v. Joint Commercial Tax Officer reported in 1978 (2) E.L.T. (J 551) had held that ldquo the order of the Tribunal will be as effective as the order of a High Court so far as their binding character on lower authorities is concerned. It is, of course, open to the lower authority to take his own view on the facts but so far as the law propounded by the Tribunal is concerned, it is binding and it should be applied by the lower authority to the facts before him. rdquo In the matter before us, there is a Division Bench decision of the Madras High Court. Without expressing our views, we are respectfully following the same. In view of the above obervations, we hold that the goods imported are to be classified under Heading 73.31 of the Customs Tariff Act, 1975. 8. In the result, the appeals are allowed. Revenue authorities are directed to give consequential effect to this order.
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1990 (11) TMI 268 - CEGAT, NEW DELHI
T.V. Cabinets ... ... ... ... ..... ce to the brand names which are affixed on the goods in the trade not falling within the meaning of Explanation-VIII. Strictly going by the wording of the notification, the scope of Explanation-VIII is clear that where the brand name indicates a connection of the goods to some person using such brand name, it has to be taken as specified goods manufactured with the brand name of that person. The T.V. Cabinets are specified goods falling under Heading 85.29 and the manufacturers of T.V. Cabinets affix the brand name of the manufacturers of ldquo Konark rdquo T.V. on the T.V. Cabinets and they are not eligible for the exemption under Notification No. 175/86-C.E., dated 01-03-1986. The case law cited on the scope of the term lsquo brand name rsquo of the decision of the Madras High Court is with reference to the Explanation-VIII and is applicable. 5. The orders of the Collector (Appeals) in all the aforesaid appeals are set-aside and the appeals filed by the Revenue are allowed.
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1990 (11) TMI 267 - CEGAT, NEW DELHI
Date of Removal of yarn ... ... ... ... ..... Ltd. v. Collector of Central Excise, reported in 1989 (44) E.L.T. 595 (SC), the Hon rsquo ble Supreme Court held that the rate of duty prevalent on the date of removal of the excisable goods is the rate applicable under Rule 9A of the Central Excise Rules. In the present case, the yarn was removed from the spinning section to the weaving section of the respondents rsquo mill and used in the manufacture of cotton fabrics prior to 14/15-7-1977. The duty at the rate prevailing on the dates of removal of the yarn from the spinning section to the weaving section are the dates of removal of the yarn for the purposes of Rules 9 and 49 of the Central Excise Rules. Prior to 15-7-1977 the yarn was fully exempted from duty under Notification No. 132/77-C.E., dated 18-6-1977. In the circumstances, Central Excise Duty was not payable on the yarn in dispute. We, therefore, uphold the impugned order and dismiss the appeal of the Revenue with consequential refund of duty to the respondents.
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