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Case Laws
Showing 161 to 180 of 311 Records
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1996 (5) TMI 178 - CEGAT, NEW DELHI
Stay/Dispensation of pre-deposit - SSI Exemption ... ... ... ... ..... ending approval of the Assistant Collector. In the circumstances, prima facie, it appears that they had supplied the required information to the Department and, therefore, it was open to the Department to make such enquiries or conduct such verification as may be required for the purpose of approving the classification list and if necessary issue show cause notice or demand notice in the normal period of limitation. Hence, prima facie the appellants appear to have a better case on time bar. The question as to whether the certificates produced were sufficient for the purpose is agruable and could be considered more appropriately during the course of hearing of the main appeal, as such certificates are issued under IDR Act and those provisions have also to be gone into. 20. emsp Looking to the totality of facts and circumstances and noting the above aspects in particular, we waive the pre-deposit of the amount in question and stay its recovery during the pendency of the appeal.
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1996 (5) TMI 177 - CEGAT, MUMBAI
Modvat - Deemed credit ... ... ... ... ..... nd ought to be taken as granting unconditional exemption, establishing the fact of non duty paid character of the scraped. 4. emsp This Bench has in Re Balaji Alloys already held that the Notification No. 182/84 is a conditional exemption Notification. No decision holding the view contrary, was cited. The larger Bench have in Re Machine Builders (supra) clearly held that in case of conditional exemption, the burden lies on the department to establish non-duty paid character of the goods. Except making an allegations in the Show Cause Notice, evidence is adduced to prove non-duty paid character of the goods and as such the combined effect of both the decision cited, lead to show that the appellants are eligible to avail Modvat credit on the deemed credit basis. 5. emsp In the result we allow the appeal and set aside the order of the authorities below and hold that the appellants are eligible for availment of deemed credit, as claimed by them. Appeal is disposed of accordingly.
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1996 (5) TMI 176 - CEGAT, NEW DELHI
Exemption - Withdrawal of - Effect ... ... ... ... ..... xcess and whether eligible for this concession. The learned Counsel emphasises that even after the date of rescinding namely 16-8-1978 the quantity of excess production would be subjected to concessional rate of duty. This contention is not acceptable inasmuch as there was no saving clause when the Notification No. 36/76 was rescinded. The well settled position in law is that rate of duty prevails on the date of clearance of the goods (Vazir Sultan Tobacco Co. Ltd. - 1996 (83) E.L.T. 3 (SC). We also observe that in the disputed Notification there is no provision for continuing this rate of duty after the date of rescinding nor the rescinding Notification has a saving clause. 6. emsp In view of the above discussions we do not agree with the contentions of the learned Counsel that concessional rate of duty under Notification No. 36/76 shall continue even after the date of its rescinding on 16-8-1978. In this view of the matter we uphold the impugned order and reject the appeal.
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1996 (5) TMI 175 - CEGAT, MUMBAI
Refund - Limitation - Protest ... ... ... ... ..... not entitle the departmental authorities to reject claim in toto. What they have to do, is to adjudicate upon the entitlement for the refund and then examine whether giving of a refund amount in the names of the assessee, would result in unjust enrichment. In cases where the burden of duty has already been passed over to the customers, and it is not possible for the assessee to confer the benefit of refund to those customers, then he has to direct credit of the said amount in the Consumer Welfare Fund. 6. emsp With the observations as above and in view of the finding that the demand is not hit by period of limitation, by allowing the Appeal, we direct the authority below to examine the claim of refund in the light of the amended provisions of Section 11B, and sanction appropriate refund. In doing so, he may grant personal hearing and permit the appellant to adduce such evidence as they may desire, to prove that the benefit of the refund has been passed over to the customers.
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1996 (5) TMI 174 - CEGAT, NEW DELHI
Iron and Steel Castings - Dutiability ... ... ... ... ..... sable for their purpose. In fact, the learned Collector of Central Excise (Appeals) had seen the sample and have recorded a finding that the product was ldquo ready-made component of the Railway Wagon rdquo . The Assistant Collector had also visited the factory and had recorded the findings of facts. In fact, in the statement of facts party had also admitted that their products are tailor-made items for individual customers as per the customer rsquo s specification, designs and drawings and against specific orders. As in this case the goods were ready for use and there is nothing on record to show that any further process was undertaken by the customers, we consider that at the finished stage, the goods were correctly classifiable under Item No. 68 in addition to the duty liability under Item No. 25 at the casting stage. 10. emsp Taking all the relevant considerations into account, we do not find any merit in this appeal and the same is rejected. 11. emsp Ordered accordingly.
