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Case Laws
Showing 101 to 120 of 285 Records
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1992 (3) TMI 200 - CEGAT, CALCUTTA
MODVAT Credit ... ... ... ... ..... arge is a kind of customs duty. The wording in the provisions which are relevant in the present context are quite different and hence special excise duty, the authority for levy of which is different from the basic excise duty is not specifically covered in the relevant provisions, namely Rule 57B and Notification 175/86 for the purpose of grant of higher notional credit. As already discussed earlier, the higher notional credit is available only if the duty is exempted partially under a notification which specifically provides for such higher notional credit. The exemption Notification 175/86 is such a notification but by its specific wording it extends only to basic duty. The said notification does not at all refer to special duty and hence only the basic excise duty will qualify for higher notional credit. Modvat credit of special excise duty will be equal to the actual amount of special duty paid. Hence, I uphold the orders of Collector (Appeals) and dismissed the appeals.
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1992 (3) TMI 199 - CEGAT, MADRAS
Adjudication - Jurisdiction ... ... ... ... ..... his appeal allowed. 7. So far appellant Moosa is concerned, evidence clearly bears out that he went to the house of Zakeer Hussain to collect the washing machine and brought gold biscuits of foreign origin with full knowledge and therefore was privy to the commission of offence, in respect of the contraband gold. I have gone through the inculpatory statement and I find the same to be voluntary and true meriting acceptance and I reject the retraction as an afterthought. I, therefore confirm the findings against him in terms of the impugned order. At this stage, the learned Counsel fervently pleaded for reduction in the quantum of penalty stating that at the worst he only played the role of a carrier in an endeavour to collect gold to hand over to somebody. In the facts and circumstances I reduce the penalty on appellant Moosa from Rs. 20,000/- to Rs. 15,000/- (Rupees Fifteen thousand) having regard to the role he had played. 8. The appeals stand disposed of in the above terms.
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1992 (3) TMI 198 - CEGAT, CALCUTTA
Order not sustainable, being a non-speaking order ... ... ... ... ..... ed before the adjudicating authority in this case. Those materials are not before us and they are in the custody of the adjudicating authority. That being the position, we have no other alternative except to remand the case for fresh adjudication in the light of our order and the observations contained therein. In the result, we allow the appeal by way of remand with a direction to grant a personal hearing to the appellants and thereafter to take into consideration the several documents mentioned by us as well as the other documents which the appellants may bring to the notice of the learned adjudicating authority and a speaking order in this behalf should be passed by giving sufficient reasons and by observing the principles of natural justice. We may also state that if the appellants so require, they may seek an opportunity to cross-examine the officials of the Hindustan Lever Ltd. and if they so desire, the opportunity should be given to them by the adjudicating authority.
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1992 (3) TMI 197 - CEGAT, BOMBAY
Redemption fine ... ... ... ... ..... import into India. This suggests the condition of the imported goods rdquo . From the aforesaid observations of the Addl. Collector, we are unable to appreciate as to how he could apply a margin of profit of 350 to 400 , when the condition of the goods could be construed to be only metal scrap. In view of this, the quantum of redemption fine calls for a substantial reduction. Accordingly, we reduce the redemption fine from Rs. 7 lakhs to Rs. 1,00,000/- (Rupees One lakh only) and grant consequential relief. 5. As regards the penalty, we find that the appellants had submitted the licence for amendment, as soon as the licensing authorities called for the same, on realising their mistake. It is also reported that they had sought for clarification from the licensing authority before entering into the contract. In view of the aforesaid circumstances, we deem it proper to extend leniency and remit the penalty. Appeal is disposed of in the above terms. Consequential relief to follow.
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1992 (3) TMI 196 - CEGAT, BOMBAY
Stay/Predeposit of duty ... ... ... ... ..... erned Secretaries for early settlement of the dispute and on failure to get a clearance from that Committee the matter could be taken up for further disposal. Since the Department is also a party to the direction of the Supreme Court, till the matter is cleared by the Committee of Secretaries, they should not resort to recovery of dues by coercive measures. If any detention for recovery is ordered, it should be lifted. We are making these observations as a party to the direction of the Apex Court so as to ensure compliance with the Supreme Court rsquo s direction by all the agencies referred to therein. Hence, we are not passing any order on the stay application except giving the aforesaid directions.
