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Showing 141 to 160 of 481 Records
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2001 (4) TMI 695
Issues Involved:
1. Whether the time granted to accomplish the export obligation is deemed to have been extended by virtue of the public notification issued by the Government of India on 6-4-1999.
2. Whether the invocation and enforcement of bank guarantees consequent to non-fulfillment of export obligation under EPCG license is barred or suspended by virtue of the pending proceedings under the SICA Act.
Issue-wise Detailed Analysis:
1. Extension of Time for Export Obligation:
The petitioner contended that the export obligation period was automatically extended by a public notification issued by the Government of India on 6-4-1999. The notification allowed license holders who failed to complete their export obligation to apply for an extension of 1.5 years, subject to certain conditions, including the submission of a bank guarantee covering customs duty and interest. The petitioner failed to comply with these conditions and did not apply for the extension within the stipulated time. Consequently, the court found no automatic extension of the export obligation period for the petitioner. The first point was answered against the petitioner, affirming that the petitioner could not avail the benefit of the public notice due to non-compliance with the stipulated conditions.
2. Invocation and Enforcement of Bank Guarantees:
The petitioner argued that the invocation of bank guarantees was barred under Section 22 of the SICA Act, which suspends certain proceedings against sick industrial companies. The court examined whether the invocation of bank guarantees falls under the scope of Section 22. It was determined that the guarantees in question were not related to loans or advances but were furnished to secure compliance with export obligations under the EPCG scheme. The court emphasized that Section 22 applies to the enforcement of guarantees in respect of loans or advances granted to the industrial company, not to guarantees furnished for other obligations. The court referred to various Supreme Court judgments, including Patheja Brothers Forgings and Stamping and Others v. ICICI Ltd., which clarified that Section 22 covers guarantees related to loans or advances, not all kinds of guarantees. Consequently, the invocation of bank guarantees for non-fulfillment of export obligations was not barred by Section 22 of the SICA Act. The court concluded that the bank guarantees were rightly invoked, and the petitioner was not entitled to any relief under Section 22. The second point was answered against the petitioner.
Conclusion:
The court dismissed the writ petition, holding that the petitioner was not entitled to any relief. The connected miscellaneous petitions were also dismissed, and no costs were awarded.
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2001 (4) TMI 686
The Appellate Tribunal CEGAT, Kolkata overturned a personal penalty of Rs. 3.50 lakhs imposed on the appellant, the owner of a transport company, for the seizure of Raw Silk Yarn. The tribunal found lack of direct evidence linking the appellant to the smuggled goods and set aside the penalty order, granting relief to the appellant.
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2001 (4) TMI 685
The appeal was dismissed by the Appellate Tribunal CEGAT, Mumbai due to non-compliance with the CEGAT (Procedure) Rules. The original authorization needed to be filed along with the appeal, but in this case, it was filed later than the appeal itself. The appeal was filed on 6-6-2000, while the original authorization was filed on 5-2-2001.
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2001 (4) TMI 684
The Appellate Tribunal CEGAT, Mumbai granted waiver of pre-deposit of penalty and stayed the recovery for a trader buying goods from M/s. Inventa Electronics Pvt. Ltd. The Tribunal found that the trader did not fall under the ambit of Rule 173Q which covered only manufacturers, producers, or warehouse keepers.
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2001 (4) TMI 683
Issues:
1. Determination of the age of the imported "Calendering Line" machine.
2. Compliance with customs regulations regarding the age of imported machinery.
3. Lack of disclosure of expert opinions to the Appellants.
4. Violation of procedural fairness in the adjudication process.
Analysis:
1. The primary issue in this appeal was to ascertain whether the "Calendering Line" machine imported by M/s. Kapson Polycoats (India) Pvt. Ltd. was less than 10 years old. The Appellant claimed the machine was from 1996, supported by a Chartered Engineer's Certificate. They had abandoned the consignment due to demurrages but later expressed willingness to accept it, subject to reasonable treatment by Customs.
