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Showing 161 to 180 of 333 Records
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1999 (1) TMI 181 - CEGAT, MUMBAI
Demand - Limitation ... ... ... ... ..... er content is predominant. The circular does not contain the reasoning leading its conclusion. It is apparently based on the advise of the Ministry of Law which is not before us. 6. emsp We do not consider it necessary to ascertain the correctness or otherwise of the Board rsquo s view in the circular. The circular was issued in 1982, ten years before the clearance of the goods by the appellant (in 1992-93 and 1993-94) for which the notice was issued. The circular would have been given wide effect to widely by and the conclusion is inescapable that manufacturers of such products would have been under the belief that the benefit of the notification would be available within the circumstances specified in the Board rsquo s circular. There would then be no intention to evade duty. The extended period therefore would not apply and the demand would be barred by limitation. 7. emsp We therefore allow the appeal on this ground, and set aside the impugned order. Consequential relief.
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1999 (1) TMI 180 - CEGAT, NEW DELHI
Iron and steel - Annual capacity of production based duty ... ... ... ... ..... Commissioner has to pass an order accordingly (reviewing the position) after providing an opportunity to the appellants. According to department this right cannot be extended to the party in view of the wordings under Rule 96ZO(3). In our view the right so vested and the statutory right cannot be divested by Rule and in the facts and circumstances of the case and in view of the conflict between Section 3A(4) and Rule 96ZO(3) the benefit vested under Section 3A(4) cannot be denied on the ground that the party has opted for payment of duty under 96ZO(3). With these observations, we are remanding these two matters to the concerned Commissioner for determination of the actual production and re-determine the amount of duty payable by the assessee with reference to such actual production as envisaged under sub-section (4) of Section 3A and to pass an order in accordance with law after providing an opportunity to the appellants. Thus, these two appeals are allowed by way of remand.
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1999 (1) TMI 179 - CEGAT, CALCUTTA
Stay/Dispensation of pre-deposit - Modvat on capital goods ... ... ... ... ..... arc furnace. As such, Shri Maitra explains that the Slag Pots play an active role in the manufacture of final product, which is indispensable for producing the goods in question. He prays for unconditionally allowing of the Stay Petition. 2. emsp Learned JDR, Shri S.N. Ghosh reiterates the findings of the Assistant Commissioner and submits that the point that solidified mould is further re-cycled had not been taken before the authorities below and as such it is not an available fact on record. 3. emsp After considering the submissions from both sides, I find that the Tribunal in the case of dust-collection bags has considered the same to be capital goods having been entitled to the Modvat credit. On the same analogy, Slag Pots which are used for collecting liquid wastage metal are, prima facie, liable to be considered as capital goods under Rule 57Q entitled to the Modvat credit. Accordingly, I allow the Stay Petition unconditionally and fix the main appeal also on 1-2-1999.
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1999 (1) TMI 178 - CEGAT, CALCUTTA
Stay/Dispensation of pre-deposit - Penalty ... ... ... ... ..... a directly but is to the effect that he has heard from Shri Bairagi that the goods have been brought from Bangladesh by Shri Bairagi and Shri Chittaranjan Saha, the applicant herein. As such, the statement is based upon not on the direct knowledge of the driver but on hear-say. Further the items recovered from the residence of Shri Chittaranjan Saha are not of the type which conclusively connect the applicant with the seized goods. Presence of VCP connecting cord and VCP manual in the residential premises of any person does not reflect upon the involvement of that person in the smuggling activities. Similarly, the presence of driver rsquo s Bank pass-book in the applicant rsquo s house only shows that two were acquainted but does not through any light on the connection of the appellant with the smuggling. As such, the applicant has been able to make out a good prima-facie case against him requiring the dispensation of pre-deposit and staying the recovery. I order accordingly.
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1999 (1) TMI 177 - CEGAT, NEW DELHI
Waste, scrap and pairings of plastic after the availment of Modvat credit eligible for benefit of exemption under Notification No. 14/92-C.E.