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1992 (3) TMI 195 - CEGAT, CALCUTTA
Confiscation and penalty ... ... ... ... ..... elied on the decisions of the Tribunal reported in 1987 (30) E.L.T. 320 as well as another decision reported in 1987 (30) E.L.T. 547. Relying on the above-said decisions, he stated that the camera was in the professional use of a particular person and therefore Section 11G(1) does apply. The Collector (Appeals) has stated that the goods not being a notified one and when it is an old one, it cannot be said that the respondent has to discharge the burden. In view of the observation made by the Collector (Appeals) and on the facts and circumstances of this case, there is no reason to disturb his findings that what was seized was not a notified item. That being so, the burden has not shifted on to the respondent. Accordingly, I find no reasons to interfere with the order of the Collector (Appeals), Calcutta. The appeal is, therefore, rejected. The penalty imposed on the respondent was rightly set aside by the Collector (Appeals) and that order also stands confirmed by this order.
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1992 (3) TMI 194 - CEGAT, MADRAS
Refund - Unjust enrichment ... ... ... ... ..... ent nor does it make refund of duty conditional on the relief being passed on to the ultimate consumer . 5. Respectfully following the ratio of the aforesaid decisions, we hold that there is no merit in the appeals filed by the Revenue and the appeals are accordingly dismissed. Sd/- (S. KALYANAM) MEMBER 6. Assent per V.P. Gulati, Member (T) . - I observe that the Revenue has not placed before us any authority in support of their plea on the doctrine of unjust enrichment. The statutory authorities while functioning under the Statute have to decide the matter with reference to the provisions of the law contained therein. The learned SDR has not been able to show us any authority to warrant departure from the above position in law. Therefore, following the ratio of the various pronouncements by the Hon rsquo ble Supreme Court, the Hon rsquo ble High Courts and the Tribunal, I hold that there is no merit in the appeals filed by the Revenue and the appeals are therefore dismissed.
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1992 (3) TMI 193 - CEGAT, MADRAS
Modvat Credit ... ... ... ... ..... allowed the benefit of the input duty relief under the MODVAT scheme. Going by the ratio of the judgment of the Hon rsquo ble Supreme Court cited supra, it has to be concluded that the credit has to be allowed only in respect of such of those inputs which are used in the process of manufacture and which go directly into the manufacturing stream by themselves or are used in the manufacture of materials which go into the manufacturing stream resulting in the manufacture of the end-product. The parts of the machines which produce the finished goods do not pass this criterion and in that view of the matter we hold that the appellants have rightly been denied the MODVAT credit in relation to chipper knives, wire netting, dandy covers, woollen felts and transmission and conveyor belting. We observe that the learned Advocate has not advanced any pleas to distinguish the ratio of this decision. We find no reason to depart from the decision as above. We, therefore, dismiss the appeal.
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1992 (3) TMI 192 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... uld Release Preparation rsquo in question being a lubricating preparation. It has therefore to be held that the goods in question were classifiable under Heading 34.03 of the Tariff. The only other question that remains to be examined is whether the goods were eligible for concessional assessment in terms of Notification No. 136/86 (as amended). It is seen that Serial No. 76 of the table annexed to the said Notification listing the goods entitled to concessional assessment reads as under - ldquo Artificial waxes, prepared waxes, lubricating preparations and preparations of a kind known as lsquo dental wax rsquo or lsquo dental impression compounds rsquo . rdquo Since the Chemical Examiner has certified that the goods in question fell in the category of lsquo lubricating preparation rsquo , they have to be held as eligible for the benefit of Notification No. 136/86. 9. We, therefore, set aside the impugned order and allow the appeal with consequential relief to the appellants.
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1992 (3) TMI 191 - CEGAT, MADRAS
Stay/Pre-deposit of duty and penalty ... ... ... ... ..... articular commodity. The ruling of the Special Bench in the cases cited supra by the applicants prima facie applies to the facts of this case and prima facie, therefore, on merits there is infirmity in the lower authority rsquo s order and on the question of limitation also prima facie I hold that the applicants have a good case inasmuch as the applicants rsquo activity of refining and reconditioning under Rule 173H for all times was within the knowledge of the authorities and at no time the authorities had taken objection. Further, refining and reconditioning can be carried out subject to the condition that may be prescribed by the Collector and there is no plea that any record or furnishing of information was prescribed in respect of the applicants rsquo product, which had not been complied with. In the face of this, I prima facie hold that the applicants have made out a prima facie case for waiver of pre-deposit and accordingly I grant waiver of pre-deposit pending appeal.
