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Case Laws
Showing 101 to 120 of 387 Records
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1999 (5) TMI 388 - CEGAT, MUMBAI
Appeal - Additional ground - Words and phrases ... ... ... ... ..... as per shore out turn, which did not exist at all. As per 1987 (31) E.L.T. 440 in the case of J.M. Baxi and Co. v. Collector of Customs, Bombay. Measurement of shore storage tank is only acceptable method of finding out the unloaded quantity, when there is short landing and goods are unaccounted, under Section 116 of Customs Act, 1962. In view of the position, the case of the appellant has to be upheld. Demand of differential customs duty under clause (d) of Notification No. 158/76-Cus. and 102/90-C.E., dated 11-5-1990 when condition in clause (a) to (c) are complied by the appellant, is not proper and correct. As already discussed and held above, there is no dispute between the department and appellant in this regard. The contention of the appellant is accepted. Point raised is answered in the affirmative. We pass the following order ORDER For the reasons indicated above, the appeal is allowed with consequential relief according to law if any and impugned order is set aside.
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1999 (5) TMI 383 - CEGAT, MUMBAI
Tribunal - Larger Bench - Modvat ... ... ... ... ..... ly, the Larger Bench decision may itself be placed for reconsideration by a yet Larger Bench. We however do not accept this submission since we find that the decision in the case of Mahindra and Mahindra followed the ratio of the Tribunal s decision in the case of Ponds India Ltd. reported in 1991 (56) E.L.T. 574, and the Larger Bench was constituted to resolve the conflict between the decision in Ponds India Ltd. and the contrary view in SAE India Ltd. - 1992 (61) E.L.T. 726. In other words the contrary views prevailing in the Tribunal were already noted by the Larger Bench which resolved the conflict between these two decisions and the fact that Mahindra and Mahindra was not brought to the notice of the Larger Bench would make no difference to basic difference as the Larger Bench had considered the two different orders and resolved the conflict between the two. 3. emsp We therefore see no reason to interfere with the impugned order and uphold the same and reject the appeal.
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1999 (5) TMI 382 - CEGAT, NEW DELHI
Confiscation and penalty - Import - Meaning of ... ... ... ... ..... India gold, a restricted item, illegally and concealed in a security bag along with the other shipment of gold. This shipment was unmanifested and no permission was taken to off-load the same thus contravention of the provisions of Sections 30, 31 and 32 of the Customs Act, 1962 had been established thereby rendering the gold liable to confiscation and the Airlines liable to penalty. Penalty on Shri P.D. Hariharan is also warranted for contravention of Section 30 of the Customs Act, 1962 by amendment of cargo manifest without prior permission of the competent Customs authorities. We, therefore, uphold the confiscation of the gold. However, having regard to the totality of facts and circumstances of the case, we reduce the penalty on Appellant No. 1 to Rs. 25 lakhs. We do not interfere with the quantum of penalty on Shri Hariharan as it is already nominal. 7. emsp Subject to the above modification in the quantum of penalty, we uphold the impugned order and reject the appeals.
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1999 (5) TMI 375 - CEGAT, MADRAS
Clarification from Director General Foreign Trade - Interpretation of Statutes ... ... ... ... ..... para, which it so happens, is more favourable to this appellant, therefore on this count also we find that the balance of convenience rests with the appellants. 11. emsp In view of the aforesaid findings and analyses, we are of the considered opinion that the Order-in-Original impugned needs to be set aside. Ordered accordingly. The appeal succeeds with consequential relief, as per law. At this stage, ld. Sr. Advocate submits that the goods have been under Customs rsquo custody for almost two years and that the foreign supplier has been issuing notices for breach of contract, etc. on the appellants. Therefore, he prays that the respondents should be directed to release the goods forthwith in pursuance of this orders. We have already directed that the appeal succeed with consequential relief, as per law. In view of the fact that the goods have been held under Custom rsquo s custody for a fairly long period, we hope that this order shall be implemented by Revenue expeditiously.
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1999 (5) TMI 374 - CEGAT, NEW DELHI
SSI Exemption - Value of clearances ... ... ... ... ..... x Court having accepted the decision of the Tribunal in the case of Khalsa Pulp and Paper Industries (supra), the decision in the case of Ramakrishna Engineering Works v. CCE is no longer good law and consequently the Tribunal rsquo s earlier decision in the case of EL.P.EM. Industries was followed. We also find that similar view has been taken by the Tribunal in the case reported in 1999 (3) RLT . While considering the stay application we also find that in the case of ESS ESS Engineerings v. C.C.E. Tribunal in its final order Nos. E/1501-1511/98 B1, dated 25-9-1998 1999 (107) E.L.T. 596 (T) has also given the similar findings. We therefore find that the matter is no longer res integra and therefore respectfully following the ratio of the abovesaid decisions in the case of EL.P.EM. Industries (supra) we find that there is no merit in the Revenue appeals and we are compelled not to interfere with the order in order in Appeal impugned. The Revenue Appeal is therefore dismissed.
