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Showing 101 to 120 of 252 Records
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1995 (4) TMI 169 - CEGAT, MADRAS
Stay/Dispensation of pre-deposit ... ... ... ... ..... role in the export of the goods in the impugned order, we grant waiver of pre-deposit of the penalty imposed on them pending appeals. So far as applicants Shri Munilal Mehra and Shri Prasad R. Sawant are concerned, the learned lower authority has in his order portion shown how they have been important links in the scheme of the export of the goods. There is no specific plea urged by the learned Consultant on the prima facie aspect of the case against them. Taking into consideration the role played by them we hold that the ends of justice will be served if they are called upon to pre-deposit a sum of Rs. 20,000 (Rs. Twenty thousand) each and direct that on their pre-depositing the amount on or before 29th June, 1995 and reporting compliance, pre-deposit of the balance of penalty shall stand waived pending appeals. On failure to comply with the terms of this order appropriate order under law will be passed. The matter will be called on 29th June, 1995 for reporting compliance.
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1995 (4) TMI 168 - CEGAT, MADRAS
Modvat - Transitional provisions ... ... ... ... ..... nsitional provision in terms of Rule 57H is in the nature of an exception to the statutory requirements under Rule 57A read with Rule 57G of the Central Excise Rules, 1944. Keeping all these factors in mind having regard to the facts and circumstances of the case and also the fact that the inputs were lying in stock of the appellants in regard to which declaration has been filed and the inputs were received on or before 1-3-1986 coming within the purview of Rule 57H dealing with the transitional provisions, we are inclined to think that the impugned order directing reversal of the MODVAT credit mainly on the ground that the appellants had taken the credit without obtaining the permission of the Asstt. Collector is not sustainable in law or on facts. In this view of the matter, the impugned order is set aside and the appeals are allowed. It will be open to the department to make verifications about the duty paid nature of the inputs in accordance with law. Ordered accordingly.
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1995 (4) TMI 167 - CEGAT, NEW DELHI
Exemption to intermediate product ... ... ... ... ..... nufacture of Aluminium Extrusion cleared free of duty under Notification No. 123/81-C.E., dated 2-6-1981 and other notification relating to clearance of goods to units located in free trade zone is also supported by the Tribunal rsquo s decision in the case of I.E.L. Ltd.v. Collector of Central Excise, Bombay reported in 1988 (35) E.L.T. 142, where in relying upon the decision of the Hon rsquo ble Patna High Court in the case of Tata Yodogawa Limited and Another v. Union of India reported in 1987 (32) E.L.T. 521, it was held that appropriate payment of duty should also be taken to mean duty that ought to have been paid or contracted to have been paid and when duty in terms of an exemption notification is nil rsquo , such goods when cleared without payment of duty can be taken to be duty paid goods. 14. emsp In view of the above and having regard to the detailed reasons in the order recorded by Brother Shri Peeran, the impugned orders are set aside and the appeals are allowed.
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1995 (4) TMI 166 - CEGAT, NEW DELHI
Countervailing duty on Fibre Glass ... ... ... ... ..... wholly out of glass fibres (excluding continuous filament yarn) Nil 2. 7014.00 Glass fabrics other than fabrics impregnated, coated, covered of laminated with plastics of varnish Nil 3. 7014.00 All goods (other than glass fabrics impregnated, coated, covered of laminated with plastics of varnish) 20 6. emsp As per serial No. 1 of the Notification it is clear yarn spun wholly out of glass fibres is eligible for exemption of duty. The word wholly cannot be construed as mainly as it was interpreted by the Collector (Appeals) in allowing the appeal as it was rightly argued by the learned Senior Departmental Representative. Concurring with the arguments advanced by the learned Senior Departmental Representative we hold that the Notification should be construed strictly and the word wholly cannot be read as mainly. In the view we have taken we uphold the order passed by the Assistant Collector in rejecting the refund claim and accordingly appeal filed by the Department is allowed.
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1995 (4) TMI 165 - CEGAT, BOMBAY
Redemption fine payable even if the goods are ordered to be re-exported ... ... ... ... ..... t contemplate allowing redemption fine only in the case of goods cleared for home consumption. Hence we are of the view that whenever goods have been imported unauthorisedly and they are confiscated, if option for redeeming the goods is given under Section 125 of the Customs Act either for home consumption or for export, redemption fine can be imposed. However, if goods are allowed export on redemption, fine can be on the lower side and need not relate to margin of profit. It does not extinguish the liability to impose a fine for allowing redemption. Hence, we uphold the order of confiscation and imposition of fine and penalty. However, having regard to the plea for leniency, we find that since the goods are personal jewellery and have already been exported as per the condition imposed, we reduce the redemption fine to Rs. 10,000/- (Rupees Ten thousand only). The penalty imposed is reasonable and does not call for any interference. 5. Appeal is disposed of in the above terms.