2. The Appellant's advocate argued that the machine's age was certified by a Chartered Engineer as 1996, and they were willing to pay duty based on a 10% increase in the declared value. However, the Department contended that the machine appeared older than declared during the initial examination, and the Chairman of the Appellant's Company admitted a violation of the EXIM Policy by importing a machine over 10 years old.
3. The Department did not disclose expert opinions from M/s. Savita Industries and the Federation of Indian Textile Engineering Industry to the Appellants, leading to a lack of transparency in the adjudication process. The Tribunal emphasized the importance of informing the Appellants of all material used against them and remanded the matter to the adjudicating authority for a fresh decision with proper disclosure and a reasonable opportunity for a personal hearing.
4. The Tribunal found that the impugned Order was passed without issuing a show cause notice or hearing the Appellants in person, even though they had waived the hearing. Despite the waiver, the Appellants should have been informed of the evidence used against them. The lack of disclosure of expert opinions and procedural fairness led to the setting aside of the Order and a remand for a fair adjudication process, including the disclosure of relied-upon material and a chance for the Appellants to present their case effectively. The Appellants were also directed to cooperate with any re-examination deemed necessary by the Department.
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2001 (4) TMI 682
The Appellate Tribunal CEGAT, Kolkata allowed Rectification of Mistake Applications related to Order Nos. A-503, 504/Cal/2000. Revenue's plea to include stockyard charges in assessable value was rejected. The charges were for delivery from the assessee's own stockyard, not a commission agent. Final Order No. A-503/504/Cal/2000 remained unchanged.
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2001 (4) TMI 660
Issues:
1. Entitlement to benefit of SSI Notification based on the use of a foreign unit's logo.
2. Time-barring of the demand raised by show cause notice.
3. Dispute regarding the use of the foreign company's logo and its impact on SSI exemption eligibility.
Entitlement to Benefit of SSI Notification:
The appeal stemmed from Order-in-Original No. 13/95, where the demand was confirmed due to the appellants using a foreign unit's logo, leading to a denial of the SSI Notification benefit. The appellants argued that they had no trade connection with the foreign brand and were deceptively dissimilar. Citing precedents like Rukmani Pakkwell Traders and Union of India v. Pillaiyar Soda Factory, the appellants sought relief. The Commissioner noted the relationship with the foreign company and identified the logo's association with the English company's product, thus rejecting the SSI exemption claim. The Tribunal emphasized the need for a re-examination based on precedents and remanded the case for reconsideration, setting aside the impugned order.
Time-Barring of Demand:
The appellants contended that the demand raised by the show cause notice was time-barred, lacking suppression, a point not fully addressed by the Commissioner. The Tribunal acknowledged this argument and directed the original adjudicating authority to consider the time-barring aspect during de novo proceedings.
Dispute Regarding Foreign Company's Logo:
The dispute revolved around the use of the foreign company's logo by the appellants. While the appellants asserted dissimilarity and lack of connection, the Department highlighted the common logo with minor variations, emphasizing the identification of the product with the English company. The Tribunal stressed the need for a thorough analysis of explanation IX and X of the Notification, along with relevant judgments, and remanded the matter for re-examination to determine SSI exemption eligibility based on the logo usage within the course of trade.
In conclusion, the Tribunal remanded the case for de novo consideration to assess the SSI Notification benefit entitlement, address the time-barring issue, and analyze the impact of using the foreign company's logo on eligibility, emphasizing the need for a comprehensive review based on legal precedents and Notification provisions.
