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Case Laws
Showing 121 to 140 of 419 Records
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1997 (8) TMI 308 - CEGAT, CALCUTTA
Reference to High Court - Limitation ... ... ... ... ..... period of six months. Question of imposition of penalty does not arise in the facts and circumstances of the case. Therefore, penalty of Rs. 5,000.00 is also set aside. Appeal is disposed of in above terms. 3. emsp We have heard both sides. The question raised by the applicant Commissioner assumes that the Revenue was not aware of the emergence of intermediate product i.e. aluminium wire of 9 S.W.G. We are afraid, this assumption is basically wrong as already found in our finding that a process of manufacture of an excisable commodity is supposed to be known to the Revenue. They cannot claim ignorance about the process of manufacture before approving the classification list and the price list. It is, therefore, clear that our finding on the demand being time barred is essentially a finding of fact based on overall facts and circumstances. The question now raised is, therefore, not a question of law and cannot be referred to the High Court. Application is, therefore, rejected.
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1997 (8) TMI 307 - CEGAT, NEW DELHI
Demand - Non-accountal of goods ... ... ... ... ..... m, 26 switch boards had been installed during the period from October, 1986 to September, 1987. It is quite possible that this witness committed an error in referring to the number of the switch boards, since, even according to the Collector, 3 had been installed or used 5 years previously. We are, therefore, inclined to understand the statement of this witness subject to this error. 6. emsp In the light of the aforesaid circumstances, the appellant would have it that it is not a fit case for imposition of penalty. We are not able to agree with this submission, particularly in the light of the admission of responsible officers of the appellant regarding installation of the switch boards without payment of duty. However, taking into consideration the events such as payment of duty even before the Panchnama, we are of opinion that the quantum of penalty could be reduced to Rs. 1 lakh. The penalty amount is, therefore, reduced to Rs. 1 lakh. The appeal is allowed to this extent.
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1997 (8) TMI 306 - CEGAT, MADRAS
... ...
... ... ..... the cost of production of RCC poles, the ultimate cost of production will have to be higher to that extent and accordingly the assessable value and the corresponding duty thereon will have to be higher. The establishment charges 15 and contingency charges 5 should form part of the assessable value of RCC poles. 5. emsp It is seen even in this order it has been only vaguely mentioned that some indirect expenses would be relatable to the poles which have been manufactured. While in principle, we observe, the plea may be acceptable, but unless it could be established with facts and figures and which are set out in the grounds of appeal or in the narration of facts, the plea cannot be gone into. Since in the present case the required facts are not there and the respondents have not been put to notice in regard to the same, the permission cannot be given at this stage to bring on record any new facts. Following therefore, the ratio of our earlier decision, we dismiss the appeals.
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1997 (8) TMI 305 - CEGAT, MADRAS
Penalty - Modvat credit wrongly taken but reversed and not utilised by assessee ... ... ... ... ..... the Modvat credit wrongly taken, therefore, could not have been levied in the facts and circumstances of this case. But that is not to say that the appellants are not liable to penalty. We observe the learned lower authority has taken note of the fact that there is no allegation against the appellants that they had wrongly utilised any portion of the credit which they had entered in the RG 23C register. The credit has also been reversed on 19-3-1996. When this be the position, the penalty has to be determined with reference to the benefit and the violation and the injury suffered by the revenue. The appellants are assessees paying high duty, according to the learned Advocate. 8. emsp Taking into consideration the totality of the facts and circumstances of the case and pleas made, we are of the view that the ends of justice would be served if the penalty is reduced to Rs. 5,00,000/- (Rupees Five Lakhs). 9. emsp But for the above modification, the appeal is otherwise, rejected.
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1997 (8) TMI 304 - CEGAT, MADRAS
Pond Aerator - Benefit of exemption under Notification No. 49/95-Cus. ... ... ... ... ..... bringing into existence tradeable item and and the tariff has to be therefore, understood in the background, of this technological advancement made and the new production process which have emerged. Taxation authorities have to take note of this realities as are emerging and have to interpret the tariff in a dynamic method to ensure that the benefits as are made available are not denied by reason of any narrow interpretation. The Hon rsquo ble Supreme Court in the case of CCE v. Lekhraj and Sons reported in 1996 (82) E.L.T. 162 has clearly laid down that while classifying the goods under a particular Tariff heading or for Modvat purposes, the scientific advancement made should be borne in mind. Therefore, following the ratio of the decision of the Hon rsquo ble Suprme Court and in view of what we have held above, we are of the view that the learned CCE(A) has rightly allowed the benefit of the Notifications to the appellants. The appeal of the Revenue is therefore, dismissed.