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1999 (1) TMI 176 - CEGAT, NEW DELHI
Iron and steel - Off-cuts ... ... ... ... ..... and was used for re-rolling, it could not be covered by the definition of waste and scrap. The Collector (Appeals) upheld the order of the Assistant Collector and hence this appeal by the assessee. 2. emsp We have heard Shri Vinod Agarwal, learned Advocate and Shri R.K. Sharma, learned DR. We find that in the case of LML Ltd. v. Collector of Central Excise, Kanpur reported in 1997 (94) E.L.T. 273 (S.C.) the Hon rsquo ble Supreme Court has held that such cut off portions of steel sheets are to be considered as off cuts rsquo and required to discharge duty at the appropriate rate under Heading 72.10 of the Schedule to the CETA, 1985 which covers Angles, Shapes, Sections of iron and steel not elsewhere specified........ . The ratio of the above judgment is applicable in this case. We hold that the product in dispute is required to discharge duty as off cuts under Heading 72.10 and is not waste and scrap as claimed by the appellants. The appeal is disposed of in the above terms.
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1999 (1) TMI 175 - CEGAT, NEW DELHI
Stainless steel tubes - Benefit of Notification No. 202/88-C.E. available. ... ... ... ... ..... view in favour of the assessee in the case of Famous Machine Tools and Famous Iron Works holding that the assessee has rightly availed exemption in terms of Notification No. 202/88. Further in their very case, the Asstt. Collector concerned has taken the similar view and referred to Order Nos. 21/DEN/93, dated 17-6-1993 and No. III/D/95, dated 13-9-1995 passed by the Asstt. Collector. 4. emsp On going through the orders before the Tribunal, Shri M.P. Singh, the ld. JDR submitted that he has no objection to remand the matter for reconsideration. 5. emsp We have carefully considered both sides. Subsequent to the filing of this appeal, since the Department has laid the view that exemption has rightly been availed by the assessee under Notification 202/88 in respect of similar items, as stated by the ld. Counsel, it is appropriate that this matter be reverted back to the concerned Commissioner who has passed the impugned order. Accordingly, the appeal is allowed by way of remand.
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1999 (1) TMI 174 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... examine whether the product imported by the importer is the same which is specified in the notification. If the product does not fall in the Heading specified in the notification, the benefit cannot be extended on the basis of letter of the Department of Electronics. For becoming eligible for benefit of notification, main requirement of the notification has to be satisfied. The facts in the case of Gem Electro Mechanical Pvt. Ltd., relied upon by the respondents, were completely different as in that case the benefit of notification was denied on the ground that dumate wire was not used in the manufacture of glass to metal seal. In light of these facts the certificate produced from the competent authority was considered. Accordingly, we hold that the product imported by the respondent falls under Heading 35.06 of the Customs Tariff Act and for the reason the benefit of Notification No. 172/92 was not available to the importer. We, therefore, allow the appeal filed by Revenue.
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1999 (1) TMI 173 - CEGAT, NEW DELHI
Stay/Dispensation of pre-deposit - Penalty ... ... ... ... ..... have gone through the impugned order. We have heard both sides. We find that the adjudicating authority has not at all rebutted the certificate of origin which shows the goods to be of Nepalese origin. Adjudicating authority rsquo s reliance on the report of Inspector, Katarnia Ghat regarding non-clearance of the consignment from the said L.C. Station does not, prima facie detract from the certificate of origin relied upon by the appellant. We also do not know as to nature of trade opinion relied upon by the adjudicating authority in the absence of any details about it in the impugned order. There is just a reference to it. The said opinion relied upon by the adjudicating authority had been questioned by the appellant in the course of the written submissions at the time of hearing. 3. emsp We prima facie, find that the applicant has a strong case in their favour. Consequently, we allow the stay petition unconditionally. 4. emsp The matter to come up for hearing on 16-3-1999.
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1999 (1) TMI 172 - CEGAT, NEW DELHI
Appeal by Department - Authorisation ... ... ... ... ..... ion 35, as it stood immediately before the appointed day, or the Collector (Appeals) under Section 35A, is not legal or proper, direct any Central Excise Officer authorised by him in this behalf (hereafter in this Chapter referred to as the authorised officer) to appeal on his behalf to the Appellate Tribunal against such order. rdquo 3. emsp On going through the authorisation placed before us, it is not clear whether the Collector has applied his mind or not before giving such authorisation. As per wordings of Section 35B(2), it is clear that he must be of the opinion that the order passed by the Authorities below is not legal or proper before filing the appeal. Since no such wordings are forthcoming in the authorisation, the authorisation is defective. The appeal, as such, is not sustainable. In the view, we have taken, the appeal is dismissed. However, the department is at liberty to file an application for restoration when it is found proper note-sheet place it on record.