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2001 (4) TMI 659
Issues:
1. Waiver of pre-deposit of duty and penalty sought by the appellants.
2. Allegations of diversion of goods into the domestic market.
3. Commissioner's conclusion based on false declaration and lack of information to DGFT.
4. Application of Dolphin Drugs case judgment.
5. Need for remand to the Commissioner for fresh consideration.
Analysis:
Issue 1 - Waiver of Pre-Deposit:
The appellants sought waiver of pre-deposit of duty and penalties totaling Rs. 10,29,481/- along with an additional penalty on the Managing Director. They imported raw materials under the Advance License scheme, used them for manufacturing final products, and subsequently sold them in the domestic market after paying duty. The department alleged a violation of Notification No. 304/97-Cus. The appellants argued compliance with DGFT's extension for export obligations and cited a previous CEGAT judgment (Dolphin Drugs case) to support their case. The Tribunal found merit in the appellants' submission, noting the department's own referral to DGFT and granted waiver of pre-deposit and stayed recovery.
Issue 2 - Alleged Diversion of Goods:
The Commissioner alleged that the appellants diverted goods into the domestic market without informing DGFT, based on a false declaration. However, the Tribunal found this conclusion unsupported by evidence, as the department itself had referred the matter to DGFT, which granted an extension for export obligations. The Tribunal deemed the Commissioner's inference erroneous and emphasized the need for factual accuracy before drawing conclusions.
Issue 3 - Application of Dolphin Drugs Case Judgment:
The Commissioner's reliance on the Dolphin Drugs case judgment was deemed misplaced by the Tribunal. The Tribunal emphasized that the ratio from the Dolphin Drugs case should be applied without presumption or inference. The Tribunal highlighted the need for a factual basis for conclusions and criticized the Commissioner for deviating from the Dolphin Drugs case precedent without proper justification.
Issue 4 - Remand for Fresh Consideration:
Considering the factual discrepancies and errors in the Commissioner's order, the Tribunal set aside the impugned order and remanded the matter for fresh consideration. The Tribunal directed the Commissioner to reevaluate the case without contradicting the Dolphin Drugs case judgment and to provide the appellants with a fair hearing. The Tribunal stressed the importance of adhering to legal precedents and ensuring factual accuracy in decision-making.
In conclusion, the Tribunal granted the appellants' request for waiver of pre-deposit, criticized the Commissioner's flawed conclusions, emphasized adherence to legal precedents, and ordered a remand for a fresh consideration of the case.
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2001 (4) TMI 658
Issues:
1. Demand based on shortage of crown corks
2. Demand based on shortage of caustic soda
3. Imposition of personal penalties under Rule 209A of the Central Excise Rules
Analysis:
1. Demand based on shortage of crown corks:
The case involved the appellants, engaged in manufacturing aerated water, facing a demand for duty due to the shortage of crown corks. The Tribunal examined the evidence and found that duty cannot be confirmed solely based on the shortage of crown corks, as established in the precedent set by the Tribunal in a similar case. The demand was unsustainable as there was no evidence regarding the manufacture of the specific quantity of aerated water in question. Therefore, the demand based on the shortage of crown corks was set aside.
2. Demand based on shortage of caustic soda:
Regarding the demand related to the shortage of caustic soda, the appellants argued that the oversight in not showing the quantity issued from the stock register was a mistake. However, they failed to provide any evidence or explanation proving that the quantity of caustic soda in question was indeed used in the manufacture of the final product. Consequently, the demand under specific rules concerning caustic soda was upheld by the Tribunal.
3. Imposition of personal penalties under Rule 209A:
The adjudicating authority had imposed personal penalties on the Director and an employee of the company under Rule 209A of the Central Excise Rules. However, both the adjudicating authority and the appellate authority did not provide any findings to support that the individuals had engaged in acts or omissions to evade payment of duty. In the absence of such findings, the Tribunal deemed the imposition of personal penalties as unsustainable and set them aside. The appeals were disposed of accordingly, with the demand on the shortage of crown corks being set aside, the demand related to caustic soda being upheld, and the personal penalties being revoked.