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1997 (8) TMI 303 - CEGAT, MADRAS
Classification ... ... ... ... ..... the Hon rsquo ble Supreme Court ( 3 Hon rsquo ble Judges), and, therefore, we follow the decision of the Hon rsquo ble Supreme Court in this respect and hold that the demand can be made retrospectively for the past period of 6 months. In the premises, there is no merit in the appeal and, therefore, the same is dismissed. Therefore following the ratio of our earlier decision and also the ratio of the decision of the Hon rsquo ble Supreme Court, we hold that there is no force in the plea of the Chartered Accountant and we therefore dismiss the appeal. rdquo 4. emsp We observe that we have held that the goods are classifiable under 2202.90 and also that the demand could be raised for the past period. The learned C.A. informs us that the notification under Section 11C had been issued for part of the period. We observe that so far as the demand is concerned, the lower authority will demand the duty after taking into consideration this notification, if applicable to the appellants.
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1997 (8) TMI 302 - CEGAT, MADRAS
Demand - Limitation - Suppression of facts ... ... ... ... ..... propose to enter into the merits, since we are satisfied that appellant is entitled to succeed on the ground of limitation. Accepting that the relevant classification list did not disclose the use of power-operated circular loom in the conversion of Tape into Fabrics, the trade had been informed even in December, 1987 that benefit Notification will be denied only if power is used in the conversion of Fabrics into Sacks and use of power at any prior stage would not render the Notification inapplicable. If a manufacturer has acted on the strength of such a stand taken by the department, he cannot be considered to be guilty of suppression of material facts in the classification list or intent to evade duty. The notice was issued more than 6 months after the period covered by the demand and since the proviso to Section 11A(1) of the Central Excise Act, 1944 cannot be invoked, the notice would be barred by time. On this ground we set aside the impugned order and allow the appeal.
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1997 (8) TMI 301 - CEGAT, MADRAS
Stay/Dispensation of pre-deposit ... ... ... ... ..... ow stands settled by the ratio of the decision of the First Bench of the Tribunal which considered the decision of the Hon rsquo ble Supreme Court in the case of Bata India reported in 1996 (84) E.L.T. 164, that in case the duty is demanded subsequent to the clearance of the goods, since this duty is now held to be payable in terms of Section 4(4)(d)(ii), the abatements in respect of the same would have to be allowed from the sale price. This view, we have taken in a number of decisions. 9. emsp In the above view of the matter, therefore, we hold that the matter will be required to be looked into afresh. Accordingly, we remand the matter to the adjudicating authority. The appellants shall report compliance in regard to the pre-deposit as ordered above to the learned adjudicating authority, who will after noting compliance, take-up the appeal for disposal. In case the appellants rsquo fail be to comply with the terms of pre-deposit, this appeal shall be deemed to be dismissed.
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1997 (8) TMI 300 - CEGAT, MADRAS
Expert opinion when discarded without reasons by adjudicating authority - Matter to be remanded
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1997 (8) TMI 299 - CEGAT, NEW DELHI
Tubes - Eligible for benefit of exemption under Notification No. 155/86-Cus. ... ... ... ... ..... (16) E.L.T. 356 (Tri.) 1984 ECR 1375 (CEGAT) held that the Tubes imported are of special quality and specification and have actually been so used in the assembly of Heat Exchangers. 6. emsp In view of the above discussion, we find that the Tubes imported by the appellants are parts of the Heat Exchangers. Further, the Notification No. 155/86-Cus., dated 1-3-1986 exempts parts for initial setting or for assembly or for the article specified therein. The Heat Exchangers are provided under the said notification. Therefore, the appellants are entitled for the benefit of the above mentioned notification. In view of this, the impugned order is set aside and the appeal is allowed. Further, the appellants are entitled for the consequential benefit if any subject to the provisions of unjust enrichment as interpreted by the Hon rsquo ble Supreme Court in the case of Mafatlal Industries Ltd. v. U.O.I. reported in 1997 (89) E.L.T. 247 (S.C.) 1997 (68) ECR 209 (S.C.). Ordered accordingly.
