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Case Laws
Showing 141 to 160 of 410 Records
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1998 (12) TMI 280 - CEGAT, MUMBAI
Stay/Dispensation of pre-deposit ... ... ... ... ..... , we do not find any reason to stay the operation of the order. Neither the appeal nor the departmental representative are able to indicate how the goods in question are to be considered to be flint buttons, which in turn and how these are different from opthalmic blank specified in the notification. The reference to such blanks in the HSN Policy itself is prima facie no basis for denying the notification. Stay application is dismissed.
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1998 (12) TMI 279 - CEGAT, NEW DELHI
Iron and steel - Dutiability on basis of annual capacity ... ... ... ... ..... ical authorities and to ensure that flow of revenue is not stopped during such process of determination. 7. emsp We also notice certain notings appended to the Commissioner rsquo s impugned orders. The noting indicated that the order was prepared by an Inspector and was checked by a Superintendent. Where Rule 4 of the said Rules, requires the Commissioner to issue an order for determination, such entries raise a doubt whether the order was passed by the Commissioner in pursuance of the said Rules. 8. emsp For these reasons stated above, we set aside the impugned order in each case and remand the matters back to the jurisdictional Commissioner with a direction that he shall cause the type of the furnace to be determined by fully qualified technical personnel or body. He shall allow the assessees to be associated with this enquiry and then on the type being so determined, pass appropriate orders strictly in terms of the aforesaid Rules. These appeals are thus allowed by remand.
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1998 (12) TMI 278 - CEGAT, NEW DELHI
Classification of goods ... ... ... ... ..... the manufacture of the pressure cooker and Chapter X procedure is followed in case the use is elsewhere than in the factory of production. Irrespective of the fact of classification of parts of pressure cooker, manufactured by the respondents, the parts will be exempted if they fulfil the conditions specified in the notification since entry at Serial No. 10A of the Notification No. 181/88 refers to parts of pressure cooker (other than cooker body with or without handle, lid with or without handle, and vent weight) classifiable under Chapters 39, 40, 73, 74 or 76 of the CETA. This aspect has not been examined by both the lower authorities. We, therefore, remand the matter to the Jurisdictional Asstt. Commissioner to examine the availability of the benefit of entry at Serial No. 10A of the Notification No. 181/88, dated 13-5-1988 after affording a reasonable opportunity of personal hearing to the respondents. Both the appeal and cross-objections are disposed of in above terms.
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1998 (12) TMI 277 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... s natural rubber 8 , zinc oxide 4 , carbon black 2.4 , sulphur 0.3 , rubber chemicals 0.3 . The use of the product has been explained by the respondent before the Collector (Appeals) as in the retreading of tyres. In the appeal filed by the Revenue before the Tribunal the only ground taken by the Revenue is that the Department has filed the appeal against the Tribunal rsquo s decision reported in 1990 (50) E.L.T. 604 to the Hon rsquo ble Supreme Court. Further, we find that the Supreme Court has by its Order reported in 1998 (97) E.L.T. 23 (S.C.) upheld the order of the Tribunal on classification and rejected the Revenue rsquo s appeal. 5. emsp We, therefore, hold that the ratio of the decisions in the case of Elgi Polytex and MRF (which has been upheld by the Supreme Court), are directly applicable to the present case, and therefore, uphold the order of the lower appellate authority classifying the vulcanising solution under CET sub-heading No. 3506.00 and reject the appeal.
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1998 (12) TMI 276 - CEGAT, CHENNAI
Reference to High Court ... ... ... ... ..... demands for six months were confirmed and while confirming the same the applicability of retrospective effect of Section 11A was considered and it was held that six months duty was recoverable under proviso to Section 11A and in terms of the law laid down by the Hon rsquo ble Supreme Court as reported in 1995 (76) E.L.T. 499 (S.C.) 1997 (71) ECR 480. Therefore, the submissions made by learned DR that there is no question for reference as the issue is settled and also that the issue is hit by the exclusion clause in Section 35G(1) of the Act is sustainable. 6. emsp In that view of the matter, we do not find any merits in the application and hence we reject the same. 7. emsp At this stage, learned Counsel seeks urgent copy of this order to enable them to file revision petition before the High Court as also because the party is contemplating filing declaration under Kar Vivad Samadhan Scheme. 8. emsp The prayer is accepted and the Registry directed to issue the order forthwith.