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2001 (4) TMI 637
Issues Involved:
1. Classification of 'Resin Bonded Glass Wool' under Heading 70.14 of the Central Excise Tariff Act.
2. Eligibility for the benefit of Notification No. 52/86 C.E., dated 10-2-1986 (Sl. No. 10 of the Table).
Detailed Analysis:
1. Classification of 'Resin Bonded Glass Wool':
The primary issue was whether the 'Resin Bonded Glass Wool' manufactured by M/s. F.G.P. Ltd. falls under Heading 70.14 of the Central Excise Tariff Act. The product was described as a wool felt composed of glass fibers impregnated with synthetic resin. The Assistant Collector, based on the Chief Chemist's test reports, determined that the product was impregnated with resin, thereby not qualifying for the exemption. The Collector (Appeals), however, concluded that the presence of impregnating material did not alter the fabric's character as it was bonded intermittently, leaving air pockets essential for its use as insulation material.
2. Eligibility for the Benefit of Notification No. 52/86 C.E.:
The Notification No. 52/86 C.E. provided a Nil rate of duty for "Glass fabrics other than fabrics impregnated, coated, covered or laminated with plastics or varnishes." The Revenue argued that the product was impregnated with synthetic resin, disqualifying it from the exemption. The Chief Chemist's report indicated the presence of phenol formaldehyde resin, suggesting impregnation. The respondents contended that the product was bonded, not impregnated, citing technical definitions and expert opinions from various research associations which supported their claim. The Collector (Appeals) and the Tribunal upheld this view, emphasizing that the bonding process did not fill the interstices completely, distinguishing it from impregnation.
Conclusion:
The Tribunal concluded that the 'Resin Bonded Glass Wool' is not impregnated, coated, covered, or laminated with plastics or varnishes, based on technical literature and expert opinions. Therefore, the product is eligible for the benefit of Notification No. 52/86 C.E. The appeal by the Revenue was rejected, affirming the Collector (Appeals) decision.
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2001 (4) TMI 628
The judgment concerns an application for waiver of deposit of redemption fine and penalty in a case involving confiscated goods. The applicant's counsel argued that a declaration under the Kar Vivadh Samadhan Scheme had been accepted, so the Commissioner had no authority to adjudicate. The Departmental representative argued that the facts in a previous case were not clear, but the Tribunal found that the decision in that case applied to the current situation. The Tribunal waived the deposit of the redemption fine and penalty and stayed their recovery.
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2001 (4) TMI 627
The Appellate Tribunal CEGAT, Mumbai allowed the appeal, setting aside the order demanding duty and imposing penalty on the appellant for wrongly availing a notification benefit. The appellant claimed benefit under Notification 204/92, not 203/92, and a prima facie case was established. The matter was remanded to the Commissioner for fresh consideration. The appellant was given a month to make submissions before the Commissioner for further adjudication.
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2001 (4) TMI 626
The Appellate Tribunal CEGAT, Kolkata considered three appeals filed by the Revenue arising from the same impugned order of the Commissioner of Customs, Calcutta. The order dropped penal proceedings against three respondents but confiscated ophthalmic lenses valued at Rs. 22,51,440 and ordered repayment of an amount received as duty drawback. The main person settled the dispute under the Kar Vivad Samadhan Scheme 1998, providing immunity to all co-noticees. The appeals filed by the Revenue were rejected on this ground.
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2001 (4) TMI 625
Summary: The Appellate Tribunal CEGAT, Chennai set aside the suspension of the Customs House Agent license of M/s. Sri Venkateswara Clearing and Forwarding Agent, Chennai. The Tribunal found that the suspension under Regulation 21(2) was unjustified as there was no basis for the action and the principles of natural justice were violated. The Tribunal ordered the suspension to be revoked.
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2001 (4) TMI 624
Issues:
1. Entitlement to benefit of Notification 204/92 for imported sheets of second or defective quality.
2. Requirement of establishing nexus between imported goods and exported product for license transferee.
3. Interpretation of conditions of Notification 204/92 regarding transferability of license and fulfillment of export obligation.
