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Case Laws
Showing 101 to 120 of 318 Records
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1990 (7) TMI 235 - CEGAT, NEW DELHI
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... ... ..... quality for use as aircraft material which quality is not required for any other purpose. The instruction sheet, relied upon by the Collector (Appeals), only sets out a manner in which the product has to be stored, handled etc. This instruction sheet no doubt does not say that the cement is of some special quality for use as aircraft material but the other pieces of evidence point to such a conclusion. Apart from this, the instruction sheet is just that, namely, instructions on the storage, handling etc. of the product. More should not be read into it. 8. Considering the evidence produced by the appellants and the fact that the Department has not produced any material which would detract from the evidentiary value of the documents submitted by the appellants, we are of the opinion that the cement imported by the appellants in the present case qualifies for the benefit of Notification No. 196/76. In the result, the appeal is allowed with consequential relief to the appellants.
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1990 (7) TMI 234 - CEGAT, NEW DELHI
Notification - Date of Effect ... ... ... ... ..... e date on which it is printed unless it is made available to the public on the same date. It is not the date indicated on the Gazette notification but the actual date on which it is made public is important to determine the date on which the new notification comes into force. In this connection our attention has been rightly drawn to the judgment of the Hon rsquo ble Rajasthan High Court in the case of Jagjit Singh v. State of Rajasthan (AIR 1968 Raj. 24) and the order of the Tribunal in the case of Salem Co-operative Sugar Mills Ltd. reported in 1987 (30) E.L.T. 599. In the instant case the goods had been admittedly assessed and cleared on payment of duty before 13-10-1986, the date on which the Notification No. 439/86-Cus., dated 6-10-1986 was published. Hence the demand of the amount in question was not justified and the appellants were not liable to pay the additional sum. In view of this position the order of the authorities below is set aside and the appeal is accepted.
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1990 (7) TMI 233 - CEGAT, CALCUTTA
Confiscation and Penalty ... ... ... ... ..... fis.c.ation under Section 111 of the Customs Act, 1962. 14. In such circumstances, we are of the opinion that the department had failed to establish the case for imposition of penalty on the appellant under Section 112(b) of the Customs Act, 1962. However, we may observe that none had claimed the goods in question as their owner and, therefore, they were rightly confis.c.ated by the adjudicating authority. 15. In the result, this appeal is allowed and the imposition of penalty of Rs. 10,000/- on the appellant under Section 112(b) of the Customs Act, 1962 vide Order-in-Original dated 13-7-1988 passed by the Collector of Customs (Preventive), West Bengal, Calcutta, is hereby set aside. Consequentially, the sum of Rs. 3,000/- deposited by the appellant towards predeposit of the penalty amount on the basis of the order dated 30th April, 1990 passed by us in disposing of the Stay Petition tiled by the appellant, is liable to be refunded to the appellant. It is ordered accordingly.
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1990 (7) TMI 232 - CEGAT, MADRAS
Exemption — Dummy unit ... ... ... ... ..... the above appeals is April 1983 to December 1986, the nature of evidence collected being same, we follow the reasoning given above in the other appeals and by giving the benefit of doubt to the appellants herein also we set aside the impugned order dated 24-12-1987. 11. In the result all the appeals are allowed. Per Shri V.P. Gulati, Member(T) . mdash Before parting with the case I would like to observe that the Departmental authorities have been remiss in not carrying out in-depth investigation. No effort has been made to gather evidence in regard to the manufacture of matches in other units by recording statements from the workers, accountant etc. as also from the suppliers of the raw materials, buyers and to get at the people who were actually concerned with the manufacture and marketing of goods. Omission to do so leaves much to be desired so far as the capability of the field staff to conduct proper investigation and the supervision of such investigations, is concerned.
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1990 (7) TMI 231 - CEGAT, NEW DELHI
Rate of duty ... ... ... ... ..... ith a situation as in the present case, what we are trying to do is to construe the notification in a meaningful way because, as already noted, the term ldquo nylon tyre yarn rdquo has not been defined and appears to be a coined word but without an explanation of its meaning. The view which we are inclined to take would accord with the well-settled proposition that an assessee claiming the benefit of a concession must prove his claim. The appellants have claimed, and it is an admitted position, that the subject yarn is for, and capable of use in, manufacture of beltings. The appellants are engaged in the manufacture of belting. Their counsel says that the appellants can prove the actual use of the yarn in the manufacture of belting. 8. Accordingly, we set aside the impugned order and allow the appeal with consequential relief, subject to the appellants producing evidence of end-use of the subject yarn in the manufacture of belting, to the satisfaction of the Asstt. Collector.