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1999 (1) TMI 171 - CEGAT, MUMBAI
Stay/Dispensation of pre-deposit - Exemption ... ... ... ... ..... d not deny the benefit to the goods. We observe that Section 5(A) of the Central Excise Act, 1944 exempts excisable goods. The impugned Notification also serves the same purpose although it is drafted in such a manner as to give a wrong suggestion that it is meant to exempt a factory and not goods manufactured therein. 10. emsp The basic issue is whether the exemption issued under the Section 5A of the Act and Rule 8 of the Central Excise Rules, 1944 would automatically extend to similar imported goods, irrespective of the condition built into the Notification. This issue will have to be gone into at considerable length at the time of hearing of the main appeal. At present we observe that in the light of the Chandigarh Zinc Judgment the importers have made a strong prima facie case. We, therefore, grant unconditional stay and waiver of the sums confirmed in the impugned order. 11. emsp Since, the point of law has to be settled, we post the case for final hearing on 4-12-1998.
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1999 (1) TMI 170 - CEGAT, NEW DELHI
Barium sulphate precipitated (Blanc fixe) eligible for exemption under Notification No. 23/55-C.E.
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1999 (1) TMI 169 - CEGAT, CALCUTTA
Stay/Dispensation of pre-deposit - Demand ... ... ... ... ..... sification list will not result in suo moto provisional assessments unless the condition of Rule 9B are duly complied with and bond B-13 is executed. The fact of non-approval of RT 12 returns will not have much bearing. The case law cited by the ld. JDR is of the year 1991 whereas the decision of the case of Universal Paper Mills and Coastal Gases are of later period. Similarly, the decision in the case of Serai Kella Glass Works Pvt. Ltd. is distinguishable as the assessments were admitted provisional in that case and it was only in those circumstances, it was held by the Hon rsquo ble Apex Court that no show cause notice is required to be given at the time of final assessing the RT 12 returns in terms of the High Court rsquo s order. Accordingly, by taking note of the decision relied upon by the ld. Consultant, we observe that the applicants have a good prima facie case on limitation and dispense with the condition of pre-deposit of duty. Application is allowed accordingly.
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1999 (1) TMI 168 - CEGAT, MUMBAI
Provisional Assessment - Refund - Precedent ... ... ... ... ..... r Pesticides India Ltd. v. U.O.I. - 1992 (57) E.L.T. 201 is under appeal to Supreme Court. It is no doubt true, as he says, while challenging the application for stay of the operation of the order, the Court directed the respondent before it to execute a bank guarantee of 50 of the amount. However, the operation of the order of the Bombay High Court has not been stayed and the ratio will be binding. We therefore see no reason to not apply it. 7. emsp The cross-objection filed by the importer seeks orders of payment of interest on refund at market rates on the amount as due consequent on the Collector (Appeals) order. At the time when the Collector (Appeals) passed the order there is no provision in the Act for payment of such refund. Cross-objection cannot be entertained on that ground. However, the question of payment of interest may be decided in accordance with the provision of Section 27A of the Act, if applicable. 8. emsp Appeal and cross-objection accordingly dismissed.
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1999 (1) TMI 167 - CEGAT, MUMBAI
Tyres for animal drawn vehicles or hand-carts ... ... ... ... ..... 1-1989 to the Superintendent (Preventive), clarified that tyres is a wheel barrow type designed only for speed upto 15 kms. per hour. This excludes widespread or intended use in autorickshaws. The possibility that some autorickshaws may have been fitted with such tyres by itself does not detract from the fact that the tyres were not designed for use on such vehicles. Apart from this J.N. Dixit, the appellant rsquo s technical advisor and the two dealers, in their cross-examination before the Collector not said anything that such supports the department rsquo s case on the contrary Dixit has explained that the tyres could not be used on autorickshaws when the two tyre dealers have taken a non committal stand. Therefore no material to show that the goods in question were manufactured by the appellant or sold by the appellant as for being used on autorickshaws. The charge in the notice therefore fails. 6. emsp Appeal is allowed and impugned order set aside. Consequential relief.
