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Case Laws
Showing 101 to 120 of 227 Records
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1995 (5) TMI 141 - CEGAT, NEW DELHI
Modvat credit - Demand ... ... ... ... ..... r by the Assistant Collector with regard to the scope of Rule 57H. I am not able to agree that in this case, Section 35E would have to be invoked as the appellant points out that the provision of Section 35E would apply whether order or decision in question is passed by the officer in his capacity as an adjudicating officer. It has been held in decisions of this Tribunal that once the conditions in Rule 57H are satisfied, the Assistant Collector has no option but to allow the credit. 4. emsp It cannot be said that order allowing the credit was passed in the capacity as adjudicating authority. Apart from this, when there is clear and specific provision in Rule 157(9) itself for the proper officer to recover the credit, harmonious construction of both provisions would exclude cases covered under this Rule from the purview of Section 35E. 5. emsp In the circumstances, I allow the appeal, set aside the order of Collector (Appeals) and restore the order of the Assistant Collector.
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1995 (5) TMI 140 - CEGAT, CALCUTTA
Refund on goods returned to factory ... ... ... ... ..... he facility provided for bringing in duty paid goods in the factory for processing and removal. Where the fact of payment of duty at the time of original removal of the goods, identity of the returned goods and their subsequent removal on payment of duty again are established by documentary evidence and refund claim is made in time, there should be no legal impediment to refund being granted if other conditions are satisfied. I accordingly set aside the impugned order-in-appeal in regard to the finding that Rule 173L is not applicable for the processing carried out in the present case. As there is no finding by the Assistant Collector in regard to the fulfilment of the other requirements of Rule 173L, the same are to be looked into by him as also those of the amended Section 11B of Central Excises and Salt Act, 1944. I accordingly remand the case to the Assistant Collector for de novo examination of the claim from the stand point. The appeal is disposed of on the above terms.
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1995 (5) TMI 139 - CEGAT, CALCUTTA
Appeal to the CEGAT ... ... ... ... ..... f confiscation or absolutely confiscates goods of certain value. 17. emsp No doubt, the word - penalty rsquo - carries a special meaning in the C.E.Act and Rules with reference to penalty on the person. A certain amount of inelegant drafting has caused the confusion leading to the Miscellaneous Applications. This could be avoided with careful drafting. But having regard to the nature and purpose of the provisions, there is no doubt that fee is required to be paid by both the applicants as asked for by the Registry. 18. emsp As regards the facsimile copy, suffice it to say that this is procedure prescribed under C.E.G.A.T. (Procedure) Rules for prosecution of an appeal to the Tribunal. Certified copies of Order-in-Original or Order-in-Appeal required with an appeal are not pieces of evidence falling within the mischief of Section 36B(1)(b). Certified copies, as required under the said Rules, is part of a legal procedure. This plea of the latter applicants is also not accepted.
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1995 (5) TMI 138 - CEGAT., CALCUTTA
Appellate Order ... ... ... ... ..... hat suitable direction may be given to the Collector of Customs (Preventive), Patna (Shri B.K. Misra) and the Assistant Collector, Muzaffarpur to implement the Tribunal rsquo s Order No. A-722-723/Cal/93, dated 14-10-1993. 3. emsp I have carefully considered the pleas advanced from both sides. I find lot of force in the pleas made by the learned Consultant for the Applicant after the Assistant Collector (Appeal Section) rsquo s letter dated 1st/2nd February, 1995. Within a few months thereafter, the order of the Tribunal should have been implemented by now and normally there should not have been any need of filing the present Application by the Applicant. I, therefore, direct the Collector of Customs (Preventive), Patna (Shri B.K. Misra) and the Assistant Collector, Muzaffarpur to implement the Tribunal rsquo s Order No. A-722/723/Cal/93 dated 14-10-1993 forthwith, within 15 days of receipt of this order. Matter to come up for ascertaining the compliance on 4th of July, 1995.
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1995 (5) TMI 137 - CEGAT, CALCUTTA
Appeal - Manufacture ... ... ... ... ..... by any person from the place where they are produced, manufactured or warehoused, the producer or manufacturer or keeper of the warehouse shall be held responsible for such removal and shall be liable to be dealt with according to the provisions of the Act as if he had removed the goods himself. Therefore, even though the appellants rsquo employees had removed the goods, the appellant Company vicariously shall be held liable and accordingly it is liable to be penalised. This view has been taken by the Hon rsquo ble Andhra Pradesh High Court in the decision reported in AIR-1961 AP 315. This Rule puts the master principally liable for the breach of the Rules though actually committed by his employees. Hence, the penalty also is justified. However, in the facts and circumstances of the case, the penalty is reduced to a sum of Rs. 10,000.00 (Rupees ten thousand) only. The demand of duty for a sum of Rs. 1,93,302.45 is hereby confirmed. But for this modification the appeal fails.
