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Case Laws
Showing 121 to 140 of 318 Records
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1990 (7) TMI 215 - CEGAT, NEW DELHI
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... ... ..... . Shri Gowri Shanker Murthy, the learned Member (Judicial) held that additional duty leviable under Section 3 of the Customs Tariff Act is the duty leviable in terms of the First Schedule to the Central Excises and Salt Act, 1944 regardless of any exemption from such levy. Shri Siem, the learned Member (Technical) held that 10 is not the leviable rate of duty and plays no part in determining the additional duty leviable under Section 3 of the Customs Tariff Act and agreed with Shri Sankaran rsquo s order allowing the appeals which were filed by the Revenue. 11. As the issues raised here were discussed and decided in the earlier appeal (Parekh Dye-chem) and we agree with the findings and conclusions, we do not accept the suggestion of Shri Jayant Bhushan that a Larger Bench should be constituted. Whether a Larger Bench can be constituted, therefore, is not a point that arises now. 12. In the result we follow the ratio of the earlier order (supra) and dismiss all these appeals.
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1990 (7) TMI 214 - CEGAT, NEW DELHI
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... ... ..... therefore the department was free to proceed in terms of the order in force. On the contrary since the appellant has not complied with the provisions of Section 129E and has not filed even a stay application, therefore, the appeal itself was liable to be dismissed. The Court also observed that it was neither fair nor proper on the part of the counsel to produce in the Court an expired order and try to show that it relates to the present case whereas it does not. The Court observed that the learned advocates are also officers of the Court and therefore it was expected that the facts are presented correctly before the Court. 10. The counsel expressed regrets and apologised. 11. I would have taken a more serious view of the aspect of the matter but for the fact that the counsel has ultimately apologised in the Open Court and assured the Bench that he will be more careful in future. 12. With the above observations, I dismiss the appeal for non-compliance with Section 129E CA 62.
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1990 (7) TMI 213 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... active preparation owing to the predominance of inorganic matter, cannot be accepted in the face of the test report which certifies the possession of surface active properties. It is not in dispute that the product contains less than 5 by weight of the principal active ingredient. The product is thus classifiable under T.I. 15AA which covers organic surface active agents and surface active preparations, and is covered by Serial No. 3 of Notification 101/66 which covers surface active preparations and washing preparations containing less than 5 by weight of the principal active ingredients. 6. Having held in favour of the respondents on the merits of the matter, we do not consider it necessary to go into the limitation aspect. 7. We hold that the product Rustodine is classifiable under T.I. 15AA of the erstwhile Central Excise Tariff and eligible to the benefits of Notification Nos. 101/66 and 208/69. 8. We uphold the order of the adjudicating authority and dismiss the appeal.
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1990 (7) TMI 212 - CEGAT, NEW DELHI
Confiscation ... ... ... ... ..... heir penalty to Rs. 5,000/- each. 8. So far as the penalty imposed on Shri Haren P. Choksey is concerned, the learned advocate has argued that the statements given by him were not voluntary as the statements were recorded when he was under arrest. We are unable to accept this argument. In the statements given by him he has stated his involvement in details. His statements are also corroborated by the statement of clearing agent. Shri Choksey has mentioned the name of Shri Mansukhani whom he met in the car show room at Dubai. In our view, he is the man behind the misdeclaration made in the Bills of Entry to evade customs duty. The penalty imposed on him is, therefore, fully justified considering the gravity of the offence committed by him. In the circumstances, we dismiss the three appeals, namely, Appeals No. C/358/90-A, C/369/90-A and C/370/90-A filed by Shri Haren P. Choksey and confirm the orders of penalty imposed on him. 9. The appeals are disposed of in the above terms.
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1990 (7) TMI 211 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... sh, sand-paper, turpentine oil, bale oil and polish other than boot polish or Entry 39 ldquo All kinds of petroleum products and mineral oils including kerosene oil except those which are liable to tax under the Madhya Pradesh Sales of Motor Spirit and Lubricants Taxation Act, 1957. rdquo It was held that the expression ldquo turpentine oil rdquo in Entry 25 must receive colour from the words therein and since the goods in question were of mineral origin and a by-product of petroleum refining, they were held to fall under Entry 39. For the same reasons as set out with reference to the previous decisions, we do not see how this decision also helps the appellants. 21. In the above analysis of the matter, we are of the view that the two products lsquo Technical Gelatin rsquo and lsquo Glue Flakes rsquo manufactured by the appellants fell for classification under Item 15A (1) for the Central Excise Tariff as ldquo Other High Polymers rdquo . Consequently, the appeal is dismissed.
