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Case Laws
Showing 121 to 140 of 363 Records
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2000 (6) TMI 419 - CEGAT, NEW DELHI
Reference to High Court - Modvat ... ... ... ... ..... tion No. 1/93-C.E., dated 28-2-1993. He submits that since the Larger Bench had taken a view different from the one in the present case, therefore, a point of law arises. He therefore, prays that a reference may be made to the Hon ble High Court of Allahabad. 3. emsp Shri Gopal Prasad, ld. Counsel, appearing for the Respondents has no objection. 4. emsp We have heard the ld. DR. We have also perused the evidence on record. We note that Larger Bench of this Tribunal has taken a view different from the one taken in the case before us. This shows that there is a difference in opinion and therefore a point of law arises from the applicants point of view. Going by the two decisions, i.e. the decision in the present case and the decision of the Larger Bench in the case cited above, we agree that a point of law arises. Therefore, the Reference Application of the applicant is allowed. The case should be referred to the Hon ble M.P. High Court at Jabalpur for their considered opinion.
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2000 (6) TMI 402 - MADHYA PRADESH HIGH COURT
Writ Jurisdiction - Existence of alternative remedy ... ... ... ... ..... roviso to Section 11A(1). To arrive at the conclusion it does not meet the requirement of proviso to Section 11A(1), the facts are to be thrashed out, complexity of situation has to be scrutinised, analysed, probed into and investigated and the same is not possible in exercise of extraordinary jurisdiction of this Court. Hence, while declining to quash the show cause notices I permit the petitioners to file their reply to show cause notices on all the grounds and raise preliminary objection to the show cause that the same is not tenable under the eye of law. The Commissioner shall look into the same with objectivity and pass appropriate order. It is hereby made clear that the competent authority shall not travel beyond the show cause notice and shall confine itself to the allegations made therein. The show cause shall be filed within eight weeks from the date of this order. 32. emsp With the aforesaid direction the writ petitions are disposed of without any order as to costs.
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2000 (6) TMI 401 - COMMISSIONER OF CUSTOMS (APPEALS), CHENNAI
Import trade control ... ... ... ... ..... on 111(o) is not justified, as the licensing authority, the appropriate authority, has treated the export obligation under the licence as having been fulfiled for their purposes. Though Section 111(o) provides for liability to confiscation of ldquo goods exempted, subject to any condition, from duty or any prohibition in respect of import rdquo , the order of the lower authority refers only to the licensing aspect i.e. the absence of a valid licence and not to the non-fulfilment of the conditions of the notification for exemption from duty. This case thus stands clearly distinguished from that of M/s. Pattu Exports (cited by the Department) where the absence of a valid licence was not alleged. In the circumstances, the confiscation of the goods under Section 111(o) on the ground that their import was without a licence and levy of fine and penalty thereon is not maintainable. The order of the lower authority is accordingly set aside with consequential relief to the appellants.
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2000 (6) TMI 393 - CEGAT, MUMBAI
Scrap - Brass scraps - Demand - Limitation ... ... ... ... ..... notice dated 4-9-1997 demanding duty on goods cleared between April to December, 1993 was barred by limitation. Suppression of facts of the clearance of scrap without payment of duty, which was alleged in the notice, could not be sustained and that the appellant had informed the department of such clearances without payment of duty by means of RT 12 returns for the relevant period which contained the invoice showing such clearances. The invoices or the RT 12 have not been produced before us. We find that point of limitation had been taken up both before the Deputy Commissioner and Commissioner (Appeals) and neither of them given a finding. We therefore consider it appropriate that a finding on this point of limitation be given. 5. emsp The appeal is accordingly allowed, the impugned order set aside and remand to the Commissioner (Appeals), who shall after giving the appellant a reasonable opportunity of being heard, adjudicate on the appeal before him in accordance with law.
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2000 (6) TMI 392 - CEGAT, NEW DELHI
... ...
... ... ..... this count is not sustainable. The appellants in support of their contention that the inputs so cleared were used in the manufacture of new transformer which came into existence in the month of October and November, 1996 have produced photocopies of RG 1 register of these months, which shows production of transformers. rdquo 4. emsp I have carefully considered the matter. There is some force in the arguments advanced on behalf of the respondent that what they have sold to the Electricity Board is coil and not the transformer. Coil is a product which were manufactured on which duty has been paid. Duty paid nature of coil is not in dispute. In the facts and circumstances, there is no justification to deny the Modvat credit in respect of the raw materials which were used in the coil and in turn coil was supplied to the Electricity Board. In the view, I have taken, I do not find any infirmity in the impugned order. Accordingly, appeal filed by the department is hereby dismissed.