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1995 (4) TMI 164 - CEGAT, NEW DELHI
CLASSIFICATION ... ... ... ... ..... al cited above, we find that it dealt with the classification of identical goods. The Tribunal after detailed examination of the process of the manufacture, the ISI specification trade understanding has ultimately concluded that the goods does not satisfy the ISI specification as channels not known in the trade as channel but that it is cleared as wheel of Tonga or Rehri. When this is the case, observed Tribunal, the goods cannot be termed as channels merely because they are round or in C rsquo shape. The Tribunal further held that how party describes will not be material unless it is shown that the goods satisfied the trade understanding and it is known in trade as such and also satisfies the function of a channel as understood in the trade. The Tribunal therefore found the goods are correctly classifiable under Item 68 of CET. The ratio of this decision is fully applicable to the facts of the present case and accordingly we set aside the impugned order and allow the appeal.
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1995 (4) TMI 163 - CEGAT, NEW DELHI
Television - Additional Excise duty ... ... ... ... ..... are not sustainable and pending assessments may be finalised accordingly. rdquo Shri S. Sachdeva, learned SDR, submitted that in view of the said Circular he is not opposing the prayer for stay. 3. emsp In view of the said Circular dated 18th January, 1995, we find a strong prima facie case for the purpose of the disposing of the present stay applications. What would be the effect of the Board rsquo s Circular on the issue involved in the present appeals, would be considered at the time of the hearing of the appeals on merits. 4. emsp In the result, both the applications are allowed unconditionally and recovery proceedings, if started, shall also remain stayed. 5. emsp Since the present case may not be the single case pending for the decision of the Tribunal, we give the liberty to the Department to move the application for early hearing and also for consolidation of other appeals which also involve the said issue. 6. The Misc. Application also stands disposed of accordingly.
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1995 (4) TMI 162 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... would not be covered by the aforesaid Tariff classification. Therefore, the refund claim made by the appellant on the basis of aforesaid Tariff classification for the goods in question is not sustainable. We are not able to accede to the alternative plea of the learned Consultant for remanding the matter to readjudicate the issue as to whether the goods can be classified under 90.16 because that was not the ground on the basis of which admittedly the refund claim was filed before the authorities. Therefore, under law, it is not open to the appellant to put forth a new case seeking re-classification of the goods under Tariff Heading 90.16 of the Customs Tariff Act seeking consequential refund. Therefore, for the reasons stated above and adopting the reasons in the impugned order, we hold that the rejection of the appellant rsquo s refund claim is sustainable in the facts of the case and in law. In this view, we sustain the impugned order appealed against and reject the appeal.
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1995 (4) TMI 161 - CEGAT, NEW DELHI
Pre-polymer of Syrup Methyl Methacrylate Monomer ... ... ... ... ..... uo 13. emsp The ratio of the above decision of the Supreme Court is applicable to the facts of the present case. The nature of the goods found as a result of test by Departmental Chemical Examiner as well as an independent authority like the Head of the Chemistry of the University, Vallabh Vidyanagar have both confirmed the highly unstable character of the pre-polymer syrup of Methyl Methacrylate Monomer (MMA). The respondents have furnished evidence of their dealers to say that the pre-polymer syrup is not marketable. The earlier adjudication order of the Assistant Collector has also given a finding that the goods are neither marketed nor are marketable. In such a situation, in the absence of any rebuttal of evidence of non-marketability produced by the respondents by the Assistant Collector in his order passed in the de novo proceedings, we find no reason to interfere with the conclusions of the Collector (Appeals) in the impugned order. The appeal is, accordingly rejected.
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1995 (4) TMI 160 - CEGAT, BOMBAY
Penalty - Smuggling of gold ... ... ... ... ..... n 135 of the Customs Act, 1962, the appellant has been acquitted. The law is clear that any finding in the Magistrate Court, cannot affect the adjudication proceedings under the other provision. The scales for appreciation of evidence in such trials are substantially stringent, and the benefit goes to the accused, on any lacuna. It appears that corroboration available from the circumstantial evidence, brought out hereinabove, presumably, was not projected there, and merely because on that account, if the trial has resulted into acquittal, the same could not prevent the adjudicating authority under the Act, from taking a contrary view. 14. emsp In the result, there does not appear any justifiable ground to differ from the conclusion drawn by the authority below and hence the same is confirmed. Even for the quantum of penalty imposed, the same being not disproportionate to the value of the gold involved, does not call for any interference. 15.The appeal is, therefore, rejected.