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1998 (12) TMI 275 - CEGAT, NEW DELHI
SSI Exemption ... ... ... ... ..... s manufactured by the appellants are not entitled to the benefit of Notification No. 175/86. The Tribunal had also observed regarding submissions of Trade Notice issued by the Bombay Collectorate as under ldquo .... What is more significant is that the appellant is not within the jurisdiction of the Bombay Collectorate but is within the jurisdiction of the Pune Collectorate. The earlier Trade Notice issued by the Bombay Collectorate relied upon by the assessee proceeds entirely on the basis of the deletion of sub-heading 4005.00 in Item (iii) of S. No. 4 of the annexure to the notification and without any reference to the presence of Heading 4005 in clause (ii) of S. No. 4 of the annexure to the notification. rdquo 5. emsp As the impugned product falling under Heading 40.05 was specifically excluded from the purview of the Notification No. 175/86 by virtue of paragraph 4(ii) of the annexure, the benefit of notification is not available and accordingly the appeal is rejected.
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1998 (12) TMI 274 - CEGAT, MADRAS
Confiscation of conveyance and penalty ... ... ... ... ..... was not aware of the smuggled nature of the yarn transported, therefore, no penalty was applicable on him. In the case of Sanco Trans Ltd. v. C.C. as reported in 1996 (83) E.L.T. 557 (Tribunal) it has also been held that penalty cannot be imposed even for negligence because negligence per se is different from culpable negligence. In the present case, there is nothing on record to show that as the agents allotting the containers, the appellants were at any stage aware clearly that tainted goods would be transported therein. The container was allotted in the normal course of their business. 4. emsp In view of the said decisions as applicable to the facts of this case, it is seen that neither the container is liable for confiscation under Section 115 of the Customs Act, nor any penalty is imposable on the appellants as agents under Rule 209A of the Central Excise Rules. 5. emsp Hence the appeal is allowed by setting aside the order impugned against the appellants to this extent.
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1998 (12) TMI 273 - CEGAT, MUMBAI
Stay/Dispensation of pre-deposit - Smuggling - Penalty ... ... ... ... ..... he affidavit. Rajubhai S. More is supposed to have prepared the affidavit. There is no finding in the order that Khansara did not sign in his true identity or signed in an assumed identity. Identification of him therefore, prima facie, does not attract penalty. This finding would apply also to Rajubhai S. More, there is no specific act attributes by which penalty could be imposed to Upendra M. Patel. We, however, note that none of these applicants has specifically questioned the situation warranting the imposition of penalty on them but the applications contained the plea of financial hardship. In these circumstances, we consider it appropriate to ask Anilkumar H. Patel to deposit a sum of Rs. 3 lakhs (Rupees Three lakhs) and Rajubhai S. More and Upendra M. Patel to deposit a sum of Rs. 1 lakh (Rupees One lakh) deposits being made within two months from the date of receipt of this order and reporting compliance, we waive the remaining amounts of penalty and stay its recovery.
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1998 (12) TMI 272 - CEGAT, MUMBAI
Valuation - Exemption under Notification No. 245/83-C.E. ... ... ... ... ..... be done by the department is in effect to apply the second proviso to clause (a) of sub-section (1) of Section 4 of the Act which provides that any statutorily fixed wholesale price shall be the assessable value. The valid distinction that the Collector (Appeals) draws between the wholesale price mentioned in that proviso and the retail price preferred to in the notification is sought to be circumvented by the argument that the notification is sought to be so apply it by making appropriate deduction from retail price and it is the wholesale price that would be arrived at. This ignores the fact that the proviso in sub-section (1) will apply where the wholesale price is statutorily fixed. If this contention of the departmental representative is to be accepted, it would result in holding that there was a statutory price for the wholesale price. This is obviously not the case under the Drug (Price Control) Order. 5. emsp We therefore see no reason to interfere. Appeal dismissed.
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1998 (12) TMI 271 - CEGAT, NEW DELHI
Adjudication ... ... ... ... ..... earance of goods. This applies to all cases involved. Hence the claim for all cases is rejected. 4. emsp On perusal of the Order-in-Original and the Order-in-Appeal, we find that in the Order-in-Original, it was observed by the Asst. Collector of Customs (Refunds) that the amendment in Bill of Entry under Section 149 of Customs Act, 1962 is not allowed after clearance of goods. This applies to all cases involved. Hence claim for all cases is rejected. Examining this, we find that the ld. Collector (Appeals) has not confined himself to the points decided by the Asst. Collector, but has travelled beyond the adjudication order. The only issue decided by the Asst. Collector was whether it was an amendment or it was re-assessment whereas the Collector (Appeals) has examined the issue much beyond the scope of the adjudication order. In the circumstances, we set aside the impugned Order and allow the Appeal with consequential relief, if any, to the Appellant, in accordance with law.