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2000 (6) TMI 391 - CEGAT, MUMBAI
Mutilation of goods - Confiscation of goods ... ... ... ... ..... on and other defects which would prevent its use as paper and claimed that the import was made for use as scrap. It is contended that goods were considered as waste paper in the country of export. The Collector finds that this claim cannot be rebutted since no one in the custom house was competent to test the goods. (Apparently, the question of having an expert in the trade to test did not come up). In the circumstances, we find nothing wrong in the Collector resorting to Section 24 of the Act. The fact that the Collector ordered confiscation of the goods does not affect this position. He may have found that while technically the goods did not qualify as scrap in India, the fact that they were so considered abroad the purpose of importation justifies its extending the provision of Section 24. 4. emsp We therefore decline to interfere. The department, as indicated above, has liberty to pursue confiscation, if the mutilation as ordered by the Collector has not been carried out.
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2000 (6) TMI 390 - CEGAT, NEW DELHI
Demand - Show cause notice - Appeal ... ... ... ... ..... raised before him. The only plea put forth before him was that the Assistant Collector had travelled beyond the scope of the show cause notices while confirming the duty demand on them. It was never contended before him that the show cause notices were also never received by them. Therefore, for the first time the plea regarding non-receipt of the show cause notices cannot be allowed to be raised. This plea appears to be an afterthought and had been taken just with a view to avoid the payment of the duty amount and as such the same deserves to be rejected. 16. emsp In the light of the discussion made above, the impugned order of the Collector (Appeals) confirming the order ndash in-original of the Assistant Collector regarding the duty demand against the appellants is perfectly valid and no interference in this appeal is called for and as such the same is affirmed. 17. emsp Resultantly, there is no merit in the appeal of the appellants and the same is ordered to be dismissed.
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2000 (6) TMI 373 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... d by Sl. No. 10 which is a residuary serial No. The decision of the Supreme Court in Agra Belting Works is not applicable to the facts of the present matters as the facts are totally different. The issue involved therein was the effect of a notification issued under Section 3 A of U.P. Sales Tax Act, 1948 which empowered the State Government to modify the rate of tax by notification. The Apex Court held that when after a notification under Section 4 granting exemption from liability, a subsequent notification under Section 3 A prescribes the rate of tax, it is beyond doubt that the intention is to withdraw the exemption and make the sale liable to tax at the rate specified in the notification. No such situation exists in the matters before us. We, therefore, hold that the tungsten halogen lamps manufactured by both the Appellants were eligible to nil rate of duty in view of Sl. No. 5 of the Table annexed to Notification No. 68/83. Accordingly all the four appeals are allowed.
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2000 (6) TMI 372 - CEGAT, MUMBAI
Confiscation and penalty ... ... ... ... ..... I find that in the recent past conscious departure was made by the Tribunal from the law laid down which was cited before the Commissioner (Appeals). In the following judgments the liability of the unaccounted goods to confiscation has been upheld Indian Communication Cable - 1997 (96) E.L.T. 267 Rajasthan Petro Synthetics Ltd. - 1997 (95) E.L.T. 549 (Tri.) Dharampal Satyapal Ltd. - 1997 (93) E.L.T. 713 (Tri) Poly Flex Industries Ltd. - 1999 (105) E.L.T. 407 Kanara Wood and Plywood Ind. Ltd. - 1999 (108) E.L.T. 696. 5. emsp The orders of confiscation are, therefore, sustained. However, in the absence of establishment of guilty mind, the quantum of penalty imposed is excessive. The order of the Commissioner(Appeals) is set aside. The penalty imposed in the Asstt. Commissioner s order on the assessee is reduced from Rs. 3 lakhs to Rs. 30,000/- (Rupees thirty thousand) and penalty imposed on Shri Sandip Damani is reduced from Rs. 2 lakhs to Rs. 20,000/- (Rupees twenty thousand).
