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Showing 101 to 120 of 295 Records
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1992 (9) TMI 227 - CEGAT, NEW DELHI
Proforma Credit ... ... ... ... ..... is not disputed by the department that iron and steel products are covered under the scheme of Rule 56A. We, therefore, direct that the duty liability of the appellants should be redetermined for the period 1-8-1983 to January 1984 after reducing the element of duty payable on the hot rolled strips. 4.8 As regards the goods under seizure on the basis of our findings that they are cold rolled strips duty is leviable on them as well. Appropriate duty after reducing the liability of duty payable on hot rolled strips is liable to be paid by the appellants on the seized stock as well. 4.9 Having regard to the facts and circumstances of the case, particularly the legal position, as it obtained prior to 1-8-1983, we are of the view that there is no case for confiscation of the goods and consequent imposition of redemption fine as also to imposition of penalty. Accordingly, we set aside the confiscation as also the penalty of Rs. 1,00,000/-. 5. Appeal disposed of in the above terms.
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1992 (9) TMI 226 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... ion or mis-declaration, fraud or collusion. The fact that the appellants have been filing classification list from time to time which had been approved and that the department had been making various visits and auditing their records squarely shows that there has been no clandestine removal or surreptitious removal to attract either under Rule 9(2) of the Central Excise Rules, 1944 or Section 11A of the Act. Therefore, in the circumstances, the appellants succeed both on merits as well as on limitation. As the facts of the case are quite clear, it is not necessary for us to go into other arguments pertaining to the citations raised by both the sides. However, we have gone through these citations placed before us and we are of the view that rulings placed by the learned Consultant in support of his arguments pertaining to limitation is fully applicable to the facts of the case. In the circumstances, the appeal is allowed with consequential relief. The cross appeal is rejected.
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1992 (9) TMI 225 - CEGAT, MADRAS
MODVAT Credit ... ... ... ... ..... nvisaging the duty free clearances of the same under the said sub-rule. The appellant rsquo s plea in regard to the findings of the Collector (Appeals) that as in the case of aluminium scrap covered by Board rsquo s clarification, the removal of copper scrap without payment of duty should be allowed, is not acceptable in the present case. The instruction issued by the Board by giving a liberal interpretation to the provisions of Rule 57F(4)(b) can be considered as the instruction by the Government of India for the purpose of duty free clearances and can be taken to be applicable only for removal of Aluminium Scrap. Admittedly no such instructions have been issued under Rule 57F(4)(b) by the Central Government or the Board in regard to the removal of Copper scrap under the Modvat Scheme. Following the ratio of the earlier decision, we hold that the order of the Collector (Appeals) is not maintainable and we, therefore, set aside the same and allow the appeal of the Department.
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1992 (9) TMI 224 - CEGAT, MADRAS
Remission of duty ... ... ... ... ..... ledge. Knowledge is also acquired by reasonable inference. On the basis of the above, I hold that the case in question is clearly covered by the provisions of Section 23(1) of Customs Act, 1962 and the appellants are clearly entitled for remission of duty in respect of these goods as it is established that the same were lost before clearance, under circumstances beyond the control of the appellants rdquo . In my view the connotation of the expression ldquo lost rdquo occurring in Section 23 of the Act has to be construed to be comprehensive so as to embrace a situation of this kind for the purpose of doing justice in a situation where the importer has not admittedly received the full quantity of the goods for which he had paid duty. Such an interpretation would be in consonance with fairness and equity. If the Department feels that goods had not been short landed it is open to the Department to initiate action against the Steamer Agent as per law under Section 116 of the Act.
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1992 (9) TMI 223 - CEGAT, BOMBAY
Import - REP licence issued for import of ‘seeds’ ... ... ... ... ..... refore, the contention raised is not entertained. 9. It may be observed that if the nexus between the items imported and the export product for which REP Licence is issued, has to be ascertained, then the decision of the East Regional Bench in Re. Overseas Cycles Co. (supra) would not have come into play, as in so scrutinising, the Customs Authorities would be acting within the purview of the jurisdiction to ascertain whether the licence is available for the goods imported. 10. Under the circumstances, when the licence is for imports of seeds and Poppy Seeds have been classified as ldquo Seeds rdquo under the Tariff Act and when nexus between the imported goods and the export product is not required to be established, the objection raised and the final order passed by the Adjudicating Authority as confirmed by the First Appellate Authority, cannot be sustained, and has to be set aside. 11. In the result the appeal is allowed, and the other of the authority below is set aside.