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1990 (7) TMI 210 - CEGAT, NEW DELHI
Manufacture ... ... ... ... ..... assettes adjusted in the above manner the proforma credit of such duty available for payment of duty on recorded Video Cassettes produced and cleared during the said period Rs. 1,09,593.75 The duty liability on recorded Video Cassettes produced and cleared during this period Rs. 63,393.75 Thus payment of duty as per Sl. No. 3 would be fully adjusted as Proforma Credit made at Sl. No. 4. From this, it will be seen that no payment of cash towards duty would be involved. 13. As we have held that assembly of Video Magnetic Tape with plastic covers will not amount to manufacture, we also held that the Customs authorities were perfectly justified in confirming the short-levy demand on the ground that Video Cassette without tapes were also assessable to duty as Video Magnetic Tape imported in dis-assembled condition under Heading 92.01 of the Customs Tariff. 14. In the result Appeal No. E/2450/84-D is allowed with consequential relief, if any, and Appeal No. C/284/88-D is dismissed.
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1990 (7) TMI 209 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... and hence the benefit of Notification 115/86 has obviously been granted to the goods only under that Serial No. and not under Serial No. XI - such an inference is warranted in this case. For the purpose of countervailing duty, the goods fall for classification under Heading 2710.60 of the Central Excise Tariff (which is a specific entry for lubricating oils) and not under the residuary Heading of 2710.99. The definition of lubricating oil contained in Notification 112/87 is identical to its definition in serial No. VII of Notification 115/86-Cus. The certificate dated 4th August 1987 issued by the Indian Oil Corporation clarifies that Cildag and Gredag ML-12 are lubricating oils. Therefore the imports are correctly classifiable under Heading 2710.60 of the CET and chargeable to countervailing duty at the rate of Rs. 3675/- per metric tonne and exempt from payment of auxiliary duty under Notification 112/87. 6. In the result we uphold the impugned order and dismiss the appeal.
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1990 (7) TMI 208 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... 84.59 (page-1367) which is for ldquo Machines whether or not self-propelled for spraying gravel on roads or similar surfaces and self-propelled machines for spraying and tamping bituminous road surfacing materials rdquo . While II(F)(2) and (3) under the Explanatory Notes of BTN page-1367 are for road making machines, it is seen that the machine ldquo The Remixer rdquo has provision for mixing in a pugmill and with addition of new material the same is spread on the surface, it is a combination with a device to prepare the material and then get it spread by the Remixer rsquo s combined tamping and vibrating, it is not doing the sole individual function of road surfacing. Therefore, its classification under 84.59(1) gets excluded. 10. Consequently the classification under Heading 84.56 being more appropriate, the residuary heading under 84.59(1) which has been upheld by the respondent, is set aside. The appeal is, therefore, allowed with consequential benefit to the appellants.
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1990 (7) TMI 207 - CEGAT, NEW DELHI
Price List - Approved by the Assistant Collector with modification ... ... ... ... ..... d on 19-2-1981 and the review application against that order was received by the Collector on 10-2-1982. In both the cases, the review applications were received by the Collector within one year from the date of issue of the orders of the Assistant Collector. Unless the order is issued to the assessee, mere passing order in the file is of no effect against the assessee. The learned Departmental Representative has cited two decisions, one of which is of this Tribunal, viz. 1985 (19) E.L.T. 606, in support of his argument that the time limit under Section 35A was to be counted from the date of despatch of the order. Following the said order, we hold that the review applications filed by the appellants were within the statutory time-limit. We allow these appeals, set aside the impugned orders and remand the matters to the Assistant Collector of Central Excise, Jorhat for de novo decision on the price lists in accordance with law after observing the principles of natural justice.
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1990 (7) TMI 206 - CEGAT, NEW DELHI
Appellate Order in favour of assessee by Tribunal ... ... ... ... ..... gainst the duty payable on the finished goods. The burden of duty on the finished goods thus gets ameliorated. The practical effect may be the same as in the case of a Rule 8(1) notification but, in law, the two are different. The fact that for availment of the exemption under Notification 103/61, the procedure in Rule 56A has to be followed would not mean that the procedure in Rule 56A can have the effect of nullifying or negating the effect of the notification. That can be done only by an amending or superseding notification issued under Rule 8(1). 14. Following the above discussion, we clarify that the prohibition contained in Rule 56A(3) (vi) (b) would not apply to the relief due in terms of the Tribunal rsquo s Order No. 616/88-C dated 27-7-1988. The relief due shall be paid to the applicants by cheque within two months from the date of receipt of this order by the respondent. 15. A copy of this order shall be communicated to the Central Board of Excise and Customs also.