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2000 (6) TMI 371 - CEGAT, MUMBAI
Appeal by department - Form ... ... ... ... ..... bjections also are raised in the replies by some of the respondings questioning the maintainability of these appeals for this reason. Such defects are clearly remediable. However, no efforts have been made by the Commissioner, despite two opportunities given to him to remedy these defects. It is reported to us today after verification of the records that rectified appeals have not been received. 5. emsp The departmental representative seeks further time but we do not think anything can be achieved by extending the time. These defects were not such that they could not have been remedied within the time that we have given, even taking into account the slowness in which matters proceeding government department as emphasised by the Karnataka High Court in Union of India v. Suresh Shetty - 1986 (25) E.L.T. 657. We therefore find that we have no alternative but to dismiss these appeals under Rule 11 of the CEGAT (Procedure) Rules, 1982. Accordingly stay applications do not survive.
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2000 (6) TMI 361 - CEGAT, MUMBAI
Appeal - Early hearing - Parameters ... ... ... ... ..... s. One crore then we normally grant out of turn hearing. This case does not come within the parameter which is followed by the Tribunal normally. It is true that the applicants may be single out by the department. We have no information whether in respect of cases in which lower duties have been paid, appeals have been filed by the department. One more fact which impel us to deny the early hearing is that in the applicant s own case, the Tribunal has decided against the applicant s contention. Shri Deven Parekh answer is that alternate classification was not considered in that case. It may be so. These are the aspects which have to be considered at the time of finalisation of the appeal. At present, we are looking into certain alternative accommodation. In case the infrastructure of this Tribunal improves within a reasonable time, then we may consider the request of early hearing of this application. At this juncture we cannot acceed to the request. The application dismissed.
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2000 (6) TMI 360 - CEGAT, MUMBAI
Custom House Agents Licence - Suspension of ... ... ... ... ..... considered the rival submissions. We are of the view that the appellant have made out a case. It is rightly contended by Shri Patel that if the violations had occured sometime in 1996-97 for which two show cause notices are given and are pending adjudication and the authority invoking the provisions of exceptional powers provided under Regulation 21(2) of the CHA Regulations, the word immediate has to be given certain meaning. We are aware of the fact about the important role played by the CHA in the working of the Custom House. The CHA has 22 employees. If the suspension is to be made, the authority should take immediate action of enquiry. In this case, admittedly, no such enquiry has been undertaken. Hence, in our view, in this case, the exercise of power under Regulation 21(2) has been wrongly exercised. We are, therefore, of the view that the impugned order is vitiated in law. Hence, it is set aside. Appeal is allowed. 8. emsp The application for stay is also disposed of.
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2000 (6) TMI 359 - CEGAT, NEW DELHI
Appellate order - Stay/Dispensation of pre-deposit ... ... ... ... ..... the appellant who preferred the appeal was a small scale entrepreneur. If his grievance is dealt with by the Commissioner (Appeals) in the manner in which it was done, it will go against the policy ot the Government to help small scale entrepreneurs. Be that as it may, we are clear in our mind that the Commissioner did not apply his judicial mind to the circumstances which led to filing of the appeal. 4. emsp In the circumstances detailed above, we set aside the order passed by the appellate authority and direct him to take back the appeal in its original number and dispose of the same on merits after affording reasonable opportunity of being heard to the appellants. Condition of pre-deposit under section 35F of the Act is waived. Since the matter is staggering on for some time, the Commissioner should pass final order within three months from the date of receipt of this order. We make it clear that reasonable opportunity of personal hearing must be afforded to the appellant.
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2000 (6) TMI 358 - CEGAT, MUMBAI
Life saving equipment - Cardion catheters - Accessory - Notification No. 16/2000-Cus. ... ... ... ... ..... n any case there is no finding as to how Section 111(d) has been violated in the facts of this case under the provisions of which the learned Commissioner has ordered confiscation of the imported goods and invoked penal clauses under Section 112 of the Customs Act, 1962. The learned counsel has submitted that the item in any case is under OGL and there was no cause for confiscation under section 111(d). 3. emsp In view of our findings, the impugned order is set aside and the matter is remanded to the Commissioner to decide de novo the eligibility of the notification as being claimed, along with the certificates which were produced to evidence that the goods are covered by Item 33 and/or 63 of list 28 to Notification 16/2000-Cus. with the direction that the matter should be decided as soon as possible since the equipment are essential life saving equipment decision should be arrived on not later than 15 days from the receipt of the order. 4. emsp Appeal is allowed accordingly.
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2000 (6) TMI 357 - CEGAT, MUMBAI
Stay/Dispensation of pre-deposit - Modvat on capital goods ... ... ... ... ..... t Commissioner and Commissioner (Appeals) that the programmable logic controller was component of furnace required for controlling the temperature. Without rebuting this contention it is not permissible to say that it is not a component part. Clause (v) of the table below rule 57Q(1) defined capital goods as including components, spares and accessories of the goods specified in entries at serial number 1 to 4. It is not in dispute that the furnace is included in the entry at serial number 2. If that is the case it is not necessary that such components themselves should be specified by name or function. The applicant therefore has a strong prima facie case and accordingly waive deposit of the duty and penalty imposed.
