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Case Laws
Showing 121 to 140 of 387 Records
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1999 (5) TMI 324 - CEGAT, MUMBAI
Import - Confiscation of goods ... ... ... ... ..... compliance of this has been incorporated in the notice. The fact that the Assistant Commissioner or the Commissioner (Appeals) did not deal with this averment does not nullify the orders. On this being pointed to the representative of the appellant, he explained that technically there is a contravention but says that in the facts and circumstances of this case, it is only a requirement and that contravention does not justify confiscation. 4. emsp The fact remains that, as we have said, the appellant had and continued to stay in India. She has now been granted ten years residence permit. Therefore, while technically the condition of the public notice is not satisfied and the car is not liable to confiscation, the bona fide intention of the appellant, the fact of her continued residence in India and the fact that the car has been incurred demurrage of about Rs. 85,000/- which do not justify confiscation. 5. emsp Accordingly we allow the appeal and set aside the impugned order.
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1999 (5) TMI 323 - CEGAT, MADRAS
Modvat credit on capital goods ... ... ... ... ..... ound taken by the department submitted that the item in question does not bring about any change and accordingly Modvat credit cannot be extended. 4. emsp On consideration of the submissions made by both the sides, I find that in the case of Nova Udyog, reported in 1996 (88) E.L.T. 532, the Tribunal has taken the view that Modvat credit on capital goods is not confined to item if it brings about any change but also available to components and accessories which help or assist in the process of manufacture. It is not in dispute in the instant case that the item in question help or assist in the process of manufacture of cotton yarn. In the facts and circumstances, following the ratio of the decision referred to above, there is no justification for denying the benefit of Modvat credit to the item in question on the ground that it does not bring about any change. Accordingly I do not find any substance in the appeal filed by the department. In the result, the appeal is dismissed.
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1999 (5) TMI 318 - CEGAT, MADRAS
Classification ... ... ... ... ..... hat the product would fall under heading 85.01. Similar view has been taken in the case of Bagalkkot Udhyog Ltd. supra, wherein, such a generator of high voltage of 4000 KW rating has been classified under 85.01. Since the product in question is found by us to be an alternator not normally used in automobile or any such areas, wherein, the quantum of electricity generated both in terms of current capacity as well as voltage is of a much lower order, and since the product is designed to produce high voltage of 220 volts as well as high current capacity, therefore, we have found that the facts of this case are exactly identical with the generator considered by the Hon rsquo ble Tribunal in the case of C.C.E. v. V.K. Enterprises. 8. emsp By applying the ratio of the aforesaid two decisions, we hold that the said product would be classifiable under 85.01. The Order-in-Appeal impugned is, therefore, set aside and the appeal is allowed with consequential relief, if any, as per law.
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1999 (5) TMI 317 - CEGAT, CALCUTTA
Penalty - Smuggling - Confiscation - Conveyance ... ... ... ... ..... been used for transporting smuggled items with the knowledge of the driver which is evident from the fact that the driver immediately abandoned the truck on seeing the Customs Officers. As such the same is liable to confiscation. However, the redemption fine imposed is reduced from Rs. l lakh to Rs. 75,000/-. 11. emsp As regards the confiscation of Maruti van, the finding against the appellant is that the same was being used for escorting the truck carrying contraband. As per the provisions of Rule 115(2) the conveyance used as a means of transport in the smuggling of any goods or in the carriage of any smuggled goods shall be liable to confiscation. The Maruti van cannot be said to have been used for carrying any smuggled goods or as a means of transport in the smuggling of any goods. Hence its confiscation under the said provision was not justified. The same is accordingly set aside. Appeals are allowed in above terms and the impugned Order is modified to the above extent.
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1999 (5) TMI 314 - CEGAT, NEW DELHI
Provisional assessment - Demand ... ... ... ... ..... Ltd. v. Asst. Collector supra, held that pending approval of classification list, the assessment could be considered as provisional, if there is any material on record to indicate that the goods were cleared by following the procedure laid down in Rule 9B. In the present matter nothing has been brought on record to show that the assessment was provisional except the remark on R.T.12 by the Superintendent and that too not on all the R.T.12s. Such a remark was not accepted by the Collector (Appeals) as an order for provisional assessment in view of Board rsquo s Circular 13/90, dated 25-5-1990 in which Board has clarified that there is no provision in Central Excise law for assessment of R.T.12 Returns subject to approval of Classification lists, P.L. or subject to pending test results. Accordingly, we find no reason to interfere with the impugned order and reject the appeal filed by the Revenue. The cross objection filed by the Respondents are also disposed of in above terms.