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1999 (5) TMI 373 - CEGAT, NEW DELHI
... ...
... ... ..... compared to US 590 shown by the appellants. We find that these contemporaneous imports satisfy the tests of (a) the goods and quantity being comparable, (b) of the same commercial level and (c) of being at about the same time. As regards the case law relied on by the Collector, we are unable to accept the appellants rsquo contention that the said case law is distinguishable. We find that though the facts are different, the ratio of the two cases would still apply since there is no denying the fact that the prices of contemporaneous imports of same goods was more than double and no plausible explanation about the supplier not revising the price at the prevailing price has been put forward by the appellants. In view of the foregoing, we find no infirmity in the Collector rsquo s order of confiscation of the goods or in the imposition of penalty. Nor do we think that the quantum thereof disproportionate. 10. emsp As a result, we uphold the impugned order and dismiss the appeal.
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1999 (5) TMI 372 - CEGAT, CALCUTTA
Valuation - Classes of buyers ... ... ... ... ..... s being effected from the factory gate for Guwahati region. The appellants are claiming the price at which the goods are being sold from the depots in Guwahati for the first time. As such we find that the judgments and the decisions relied upon by the appellants fully cover the cases in question. Accordingly, we set aside the impugned order dated 19-5-1998 passed by the Commissioner (Appeals) and allow the appeals in the first set of cases. 10. emsp As regards the second set of appeals arising out of the Order-in-Appeal No. 92/RA/CAL-IV/98, dated 14-9-1998 vide which he has remanded the matter to the original adjudicating authority on the issue as to whether the highest value at the factory gate is to be adopted or ldquo Weighed Average Price rdquo is to be adopted for the purposes of Guwahati Depot Sale, we observe that in view of our allowing the first set of ten appeals, this question no longer survives. We order accordingly. All the appeals are disposed of in above terms.
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1999 (5) TMI 371 - CEGAT, MUMBAI
Classification of goods ... ... ... ... ..... ll chocolate must necessarily contain cocoa, it is not every cocoa product or preparation that is chocolate. The fact that Heading 19.05 uses the word ldquo cocoa rdquo whereas sub-heading 1905.31 refers to chocolate, therefore it is not significant in considering classification of this product. The tariff itself reconises that chocolate must contain cocoa. Heading 18.03 is for ldquo chocolates in any form . . . including drinking chocolates rdquo Heading 18.04 is for other food preparations containing cocoa. The other (emphasis ours) food preparation containing cocoa of Heading 18.04 therefore must be those preparations other than the chocolates of Heading 18.03. It is therefore evident that the chocolates of Heading 18.03 must contain cocoa. 22. emsp In view of this conclusion we do not consider it necessary to go into the aspect of limitation. It would also follow that penalty ordered cannot be impossable. Appeal allowed. Impugned order set aside with consequential relief.
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1999 (5) TMI 370 - CEGAT, MADRAS
Demand and penalty - Limitation ... ... ... ... ..... hnical collaboration agreement and all these purchase orders had been verified by the Range officers. On this issue, the finding given by the Commissioner is not fully satisfactory and the department has not shown as to how there is suppression in material facts with an intent to evade duty by fraud or by suppression. As these details were all available with the department, therefore, invoking larger period by show cause notice dated 28-4-1989 for charges collected during the period 1985-86, 1986-87 and 1987-88 is not invokable. In this connection, the judgments of Hon rsquo ble Supreme Court referred to by the appellants cited supra are clearly applicable to the facts of the present case. Therefore, without remanding the matter to work out the element of those charges etc. particularly drawing charges to be includible in the assessable value, the appeal is allowed on the basis of time bar and the appellants succeed on this ground. Appeal is allowed with consequential relief.