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1995 (4) TMI 159 - CEGAT, NEW DELHI
Refund - Limitation ... ... ... ... ..... the recent majority decision in the Tin Can Manufacturers case is to the contrary. We feel the conflict requires to be resolved. A direct reference to the Honourable Supreme Court under Section 35H of the Central Excises and Salt Act, 1944 in view of the conflict in the decisions of the High Courts is provided for therein only on an application made under Section 35G which is not the case here. We are accordingly referring the matter to the Honourable Vice President of the Tribunal for constituting a Larger Bench to hear and dispose of the appeal. Order per Jyoti Balasundaram, Member (J) . - While agreeing with learned Member (Technical) that the matter requires to be referred to a Larger Bench, I do not wish to associate myself with his findings in paragraph 5 of the order expressing concurrence with the view taken by the Kerala High Court in the Pylunny case and by the Tribunal in the Asian Bearing case, but would leave the conflict open for resolution by the Larger Bench.
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1995 (4) TMI 158 - CEGAT, NEW DELHI
CLASSIFICATION ... ... ... ... ..... the subject goods without reference to either of the Tariff Advices based on the merits of the dispute. 9. emsp No criteria or definition was laid down in the relevant items of the Tariff for determination whether a product could be deemed as Chocolate or Confectionery and it was a long standing practice of the Department to classify Chocolate Eclairs manufactured by the appellants as Confectionery under Tariff Item 68. On the ratio of the judgments quoted above we therefore hold that the Collector rsquo s order classifying Chocolate Eclairs under Tariff Item 1A(4) is not sustainable since it was based only on a Tariff Advice issued by the Board and not on any enquiries made to determine as to how the said goods were known and treated by the trade is not sustainable. In view of this finding the demand confirmed by the impugned order in terms of the proviso to Section 11A also does not survive. 10. emsp In the result, the impugned order is set aside and the appeal is allowed.
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1995 (4) TMI 157 - CEGAT, BOMBAY
Import - OGL ... ... ... ... ..... uch a registration has been made before the goods have entered into Indian territorial waters. 7. The allegation made, therefore, does not appear convincing and hence cannot be sustained. 8. emsp Under the circumstances, applicability or otherwise of the provisions of Para 79(2) of the Hand Book of Procedure, does not assume any significance. Even otherwise, the said provisions stand attracted only when the validity of the licence, and not that of import, is under consideration. If they are intended to even apply to the import, then the same may come in conflict with the word import as defined under the Customs Act, 1962. 9. emsp With contract having stood registered before the actual import having been effected, the provisions of para 12 of the conditions have been complied with, and hence holding import as unauthorised on that count cannot be sustained, and the order to that effect is therefore set aside. 10.The appeal is accordingly allowed. Consequential relief to follow.
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1995 (4) TMI 156 - CEGAT, NEW DELHI
Remand - Natural justice ... ... ... ... ..... of natural justice because the Chemical Examiner rsquo s report has not been referred to in the show cause notice at all and it has been made use of for the first time in the adjudication order of the Assistant Collector. It is also not clear whether as to what was the query raised to the Chemical Examiner and what was the aspect he was asked to test and report. The full text of the chemical examiner rsquo s report is not available with either party and in these circumstances, the submissions made on this aspect of failure of natural justice in this case by the appellants has a lot of force. Accordingly, we set aside the impugned order and remand the matter back to the Jurisdictional Assistant Collector for determining the classification afresh between the two competing entries in the Tariff after furnishing the full text of the Chemical Examiner rsquo s report on the product to the appellants herein and after giving them an opportunity of hearing and in accordance with law.
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1995 (4) TMI 155 - CEGAT, NEW DELHI
Demand - Clandestine removal ... ... ... ... ..... purely on averages and there is no specific evidence that goods were manufactured and cleared without payment of duty. 5. emsp The position could have been different if the officer have undertaken appropriate investigation of the heat record as a starting point and not in concluding that the case was made because of presence of heat record. It is however, not for this Tribunal to make up the deficiency - as in this case the total absence of evidence of investigation. On the facts before us it is not possible for us to conclude with reasonable certainty that the quantity of goods found by the Collector to have been removed without payment of duty, was actually removed. The benefit of doubt has to go to the appellant. The result would be that the demand for duty has to be set aside. Since the confiscation of 13.680 MTs of M.S. Ingots is not being in question, the Collector rsquo s order in this regard is confirmed. Penalty is reduced to Rs. 5,000/- (Rupees Five thousand only).