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1990 (7) TMI 205 - CEGAT, NEW DELHI
Penalty reducible when disproportionate to the amount of duty demanded ... ... ... ... ..... lled capacity which amounts to a suppression of facts, entitling the Dept. to invoke the extended period of limitation. The appellants rsquo plea on limitation is therefore rejected. 22. Regarding the issue of computation of the differential duty, we remand the matter to the Collector for e purpose of determining the amount, after deduction of the amount of duty actually paid from the sale price, in accordance with the provisions of Section 4(4)(d)(ii) of the CESA, 1944. 23. In view of the fact that we have upheld the demand of differential duty for the entire period from 18-6-1977 to 31-3-1982, the levy of penalty upon the appellants is sustainable. However having regard to the facts and circumstances of the case we are of the view that the penalty imposed is disproportionate to the amount of duty demanded. Hence we reduce the penalty to Rs. 4 lacs which works out to approximately 25 of the duty demanded. 24. Subject to the above modification, the appeal is hereby dismissed.
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1990 (7) TMI 204 - CEGAT, NEW DELHI
Classification of goods ... ... ... ... ..... llowing the claim of the assessee as there was material on record for allowing the same. We are also of the view that additional ground of appeal can always be taken at the appellate forum. 6. In view of the above discussion and the judgment of the Hon rsquo ble Supreme Court in the case of Add. CIT v. Gurajargravures P. Ltd. (1978) 111 ITR 1 (SC), we allow the appellants rsquo request for raising the additional ground of appeal and we order that additional ground No. (xxv) should be read as under - ldquo The imported goods being parts suitable for the use solely or principally in the DG Set of 4000 KVA rating make NIIGATA, Japan are components and parts and cannot be classified as bearings/bushes and will fall under 8503 or 8483.10 being a specific item covering chem shafts and crank shafts. Hence under no event these items can be classified under Heading 8483.30. rdquo 7. In the result, the miscellaneous application for raising of the additional ground of appeal is allowed.
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1990 (7) TMI 203 - CEGAT, NEW DELHI
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... ... ..... nt of the quantum of penalty. There was a clear and categorical finding that 77 bales of wool waste had been used to conceal contraband of 49 bales of synthetic waste, while in this case, there is no such finding although concealment is alleged. The 2 cases are therefore distinguishable. 7. It is well settled that penalty proceedings are quasi-criminal proceedings and penalty cannot be imposed in the absence of mens rea. In the case of Commissioner of Income Tax v. Anwar Ali (AIR 1970 S.C.1782), the Supreme Court observed that ldquo Before penalty can be imposed the entirety of the circumstances must reasonably point to the conclusion that the disputed amount represented income and that the assessee had consciously concealed the particulars of his income or had fraudulentlyfurnished inaccurate particulars. rdquo 8. The circumstances of this case do not warrant imposition of penalty. We see no reason to interfere with the impugned order and accordingly the appeal is dismissed.
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1990 (7) TMI 202 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... diluent oil, in which the percentage by volume of polyisobutylene is 4 to 10 . The invoice describes the goods as Petroleum Additive -Paratac (Polyisobutylene). The imported polyisobutylene was in a solid state but dissolved in an oily solution, and not liquid polyisobutylene which is covered by Chapter 39. Paratac would more appropriately merit classification under Chapter 38 - as prepared additives for mineral oils - and classification under Heading 38.01/19(3) which reads ldquo anti-knock preparations and prepared additives for mineral oils rdquo . Chapter 39 stands excluded by virtue of Note 2 to Chapter 38, which lists goods which are to be taken to fall under Chapter 38 and not within any other Chapter of the Schedule. 6. In the light of the above discussion, we hold that ldquo PARATAC rdquo is classifiable under Heading 38.01/19(3) of the Customs Tariff. 7. As a result, the impugned order is set aside and the appeal allowed with consequential relief of refund of duty.
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1990 (7) TMI 201 - CEGAT, NEW DELHI
Exemption to captive consumption ... ... ... ... ..... tured or in any other factory of the same manufacturer, from the whole of the duty of excise leviable thereon. The notification does not stipulate that the final products should be manufactured only on the manufacturer rsquo s own behalf it does not restrict the exemption to the owner of the finished goods. Ownership of final goods is immaterial for the purpose of the notification which has to be read in its plain meaning. It is a well settled proposition of law that in a taxing statute, there is no room for intendment and the matter is governed entirely by the language of the notification. If a tax payer is within the plain terms of an exemption, it cannot be denied its benefit by calling in aid any supposed intention of the exemption. The appellants having fulfilled the conditions clearly laid down in Notification 118/75, they are entitled to the exemption contained therein. 5. The appeals are accordingly allowed with the consequential relief of refund of duty already paid.