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1999 (5) TMI 313 - CEGAT, NEW DELHI
Classification - Valuation ... ... ... ... ..... ugned goods is of 94 as against 98 . The party has taken a specific plea that in view of variation in the percentage same cannot be compared but there is no finding by the adjudicating authority on this aspect. In view of this, we are of the view that the mater will have to go back for reconsideration on the issue of valuation. The jurisdictional Commissioner is directed to examine the issue of valuation afresh and to pass an appropriate order after providing an opportunity to the appellants. We also observe that the party has declared the goods as per NARI specifications. On going through the relevant circular and contract, we find that the party has declared as such. Since we are remanding the matter on this aspect also will have to be looked into by the jurisdictional Commissioner and may determine the penalty depending upon the outcome of the impugned order on the issue of valuation as well as of misdeclaration. 7. emsp Thus, this appeal is disposed of in the above terms.
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1999 (5) TMI 312 - CEGAT, CALCUTTA
Stay/Dispensation of pre-deposit ... ... ... ... ..... in our view, the adjudicating authority should have given one more opportunity, particularly, when the adjournment was sought on the ground of sickness. 6. emsp We, keeping in view the facts and circumstances of the case, grant the stay application of the appellant. With the consent of both the sides, the matter was taken up for final hearing. 7. emsp As we find that the order had been issued in violation of the principles of natural justice, we remand this matter to the jurisdictional Commissioner of Customs who should pass the speaking appealable order after affording an opportunity to the appellant to present their case. 8. emsp Ld. Advocate prayed for early disposal of the matter. We direct the adjudicating authority to take up this matter on priority basis. 9. emsp The appellant is directed to co-operate with the adjudicating authority. 10. emsp With these observations the stay application is allowed and the appeal is also allowed by way of remand. We order accordingly.
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1999 (5) TMI 311 - CEGAT, MUMBAI
Smuggling - Penalty - Confiscation ... ... ... ... ..... held that retraction was late and therefore not valid, the fact itself is so insignificant as not to carry any weight. Harishchandra, the brother of Rama identified the motorcycle as having been brought by Gopal. But he does not state that Gopal was at the scene on the night of the landing. 17. emsp The state of evidence is such that although on the existence of the red colour motor cycle a doubt may arise about involvement of Gopal Chougule, that doubt cannot take the place of proof. The various grounds of which the Collector has established Chougule rsquo s guilt do not survive on scrutiny of the evidence. On this ground the appeal succeeds. 18. emsp In the result the orders of confiscation of the tempo bearing registration No. MH 08 5713, of the double barrelled gun and 13 live cartridges are set aside. These goods are ordered to be released to S.B Kolambekar. 19. emsp The penalties imposed on S.B. Kolambekar and on G.R. Chougule are set aside. Appropriate relief is order.
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1999 (5) TMI 310 - CEGAT, MADRAS
Classification ... ... ... ... ..... red by large number of Tribunal judgments. The issue is covered by the judgment of Shivaji Works Ltd. as reported in 1994 (69) E.L.T. 674, Aravali Forgings Ltd. as reported in 1994 (70) E.L.T. 693. In the present case the appellants have stated that the item is in the forging state and the item requires to undergo several processes at the appellant rsquo s end namely the following forgings - (1) emsp Trimming, facing, boring (2) emsp Surface milling, groove profile milling (3) emsp Drilling and Tapping (4) emsp Threading (5) emsp Grinding (6) emsp Broching and (7) emsp Hardening and Tempering In the noted judgment, the Tribunal has held that the item remains forged and Rule 2(a) of Interpretative Rule cannot be applied as the item has not acquired the essential characteristic of a part for classification under Chapters 84 to 87. In that view of the matter, respectfully following the ratio of the Tribunal rsquo s judgment, the impugned order is set aside and appeal is allowed.
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1999 (5) TMI 309 - CEGAT, MADRAS
Modvat on capital goods ... ... ... ... ..... , submits that same view may be taken in this case also and the matter be remanded for re-examination on the same basis. 4. emsp I have considered the rival submissions and the facts of the case. I find that as per the flow chart on the manufacture of cotton yarn as submitted by the assessees, speed frame i.e. Simplex machine comes into picture invariably only after carding/combing and drawing processes are complete. Therefore, the aforesaid decisions with respect to Draw frames which are used in the drawing process would also be relevant for consideration of the issue with respect to the speed frame. Under these circumstances, respectfully following the aforesaid noted decisions I find that the Order-in-Appeal impugned needs to be set aside along with attendant Order-in-Original and remand the matter to the original authority for de novo consideration on the same lines as contained in those decisions noted above with respect to Speed frames in this case. Ordered accordingly.