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1992 (3) TMI 190 - BEFORE THE COLLECTOR OF CUSTOMS & CENTRAL EXCISE (
Refund - Goods returned by buyer to factory for reprocessing ... ... ... ... ..... striction placed being under proviso (iv) to the sub-rule. Similarly, the appellant is also correct in placing reliance on yet another decision of the CEGAT in the case of Sadhana Nitro Chem Ltd. v. Collector of C. Ex., reported in 1991 (56) E.L.T. 484 (Tri.) where the Special Bench have held that an article should not suffer double duty and if any item has suffered double duty the appellant is entitled to get refund. The same principle has been laid down in the judgment of Calcutta High Court in the case of Dalmia v. Collector of C. Ex. and Others reported in 1986 (26) E.L.T. 76 (Cal). As seen from the impugned order returned lsquo bucket rsquo has been subjected to the process of welding, grinding and touch up with the paint and replaced and removed under payment of duty. As the same lsquo bucket rsquo has been subject to duty twice, duty paid once has to be refunded. I, therefore set aside the impugned order and allow this appeal with consequential relief to the appellant.
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1992 (3) TMI 189 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... without it, the rubber blankets cannot be fixed to the machine properly for precision printing as admitted by the importer themselves. Therefore, such fittings have to be considered lsquo further worked rsquo and the items excluded from Heading 4008 as per Note 9 of Chapter 40. As such, to consider the item as a mere rectangular sheet to fall under Heading 40.08 is not proper. There is no merit in these appeals and the same are dismissed. 11. Assent per V.P. Gulati, Member (T) . - I agree. I would however like to add that the goods imported are for fitment on to the machine. For that purpose the rubber sheets have been prepared to the desired specifications and have been fitted with metal strips making them fit for being used in the Printing machine. The sheets therefore, do not pass muster as being simply cut. As pointed out by learned brother the same have to be considered as having been further worked. Therefore, they fall outside the purview of heading 4008 of Chapter 40.
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1992 (3) TMI 188 - CEGAT, NEW DELHI
Stay/Predeposit of penalty ... ... ... ... ..... n of the sub-clause to Section 112 would not vitiate the proceedings as it is clear that the importer was aware that action was being initiated in pursuance of the Section 112(a). 4. We are of the view that the applicants have not made out a strong prima facie case on merits which will have to be gone into in detail only at the time of final hearing of the appeal. However, having regard to the fact that the value of the disputed goods appears to be Rs. 2,86,401.50 FOB (the goods imported -under Invoice No. 0295 dated 25-5-1988) and adding the insurance and freight charges the value would be around Rs. 3 lakhs, we direct the applicants to deposit Rs. 3 lakhs penalty within 8 weeks from the date of receipt of this order. Subject to such deposit the balance penalty shall stand waived and its recovery stayed pending disposal of the appeal. Failure to comply with the stay order shall result in the appeal being dismissed without further notice. Matter to come up on 10th June, 1992.
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1992 (3) TMI 187 - CEGAT, NEW DELHI
Demand not justified ... ... ... ... ..... pellants. The Collector (Appeals) having jurisdiction over the appellants has no jurisdiction to deal with the matter of grant of permission to M/s. Nirlon by the Assistant Collector having jurisdiction over the factory of M/s. Nirlon. Once it is held that the movement of the semi-finished goods from M/s. Nirlon to the appellants is not irregular, then the entire basis of the show cause notice itself falls to the ground and the proceedings emanating therefrom require to be set aside. The duty payable on the waste will be 50 ad valorem plus special and additional duty as per Notification 272/83, dated 18-11-1983 which duty liability has been discharged by the appellants. Therefore, the demand on the subject goods is not sustainable. We, therefore, set aside the impugned order and allow the appeal with consequential relief of refund of the duty amount paid under protest on 25-7-1986 and the amount ofRs. 3 lakhs paid in pursuance of the Stay Order No. S-309/85-D dated 3-12-1985.
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1992 (3) TMI 186 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... g, Ca or Cr expressed as MgO, CaO or Cl2 O3. 6902.2G Containing by weight more than 50 of alumina (Al2O3) of silica (Si O2) or of a mixture or compound of these products, 6902.90 Other The classification of item under Chapter 69 is well-founded but its fixation under further sub-headings 6902.10,6902.20 and 6902.90 is based on the criteria laid thereunder. The importer has not any material for such consideration. The lower authorities also have-not looked into this aspect as they primarily based their decision on Note 1 of Chapter 98 and assuming the item to fall under Chapter 85. Therefore, it is but proper to remand the matter to the lower authorities to reconsider the correct sub-headings under Chapter 6902 on the basis of the criteria laid thereunder by calling for further information from the importer and also consider grant of benefit of the Notification No. 124/87-Cus., dated 1-3-1987, which they are claiming and grant consequential relief, if any. Ordered accordingly.