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1990 (7) TMI 230 - CEGAT, CALCUTTA
Condonation of delay ... ... ... ... ..... d, it may be possible to support the view that such wrongfully taken credit which had not been utilized may be reversed without bringing the time limit under Section 11A. Such an approach would be justified till October 1988 amendment of Rule 57-I, but where the credit wrongly taken has been actually utilized, the effect of reversal of the credit wrongly taken would have the effect of treating the output which have been cleared on payment of duty from RG 23A, Part II as not duty paid or short paid and the recovery of such duty non levied or short-levied would squarely come within the provisions of Section 11A. In that view of the matter, the finding of the Collector (Appeals) cannot be faulted, and we uphold the same. In the circumstances, we dismiss the departmental appeal. The respondent would be entitled for the consequential benefits. 9. The cross objection which is in the nature of comments of the respondents on the appeal is also disposed of in terms of the above order.
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1990 (7) TMI 229 - CEGAT, NEW DELHI
Valuation - Packing cost ... ... ... ... ..... n wholesale trade, but the packing in which they are generally sold. It was the contention of the respoadents before the lower authorities that normally they sold their glass and glasswares in naked condition without packing, but if any customer wanted special packing in wooden cases, cartons or gunny bag packing, then only those packings were used and the cost of such packings was separately shown in the invoices. This contention has been raised before us also by the learned advocate and it has not been rebutted by the learned DR. In view of the ratio of the aforesaid judgments of Supreme Court, the cost of special packings in wooden cases, cartons and gunny bags/cloth at the instance of the customers is not includible in the assessable value of the respondents rsquo glass and glasswares. 12. In the circumstances, we do not find any infirmity in the impugned order of the Appellate Collector. Consequently, the same is upheld and the appeals filed by the Revenue are dismissed.
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1990 (7) TMI 228 - CEGAT, NEW DELHI
Show Cause Notice, when considered by Tribunal, its non-production by respondent immaterial ... ... ... ... ..... n of Section 167 (8) of the erstwhile Sea Customs Act, which deals with the burden of proof. While deciding the said case their Lordships observed that how the burden of proof which lay on the Customs Authorities can be discharged by the Customs authorities. It is significant to note that in para 17 of the said judgment it was observed that the fact that one wrist watch (in that case) was not shown in the Stock Register is not material to show that it has been illegally imported. In the instant case the Tribunal while recording its Order took each and every circumstance and the provisions of the law applicable to the present case into consideration. Hence to say that the findings of the Tribunal would make the judgment rendered by the Apex Court in the case of Kanungo and Co., supra, nugatory is only to be stated to be rejected. 12. In the result the reference application is rejected as no questions of law meriting any reference arises out of the Order passed by the Tribunal.
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1990 (7) TMI 227 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... al is classifiable under Item 68-CET without benefit of Notification 55/75 and in this context, it becomes even more necessary and in the interests of justice that their claim for exemption under Notification 179/77 should be gone into. In the circumstances, the impugned order of the Collector (Appeals) is set aside and we remand the case to the Collector (Appeals) for deciding the question of eligibility of M/s. B.A.B. for exemption under Notification 179/77 after taking into consideration evidence available to see whether they fulfil the conditions thereto in accordance with law and after giving M/s. B.A.B. an opportunity of personal hearing and to furnish such evidence as they may possess in this regard. The appeals of M/s. B.A.B. and the department are disposed of in the above terms. The Cross Objection filed by the department in the appeal of M/s. B.A.B is mis.c.onceived as it is in the nature of comments on the appeal filed by M/s. B.A.B. and is, accordingly, dismissed.
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1990 (7) TMI 226 - CEGAT, CALCUTTA
Appeal - Condonation of delay ... ... ... ... ..... d, it may be possible to support the view that such wrongfully taken credit which had not been utilized may be reversed without bringing the time limit under Section 11A. Such an approach would be justified till October 1988 amendment of Rule 57-I, but where the credit wrongly taken has been actually utilized, the effect of reversal of the credit wrongly taken would have the effect of treating the output which have been cleared on payment of duty from RG 23A, Part II as not duty paid or short paid and the recovery of such duty non levied or short-levied would squarely come within the provisions of Section 11A. In that view of the matter, the finding of the Collector (Appeals) cannot be faulted, and we uphold the same. In the circumstances, we dismiss the departmental appeal. The respondent would be entitled for the consequential benefits. 9. The cross objection which is in the nature of comments of the respondents on the appeal is also disposed of in terms of the above order.