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1999 (5) TMI 308 - CEGAT, MADRAS
Valuation - Second hand machinery ... ... ... ... ..... i.e., on ldquo as is rdquo C and F Madras basis, and therefore unless Rule 4 is held inapplicable as discussed above, such a transaction value cannot be rejected in favour of a notional value arrived at under Rule 8 from new goods in country of manufacture even if a handsome depreciation of 70 is given. In other words, law does not allow rejection of transaction value under Rule 4 by ab initio application of Rule 8 that would be putting the cart before the horse. The principle involved is that the lsquo actual rsquo cannot be superceded by the lsquo deemed rsquo , unless the lsquo actual rsquo is first rejected in terms of Section 14 read with Rule 4 ibid. 5. emsp Applying the ratio of the said decision to the facts of this case, we are of the clear opinion that the said ratio is fully applicable to the facts of this case. In view of the discussions analysed above, therefore, we set aside the Order-in-Appeal impugned and allow the appeal with consequential relief as per law.
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1999 (5) TMI 307 - CEGAT, MADRAS
Departmental clarification ... ... ... ... ..... Advocate submits that this very issue was agitated before Hon rsquo ble Supreme Court in the case of H.M. Bags Manufacturer v. C.C.E. as reported in 1997 (94) E.L.T. 3 wherein the department rsquo s view was negatived by the Hon rsquo ble Supreme Court and it was held that the reclassification of the impunged goods will be effective in terms of the Board rsquo s order from the date of Trade Notice which is 5-11-1992 and no demands prior to the date of Trade Notice will be effective and that Section 11A is not available to the department. Ld. Counsel submits that in view of this judgment, on this very issue the appeal is required to be allowed. 3. emsp Heard ld. DR 4. emsp On a careful perusal of the Apex Court rsquo s judgment cited, we notice that the issue is totally covered. In the present case, the demands pertained to dates prior to the issue of the Trade Notice dated 5-11-1992 and therefore, in terms of this judgment, it is not sustainable, hence the appeal is allowed.
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1999 (5) TMI 306 - CEGAT, NEW DELHI
Stay/Dispensation of pre-deposit - Sick unit ... ... ... ... ..... harma opposing the contentions submits that from the very description of the items given in the impugned order and the activity taken by the applicants rsquo contractors, it is clear that a manufacturing activity had been undertaken by the applicants on their behalf by the contractors. Therefore, duty liability has been correctly imposed by the adjudicating authority and penalty has also been correctly imposed, submits the learned SDR. As regards the declaration of the applicants as a sick undertaking by BIFR, he has no comments to make. 3. emsp There is an application for condonation of delay for filing the appeal late by one day. In view of the delay being meagre, we allow the COD application and condone the delay in filing the appeal. 4. emsp We have carefully considered the pleas advanced from both sides. In view of the declaration of the applicants by BIFR as a sick unit, we allow the stay petition unconditionally relying on the aforesaid two judgments of the Apex Court.
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1999 (5) TMI 305 - CEGAT, MADRAS
... ...
... ... ..... at credit and rejection of the appeal, the Revenue has filed appeal before the Tribunal. In the grounds of appeal, the Revenue has not distinguished the law laid down by the Madras High Court in the case of Ponds India Ltd. (supra). 4. emsp We have heard Shri S. Kannan, learned DR for the Revenue and Shri Muthu Venkataraman, learned Counsel for the Respondents (assessee). The learned Counsel submits that the Larger Bench of the Tribunal has confirmed the view taken by the Hon rsquo ble Madras High Court in the case of Aswin Vanaspati Inds. Pvt. Ltd v. C.C.E. as reported in 1994 (70) E.L.T. 754. He submits that there is no fresh ground made out by the Revenue. 5. emsp On consideration of the submissions made we notice that grant of Modvat credit by the Order-in-Original and rejection of the appeal filed by the department, by the Collector (Appeals) is totally justified as the issue is now covered by the judgments noted above. In this view of the matter, the appeal is rejected.
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1999 (5) TMI 304 - CEGAT, MADRAS
Manufacture ... ... ... ... ..... 0 is beyond stipulated period, hence barred by time. 3. emsp Heard ld. D.R. Shri S. Kannan, who reiterates the departmental contention and the findings given by the Collector in the impugned order. 4. emsp On a careful consideration of the submission, we agree with the ld. Chartered Accountant that the issue has been settled in favour of appellants in the noted judgments. In the case of Elcon Engineering Co. Ltd. and Others v. C.C.E., the Tribunal has examined all the judgments on this issue and also earlier orders passed by the Tribunal holding that the items in question are not dutiable. Tribunal has also categorically held that mere mention of these items in Tariff Headings 7308 is not by itself sufficient to say as manufactured one and to be termed as goods under the Central Excise Tariff. In view of the Tribunal rsquo s judgment delivered in the Apex Court rsquo s judgment and earlier judgment, the appellant rsquo s appeal is accepted by setting aside the impugned order.