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1992 (3) TMI 185 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... oods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to (a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable. (c) When goods cannot be classified by reference to (a) or (b), they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration. We do not find the rulings relied by Shri Grover to reconsider the ratio of Voltas Ltd. case is of any help as the ratio of the rulings relied do not help in classification of the goods based on headings, Section and Chapter Notes. We do not find any reason to differ from the ratio of Voltas Ltd. case referred supra. There is no merit in the various contentions of the appellants. Applying the ratio of Voltas case, the appeal deserves to be dismissed and we order accordingly.
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1992 (3) TMI 184 - CEGAT, CALCUTTA
Adjudication ... ... ... ... ..... he orders of the Hon rsquo ble High Court, taking the surety of the appellant for its release is iin contravention of the orders of the Honourable High Court. On that ground alone, the surety bond is not in accordance with law and the appellant cannot be ordered to produce the goods or its seizure value. Even otherwise, if a bond is executed by the appellant, then the Department has to proceed for encashing the bond in accordance with law in a proper court. The bond should be enforced looking into the conditions stated in the bond and the impugned order requiring the appellant oto produce the goods, cannot be upheld. 7. In such circumstances, this appeal is allowed and the orders requiring the appellant to produce the goods in question and imposing the penalty ........ We hereby make it clear that this appeal is allowed only as far as the appellant is concerned and the order passed against Sushil Mehendi is not challenged before us and the same is not disturbed by this order.
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1992 (3) TMI 183 - CEGAT, NEW DELHI
... ... ... ... ..... ion. Paragraphs 4 and 5 of the Tribunal rsquo s decision No. 136-137/87-A are reproduced below ldquo 4. We put it to the learned representative of the department that transit breakage/loss was something that occurred after removal of the goods from the factory gate and the cost of insurance/guarantee for it was on par with transit insurance which had been accepted as a permissible deduction, being in the nature of cost of transportation, in terms of the Supreme Court judgments in the case of Bombay Tyre International 1983 (14) E.L.T. 1896 (SC) and Madras Rubber Factory 1987 (27) E.L.T. 553 (SC) . The learned representative of the department had nothing to say. 5. Following the ratio of the aforesaid two Supreme Court judgments we allow both the appeals with consequential relief to the appellants. 5. We agree with the view taken by the Tribunal in the orders cited above and uphold the impugned order passed by the Collector (Appeals) and dismiss the appeal filed by the Revenue.
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1992 (3) TMI 182 - CEGAT, NEW DELHI
Demand - Limitation ... ... ... ... ..... or the suppression of relevant information. He does not appear to have considered the documentary evidence placed by the respondents in the form of enclosures to the reply to the show cause notice. In the case of Jaishri Engineering Company P. Ltd. v. Collector of Central Excise, reported in 1989 (40) E.L.T. 214 the Hon rsquo ble Supreme Court has held that visits of officers of the Department to a factory is no reasori for an assessee not to truly and properly describe the goods. In view of the summary finding of the Collelctor on time bar, we are not in a position to give any finding on this aspect and we remand the matter to the adjudicating authority for de novo adjudication on the issue of the demand being time barred in the light of the evidence produced by the respondents. The cross objection abates. 11. In the result we set aside the impugned order on merits and remand the time bar issue to the Collector of Central Excise. The appeal is disposed of in the above terms.
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1992 (3) TMI 181 - CEGAT, CALCUTTA
Short-landing of goods - Penalty ... ... ... ... ..... o the consignees was delayed in clearance from the Port Trust Premises by the Consignees themselves and during this time, a quantity of cargo was lost due to inadequate protection, while the same was in the custody of the Calcutta Port Trust. But there is no such evidence in this case to show that due to the inadequate protection, the cargo in question was lost in any way. After giving the benefit of doubt to the appellants in this regard, still there is a short-landing of 666 bags and the learned Counsel also had filed a Calculation Memo in this respect. Duringthe course of the arguments. In such circumstances, the appellants are liable to be penalised under Section 116 of the Customs Act, 1962, for the short-landing of 666 bags of the product, Calcium Ammonium Nitrate. On the facts and circumstances of this case, we reduce of Rs. 95,262.00 imposed on the appellants to a sum of Rs. 25,000.00 (Rupees twenty-five thousand) only. The appeal is allowed partly in the above terms.
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