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1995 (5) TMI 136 - CEGAT, NEW DELHI
Appeal - Limitation ... ... ... ... ..... vehemently opposed this application on the ground that the Medical Certificate requires to be outright rejected, as the Doctor has attested the signature without the said person to whom he was attesting, having signed the application. Ld. Advocate submitted that the certificate had been issued by the Govt. Doctor who had noted the Number which represents the entry in the Register and also the O.P.D. No. The Counsel submitted that if he was called to explain this discrepancy after 10 years, it would be very much difficult for him to do so. However, he was ready and willing to get the explanation from the party. 2. emsp We have heard both the sides. Notwithstanding the objection raised by Ld. D.R., we think that there are no laches or patent negligence on the part of the appellant, as there are reasons which have been given in the application, which requires condonation at our end. In that view of the matter, we condone the delay and the Appeal is to be taken up on its merits.
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1995 (5) TMI 135 - CEGAT, NEW DELHI
Stay/Dispensation of pre-deposit ... ... ... ... ..... tter or other evidence to show that the department was pressurising the applicant to pay the amount. The fact that there is an entry that amount having been paid under protest is in inconsistency having been paid willingly. It cannot be said payment made under protest is tantamount to payment made under coercion. Indeed one might argue that if the applicant had sufficient presence of mind forthwith to make this entry in the Personal Ledger Account, it would have had sufficient presence of mind to resist the payment under coercion. Therefore the conclusion is it is difficult to accept that payment was made under coercion. 5. emsp Since the entire amount has been paid and not shown to be paid under coertion, the stay application becomes infructuous. The position in the case cited by the applicant in Mohan Engg. Works v. CCE - 1994 (73) E.L.T. 161 would be distinguishable. The application is therefore, dismissed as infructuous. The Misc. application is therefore, also dismissed.
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1995 (5) TMI 134 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... . 4. emsp We have taken note of the submissions. We have perused the record. The issue raised in the present appeal is as to whether the goods imported by the respondents namely ldquo Non woven Filter Media rdquo for the manufacture of Air Pollution controlled dust filter bags would be classifiable under Customs Tariff Heading 59.11 as claimed by them or under Heading 56.03 as contended by the department. Collector (Appeals) had accepted their claim leading to the present appeal. We find that this very issue had been disposed of by the Tribunal in the respondents rsquo own case vide Order No. C/455/93, dated 13-12-1993 reported in 1994 (70) E.L.T. 290 (Tri.) in their favour. It was held therein that non wovens meant for industrial application would fall under Chapter 59 and would therefore stand excluded from Chapter 56. The goods were held to be classifiable under Heading 5911.11. We follow the said decision and uphold the impugned order. The appeal is accordingly dismissed.
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1995 (5) TMI 133 - CEGAT, NEW DELHI
Discretionary power - How to be exercised ... ... ... ... ..... not heard by the Collector before the adverse decision had been taken against them by him and communicated to them through the Assistant Collector of Central Excise, Ranchi. Their plea of denial of natural justice is valid. We accept the same. We accordingly set aside the impugned order and remand the matter to the Collector for de novo decision in accordance with law after complying with the requirements of natural justice. The appeal is thus allowed by way of remand as already announced in the court at the end of the hearing. 5. emsp Before parting with the matter, we would like to express our strong disapproval of the practice followed in certain Collectorates of such decisions taken by the Collectors or other officers being communicated through the subordinate officers. A regular adjudication order is required to be passed by the concerned adjudicating officer himself in such cases instead of leaving it to be communicated in the form of a letter issued by another officer.
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1995 (5) TMI 132 - CEGAT, NEW DELHI
Exemption - Show Cause Notice ... ... ... ... ..... tions as there was no charge with reference to them in the show cause notice. It is possible that party might have not lead the evidence with reference to merits with this misconception. The party might be under the impression that charge was with reference to the notice but not on merits and it might have been resulted in not substantiating the claim with reference to conditions specified in clause (b). When once we hold that notice was in time, party is entitled to avail benefit of exemption subject to the conditions specified in clause (b) emsp and, accordingly, we are of the view that one more opportunity has to be given to the party to substantiate his claim with reference to clause (b) emsp of the notification. Accordingly, we are remanding the matter to the concerned Assistant Collector to examine the issue on merits and to pass an appropriate order in accordance with law after providing an opportunity to the appellants. 6. Thus, the appeal is allowed by way of remand.