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2000 (6) TMI 356 - CEGAT, NEW DELHI
Modvat - Boraquat ... ... ... ... ..... d item i.e. Caustic Soda, it was submitted by the Counsel that this issue has also been covered by a series of decisions including in the case of M/s. Rajasthan State Ganganagar Sugar Mills v. Commr. of C. Ex., Jaipur reported in 1999 (111) E.L.T. 652 (Tribunal). In the absence of the contrary decision benefit is extended on this issue also. 4. emsp With reference to the Boraquat it was submitted by the Counsel that it is a chemical used for mill sanitation. The chemical is used for sanitation purposes during the course of actual manufacturing processes and its use protects the cane-juice from Luconstic Meson tride which helps in increasing the recovery of sugar. 5. emsp Dr. Ravinder Babu ld. JDR vehemently contended that the item as such was neither used in or in relation to the manufacture of sugar and accordingly benefit cannot be extended. Concurring with this arguments modvat credit on this issue is disallowed. 6. emsp Thus, this appeal is disposed of in the above terms.
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2000 (6) TMI 355 - CEGAT, MUMBAI
Appeal - Early hearing ... ... ... ... ..... ore us that once the status of Golden Trading House is changed it will cause irreparable loss to the applicant. We have considered this request. We are of the view that the applicant can inform the DGFT authorities about the pendency of appeals before this Tribunal. This Tribunal is an independent body and once a request is made to the DGFT authorities they have to consider the request on merits, who will consider their request for postponement of the matter. We therefore feel that no case has been made out for the out of turn hearing in this matter. Application stands dismissed.
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2000 (6) TMI 354 - CEGAT, MUMBAI
Stay - Abatement of duty ... ... ... ... ..... value of goods to be determined on the condition in which they are imported there is insufficient material before us to conclude that the component, topside wing tanks, were not missing when the ship entered into India and the loss only occurred thereafter. Even in that situation the provisions of Section 22 of the Act would, prima facie, operate and would justify abatement of the value unless it is shown that the damage took place after the goods were assessed to duty. That is also not the contention in the appeal. 3. emsp We therefore decline to stay the operation of the order and dismiss the application.
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2000 (6) TMI 353 - CEGAT, MUMBAI
Classifictaion ... ... ... ... ..... s for articles of plactic. Reliance is placed on the Supreme Court rsquo s judgment in Superintendent of Central Excise v. Metal Corporation Pvt. Ltd., 1985 (22) E.L.T. 330 (S.C.) 1985 ECR 1745. In that judgment, the Court has upheld the view of the Gujrat High Court that metallic yarn as it is otherwise known would be classifiable under item 15A(2) for the reason that the specific entry relating to articles of plastic of all kinds, and therefore would not be classifiable under item 18. The Supreme Court rsquo s judgment was rendered in a civil appeal 1971-1975 in a situation where the item 18 did not include, by the explanation of metallic yarn. Once that explanation was inserted and metallic yarn specifically made part of that item, it is that entry which is more specific. The judgment of the Supreme Court therefore would not apply to the different facts of the case before us. We therefore see no reason to interfere with the classification arrived at and dismiss the appeal.
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2000 (6) TMI 352 - CEGAT, NEW DELHI
Confiscation of goods ... ... ... ... ..... the imposition of penalty of Rs. 5 lakhs is just. It will certainly meet the ends of justice. We do not see any ground to interfere with it. 7. emsp Ld. Counsel further submitted that Rajasthan State Pollution Control Board granted permission to the appellant on 31-3-2000 for manufacturing and processing Zinc ingots by using Zinc Ash/Dross. This sanction according to Counsel would enable the appellant to reprocess Zinc Residue imported. We are not impressed with this arguments. There is nothing to show that Zinc Residues sought to be imported is similar to Zinc Ash/Dross. So the permission granted by Rajasthan State Pollution Control Board on 31-3-2000 cannot be taken as one authorising the appellant to process Zinc Residue. Further, appellant has not obtained any permission from any authority to import this Hazardous substance. No licence was applied for, nor secured by them. In view of what has been stated above, we find no merit in this appeal. It is accordingly dismissed.
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