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Case Laws
Showing 121 to 140 of 349 Records
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1998 (10) TMI 239 - CEGAT, MUMBAI
Stay/Dispensation of pre-deposit - Penalty ... ... ... ... ..... equal to the amount of duty short levied and confirmed, for the purpose of grant of stay the provisions of section 11AC do not ride over the provisions of Section 35F. 7. emsp In addition to the statement made by the learned Advocate I also find that the Tribunal in a number of cases held that where duty has been voluntarily been paid full waiver of pre-deposit of penalty was appropriate. 8. emsp On consideration of the submissions and on finding that the entire duty has been deposited we waive the requirement of pre-deposit of penalty imposed on all the 44 applicants. The order of confiscation of plant and machinery, etc. shall be held in abeyance pending disposal of this case, on the applicants undertaking not to dispose of any portion thereof during the pendency of the appeal as also on giving a bank guarantee of Rs.1 lakh to the jurisdictional Commissoner. The undertaking and bank guarantee shall be submitted within 4 weeks from today. 9. emsp This order be given dustee.
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1998 (10) TMI 238 - CEGAT, CALCUTTA
Refund - Collector (Appeals) going beyond the scope of show cause notice to reject refund claim
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1998 (10) TMI 237 - CEGAT, NEW DELHI
Confiscation/Redemption fine /Penalty ... ... ... ... ..... however, is at best a technical violation, which does not require very severe action. 8. emsp I have taken congnizance of various citations made by the ld. Advocate. The case law cited by him no longer holds pleas in view of the Tribunal rsquo s judgement in the case of Autolite (India) Ltd. v. C.C.E., Jaipur reported in 1997 (93) E.L.T. 397 (Tribunal). The judgement cited by the ld. Advocate had followed the Andhra Pradesh High Court in the case of Southern Steel Ltd. v. U.O.I. reported in 1979 (4) E.L.T. (J 402) (A.P.). In the Autolite (India) case, the Tribunal had observed that the wrong reliance was placed on the Andhra Pradesh High Court judgement. Therefore, the citations made are of no relevance in the issue. 9. emsp I find that the Commissioner had shown leniency. But the extent of leniency was still lacking. I, therefore, retain the order relating to the fine, but remit the penalty imposed under Rule 173Q. Subject to this modification, the impugned order is up-held.
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1998 (10) TMI 236 - CEGAT, MUMBAI
Customs House Agent Licence - Suspension of ... ... ... ... ..... be done away with but not the mandatory provision of issue of notice. 10. emsp Respectfully differing with the ratio of the cited Tribunal judgment, we hold that even when the exercise of certain power is conferred under Regulation 21(2), the Collector was required to follow the provisions of Regulation 23(1) and in the absence of due notice being given, his order does not sustain and is to be set aside. Hence, we do the same and remit the proceedings back to the Commissioner for issue of appropriate notice and following of subsequent procedure for suspension of the licence. Since the Commissioner chose to exercise his extraordinary power, we assume that the case involves urgency. In order to ensure that the CHA does not adopt delaying methods, we ask Shri Mathew to undertake on behalf of his clients cooperation with the department and compliance with the time limit set by the Commissioner in the notice issued under Rule 23. 11. emsp With this direction, we allow the appeal.
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1998 (10) TMI 235 - CEGAT, MUMBAI
Modvat - Duty paying document ... ... ... ... ..... uld their use. The possibility distinctly remains that such bot- tles could be utilised by other manufacturer. It is also possible that such manu- facturers may be having these bottles printed by the same or other printers. When the Collector (Appeals) himself does not say that identity of the bottles is established beyond doubt, the department rsquo s appeal succeeds on this point. We also emphasise that it is not within our scope to say whether the Tri- bunal rsquo s order was incorrect or modify it. We have taken into account what that order said. Department rsquo s appeals are allowed and impugned order set aside. 10. emsp We have so far dealt with the department rsquo s appeal. What is in challenge by the assessee the eligibility of modvat credit under Rule 57A. Since we have held that the department rsquo s view that credit should not be taken on these, answer to this question is only academic. We, therefore, decline to go into assessee rsquo s appeal. Appeal dismissed.