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1992 (9) TMI 222 - CEGAT, MADRAS
Appeal - Condonation of delay ... ... ... ... ..... application for condonation of delay and even if the appeal is taken as application for condonation of delay, we do not find proper, valid or sufficient reason for condoning the long delay of 400 days in the presentation of the appeal. The appeals are therefore dismissed. 4. Assent per V.P. Gulati, Member (T) . - I agree. I would however, like to observe that unnecessary confusion has been created by the Collector (Appeals) in dealing with the confiscation made under the Customs Act, 1962, when the appeals filed by the Respondent was only under the Gold (Control) Act, 1968. The Collector (Appeals) has clearly exceeded his jurisdiction while passing his order. The Tribunal as mentioned above had confirmed the finding of the Additional Collector, by its order No. 148/87, dated 27-2-1987. On that day the matter acquired finality and there was no reason for the Collector (Appeals) to have dealt with the Customs aspect of the matter and his order in this regard is ab initio void.
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1992 (9) TMI 221 - BEFORE THE COLLECTOR OF CUSTOMS (APPEALS)
Adjudication ... ... ... ... ..... about legality of more than one authorities determining different issues relating to the same consignments. I have no hesitation in holding that such proceedings are legally not sustainable. If the value declared by the appellant is not acceptable to the department and a charge under Section 111 for misdeclaration of value is sought to be brought in, the case has to be decided by only one authority competent to decide this case even on the basis of the declared value is the Additional Collector of Customs. Additional Collector rsquo s order invoking Section 111(m) relying entirely on another proceedings concluded by an Assistant Collector on the same case according to me an anathema. His order therefore is set aside as being bad in law. In order that case is decided in all its aspects I set aside Assistant Collector rsquo s order as well. Issue therefore in all its aspects should be decided by the Additional Collector of Customs after observing principles of natural justice.
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1992 (9) TMI 220 - CEGAT, MADRAS
Exemption to SSI Unit ... ... ... ... ..... tions and wider ramification, we are inclined to think that in the interests of justice, the issues should be resolved by an authoritative pronouncement by a Larger Bench and in this view of the matter we direct that the papers to be placed before the Hon rsquo ble President of CEGAT, New Delhi, for constituting a Larger Bench in accordance with law for consideration of the issues aforesaid. 4. At this stage Shri Raghavan, the learned counsel, submitted that the appellant is poor and cannot afford to make a trip to Delhi to argue the issue if the Larger Bench is constituted there and prayed that suitable recommendation be made for the appeals being heard at Madras by the Larger Bench. It is open to the appellants to move the Special Bench and seek appropriate relief as per law. 5. Excise Appeal No. 236/90/MAS filed by the Department against similar issue is against the same party for a subsequent period and should therefore be heard along with this appeal by the Larger Bench.
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1992 (9) TMI 219 - CEGAT, BOMBAY
Confiscation and penalty ... ... ... ... ..... channel and even payment is found to have been made by cheque by the appellants. Hence there is a heavy burden cast on the Department to establish that the goods are of such a nature that are not allowed import and the possible source of acquisition can only be through smuggling. No such factors are discussed in the order nor pleaded before us. Hence merely because the original documents of import and particulars of duty payment have not been produced, it cannot be concluded that the goods are smuggled ones. It is a settled law that suspicion, however grave, cannot substitute proof. Here, even circumstantial evidences to show that the goods have been acquired illicitly are wanting. Hence we find that the order of the Additional Collector, holding the goods to be smuggled and ordering confiscation and demanding duty is not legally sustainable. Hence we allow the appeal and direct the release of the consignment forthwith. We also set aside the penalty imposed on the appellants.
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1992 (9) TMI 218 - BEFORE THE COLLECTOR OF CENTRAL EXCISE (APPEALS)
Exemption to S.S.I. units - Demand ... ... ... ... ..... this has been published in the form of Trade Notices not only by other Collectorates but also by the Central Excise Collectorate. New Delhi vide Trade Notice No. 25-CE(Misc.-20) (42) dated 10-9-1992. It has been clarified that the position prevailing before the issue of amending Notification No. 55/92-C.E., dated 31-3-1992 has been restored in respect of unregistered Units whose clearances exceed Rs. 7.5 lacs per year and who claim exemption under first proviso to Paragraph 4 of Notification No. 175/86-C.E. These units should however get themselves registered with the concerned authorities by 31-3-1993. Therefore, it is clear that the intention behind issuing the Notification No. 67/92 dated 22-5-1992 is to defer the application of Notification No. 55/92 dated 31-3-1992 till 1-4-1993. In view of this clarification, I find that the Asstt. Collector rsquo s decision is no longer sustainable. The same is thus annulled and the appeal is disposed of accordingly on the above lines.