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1998 (12) TMI 270 - CEGAT, MUMBAI
Modvat - Demand - Clandestine removal ... ... ... ... ..... nswer the point. A comparison of the entries in out material register with the gate passes issued on 16-7-1990 would show that goods covered by gate passes 119, 120, 121 dated 16-7-1990 all have been entered in the out material register on 16-7-1990. Details of goods covered by gate pass 122 are found in the out material register entry on 17-7-1990. In this case too, therefore, my reasoning with regard to earlier gate pass 68 would apply. It would have to be held that it is not established that the appellant removed the goods without payment of duty. 8. emsp Appeal on this part of the order in this regard succeeds. The Collector rsquo s order in this regard is set aside. 9. emsp Penalty has been imposed for both the contravention that I have dealt with and is therefore appropriate that the claim, if any, penalty imposable to be decided afresh with regard to earlier discussed in paragraphs 3 and 4 of the order. Accordingly penalty is also set aside. 10. Appeal allowed in part.
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1998 (12) TMI 269 - CEGAT, NEW DELHI
Appeal - New plea/ground ... ... ... ... ..... assed or not to the customers rdquo . He did not admit the said certificate from the C.A. at the appellate stage, Consequently he dismissed the appeal. Hence this appeal before the Tribunal. 6. emsp Now the appellants relying on Supreme Court judgment mentioned (supra) submit that the certificate of the C.A. should be taken on record. I am unable to accept this plea of the appellants. The acceptance Certificate of C.A. is neither a new ground, nor it is a question of law. It is only an evidence regarding a fact that the burden of duty has not been passed, by the appellants to their customers. This has been the question right through from the stage of original adjudication. This evidence could be produced earlier by placing the books of Account, the fact in question which was before the original authority. The Lower Appellate Authority has rightly rejected taking the certificate of C.A. on record. Hence I do not find any substance in the appeal. Consequently I reject the same.
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1998 (12) TMI 268 - CEGAT, MUMBAI
Valuation (Central Excise) - Captive consumption ... ... ... ... ..... d Quarters Office, Vadodara, referring to that Superintendent letter, reporting on queries relating to this aspect. The fact that the Assistant Commissioner considered it necessary to write to the Head Quarters office in this regard displays his belief that the matter was decided by the Commissioner. We are of the view that these two questions whether Modvat credit of the duty paid on ingots would be available for payment of duty on billets and whether, where the assessee did not take Modvat credit of the duty paid on inputs in arriving at the cost of the finished goods under Rule 6(b)(iii) the Modvat credit available could be deducted, should appropriately be decided by the Commissioner. Both involve consideration of facts and figures. 7. emsp Accordingly we hold that duty was payable on the billets but remand the matter to the Commissioner to decide these two questions and determine according to law, the actual duty payable. 8. emsp Appeal allowed. Impugned order set aside.
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1998 (12) TMI 267 - CEGAT, MADRAS
Modvat credit admissible ... ... ... ... ..... re of the notified finished product. 5. emsp The learned Consultant pleaded that this Tribunal in respect of use of the same material has allowed the appellants the benefit of Modvat credit and referred to Order No. 172/93, dated 21-4-1993. 6. emsp We have held in a number of cases that so long as the use of the materials either in the preparatory stage or during the process of the manufacture or in the finishing stages is in relation to the manufacture of the finished product or to render the goods marketable and the use is a technical necessity, the Modvat credit is allowable. Therefore, following the earlier decision in the case of M/s. Addisons and Co. Ltd., we hold that the orders of the learned Lower appellate authority are maintainable in law and dismiss the appeals. 7. emsp Since the cross objection filed is only in the nature of comments, the same are dismissed as misconceived in law. 5. emsp On applying the ratio of the above noted judgment, this Appeal is rejected.
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1998 (12) TMI 266 - CEGAT, MUMBAI
Modvat - Transitional credit ... ... ... ... ..... am unable to appreciate the reasoning of the Commissioner (Appeals) that this interpretation is in contrary to legislative intent. A fair reading of the rules does not offer any support for his view. 6. emsp On being asked Mr. Rahul Shah, Director of the appellant says that he will be in a position to show before the Assistant Commissioner evidence of presence of correlation of the inputs of the stock of semi-finished and finished goods lying on the date of claim lying in the factory on showing to the satisfaction of the Assistant Commissioner credit should be granted. 7. emsp Accordingly the appeal is allowed to the extent that credit will be available on the stock of inputs contained in the semi-finished and finished goods to the extent that the appellant is prepared subject to the verification of the documents produced by the appellant confirming this. This exact quantum of credit should be worked out and indicated after considering the documents produced by the appellant.