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1995 (4) TMI 154 - CEGAT, BOMBAY
Modvat Credit ... ... ... ... ..... ovisions of Chapter IX of the Rules. Viewed in this content, we could not persuade ourselves to agree that Rule 57F(3) proviso can be extended, only where the goods are cleared direct from the factory to the port of shipment. Hence, we find no reason to take any different view from the one we have already taken in the case of Reliance Industries. Hence we hold that objection from the Dept. on this ground is not sustainable and direct the authorities to allow the credit to be utilised in regard to clearance of similar final product. 8. emsp In the result, we hold that inputs namely liquid Nitrogen, Thermex, Finor and KEM Watreat are eligible to avail Modvat credit. As regards TEG, appeal is dismissed, since issue is not pressed on merits. We also direct that Modvat credit of duty paid on inputs used in the final products, which were so far cleared for export in terms of Rule 191BB should be allowed to be utilised in regard to clearance of similar products for home consumption.
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1995 (4) TMI 153 - CEGAT, NEW DELHI
Adjudication proceedings - Continuation of ... ... ... ... ..... ce even after the clarification and further communication. Therefore, it would appear that there is no substance in the appellants rsquo plea of non-compliance with the principles of natural justice in this regard. In the result, it is held that there was no infirmity in the order passed by the Assistant Collector for recovery of the amounts in this case. There is no ambiguity in the Collector (Appeals) order referring to the limitation to run from the end of the financial year because the Collector (Appeals) apparently is referring to the provisions as they existed under Rule 173PP which has also been invoked in the relevant show cause notice in this case. There is, thus, no reason, to interfere with the order passed by the Collector (Appeals) both on merits of the case and the decision of the Larger Bench and on the other issue regarding competency and validity of the notice issued by the Assistant Collector for recovery of the amounts. The appeals are, therefore, rejected.
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1995 (4) TMI 152 - CEGAT, NEW DELHI
Adjudication proceedings - Continuation of ... ... ... ... ..... ce even after the clarification and further communication. Therefore, it would appear that there is no substance in the appellants rsquo plea of non-compliance with the principles of natural justice in this regard. In the result, it is held that there was no infirmity in the order passed by the Assistant Collector for recovery of the amounts in this case. There is no ambiguity in the Collector (Appeals) order referring to the limitation to run from the end of the financial year because the Collector (Appeals) apparently is referring to the provisions as they existed under Rule 173PP which has also been invoked in the relevant show cause notice in this case. There is, thus, no reason, to interfere with the order passed by the Collector (Appeals) both on merits of the case and the decision of the Larger Bench and on the other issue regarding competency and validity of the notice issued by the Assistant Collector for recovery of the amounts. The appeals are, therefore, rejected.
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1995 (4) TMI 151 - CEGAT, NEW DELHI
Confiscation and redemption fine ... ... ... ... ..... In his absence another person, a sales clerk is reported to have handled the work and he had cleared 38 transformers for which duty was paid and Gate Passes were issued though he had not posted the entries in the RG-1 register. The irregular maintenance of statutory records, whatever be the circumstances, is contravention of Rules 53, 173G and 226 of Central Excise Rules attracting penal provisions of Rule 173Q as brought out in the order. Such non-maintenance of records as required was, however, not with any intent to evade duty and no evasion of duty has also been alleged or established. However, in view of the extenuating circumstances of the case, we feel the ends of justice would be met if a token penalty of Rs. 2,000/- (Rupees two thousand only) is imposed on them. We accordingly reduce the penalty amount imposed by the Additional Collector from Rs. 50000/- to Rs. 2000/-. The appeal is partially allowed as above. The appellants will be entitled to consequential reliefs.
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1995 (4) TMI 150 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... st these parts under Item (5) of the classification list, they have not paid the duty correctly as per approved classification list and as such the Collector has held that the proviso to Section 11A of Central Excises and Salt Act invoking the longer period comes into play. But as has been found above on the facts and in the circumstances of this case the ingredient of deliberate withholding of information by the appellants from the Department is not borne out by material evidence. Therefore, it is held that the demand of duty for the extended period under Section 11A of Central Excises and Salt Act, 1944 is not sustainable in this case. As a corollary of the above finding on limitation, and also considering the circumstances that the period of the demand related to the early days of working of the HSN-based Central Excise Tariff Act, 1985 in 1986, the penalty on the appellants would appear to be harsh, and it is accordingly set aside. The appeals are disposed of accordingly.
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