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1992 (9) TMI 217 - CEGAT, NEW DELHI
Revision/Review by Board or Collector of orders passed by subordinate adjudicating authorities - Limitation
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1992 (9) TMI 216 - CEGAT, CALCUTTA
MODVAT Credit ... ... ... ... ..... clearly rule out the applicability of the longer time, as far as the question of limitation is concerned. The appellants succeed on this point also but this is only their secondary and alternative ground. They succeed on merits also as their availment of credit on the inputs declared by them as Lime Sludge is fully authorised even if the same product had been received by them from some suppliers under a different name, description, viz. carbide sludge. The variation in Tariff classification is a factor attributable to the Officers assessing the goods over which the appellants have no control. The fact that the duty rate is the same under the different sub-headings and all these headings are eligible inputs in terms of Notification 177/86-C.E., dated 1-3-1986 would fully justify their availment of credit. I, therefore, allow the appeal on merits. The appeal succeeds on the question of limitation also in so far as the notice covered a period more than six months prior thereto.
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1992 (9) TMI 215 - CEGAT, MADRAS
Demand - Provisional assessment ... ... ... ... ..... g order. rdquo The learned Collector (Appeals) in his impugned order, while giving a finding against the Department in regard to the nature of assessment that there was no evidence to support that it was provisional, has not dealt with the evidence on record such as classification list and other Departmental records. Therefore, without expressing any opinion on the merits of the issue and leaving the issues open in the absence of any discussion with reference to evidence in the impugned order for reaching the conclusion and finding which the Collector (Appeals) has given in the impugned order, we have no other alternative except to remand the matter to the learned Collector (Appeals) for reconsideration of the issue and giving a speaking order with reference to the evidence on record after hearing the parties in accordance with law. Therefore, we set aside the impugned order and remand the matter to the learned Collector of Central Excise (Appeals), Madras in the above terms.
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1992 (9) TMI 214 - CEGAT, MADRAS
Evidence - Statement of foreman when reliable ... ... ... ... ..... not find anything on record to show that the tread rubber with this formula could not be produced. Taking into consideration the totality of the evidence on record clearly evidencing the clandestine removal of the tread rubber, we hold that the learned lower authority rsquo s order is well-founded in regard to the manufacture and clearance of the tread rubber by the appellant firm. We, therefore, confirm the demand of duty in terms of the impugned order. However, taking into consideration the fact that the appellants are small scale manufacturers we hold that the ends of justice would be served if the penalty levied on the firm is reduced to Rs. 20,000 (Rs. Twenty-thousand) and since the same offence has given rise to the offence by the Managing Partner, Shri Razak, we hold the ends of justice would be served in case the penalty levied on him is reduced to Rs. 5,000 (Rs. Five thousand) and order accordingly. But for the above modifications the appeals are otherwise dismissed.
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1992 (9) TMI 213 - CEGAT, CALCUTTA
Reference to High Court ... ... ... ... ..... spective. 12. The Reference Applications were originally filed by the Collector of Customs, Calcutta and after hearing both sides the questions for reference were finalised and the decision communicated to both. At this stage, the present applicants, M/s. Ruma Warehousing Corporation have filed an application for referring additional points to the Honourable High Court. As they were the respondents in the earlier Reference Matter and as they had not made any application on their own, they cannot be permitted to raise any questions now for reference. They could have, in terms of Section 130(2) of the Customs Act, 1962, filed a Memorandum of Cross Objection within forty-five days of the receipt of the notice about the Reference Applications having been made. Since this has not been done by them, it is not open to them to file an application for including additional points in the Reference being made to the Honourable High Court. The present application is accordingly dismissed.