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1998 (12) TMI 265 - CEGAT, CHENNAI
Rectification of Mistake - Modvat - Limitation ... ... ... ... ..... hat is, 6 months from the date of receipt of inputs. We therefore find that there exists these two mistakes on the face of record of the order. 5. emsp In view of the above findings, we modify the above extracted portion of para 5 of the said Final order to read as follows - ldquo The principles laid down by the Tribunal relying on the above said Tribunal rsquo s decision squarely applies to the facts of this case. Therefore, even though no specific period of limitation is mentioned in Rule 57G, still a reasonable period of limitation is to be read into the rule and which will be 6 months period from the date of receipt of the inputs under the Central Excise and Salt Act read with the rules made thereunder. Admittedly in this case since the credit is taken after a period of 6 months from the date of receipt of the inputs, same credit cannot be allowed as it is hit by law of limitation. rdquo The application for rectification of mistake is therefore allowed in the above terms.
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1998 (12) TMI 264 - CEGAT, CALCUTTA
Modvat - Exemption ... ... ... ... ..... We find that the ratio of the decisions relied upon by the learned SDR is different from the ratio of the decisions relied upon by the learned Advocate. The issue involved in the instant case is whether the appellants were having option about the benefit of exemption notification or to pay duty in terms of other Notification No. 69/89-C.E., dated 1-3-1989. The various decisions referred to by the learned Advocate have held that it is the option of the assessee to either avail exemption given by the notification or to pay the dues. In the Classic Rugs Pvt. Ltd. referred supra, it has been specifically held that where there are two notifications prescribing different notices ........... assessee to choose the one which is more beneficial to him. The Revenue has not disputed that the Notification No. 69/89-C.E. was equally applicable to the appellants. In the circumstances, we allow the appeal setting aside the impugned order with consequential relief, if any, to the appellants.
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1998 (12) TMI 263 - CEGAT, MUMBAI
Modvat on capital goods ... ... ... ... ..... Ltd. v. C.C.E., as reported in 1996 (88) E.L.T. 785 in the light of Larger Bench decision of Sri Rama Krishna Steels v. C.C.E., 1996 (82) E.L.T. 575. In the case of Gujarat Alkalies and Chemicals Ltd. v. C.C.E., 1994 (70) E.L.T. 417, a single member Bench of WRB, held that capital goods have to be for producing of goods or rendering series. rdquo In para 23 of the said judgment, the Tribunal approved the judgment in Nova Udyog Ltd. rsquo s case, 1996 (88) E.L.T. 532. I am therefore of the view that the cooling tower is used in the manufacture of the final product in the plant. As long as this test is approved namely use of the cooling tower inside the plant, which manufacture declared product under Rule 57D, Modvat credit cannot be denied as it is a beneficial legislation and it prevents cascading effect of a duty element. I am therefore of the view that the approach of the lower authorities is wrong and set aside the same. Appeal is allowed with consequential relief if any.
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1998 (12) TMI 262 - CEGAT, MUMBAI
Stay/Dispensation of pre-deposit ... ... ... ... ..... he fact that the explanatory Note E to the HSN was referred to heading covered pencils with or without aluminium ferrules does not prima facie help the applicant nor is the fact that ferrules used with fitter on walking sticks or musical instruments are included in these items, prima facie apply to these goods, nor is the fact that ferrules for musical instruments and walking sticks are classifiable along with other help the applicant rsquo s case. On the contrary they prima facie confirm the classification determined by the department. This is for the reason that there is headings specifically relates to the parts of these goods. We, therefore consider it appropriate to ask the applicant to deposit Rs. 75,000/- (Rupees Seventy five thousand) within two months from today upon which we waive the deposit of the remaining amount of duty and stay its recovery. After depositing this amount application for early hearing will be considered. 3. emsp Compliance on 23rd November, 1998.
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1998 (12) TMI 261 - CEGAT, MUMBAI
... ...
... ... ..... ort of the assessee, but it could not help us in this regard. Each of them refers to British Standard specifications BS 218/1963. These specifications do not make any difference between commercial and industrial quality. On this, being pointed out, Advocate for the appellant state, that these standards were modified by the appellants according to contract specifications and explained that it is the grader copper content in the industrial grade that leads to increase in price. In that case, it would have to be shown by the appellant that this larger content of copper in the industrial grade can be established, and if established would justify the increase in the price to the extent claimed. We therefore set aside the impugned order and allow these appeals by way of remand to Commissioner (Appeals). Either side may lead fresh evidence, and after giving the appellant an opportunity to make submissions and to be heard, the Commissioner (Appeals) then pass orders according to law.
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