Analysis:
1. The appeal involved a dispute over the entitlement to the benefit of Notification 204/92 for imported sheets of second or defective quality. The Department contended that the imported sheets were not entitled to the benefit as the exported product was believed to be made of prime quality sheets, and there was no indication of the imported sheets' quality in the shipping bill. The Asst. Commissioner denied the benefit based on this discrepancy.
2. The importer appealed, and the Commissioner (Appeals) held that the Department failed to prove the exported product was defective. Additionally, the Commissioner required the appellant, as a transferee of the license, to establish a nexus between the imported goods and the exported product. The appeal was allowed based on these findings, leading to the Department challenging this decision.
3. The crux of the appeal revolved around the interpretation of Notification 204/92 conditions regarding the transferability of the license and the fulfillment of export obligations. The Department argued that mere transfer of the license did not automatically extend the benefit of the notification to the imported goods without demonstrating a clear nexus between the imported and exported goods. The Tribunal emphasized that the transfer of the license indicated satisfaction of export obligations by the licensing authority, and conditions 7 and 8 of the notification outlined the requirements for benefiting from the exemption.
4. The Tribunal highlighted that the purpose of the notification was to exempt imported goods to meet export obligations or replenish goods used for exported products. It clarified that once export obligations were fulfilled, the license could be transferred, as stipulated in the policy. The Tribunal explained that the conditions of the notification did not explicitly require the licensee or transferee to prove the specific use of imported goods in the exported product, especially if the goods were covered by the notification.
5. The Tribunal further elucidated that the conditions of the notification, particularly condition 8, clarified that the benefit could be extended to a transferee after fulfilling export obligations. The Tribunal emphasized that the imported goods could be used for purposes other than export obligations if those obligations had already been met. The decision was supported by precedent, including the case of Nitco Marble and Granite Pvt. Ltd. & Anr. v. C.C. Nhavasheva & Anr., which established a similar interpretation.
6. Ultimately, the Tribunal found no reason to interfere with the Commissioner (Appeals) decision and dismissed the appeal, affirming that the transfer of the license and fulfillment of export obligations were sufficient for the transferee to avail the benefit of Notification 204/92 without the need to establish a direct nexus between the imported and exported goods.
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2001 (4) TMI 623
The Appellate Tribunal CEGAT, Mumbai dismissed the appeal by the Commissioner of Customs & Central Excise, Surat-I due to failure in following CEGAT (Procedure) Rules. The original authorisation was provided after the appeal was filed, which was not in compliance with the rules.
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2001 (4) TMI 621
Issues Involved:
1. Legality of the show cause notice.
2. Determination of the assessable value of bulk drugs.
3. Applicability of extended period for demand.
4. Imposition of penalties on the company and its officers.
Issue-wise Detailed Analysis:
1. Legality of the Show Cause Notice:
The first claim made by the appellant was that the show cause notice was invalid since it demanded the entire duty short-levied, despite acknowledging that the duty was voluntarily paid before the notice was issued. The appellant relied on the Supreme Court judgment in J.K. Cotton Spg. & Wvg. Mills Co. Ltd., but the tribunal found no supporting ratio in that judgment for the appellant's claim. The tribunal emphasized that voluntary payment of duty does not preclude the issuance of a show cause notice. The tribunal cited the Supreme Court's judgment in Dunlop India Ltd., which held that estoppel does not apply to taxation matters, and voluntary payment does not negate the need for a show cause notice. Thus, the tribunal found no legal infirmity in the notice.
2. Determination of the Assessable Value of Bulk Drugs:
The principal issue was the determination of the assessable value of bulk drugs, which should have been computed as per Rule 6 of the Valuation Rules, given that the bulk drugs were stock transferred and not sold. The tribunal examined Section 4 of the Central Excise Act, 1944, and the Central Excise (Valuation) Rules, 1975. The tribunal concluded that the value should be based on the cost of production plus profit, as the drugs were not sold in the course of wholesale trade. The tribunal dismissed the appellant's argument that the declared prices under the Drugs (Price Control) Order should be used for valuation, as the order did not fix prices for non-scheduled bulk drugs. The tribunal also noted that the bulk drugs in question, except for Etofylline, were non-scheduled, and thus their prices were not fixed under any law.