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1992 (9) TMI 212 - CEGAT, CALCUTTA
Evidence - Statement if dictated by departmental officer ... ... ... ... ..... eliance can be placed on the same. It is, thus, seen that the best evidence available in this case is to test the sample of the goods seized and by enquiry from the customers with respect to the goods sent by the appellant company. The Department has not followed any of these procedures and the impugned order was passed basing on certain factors which at best may create some suspicion against the appellants. Suspicion, however, grave cannot take the place of proof. It is a settled principle of law that demand of duty cannot be based on mere assumption and presumption. In that view of the matter, we set aside the demand of duty of Rs. 8,39,047.48 (Rupees eight lakh thirty-nine thousand forty-seven and paise forty-eight) only as has been ordered in the impugned order appealed against. 12. In view of the above findings, the imposition of penalty of Rs. 20,000.00 on the appellants is also not in accordance with law. The same is hereby set aside. The appeal is accordingly allowed.
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1992 (9) TMI 211 - CEGAT, CALCUTTA
Burden of proof - Contraband goods ... ... ... ... ..... documents are not genuine. They cannot be discarded summarily without discussing the same. When an appeal is preferred against this order, the Tribunal should know as to what are the reasons which were in his mind to come to the conclusion that these cash memos and vouchers were not genuine ones. In that view of the matter, when these documents produced by the appellants were not considered by the adjudicating authority, there was a denial of principles of natural justice. That being the case, we set aside the impugned order and allow the appeals by way of remand with a direction to the learned adjudicating authority to grant a personal hearing to the appellants and then to consider the cash-memos and vouchers which were produced by them before him and thereafter to discuss the same and then to pass a reasoned order in this behalf by observing the principles of natural justice. The same shall be concluded within a period of four months from the date of receipt of this order.
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1992 (9) TMI 210 - CEGAT, CALCUTTA
Reference to High Court ... ... ... ... ..... al was, under the processual law of this country, in the nature of a re-hearing of the suit. In Amarjit Kaur (supra) this Court referred also to Lachmeshwar Prasad Shukul v. Keshwar Lal Chaudhuri (1940) FCR 84 (AIR 1941 PC 5) in which the Federal Court had laid down that once a decree passed by a Court had been appealed against the matter because sub judice again and thereafter the Appellate Court acquired seisin of the whole case, except that for certain purposes, for example, execution, the decree was regarded as final and the Court below retained jurisdiction. This decision clearly applies to the facts of the above case and the change in law as inserted by the Finance Act has to be taken into account while granting the relief to the respondents. This position is clear from the decision of the Supreme Court and hence the question No. (2) does not arise out of the order of this Tribunal. 11. Accordingly, we dismiss this Reference Application filed by the applicant Collector.
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1992 (9) TMI 209 - CEGAT, CALCUTTA
Natural Justice - Documents requested not supplied ... ... ... ... ..... by appellant Shri Mohan Singh (Appeal C-493/89) is hereby dismissed. The appeal filed by appellant Shri Lilaram Bhagnani (Appeal C-508/89) and that the appeal by appellant Khemchand Bhagnani (Appeal C-507/89) are allowed by way of remand, and the adjudicating Officer is directed to furnish the above-said appellants the documents which have been relied on in the show cause notice and which are more specifically stated in the reply to the show cause notice filed by the appellant Lilaram Bhagnani (page -2 of the reply). The adjudicating Officer should also give them an opportunity to cross-examine the co-accuseds who have implicated them. The adjudicating Officer also should give an opportunity to appellant Lilaram Bhagnani to cross-examine the Officers who had recorded his statement. Thereafter personal hearing should be granted to the appellants and their cases should be disposed of by passing a speaking order in this behalf. 14. The appeals are disposed of in the above terms.
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1992 (9) TMI 208 - CEGAT, CALCUTTA
Confiscation and Penalty ... ... ... ... ..... the goods in question and imposition of penalty cannot be justified. But the learned J.D.R. Shri B.B. Sarkar contended that there are other claimants of the goods as would be evident from the application made by them and the same cannot be returned to the appellant. But under Section 125 of the Customs Act, if any goods are seized the same has to be returned to the owner, or where such owner is not known, the person from whose custody such goods have been seized. Admittedly, the goods were seized from the custody of the appellant. Therefore, even if the owners had not claimed the goods, when the goods are not confiscable in law, the same are to be returned to the appellant from whose possession the same are seized. The reason is that the owner of the godown had stated that the appellant had taken it for storing. The confiscation of the goods is set aside and the department is ordered to return the goods to the appellant forthwith. The penalty of Rs. 5,000/- is also set aside.
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