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1999 (5) TMI 369 - CEGAT, MUMBAI
Classification of goods ... ... ... ... ..... Nomenclature formulated by the Customs Co-operation Council (now the World Customs Organisation) and the words in both are identical. In fact, the decision in C.C.E. v. Kinjal Electrical Pvt. Ltd. has applied the ratio of the decision in Chetna Polycoats Pvt. Ltd. v. C.C.E. to insulating tape is long rolls. 10. emsp It has not been alleged that the goods under consideration by us are capable of being used for purposes other than insulation. Adhesive tapes may b of various types, and not self adhesive would be classifiable under Heading 39.19, or fused for purposes other than insulation. Adhesive tapes may be of various tor example surgical or decorative paper rolls. The classification of identical goods both under the Central Excise Tariff and the Customs Tariff had been confirmed under the heading as claimed by the appellants. We consider that the goods are classifiable under Heading 8546 of the tariff. 11. emsp Appeal allowed. Impugned order set aside. Consequential relief.
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1999 (5) TMI 368 - CEGAT, NEW DELHI
Appeal - New plea - Paper and paper-board ... ... ... ... ..... waste/products. As long as paper and paper boards were being manufactured from the pulp containing more than 50 of the non-conventional materials that is other than excluded items, the benefit of notification could not be denied. Similarly, the department has contended in the appeal that product consisted of 100 pulp of hard wood, soft wood, etc. but no evidence or authority has been produced in support of the above plea. 16. emsp It is observed that at this stage also the department rsquo s contentions have remained unsubstantiated. The respondents have also filed a CO in which they have reiterated the stand taken before the authorities below in particular the Collector (Appeals) and we find that department has not been able to meet all these points squarely and their case even has otherwise remained unsubstantiated. We have therefore, no reason to interfere with the order of the ld. Collector (Appeals). The appeal is therefore, dismissed as also announced in the open court.
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1999 (5) TMI 367 - CEGAT, MUMBAI
Demand - Limitation - Job worker ... ... ... ... ..... longer period of limitation alleging suppression. The 1987 letter as extracted above clearly indicated that the department was in the know of things. If the department had any doubt, what prevented them from conducting any enquiry. After all once the classification list has been approved which is not an idle mechanical work as held by the Tribunal in Muzzaffarnagar case 1989 (44) E.L.T. 552 and in Rainbow Ink rsquo s case reported in 1992 (59) E.L.T. 593 where it has been held the department cannot invoke of a larger period of limitation when they have approved the classification lists. It is also decided by the Supreme Court in 1988 (35) E.L.T. 605 that once classification list has been approved the department cannot invoke larger period of limitation. Hence in our view the show cause notice and the order passed by the Collector are clearly wrong in law. Hence the impugned order is set aside. 9. emsp Appeal stands allowed with consequential relief, if any, according to law.
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1999 (5) TMI 366 - CEGAT, NEW DELHI
Dutiability - Immovable property ... ... ... ... ..... ess of manufacture as described by the appellants has not been rebutted. From a mere glance at the processes as stated above, it is clear that the fuel tank has come into existence only as an immovable property. Chimney shells, no doubt come into existence completely before being assembled into an immovable property called chimney but there is no evidence whatsoever regarding the marketability of chimney shells. It is merely an assertion by the adjudicating authority that they are ldquo very much marketable rdquo without any evidence to that effect. We, therefore, hold that the fuel tank does not come into existence except as an immovable property and chimney shells are not marketable. On the aforesaid finding no duty liability can be saddled on the appellants. 5. emsp In view of the facts and circumstances above, there is no warrant for imposing any penalty. 6. emsp Accordingly, we set aside the impugned order and allow the appeal with consequential relief to the appellants.
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1999 (5) TMI 346 - CEGAT, MUMBAI
Export - Supplementary Passbook Credit ... ... ... ... ..... im does not deprive the appellant of higher credit in view of the abundant material produced in support of the case, which is not at all properly appreciated. The Hon rsquo ble High Court has appreciated the claim of credit by the appellant in the writ proceedings and the department has acted upon it at Bombay and Sahara airport. Apart from it under declarations at Exhibit H, I, the Nhava Sheva has properly applied and sanctioned higher credit for the exports during the same period. Due to delayed proceedings of the claim by the department the appellant should not be deprived of his legitimate claim, on the ground that during the last days of the scheme, credit in the passbook should not be granted affecting the revenue. So under these circumstances, the appellant has to succeed in the appeal and accordingly we pass the following order. ORDER For the reasons indicated above, the impugned order is set aside, and the appeal is allowed with consequential relief according to law.