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1999 (5) TMI 303 - CEGAT, NEW DELHI
Stay/Dispensation of pre-deposit - Penalty ... ... ... ... ..... of the adjudicating authority such as confirmation given by the Supdt. is not normally done in the manner done by him, is not adequate to rebut the submission of non-suppression taken by the applicants. 7. emsp We have carefully considered the pleas advanced from both sides. We observe, having regard to over all facts and circumstances of the case that the applicants have a strong prima facie case on limitation in view of the endorsement having been made by the Supdt. on the applicants letter dated 6th June, 1989. We shall examine in detail the effect of the two judgments of the Apex Court namely ldquo Sirpur Paper Mills rdquo and ldquo Mittal Engineering rdquo at the time of hearing of the appeal. So far as penalty under Section 11AC is concerned it is clear that the period involved is before the insertion of Section 11AC in the Act. Therefore no penalty as such is liable to imposed on the appellant/ applicant. In view of the above, Stay Petition is allowed unconditionally.
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1999 (5) TMI 290 - CEGAT, NEW DELHI
... ...
... ... ..... , carry bag and wind cheater supplied along with tape recorder are accessories to improve its performance and optimum use. 5. emsp We have carefully considered the submissions made by both the sides and perused the record. On both the issues, it appears that the issues are covered by the observations of the Supreme Court referred to above. In the instant case, as can be seen from the finding of the Assistant Collector, he has proceeded to add the cost of the items on the ground that they are essential and without them it cannot be used effectively. Similar grounds were taken in the appeal memorandum. It is not the case of the Department that it is an integral part of the main item. In the absence of that finding and taking into consideration, however, essential it may be, cost of the same cannot be added in view of the observations made by the Apex Court and we are not inclined to interfere with the order passed by the Commissioner (Appeals). Accordingly, appeal is dismissed.
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1999 (5) TMI 289 - CEGAT, NEW DELHI
Classification of goods ... ... ... ... ..... highly toxic gas, it is transported in steel cylinders which have to conform to rigid safety design specifications. It also mentions that the gas is shipped in 68 and 907 kgs quantities. The various uses of the gas, its chemical and physical properties as also its chemical formula have also been described in the Hawley rsquo s Condensed Chemical Dictionary, which has been mentioned in the application. It is clear from the above, that the gas has extensive commercial use, that it can be stored and that it has a shelf-life. The fact that it is specifically mentioned in HSN, indicates that it is an item of import and export in international trade. The goods are, therefore, marketable. It is covered under Chapter 28 of the Central Excise Tariff. rdquo 8. emsp These findings of the fact was not controverted by the appellants in their appeal memorandum or in their written submissions. 9. emsp In view of the above discussion, we find no merit in the appeal and the same is rejected.
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1999 (5) TMI 288 - CEGAT, MADRAS
Classification ... ... ... ... ..... the matter is no longer res integra in view of the decisions of the Tribunal in the case of Punjab Bone Mills supra as also in the case of Raymond Glues and Chemicals supra wherein the decision of the Tribunal has been accepted by the Hon rsquo ble Supreme Court in the form of dismissing the Department rsquo s Civil Appeal against it as noted above. We also note that the Hon rsquo ble Gujarat High Court has clearly and unequivocally quashed the circular of the Central Board of Excise and Customs noted above dated 3-3-1997 by their decision supra. Therefore, we find that the law with regard to the classification of this product is now clearly well established one to the effect that the same shall be classified under 23.02 of the Central Excise Tariff Act, 1985. 8. emsp In view of the aforesaid findings and analyses, we find that the Orders-in-Appeal impugned before us therefore need to be set aside. Ordered accordingly. The appeals succeed with consequential relief as per law.
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1999 (5) TMI 287 - CEGAT, NEW DELHI
Refractories - Electrocast refractories with zirconia - Benefit of Notification 242/76-Cus. ... ... ... ... ..... he goods imported were blocks to which the benefit of Notification 242/76-Cus. was not available or they were refractory bricks. Therefore, this judgment does not help the Revenue. 7. emsp We have carefully considered the pleas advanced from both sides. On the submissions made by the ld. Advocate, which have been set out in detail above, we are satisfied that the benefit of the Notification 242/76-Cus. and of 112/87-Cus. would be available to the refractory bricks because these are used as components in an Industrial Furnaces and these are of special shape and quality. Accordingly we set aside the impugned order and allow the appeal with consequential relief to the appellants. 8. emsp At this stage our attention has been drawn by the ld. Advocate to the fact that the matter originated as refund claim. Therefore, the question of refund to be dealt with by the original authority, in accordance with law and on the basis of the present provisions of Section 27 of the Customs Act.
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