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1997 (8) TMI 298 - CEGAT, NEW DELHI
Classification - Import - OGL ... ... ... ... ..... nitor and an alarm is also sounded. In this context, therefore, the instrument basically is not a mere analyser but analyser for the purpose of acting as an electric sound and visual signaling apparatus, which would be more appropriately covered under CTH 85.31. 7. emsp Similarly, we do not find any infirmity in the Collector rsquo s Order rejecting the claim for clearance under OGL. In the Appeal memo they have claimed that goods would be entitled to clearance under Appendix 6 Para 47(4) as portable gas and combustion analyser. Heading 47 covers energy savings/consumption equipment. The impugned goods basically are alarms and therefore we do not find any infirmity in Collector rejecting the plea for clearance under OGL. 8. emsp Considering, however, the facts and circumstances of the case, we reduce the redemption fine from Rs. 75,000 to Rs. 35,000 (Rupees Thirty Five Thousand only). The impugned order is, subject to the modification, otherwise upheld and appeal is rejected.
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1997 (8) TMI 297 - CEGAT, CALCUTTA
Classification ... ... ... ... ..... b-heading, the expression lsquo medicaments rsquo as covered by definition in Note 2(i) (a) is wide enough to cover ldquo bulk drugs rdquo so long as these are products comprising two or more constituents and they have therapeutic and prophylactic use. Once any goods are covered by the definition of lsquo medicaments rsquo under Note 2(i) (a) and (b) their classification under Chapter 38 is ruled out in view of Note 1(c) to Chapter 38. The fact that lsquo medicaments rsquo are products of lsquo chemical industry rsquo is not material. Residuary products of chemical industry are more general in character and, therefore, specific Heading 30.03 i.e. lsquo medicaments rsquo though products of chemical industry will have to be given precedence over the general Heading 38.23. 5.4 emsp In short, Dimethicone BPC is classified under sub-heading 3910.00 and the other products referred to in Para 1.1 are classified under sub-heading 3003.20. 5.5 emsp Appeals disposed of in above manner.
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1997 (8) TMI 296 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... description under Heading No. 90.17 of the Tariff, we consider that the classification of the product under Heading No. 90.17 had not been properly examined by the Ld. Collector of Customs (Appeals). 8. emsp Both the sides agreed that this is a fit case for remand to the jurisdictional Commissioner of Customs (Appeals) who should re-examine the whole matter in the light of our above discussion. 9. emsp We consider that as the matter has not been examined in the light of the discussion referred to above, in the interest of justice an opportunity should be provided to the respondents to make their submission for proper classification of the goods in question. Thus, without going into the other aspects of the matter, including one relating to the classification of the accessories, we set aside the impugned order-in-appeal and remand the matter back to the jurisdictional Commissioner of Customs (Appeals). 10. emsp Thus, the appeal is allowed by way of remand. Ordered accordingly.
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1997 (8) TMI 295 - CEGAT, CALCUTTA
Jurisdiction - Valuation - Demand - Confiscation - Penalty ... ... ... ... ..... on our finding of undervaluation. It would be observed that we have found that the value of equipments would be entire contract price of 26 million DM, as against 21.2747826086 million DM computed by the adjudicating officer in Annexure I to the impugned order. Inclusion of other related charges has been set aside by us. Since the appellant (TISCO) is in Appeal before us against the impugned order and the Revenue has not filed any Appeal, the appellant cannot be put in a situation worse than when he filed the Appeal. Therefore, duty liability of the appellant will be re-determined pegging the value of the equipment at 21.2747826086 million DM found by the adjudicating officer 11. emsp In short, Appeal of TISCO disposed of in above manner. Appeals of the two individuals Dr. J.J. Irani and Shri S.L. Srivastava and of M/s. M.N. Dastur and Co. against imposition of penalty are allowed by setting aside those penalties of Rupees Twenty lakhs, Twenty lakhs and one lakh respectively.
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1997 (8) TMI 294 - CEGAT, NEW DELHI
Modvat - Re-credit after a lapse of three years whether permissible ... ... ... ... ..... supports the view of the Revenue. 11. emsp In the case of Elgi Equipments Ltd. (supra) the Southern Bench has held that re-credit is permissible within 6 months when subsequently authorities held the same final product liable to duty and the said duty paid by the assessee. This judgment is also in favour of the Revenue. 12. emsp In the case of HCL Ltd. (supra), the Tribunal held that the Modvat credit being taken within a reasonable period of 10 months from the date of payment of duty and records evidencing. This citation also is not helpful to the assessee as the re-credit has been taken after 6 months and it is not a case falling within the ambit of facts of the citation. The citations referred to initially taking of Modvat credit and not a case where there has been a redebiting and taking of re-credit after a lapse of 3 years. Hence the citation is totally distinguishable. 13. emsp In that view of the matter, there is no merit in the appeal and hence the same is rejected.