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1990 (7) TMI 200 - ITAT PUNE
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... ... ..... wait for the decision of the Tribunal in the appeal for asst. yr. 1962-63. 13. The assessee waited till such decision which was rendered on 3rd Jan., 1979 and within few days of receipt of that order filed the return. Facts as they existed at the relevant time constituted reasonable cause for delay in filing of return. As already stated, in reassessment no investigation was required to be made. Effect was to be given to order of AAC in appeal for asst. yr. 1962-63. The proceeding was a formal one. There was no ulterior motive. Considering the entire circumstances taken together we hold that CIT(A) was justified in coming to the conclusion that there was reasonable cause for delay in filing the return in pursuance of notice under s. 148 of the Act and deleting the penalty. We reject the ground raised by the department. In view of our decision on merits, the alternate plea of the assessee about error in computation of penalty need not be considered. 14. The appeal is dismissed.
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1990 (7) TMI 197 - ITAT PUNE
Accounting Year ... ... ... ... ..... statutory requirements of section 44AB and the accounts were maintained in the normal course of business, but not in the manner maintained by the corporate assessees, income returned by the assessee was accepted u/s 143(1) which would imply that there was no mistake in the books of accounts or the books of accounts maintained by the assessee were acceptable. This being the factual position, default u/s 44AB would be only venial in nature and therefore, penalty need not be imposed as a matter of course, especially when the provisions came into force for the first time in the assessment year 1985-86. Reliance is placed on the decision of the Supreme Court in the case of Hindustan Steel Ltd. v. State of Orissa 1972 83 ITR 26. In this view of the matter, therefore, penalty was not justified in the facts and circumstances of the case and therefore, we set aside the order of the CIT(A) on this point and cancel the penalty imposed by the ITO. 8. In the result, the appeal is allowed
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1990 (7) TMI 196 - ITAT PUNE
Assessing Officer ... ... ... ... ..... assessee had claimed only the net expenditure after adjusting the subsidy, the question of going into merits of the subsidy did not arise. We consider that there is force, in the submissions made by the learned departmental representative in this regard. Consequently, we direct that while considering the claim of deduction of cost of feature film in the subsequent previous year in terms of sub-rule (7) of Rule 9A, he should ascertain the actual cost of production of the feature film and the admissibility of the items of expenses thereof and allow the deduction in terms of sub-rule (7) of Rule 9A. In this view of the matter, therefore, we uphold the order of the CIT(A) on this point subject to the directions given above and reject the grounds taken by the revenue subject to the directions given above. 21. In the result, the assessee s appeal is partly allowed for statistical purposes, while the appeal filed by the department is dismissed, subject to the directions given above
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1990 (7) TMI 191 - ITAT NAGPUR
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... ... ..... ing only confirmed the position obtaining at the time of partial partition. It is not disputed that the appellant had paid the shares due to the HUF of A.Y. Khare as well as to Smt. Sumati Y. Khare. Also we find that both these entities have been independently assessed in respect of share of income declared by them in their income-tax returns and have also been assessed to tax on the value of their interest in the partnership firm. In the light of the above discussion, we hold that the share earned by the appellant from the partnership firm of Khare and Tarkunde has to be, by virtue of the memorandum of understanding which we have held is a genuine and contemporaneous document, assessed in the hands of the HUF of A.Y. Khare and Mrs. Sumati Y. Khare to the extent to which they were entitled to receive such share. Similar assessments have also to be made under the WT Act in respect of share of interest of the respective parties. We hold accordingly and allow both these appeals.
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1990 (7) TMI 190 - ITAT NAGPUR
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... ... ..... status of individual. We consider that the WTO could not be faulted on the line taken by him. The AAC clearly misdirected himself when he proceeded to give a finding that the 2.3rd portion of the property of the larger HUF got divided between the mother and the son. A couple of points may here be made. First there is nothing to indicate what type of inquiries he conducted before coming to the said conclusion. Secondly, he overlooked the significant fact that a finding as to the partition of a family can be recorded only in the course of an assessment proceedings of the HUF. Clearly the assessment proceedings of the HUF were not before him. 15. In view of the foregoing, therefore, we hold that the AAC was not justified in directing the WTO to make a substantive assessment in the hands of the minor. 16. In view of the foregoing, therefore, we set aside the impugned order if the AAC on this issue and restore that of the WTO. 17. In the result the departmental appeal is allowed.
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