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1995 (5) TMI 131 - CEGAT, NEW DELHI
Glycerine obtained through castor oil ... ... ... ... ..... ac Machine Manufacturing Company Pvt. Ltd. v. Collector of Central Excise, 1991 (51) E.L.T. 161 (SC), and of Novopan India Ltd. v. Collector of Central Excise, Hyderabad, 1994 (73) E.L.T. 769 (SC), the Hon. Supreme Court had held that commercial understanding is the true test for classification of the goods in Central Excise Tariff. Para 13 of the decision in the case of Plasmac Machine Manufacturing Company Pvt. Ltd. and para 7 of the case of the Novopan India Ltd., are relevant. 30. emsp Taking all the relevant factors into account, I agree with the learned Vice President that the case be remanded for de novo consideration. Dated 1-5-1995 Sd/- (Lajja Ram) Member (T) FINAL ORDER 31. emsp In view of the majority opinion, the impugned order is set aside and the case is remanded for de novo consideration in accordance with the law and the observations contained in the order of the Vice President. Dated 3-5-1995 Sd/- (S.K. Bhatnagar) Vice President Sd/- (S.L. Peeran) Member (J)
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1995 (5) TMI 130 - CEGAT, MADRAS
... ...
... ... ..... rming to the IS specification 8170/79 to treat them as finished leather and the drawback claim made therein is also reasonably suspected to be not in order and the exporters also had not produced the valid export licence from the licensing authorities to cover the goods, these goods become liable for confiscation under Section 113(1) of the Customs Act, 1962, as amended. rdquo 5. emsp Keeping in mind that a number of processes were involved in converting the raw leather into finished leather, a minor deficiency in the processing may not ipso facto make the leather as not fully finished leather. Keeping in mind that above factual background relating to export of finished leather and the views of the Govt. of India as well as the departmental authorities as extracted above and also taking note of the fact that the amount involved in the appeals are very small the appeals are dismissed without being admitted in terms of second proviso to Section 129A(1) of the Customs Act, 1962.
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1995 (5) TMI 128 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... g this test, we held that the machinery in question could be more appropriately classified under Heading 84.35. It is seen that the Markem capsule and tablet printing machine was held as classifiable under Heading 84.35 as ldquo Other printing machinery rdquo since in the manufacturers rsquo catalogue it was described as an item of printing machinery which could carry out the operation of printing on capsules and tablets by the normal printing method involving gravure rolls and printing ink. As observed earlier the disputed hot foil marking machine was essentially a stamping machine for imparting designs or marks on components with the help of stamping foil on plastic components. For these reasons it cannot be taken as a type of printing machine. 8. In view of the above discussion, we hold that the disputed hot foil marking machine Model No. P-121 was correctly classifiable under Heading 84.59(1) of CTA, 1975. 9. We therefore set aside the impugned order and allow the appeal.
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1995 (5) TMI 127 - CEGAT, BOMBAY
Import - REP Licence ... ... ... ... ..... emsp The view expressed by the South Regional Bench in the two decisions referred to above also endorses the view taken hereinabove. The decision In Re Kee Pee Enterprises, (supra) referred to by the ld. S.D.R. deals with the general approach to an REP Licence,when Para 7 of Appx. 17 will stand attracted and hence the ratio thereof would not stand attracted here. 11. emsp Though the ld. Adjudicating Authority has observed that the Item imported falls within App. 3A, he has not been specific on the point, and even at the stage of hearing of the appeal the specific entry had not been identified to cover the Flip Off Seal as the one covered in App. 3A. The said objection also, therefore, cannot be upheld. 12. emsp Under the circumstances, the appellants are held eligible to import the Flip Off Seals under the licences produced. The objection raised is held as not sustainable . The order of confiscation is therefore, set aside and the appeal is allowed with consequential relief.
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1995 (5) TMI 126 - CEGAT, NEW DELHI
S.S.I. Exemption - Unit not having S.S.I. registration certificate ... ... ... ... ..... Accura Industries referred to by the appellants rsquo counsel as well as in the case of Mehta Gem Tools Pvt. Ltd. v. Collector of Central Excise, reported in 1993 (63) E.L.T. 668 (Tribunal). We are of the view that non-filing of the declaration for licensing exemption does not deprive them of the exemption under Notification No. 175/86 if it is permissible otherwise. In the facts and circumstances and particularly in view of the fact that their clearances did not exceed exemption limit in the preceding financial years, it has to be held that appellants herein were availing exemption in terms of para 4(b) of the Notification No. 175/86 with reference to the relevant Notifications mentioned therein during the preceding financial year and consequently, benefit of exemption under Notification No. 175/86, dated 1-3-1986 cannot be denied to the appellants for classification list in question for the years 1988-89 and 1989-90. Accordingly, appeal is allowed with consequential relief.