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1998 (10) TMI 234 - CEGAT, NEW DELHI
Demand - Limitation ... ... ... ... ..... nts filed revised classification list 6/88-89 classifying top skin, side skin, etc. under CET sub-heading 3915.90 and claiming exemption from payment of duty under Sl. No. 24 of the Table annexed to Notification 53/88, dated 1-3-1988 which grants exemption inter alia to various goods falling under Chapter 39. This list was approved on 16-10-1989, extending the benefit of Notification claimed for waste, parings and scrap of plastics in the subsequent classification list 7/89-90, similar exemption was claimed and extended by approval on 28-6-1990. The approval of these lists, in these circumstances, has to be held as an approval after consideration of all the facts in- cluding trade notice and therefore, we hold that the charge of suppression can- not be laid at the door of the appellants. We, therefore, hold that the demand is barred by limitation, set aside the impugned order and allow the appeal on this ground alone, without recording any finding on the merits of the matter.
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1998 (10) TMI 233 - CEGAT, NEW DELHI
Demand - Penalty ... ... ... ... ..... le on the assessees. 15. emsp Having regard to this view, we hold that the penalty of Rs. 19,61,566/- is out of all proportion, therefore, we, reduce the penalty to Rs. 5 lac on the assessees. 16. emsp Insofasr as the imposition of penalty on Shri Ashish Sethi, Director is concerned, there is sufficient evidence on record that the old disfigured and chip neck bottles were cleared at the directions of Shri Ashish Sethi. Since during the material period Modvat credit was admissible on glass bottles, therefore, it was the duty of Shri Ashish Sethi to take permission of the Commissioner before clearing the goods without payment of duty which he did not do, therefore, imposition of penalty is sustainable. However, looking to the facts and circumstances of the case, we find that the penalty of Rs. 3 lac is on the higher side, the same is reduced to Rs. 50,000/-. 17. emsp The impugned order, therefore, is modified to the extent stated above and the appeal is disposed of accordingly.
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1998 (10) TMI 232 - CEGAT, NEW DELHI
Classification of goods ... ... ... ... ..... rrect inasmuch as the Tariff Heading 59.06 speaks of textile fabrics, otherwise impregnated or coated or covered. It is not disputed by the Revenue that the coating on the textile fabrics made by the assessee contain rubber and that these are rubberised textile fabrics as mentioned in the order-in-original dated 9-4-1987 by the Assistant Collector. This finding of fact and this factual position has not been rebutted by the Revenue in this appeal. Therefore, Tariff Heading 59.06 relied upon by the Revenue does not hold. They are relying on Explanatory Notes of HSN Heading 59.06 which corresponds to Tariff Heading 59.05 of the Central Excise Tariff Act. 8. emsp In view of the foregoing we hold that correct classification of the product under consideration would be Tariff Heading 59.05. In view of the aforesaid finding, the appeal of the Revenue is dismissed and the appeal of the assessee is allowed with consequential relief to the assessee after we set aside the impugned order.
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1998 (10) TMI 231 - CEGAT, NEW DELHI
Scientific and laboratory equipment/instruments - Benefit of Notification No. 155/86-C.E., dated 1-3-1986 available.
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1998 (10) TMI 230 - CEGAT, NEW DELHI
Documents and declarations filed with department ... ... ... ... ..... he party and permitted the party to take additional grounds. Shri Asthana submits that the party has filed a declaration under Rule 57G and the same was acknowledged by the concerned clerk. Since the department denies the signature of the concerned clerk who acknowledged, the department may be directed to call for the records particularly inward register as mentioned in para 15 of the appeal memo and diary register. Shri Srivastava requests for some time to get the relevant records. Considered. The matter is adjourned to 17-12-1998. Copy of this order may be supplied to both the sides.