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1990 (7) TMI 225 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... scrap of plastics. Explanation. - For the purpose of this notification, lsquo plastics rsquo means the various artificial or synthetic resins or plastic materials or cellulose esters and ethers included in sub-item (1) of Item No. 15A of the aforesaid First Schedule . 12. A reading of this notification discloses that it is not materially different from the notification No. 68/71 dated 29-5-1971. The appellants are, therefore, entitled to claim the benefit under Notification No. 182/82 dated 11-5-1982 as the articles of plastics viz. blank cards have been produced out of an intermediate product which has emerged from artificial resin or plastic articles. In this appeal, the authorities have not considered the question of limitation. Therefore, the matter in appeal No. 2625/86 is remanded to the Assistant Collector to grant refund to the appellants, after examining the limitation aspect. The operative portions of the orders in both the appeals were pronounced in the open court.
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1990 (7) TMI 224 - CEGAT, NEW DELHI
Condonation of delay ... ... ... ... ..... present appeals after the expiry of the stipulated period, should not, in the peculiar facts and circumstances in the present case, be held against them, especially keeping in view the judgment of the Allahabad High Court in the case of Gopi Krishna Agarwal (supra) according to which the appellate authority has inherent power to recall an ex parte order if it is satisfied that the non-appearance of the appellants was due to reasons beyond his control. In my opinion this will be in conformity with the statutory principles laid down by the Supreme Court in the matter of condonation of delays in filing appeals, in the case of Collector, Land Acquisition, Anantnag and Another v. MST. Katiji and Others -1987 (1) SCALE 413 1987 (28) E.L.T. 185 (SC). I would, therefore, propose an order condoning the delay in filing the two instant appeals. MAJORITY ORDER 12A. In view of the majority order, the applications for condonation of delay, and consequently, the appeals too, are dismissed.
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1990 (7) TMI 223 - CEGAT, NEW DELHI
Process of manufacture ... ... ... ... ..... s reported in AIR 1974 SC 1818 had held that the penalty should be commensurate with the gravity of the offence. Para No. 10 from the said judgment is reproduced below - ldquo 10..........The broad principle that punishment must be proportioned to the offence is or ought to be of universal application save where the statute bars the exercise of judicial discretion either in awarding punishment or in releasing an offender on probation in lieu of sentencing him forthwith. The words of Section 4(1) of the Probation of Offenders Act are wide and would evidently include offences under the Customs Act and the Gold Control Rules. In the matter before us, the duty involved was Rs. 22,89,044.46. The Collector had imposed a penalty of Rs. 20,00,000.00. We are of the view that the penalty is highly excessive. Keeping in view the gravity of the offence, we reduce the same to Rs. 10,00,000.00 (Rs. ten lacs only). Except for this modification in the order, the appeal is otherwise rejected.
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1990 (7) TMI 222 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... d to drug manufacturers and are not cleared for use in hospitals. In the circumstances, the product clearly falls outside Heading 30.03 and in such a view of the matter, the fact that the product is approved as bulk drug by Drugs Controller will not materially affect the classification of the goods. There is no copy of Trade Notice 17/90 on record regarding classification of heparin but from what was read out by learned consultant before us, we note that in that case it was observed that heparin is supplied in vials which prima facie would appear to satisfy the criterion under Chapter Note 2(i) referred to supra and hence appears to us distinguishable from the present. In the result, we uphold the classification for the impugned product under Heading 30.01 CETA. The Orders of the Collector (Appeals) are set aside. The Department rsquo s appeals are allowed. 6. The cross-objections being merely supportive of the impugned orders, are misconceived, and are accordingly dismissed.
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1990 (7) TMI 221 - BOMBAY HIGH COURT
Writ jurisdiction - Joint petition for various consignments ... ... ... ... ..... dication proceedings and pass order. The relief is granted to the petitioners to clear the goods on a provisional basis. In my judgment, the objection raised on behalf of the respondents is totally misconceived. 3. Accordingly, the following order is passed and the petition is disposed of. ldquo The respondents to allow clearance of the goods covered by bills of entry, being Exhibits lsquo C-1 rsquo to lsquo C-7 rsquo to the petition on provisional assessment on the basis of invoice value as set out in Exhibits lsquo B-1 rsquo to lsquo B-7 rsquo to the petition and furnishing only a personal bond without bank guarantee for the difference of amount of duty as claimed by the respondents. This order pertains to valuation dispute only. The respondents will be at liberty to continue any departmental adjudication proceedings and pass order. Liberty to the petitioner to challenge the order, when passed by the respondents. rdquo The respondents shall pay the costs of the petitioners.