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1995 (5) TMI 125 - CEGAT, BOMBAY
Refund of amount pre-deposited when order set aside and case remanded by appellate authority ... ... ... ... ..... ck to the Assistant Collector for considering the gate passes produced at the appeal stage. When the order itself is set aside, any payment made pursuant thereto is not a payment of duty. It is only a deposit which ought to have been refunded. Moreover, in this case, for availing the statutory remedy of appeal, the assessee has no option but to make payment of duty. Otherwise, his appeal is liable to be dismissed for non-deposit of the duty. Hence in the circumstances, when the payment is made and the matter is pursued in appeal, consequent on which original order is modified or set aside, the question of looking into the time limit under Section 11B does not arise. It is the refund to be granted consequent on the order passed by the appellate forum. In the circumstances, I see no merit at all in the department rsquo s stand for re-cycling the issue again despite the earlier order of the Tribunal. Appeal is therefore allowed. 6. Stay application may be treated as disposed of.
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1995 (5) TMI 124 - CEGAT, NEW DELHI
Evidence - Test report of the Chief Chemist ... ... ... ... ..... s opinion was available to Dr. Potnis, he has not sought to distinguish the well-known and accepted authorities relied upon by the Chief Chemist in his report. In view of this and in view of the fact that the procedure for taking all samples laid down in Rule 56 of the Central Excise Rules, 1944 was not followed for drawing of the sample tested by Dr. Potnis, we are basing our decision taking into account the opinion of the Deputy Chief Chemist and Chief Chemist which stands uncontroverted. Further the Glossary of Chemical Terms Second Edition by Clifford A. Hampel Gessner G. Hawley at page 17, recognises that Aminoplast resins have a wide range of applications including Textile impregnants. Hence they can also be used as dye fixing agents. On this basis, we hold that the product Amigen correctly falls for classification under T.I. 15A(1) of the Central Excise Tariff. Accordingly, we uphold the order of the Collector of Central Excise (Appeals), Bombay and reject the appeal.
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1995 (5) TMI 123 - CEGAT, NEW DELHI
Modvat Credit ... ... ... ... ..... ngal Financial (Sales Tax) Act in the case of Member, Board of Revenue v. Phelps Company Pvt. Ltd. reported in 1972 (29) STC 101 (SC). The relevant statutory provision considered in that case was not in pari materia with the provisions of Rule 57A which has a self-contained definition of the term ldquo inputs rdquo which keeps out certain items from its scope. It was, therefore, necessary for her to consider the manner of use of the material in question in the manufacturing process and decide the question. As the order is non-speaking in this regard, we set aside that part of the order-in-appeal relating to items other than Ramming mass and remand the matter to the Collector (Appeals) for de novo decision in accordance with law after complying with the principles of natural justice and passing a speaking order. We uphold the finding in the order-in-appeal as far as Ramming mass is concerned and dismiss the appeal to that extent. The appeals are disposed of on the above terms.
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1995 (5) TMI 122 - CEGAT, BOMBAY
... ...
... ... ..... an organised company, it is incumbent on them to take appropriate care for complying with the requirement of law. Their negligence has resulted in non-payment of duty on certain items, ultimately resulting in loss of revenue to the department. The excise authorities are justified in invoking the penal provisions. Hence while upholding the liability to penalty on the firm, having regard to the factors pleaded before us, we reduce the penalty to Rs. 1.00 lac only (Rupees one lac only). In the facts and circumstances of the case, we also feel that the order of confiscation of plant and machinery may not be called for and hence we set aside the same. 6. emsp In the result, the duty already paid is confirmed and the penalty is reduced to Rs. 1.00 lac (Rupees one lac only) and the order of confiscation of plant and machinery is set aside. 7. emsp Since the appeal itself is disposed of, stay application does not survive for consideration and the same is also treated as disposed of.
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1995 (5) TMI 121 - RAJASTHAN HIGH COURT
Show cause notice ... ... ... ... ..... cause notice prima facie discloses that the goods were liable to be confiscated and the Customs Officers had sufficient material to form a reasonable belief to the effect that the goods were being attempted to be exported in an improper manner. Therefore, this decision of the Supreme Court is also of no help to the petitioners. 14. emsp On the aforesaid reasons, the judgment and order passed by the learned Single Judge, is liable to be reversed and set aside. 15. emsp In the result, the appeal is allowed. The judgment and order dated July 29, 1993, in S.B. Civil Writ Petition No. 1863/1983 is reversed and set aside. The appellants will proceed further with adjudication of the show cause notice in accordance with law. However, the petitioners will be at liberty to file reply to show cause notice within a period of one month from the date of pronouncement of this judgment. If the reply is filed within stipulated time, the same shall be treated as having been filed within time.
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