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1997 (8) TMI 293 - CEGAT, NEW DELHI
Stay/Dispensation of pre-deposit - Modvat ... ... ... ... ..... ourse of manufacture of the printing machine. So is the case in the latter appeal which related to automatic cameras in respect of which they had claimed films as an input. 3. emsp Heard Shri V.R. Sethi, learned DR. He supported the impugned order and opposed the plea for stay. 4. emsp In the light of submissions made and the Tribunal decisions cited in support of the stay application it would appear that the applicants have made out a prima facie case notwithstanding the adverse decision in their own case in respect of the subject inputs vis-a-vis the subject final product. The matter may require a deeper examination when the appeal is itself taken up for decision to consider whether the earlier decision may require a second look by reference to a Larger Bench. In the circumstances, I allow the stay petition and grant waiver of pre-deposit of the amount in question for the hearing of the appeal. The recovery of the disputed amount is stayed during the pendency of the appeal.
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1997 (8) TMI 292 - CEGAT, NEW DELHI
Demand - Limitation ... ... ... ... ..... ment as Kgs. and these classification lists have been approved finally allowing clearance at nil rate of duty. In these circumstances, in the absence of any other evidence to show that it was so declared with mala fide intention, only normal period of limitation was available to the Department. There is also some force in the learned counsel rsquo s argument that even otherwise, as it was a bulk drug, they were entitled to the benefit of exemption notification subject to the production of Drug Controller rsquo s certificate which would have been, in the normal course, issued to them in view of their drug licence, a copy of which has been filed. We are, however, not required to go into that aspect at this stage. 9. emsp Looking to the totality of facts and circumstances, we feel that imposition of penality was also not called for as the Department has not been able to show any justification for the same. The impugned orders are, therefore, set aside and the appeal is accepted.
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1997 (8) TMI 291 - CEGAT, MADRAS
Money credit - Appeal - Additional ground ... ... ... ... ..... tant Collector was taken up in appeal by the respondent before us, before the Collector (Appeals). The learned Advocate stated that this question of jurisdiction was raised before the Assistant Collector and he stated that this plea of the appellant is not valid and he has rejected the plea. Therefore, it is seen that when this plea was rejected it was for them to have contended about the same before the Collector (Appeals) by filing a cross objection, but that was not done. Even in the appeal before us the respondents did not challenge the same. It is now a well settled principle that all points which ought to have been raised at the proper time, if not raised, they are barred by principles of res judicata and, therefore, cannot be allowed to be raised before us in the appeal filed by the department. 8. emsp In this view of the matter that the above plea cannot be entertained at this stage and accordingly, the appeal is allowed in the above terms, with consequential reliefs.
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1997 (8) TMI 290 - COMMISSIONER OF CENTRAL EXCISE & CUSTOMS (APPEALS)
Refund - Limitation ... ... ... ... ..... ion should not be invoked. 3. emsp I have carefully considered the submissions made by the appellants. In this case, I find that the appellants have asked for a refund of duty already paid by them vide letter dated 27-3-1996. If it was considered by the department that the refund claim was not in proper format they should have communicated to the appelants immediately. The appellant was given the impression that the refund will be ordered on finalisation of the RT 12 assessment order. But though the RT 12 was finalised in June, 1996, no refund claim was sanctioned and the appellant was asked to file a regular refund claim in July, 1996 only. Since in this case the letter was entertained by the department without asking the appellants to file a claim in a regular form, the earlier letter has to be taken as their refund claim and the claim should be considered within time. 4. emsp In view of the above the appeal is allowed and the Asstt. Commissioner rsquo s order is set aside.
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1997 (8) TMI 289 - CEGAT, MADRAS
Modvat on capital goods ... ... ... ... ..... it consideration only if it is shown that fuel oil has been used in or in relation to the manufacture of the notified finished product. Here since we have held that plants for generation of electricity cannot be taken to be part of the set-up for processes for the manufacture of ferro alloys, the question of extending the benefit in respect of fuel oil for generation of electricity does not arise. rdquo He, therefore, stated that since the process is connected with the manufacture of the ultimate product, the appellants are entitled for the benefit. 3. emsp Heard the learned JDR, Shri Murugandy. He accepts the position that in similar circumstances we have granted the benefit as per the above said order. 4. emsp We have considered the submissions. We find that the process is integrally connected and the boiler in question is used for the ultimate production of the product i.e. the liquid glucose. In this view of the matter, following our earlier decisions we allow the appeal.
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