3. Applicability of Extended Period for Demand:
The tribunal addressed whether the extended period for demand could be invoked. The appellant argued that the cost construction statements were supplied to the authorities, and the department was aware of the facts, thus negating any suppression. The tribunal referred to the judgment in R.H. Indus. v. CCE, which held that in cases where duty payment results in revenue neutrality due to Modvat credit, the intent to evade duty cannot be alleged. The tribunal found that the facts in the present case were similar and held that the demand for the extended period was not sustainable.
4. Imposition of Penalties on the Company and Its Officers:
The tribunal examined the imposition of penalties under Section 11AC of the Central Excise Act, 1944, and Rule 209A of the Central Excise Rules, 1944. Since the demand for the extended period was not upheld, the tribunal held that the penalty under Section 11AC could not be sustained. The tribunal also noted that the Commissioner did not impose any penalty under Section 173Q, and followed the precedent in ITC Ltd. v. Commissioner of Central Excise, Bangalore, which refrained from imposing penalties under similar circumstances. Consequently, the tribunal set aside the penalties imposed on the company and its officers.
Summary of Orders:
(a) Orders of imposition of penalties on the company and its officers are set aside.
(b) The orders of confirmation of duty for the extended period do not survive.
(c) The demand for the normal period of six months sustains.
(d) The case is remanded back to the jurisdictional Commissioner for re-calculation of the demand within the normal period, considering the tribunal's observations.
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2001 (4) TMI 619
Issues:
1. Whether Modvat credit can be extended on inputs without the necessary declaration under Rule 57G.
Analysis:
In this case, the assessees filed appeals against Orders-in-Original alleging that they were manufacturing HDPE fabric classifiable under Chapter 63 of the tariff. The issue arose when it was discovered that there was an evasion of duty amounting to Rs. 8,58,995.92. The Commissioner confirmed the demand on HDPE sacks and laminated fabric, imposing penalties accordingly. The Tribunal, in its final order, set aside the impugned order and remitted the case back to the adjudicating authority for further verification. It directed the authority to look into the duty paid character of inputs used for manufacturing finished products and to reconsider the penalty imposed.
Subsequently, the Revenue filed reference applications seeking to refer the matter to the High Court, challenging the Tribunal's order of remand. The Tribunal, in its reference order, dismissed the Revenue's applications, citing a previous judgment and Apex Court decisions. The Revenue, dissatisfied with this decision, filed RCPs before the High Court under Sec. 35G of the Central Excise Act to determine the question raised. The High Court directed the Tribunal to refer only one question regarding the extension of Modvat credit on inputs without the necessary declaration under Rule 57G.
As per the High Court's direction, the Tribunal instructed the Revenue to file relevant documents for forwarding to the High Court. The Revenue complied by filing four sets of documents. The Tribunal then ordered the Registry to send the statement of facts and documents to the High Court for disposal of the reference applications.
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2001 (4) TMI 618
The judgment by Appellate Tribunal CEGAT, Mumbai involved the import of measuring tapes. Customs classified them as "consumer goods," but importers argued they were tools for industrial use. The tribunal upheld the classification as consumer goods. A dispute over the redemption fine percentage was resolved, reducing it from Rs. 3.25 lakhs to Rs. 1,00,000 based on a margin of profit of about 22%. The appeal was dismissed with this modification.
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2001 (4) TMI 617
The Appellate Tribunal CEGAT, New Delhi upheld the order confiscating goods misdeclared as stones when they were actually glass. The redemption fine and penalty were reduced to Rs. 25,000 each from Rs. 50,000 each. The appeal was disposed of accordingly.
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9911796707