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1998 (10) TMI 229 - CEGAT, NEW DELHI
Stay/Dispensation of pre-deposit - Valuation ... ... ... ... ..... nd does not reveal any nexus between the dealer and the appellants. 3 emsp Shri Shiv Kumar, learned DR reiterates the findings contained in the impugned order. He also mentioned that it is not clear whether the expenses to be incurred for advertisement by the dealer was an optional requirement or it was compulsory. 4 emsp We have considered the submissions of both the sides. The question whether the expenses incurred by the dealers on advertisement was optional or mandatory or whether it creates any nexus between the appellants and the dealer are to be examined at the time of hearing of the main appeal. We observe that in view of the decision of the Apex Court in Philips India which has been followed in the case of Mahindra and Mahindra, cited above, the appellants have made out a strong prima facie case in their favour. Accordingly, we waive the requirement of pre-deposit of the entire amount of Excise duty and stay the recovery of the same during the pendency of the appeal.
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1998 (10) TMI 228 - CEGAT, NEW DELHI
Stay/Dispensation of pre-deposit ... ... ... ... ..... inted out that in respect of 923 vehicles no evidence has been placed on record to show that these vehicles were cleared as Taxis. In his reply Shri Devnath submitted that entire evidence including relevant certificates were placed before the Commissioner and on verification the Commissioner has come to the conclusion that they were cleared as Taxis as can be seen from the earlier order which was the subject matter of the dispute before the Tribunal. 4. emsp We have carefully considered the matter. We find that all these issues have been considered by the Tribunal in the earlier order and if any distinction is there, that distinction can be looked into at the time of regular hearing. For the present, we are convinced that a strong prima facie case exists in favour of the assessee and in the view we have taken, stay application is allowed unconditionally. The party is at liberty to file application for early hearing which may be considered by the Tribunal. Ordered accordingly.
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1998 (10) TMI 227 - CEGAT, NEW DELHI
Demand - Limitation ... ... ... ... ..... observe that earlier this item was not considered as dutiable and in fact, no duty was demanded from the appellants either prior to 28-2-1986 or even subsequently, and apparently, the show cause notices have been issued only in view of the subsequent Circular of the Board and the Trade Notices issued in the light thereof. This shows that in the facts and circumstances narrated by the learned Counsel, there was scope for reasonable belief that the item continued to be non-dutiable even after introduction of new tariff. We hold that there was sufficient reason to believe that the appellants entertained the bona fide belief to the effect that the product was not excisable and not dutiable. 11. emsp Hence, in the facts and circumstances of the case, we hold that the extended period of time was not available to the Department and the demand was time-barred. Therefore, without going into the merits of the case, we allow the appeal on time-bar as already announced in the open court.
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1998 (10) TMI 226 - CEGAT, NEW DELHI
Medicine - Exemption availed under Notification No. 245/83-C.E. whether a bar against claiming exemption under Notification No. 45/82-C.E.
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1998 (10) TMI 225 - CEGAT, NEW DELHI
Demand and penalty - Samples ... ... ... ... ..... the officers visited the factory. The show cause notice does not speak of confiscation. Both the lower orders are silent on this issue. It is worth noting that if the factory was working for the last 55 years, and if the practice of drawing samples and keeping them unaccounted was of long standing, the officers, who did annual stock checking, should have noticed this practice. Where the appellants were under the bona fide belief, that they were not required to make any entry, there was no reason for demanding duty from them on the goods, which were admittedly in the factory as also for imposition of a penalty. 6. emsp Here, Shri Arunachalam submits that subsequently the assessees cleared these goods on payment of duty for pulping. That would not enter my consideration here since the appeal does not concern the developments subsequent to the issue of show cause notice. 7. On the findings above, I allow the appeal, set aside the lower order and direct the consequential relief.
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1998 (10) TMI 224 - CEGAT, NEW DELHI
SSI Exemption ... ... ... ... ..... have given the condition of making an application for registration with the SSI authorities and not the registration of the unit with the SSI authorities. In the cases in which it has been held by the various Courts in the judgments relied upon by the learned Advocate that the date of granting of certificate should be given retrospective effect from the date of making application are not applicable to the facts and circumstances of this case inasmuch as in all those cases the certificate was to be granted by the concerned Sales Tax authorities whereas in the present case the certificate was to be granted by another authority and not the Central Excise authorities. Further as already stated the notification itself states that the unit should be registered with the Directorate of Industries or other concerned authority before the benefit of exemption notification can be granted. 5.1 emsp In view of the foregoing, we set aside the impugned order and allow the appeal of Revenue.