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1990 (7) TMI 220 - CEGAT, NEW DELHI
Appellate Tribunal - Special Bench ... ... ... ... ..... riod prior to 10-2-1987. 27. During the hearing, both sides agreed that after the decision on the point of difference is recorded, the papers must go back to the referring Bench for passing orders disposing of the appeal, since the President has not been empowered to dispose of the appeal. I am of the view that this is the correct procedure to be followed. Accordingly these papers shall now be placed before the referring Bench. Final Order . - In view of the unanimous decision of the Bench in Misc. Order No. 117/90-C in the above appeal, the appeal is dismissed for the period beginning from 10-2-1987. 2. So far as the period prior lo 10-2-1987 is concerned, Hon rsquo ble President rsquo s order dated 21-5-1990 is self-evident. In the view taken by the Hon rsquo ble President, the Bench is of the opinion that no further orders are required to be passed by it. Appeal should be deemed to have been disposed of in terms of the Hon rsquo ble President rsquo s order dated 21-5-1990.
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1990 (7) TMI 219 - CEGAT, NEW DELHI
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... ... ..... identified by the trade is the thickness. Thereafter, having regard to the definition of the term lsquo cross-section rsquo in the Chambers Dictionary of Science and Technology, the Tribunal came to the conclusion that the claim of the appellants therein for assessment at lower rate of duty in terms of Notification No. 259/82-Cus. is well founded. It also observed that the department had failed to give the authoritative basis on which the diagonal measurements are to be taken in the case of a rectangular flat, quite apart from the fact that this criterion was adopted at the appellate stage for the first time without putting the appellants on notice in this regard. We find that the ratio of the Tribunal rsquo s decision is clearly applicable to the facts of the present appeal before us as in all these cases wherein the appellants, the product imported, and the Notification considered, are identical. 6. In the result, the impugned orders are set aside, and the appeals allowed.
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1990 (7) TMI 218 - CEGAT, NEW DELHI
Remission of duty for goods used for industrial purposes ... ... ... ... ..... by the respondents for the manufacture of sodium oxal acetic ester has not been carried out by the department to determine the eligibility of the respondents to the benefit of concessional or nil rate of duty under the earlier mentioned notifications. 6. We set aside the impugned order and remand the matter to the Additional Collector to determine whether the entire quantity of benzene obtained by the respondents has been accounted for as having being utilised for the production for their ultimate product i.e. Sodium Oxal Acetic Ester. If any portion of benzene remain unaccounted for the respondents will be liable to pay duty thereon. We hold that the respondents rsquo failure to obtain prior permission of the Collector under Rule 196BB of the Central Excise Rules shall not come in the way of granting the above relief. However, it is open to the department to proceed against the respondents for violation of Rule 196BB, in accordance with law. 7. The matter is hereby remanded.
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1990 (7) TMI 217 - CEGAT, NEW DELHI
... ...
... ... ..... etween the factory and the customers rsquo premises was declared in the price lists. Hence, entire demand is time-barred. We observe from the impugned order that the Appellate Collector disposed of the point of limitation stating that the plea of time-bar was irrelevant inasmuch as the order related only to fixation of assessable value. This finding of the Appellate Collector is not tenable. Although, the learned Senior Departmental Representative has argued before us that DD2 was issued on 24-12-1976, before issuing the show cause notice, the issue of DD2 does not protect the time limit prescribed under Rule 10 of the Central Excise Rules for issuing show cause notice. Even otherwise, the DD2 was also issued after expiry of six months rsquo limitation. In the circumstances, we hold that the entire demand for duty was barred by limitation. 3. The appeal filed before us is disposed of in the above terms. The appeal is partly allowed with consequential relief to the appellants.
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1990 (7) TMI 216 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... n the case of Coronation Litho Works v. Collector of Customs reported in 1990 (46) E.L.T. 62 Collector of Customs, Bombay v. Photogravurs India (P) Ltd. reported in 1987 (29) E.L.T. 647 (Tribunal) 1987 (12) ECR 29 and Collector of Customs, Bombay v. Bharat Vijay Mills, Kalol reported in 1986 (24) E.L.T. 662, we hold that step and repeat machine imported by the appellants is classifiable under Heading 84.40 Customs Tariff Act, 1975 and the CVD is to be levied under Tariff Item 68 of Central Excise Tariff. Before we part with this matter, we would further like to observe that the appellants rsquo refund claim shall stand restricted to the original amount claimed by them in their refund claim filed before the Asstt. Collector. Lower authorities are directed to give consequential effect to this order. Since the import is of 1980, we shall appreciate if the consequential effect is given within 4 months from the date of receipt of the order. 6. In the result, the appeal is allowed.
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