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1999 (5) TMI 345 - CEGAT, NEW DELHI
Emulsifiers, wetting out agents and softeners eligible to exemption under Notification No. 101/66-C.E.,
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1999 (5) TMI 344 - CEGAT, NEW DELHI
Penalty - Set off ... ... ... ... ..... e quantity of Naphthalene issued for the manufacture of the finished excisable goods. We also observe that the said para 4 further mentioned that set off is not to be confined to the duty on the quantity actually contained in the finished excisable goods. In view of this, the Appellants were eligible to the utilisation of set off towards payment of duty on the specified finished goods. However, we agree with the Department s contention that they should not have used the set off amount on their own without verification by the Assistant Collector since the Collector (Appeals) had directed him to verify from the records of the Appellants and allow the set off of duty on inputs. They should have got the verification done first before utilising the credit. Considering the fact that the dispute regarding availability of Notification 432/86 was pending since 1986, we take a lenient view and set aside the penalty also imposed on them. We thus allow the appeal filed by the Appellants.
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1999 (5) TMI 343 - CEGAT, NEW DELHI
Intermediate products - Dutiability - Marketability ... ... ... ... ..... ot a necessary criterion when the Tariff Heading 59.05 includes specifically rubberised cloth which according to him, friction cloth is. 2.2 emsp On the face of it the findings of the Commissioner (Appeals) holding that the marketability is not a relevant criterion is not sustainable in view of the judgment of the Supreme Court in the case of Moti Laminates reported in 1995 (76) E.L.T. 241. Revenue has not produced any evidence at all regarding marketability. In fact, as already stated above, the Assistant Collector has given a categorical finding that the product is not marketable and this finding has been reached by him on the basis of market enquiries and this finding has not been challenged by the Revenue on facts. Revenue is only on the question of law, as already stated above. Accordingly, we set aside the impugned order passed by Shri S.S. Jha and allow the appeals of the assessees against the said order. 3. emsp Appeal of Revenue is rejected for the aforesaid reasons.
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1999 (5) TMI 342 - CEGAT, MUMBAI
Modvat - Money credit scheme ... ... ... ... ..... idered as discharged from a cash subsidy, which cannot be considered as the actual payment of duties on the inputs. 10. emsp I cannot understand how he could hold in this way. The show cause notice does not whisper about the set-off or cash subsidy. Without such a show cause notice being issued to the assessees, how could the Collector (Appeals) give such a finding. I have to state that as long as GP1 which is the duty paying document mentioned the nature of duty and the quantum of duty and also the evidence of payment of the amount, the manufacturer of the input is entitled to take credit in terms of the notification issued on the subject. Here he has paid Rs. 1500/- P.M.T. factually. That is revealed in the GP1. Therefore, the assumption taken in the show cause notice that the assessees had paid only Rs. 500/- is wrong. I am, therefore, of the view that the appellants have made out their case and the appeals stand allowed with consequential relief, if any, according to law.
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1999 (5) TMI 341 - CEGAT, MADRAS
Valuation - Trade discount ... ... ... ... ..... Apex Court in Seshasayee Paper and Boards Ltd. (supra) wherein it has been held that when the indentor himself is the purchaser, the trade discount is permissible under Section 4 of the Act. We, therefore, find that the order-in-original impugned has fallen short of examining the evidences placed before the original authority on this aspect and has merely held that since parties had been appointed as selling agent, it would be an exercise in futility to traverse further. This, we feel, is not a legally correct view. In view of the case law noted above, the ld. original authority should have considered and appreciated the nature of these transactions i.e. whether they were on an agency basis or whether on out-right purchase. We, therefore, find that the order-in-original impugned is liable to be set aside and the matter remanded for de novo consideration in the light of the law as found above. Ordered accordingly. The appeal succeeds by way of remand with the above directions.
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1999 (5) TMI 327 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... d by Collector (Appeals). He had dropped the demand against the respondents on the ground that the order of the A.C. regarding the classification of the product in question under chapter heading 85.43 of CETA had already set aside by the Collector (Appeals) vider order dated 20-9-1994. 6. emsp The issue regarding classification of the product in question already stood settled in favour of the respondents by the order of the Collector (Appeal) dated 20-9-1994 under chapter heading 82.05 of the CETA. Therefore, no demand on the basis of earlier order of the AC, which was set aside by the Collector (Appeals) could be legally raised and confirmed against the respondents. That being so, the impugned order of the Collector (Appeals) dropping the duty demand against the respondents by reversing the order-in-original of the AC, is perfectly valid and needs no interference in this appeal. Consequently, there is no merit in the appeal of Revenue and the same is ordered to be dismissed.
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