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1998 (10) TMI 223 - CEGAT, CALCUTTA
Modvat on capital goods ... ... ... ... ..... squo s appeal. This order of the Commissioner (Appeals) is impugned before me by the Revenue. 3. emsp I have heard Shri R.K. Roy, learned J.D.R. for the Revenue and Shri B.J. Mookherjee, Representative for the respondents and have gone through the Grounds of Appeal. I find that the Commissioner (Appeals) order is based upon the Tribunal rsquo s judgment in the case of Valley Abrasives, vide which it has been held that the refractory bricks also get covered by the general definition of capital goods in terms of clauses (a), (b) and (c) of Rule 57Q and it was only by way of abundant caution that clause (d) was introduced to set the controversy at rest. Accordingly, clause (d) was given retrospective effect. 4. emsp The Revenue in their appeal has not contended that the said decision of the Tribunal has been reversed by the higher authority. Accordingly, I do not find any reason to interfere in the order of the Commissioner (Appeals). The Revenue rsquo s appeal is thus rejected.
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1998 (10) TMI 222 - CEGAT, NEW DELHI
Refund - Unjust enrichment ... ... ... ... ..... t notes. Further we find that the adjudicating authority has accepted the debit notes, but has held the non-issue of corresponding credit notes by the respondents as a factor that goes against them. 4. emsp The decision of the Tribunal in the case of CCE Madras v. Addision and Co. relied upon by the DR does not, in our view, advance the case of the Revenue - in that case the assessees were periodically passing on the turnover discount to their dealers by way of credit notes issued to them, and the Tribunal held that it is evident that the assessees had also passed on the duty element on the discount to such dealers. In the present case, however, the material on record is sufficient to establish that the respondents had not passed on the burden of excise duty to their customers. Therefore, we concur with the finding of the lower appellate authority that the refund claim is not hit by the bar of unjust enrichment. Accordingly, we uphold the impugned order and reject the appeal.
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1998 (10) TMI 221 - CEGAT, NEW DELHI
Manufacturer - Job worker when a labour, not liable to duty ... ... ... ... ..... also reversed Modvat credit they had taken on the goods. Therefore, the materials did not belong to the appellant. 4. emsp We have gone through the records of the case and have considered the rival submissions. We find that the work was carried out by the appellant in the premises of M/s. Bajaj Tempo under a labour contract dated 8-4-1989. In terms of the contract, the appellant should receive payment for the assembly of parts and all the materials, machinery, premises. Electricity and other requirements were being supplied by Bajaj Tempo. It is, therefore, clear that the contract is only for labour supply and not for a job work or manufacture. In the circumstances, we hold that the finding in the adjudication order that the appellant manufactured the goods cannot be sustained. The appeal is accordingly allowed with regard to the duty demand on the goods assembled at Bajaj Tempo. The appellant shall pay the duty demand relating to the manufacture of table and other furniture.
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1998 (10) TMI 220 - CEGAT, NEW DELHI
SSI Exemption - Value of clearances ... ... ... ... ..... tion. When the assessee was not working within the ambit of the notification for the period 1-4-1989 to 26-4-1989 the question of computing the clearances in terms of the said notification w.e.f. 1st day of April 1989 would not arise. In fact, the assessee paid the duty during that period without availing the benefit of the said notification on payment of normal duty but for this notification. If we accept the contention of the Revenue then the respondents would be entitled to the benefit of the clearances made during the earlier period i.e. 1-4-1989 to 26-4-1989 but that would amount to giving the exemption notification retrospective effect. On the same analogy we cannot give retrospective effect to the contention of the Revenue by counting the clearances for the period 1-4-1989 to 26-4-1989 for computing clearances in terms of the said notification since that would amount to giving the exemption notification retrospective effect. Hence, we dismiss the appeal of the Revenue.
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