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1999 (1) TMI 166 - CEGAT, NEW DELHI
Detention of plant and machinery ... ... ... ... ..... has detained plant and machinery and also the goods in the factory in terms of Rule 230 of the Central Excise Rules, 1944. He submits that there is no justification for the same when the stay order of the Tribunal has been complied and the appeal is still pending decision in the Tribunal. 3. emsp We agree with the submission of the learned Advocate, Shri R. Santhanam, the detention order under Rule 230 ibid is not justified in view of the fact that the appellants had duly intimated to the Superintendent concerned on 17-12-1998 regarding the compliance having been made by the applicants/appellants with the Tribunal rsquo s stay order dated 6-3-1998 read with the orders of the High Court of Judicature at Allahabad. Accordingly, we vacate the order of detention dated 18-12-1998 issued under Rule 230 issued by the Superintendent of Central Excise, Range 13, Division II, Kanpur. A copy of the order be given DASTI to the appellants so that it could be communicated to the assessee.
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1999 (1) TMI 165 - CEGAT, NEW DELHI
Refund - Unjust enrichment ... ... ... ... ..... as also appealed against before the Collector (Appeals) who vide the present impugned order, set aside the reasons for the rejection of the refund claim but did not sanction the refund on the ground that the issue regarding valuation of the vehicles in question was pending before the Bombay High Court. Hence this appeal. 3. emsp We have heard both the sides and find that the issue regarding valuation of the vehicles has been decided by the High Court by its order in Writ Petition No. 4412/88, dated 2-9-1996 in favour of the assessees, holding that interpretation of the Department on the valuation of the vehicles for which there was an existing factory gate price, was unjustified and contrary to law. In view of the High Court order finally deciding the valuation issue, we direct the provisional assessments of the vehicles to be finalised in the light of the High Court order dated 2-9-1996 and grant consequential refund accordingly. The appeal is disposed of in the above terms.
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1999 (1) TMI 164 - CEGAT, MUMBAI
Reference to High Court ... ... ... ... ..... aller words and the area occupied by the trader logo is much smaller than the area occupied by the manufacturer logo. Therefore, the ratio of the Palsons Drugs judgment would squarely apply to the present case. 8. emsp We have also examined the Nippa Chemicals judgment. In this case also the label bore the name and address of the manufacturer as also of the marketing company. In this judgment the Tribunal observed that mere projection of the name does not amount to it being a brand name. The ratio of the judgment would, therefore, be limited to the 18 numbers where the logo of the trader is not shown. 9. emsp Following the ratio of the Palsons Drugs and Chemical Industries judgment, we find that the orders of the Asstt. Commissioner were properly made and that the Commissioner rsquo s orders do not sustain. We allow these two appeals, set aside the Commissioner rsquo s orders and restore the orders of the Asstt. Commissioner. 10. emsp Stay applications also stand disposed of.
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1999 (1) TMI 163 - CEGAT, MUMBAI
Adjudication - Provisional assessment ... ... ... ... ..... tions and the documents such as price-list, RT 12 returns would have been considered by the same officers. In that situation it might not be possible to hold that there was any suppression of the fact that the scrap was being utilised for manufacture of machinery parts, the value was declared less than the value declared for the scrap cleared on payment of duty. This fact also was not brought to the attention of the Collector in the reply to the notice. The only ground taken in reply was that the scrap which was cleared on payment of duty was of better quality. There is no evidence in support of this contention. 4. emsp These aspects had not been gone into by the Collector, and in our view, are required to be gone into for the correct determination of the issue involved. We therefore order that the matter should be decided afresh by the Commissioner after giving the appellant an opportunity of being heard on these issue. Appeals accordingly allowed. Impugned orders set aside.
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1999 (1) TMI 162 - CEGAT, MADRAS
Classification ... ... ... ... ..... tion of its own unless it is connected to the main unit. The Commissioner has further examined the matter in detail and has perused the technical literature and arrived at the conclusion that the item does not have independent function of its own. Since it is connected to the main machinery and being a part, it is not specified any where specifically, it has been rightly classified under sub-heading 8485.90 as rdquo others and the main Heading 84.85 reading ldquo Machinery parts, not containing electrical connectors, insulators, coils..... not specified or included elsewhere in this chapter. rdquo 6. emsp On careful consideration of the submission, we are satisfied that the item being an independent one and not having functions of refrigeration, hence the classification claimed by the Revenue under sub-heading 8418.00 requires to be rejected and in that view of the matter the appeal is dismissed. The cross appeal being in the nature of arguments, the same is also disposed of.
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