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1996 (5) TMI 173 - CEGAT, MUMBAI
Value of clearance - Clubbing of ... ... ... ... ..... een signed by Shri Chandresh Sawant, Sales Manager of Geeta Valves, that cannot establish convincingly that they were produced by Geeta Valves, when there is no admission to that effect. On the contrary, he claims to have signed the certificates on specific authorisation on that day. 8.8 emsp It is not uncommon that low paid workers take part time employment in more than one unit to supplement their income. This cannot be a ground for alleging commonality. 9. emsp In the result, we find that the factors alleged for sustaining the demand on Geeta Valves, no doubt, raise a cloud of suspicion. Unfortunately, investigations have not been carried out to lift the corporate veil to establish mutuality of financial control and flow back of funds in the operations of both the units. Investigations are found to stop in the periphery warranting extension of benefit of doubt in favour of the appellants. 10. emsp We, therefore, allow the appeal with consequential relief, where called for.
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1996 (5) TMI 172 - CEGAT, NEW DELHI
Valuation - Distribution discount ... ... ... ... ..... these distributors was on account of any extra-commercial consideration. 12. emsp The ld. Advocate has number of decisions, which we have carefully gone through. 13. emsp Taking all the relevant considerations into account, we consider that the distribution discount actually given to the distribution oriented dealers was a permissible deduction. The ld. Advocate had submitted before us that while he was not aware of any written agreement this discount was given as per terms of the sale and by established practice. As the allowance and the nature of the discount was known prior to the removal of the goods and was actually given through the invoices, we consider it to be a permissible deduction as per the Hon rsquo Supreme Court rsquo s decision in the case of U.O.I. - 1984 (17) E.L.T. 329 (SC). 14. emsp Accordingly insofar as this discount is concerned, the order of the ld. Collector (Appeals), Central Excise, Madras is set aside and the appeal is allowed. Ordered accordingly.
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1996 (5) TMI 171 - CEGAT, MUMBAI
Reference to High Court ... ... ... ... ..... on today, the decision of the Delhi High Court remains a good law. Further, necessary amendment has been brought out in the Act itself, so as to over-come the difficulty experienced because of the judgment of the Delhi High Court. Said amendment has been made only after the Delhi High Court delivered the aforesaid judgment and even in the aims and objects, there is no mention that the amendment is merely of a clarificatory nature. This therefore, shows that the amendment is of a substantive nature and the same cannot have any retrospective operation as no such mention is made. 6. emsp Considering all these aspects, it cannot be held that any uncertainty prevails as to the interpretation of Section 3 of Additional Duties of Excise (Goods of Special Importance) Act, 1957 as it existed prior to its amendment, in the year 1994. That being the position, therefore, there is no justifiable ground existing for referring the issue to the High Court. The prayer, is therefore, rejected.
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1996 (5) TMI 170 - CEGAT, MUMBAI
Refund - Limitation when provisional assessment finalised ... ... ... ... ..... peal of the Department. I have carefully perused the cited order. In this case, an application for refund was filed on 2-5-1987. At the same time, the claimants had also filed a writ petition for direction to Department to refund the amount. Even where the Hon rsquo ble Single Judge made an order directing that the refund be made, the application for refund had not been dealt with by the Assistant Collector. This judgment is required to be distinguished on the ground that the refund claim had been pending disposal and therefore the provisions of the amended Section 11B would apply. In the present case, it is a fact that the refund claim had been disposed of and final order had been made and refund had been, not only sanctioned but also encashed by the assessee. In this case, therefore, the ratio of the judgment of the Calcutta High Court would apply and therefore the prayer of Shri Mondal would not require to be given effect to by way of direction or advice to the Department.
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1996 (5) TMI 169 - CEGAT, MUMBAI
Modvat - Reconditioning ... ... ... ... ..... moved the goods without payment of duty under Rule 173H or 173L. He also refers to the decision of this Bench reported in 1994 (69) E.L.T. 779 (Tribunal) in the case of Commissioner of Cen. Excise v. Sigma Paints. 4. emsp Considering the submissions made and going through the records, there is no evidence available to show that fresh manufacturing processes were undertaken in relation to the gears received back as defective. Mere filing of declaration under Rule 57G by itself cannot raise a presumption about the appellants having undertaken any new manufacturing process. If the gears were merely reconditioned, the same would not tentamount to any manufacturing process. No evidence seems to have been adduced to convince the adjudicating authority of the appellants having manufactured a new item and in that case there seems to be no justifiable ground to interfere with the order passed by the adjudicating authority. The order, is therefore, confirmed and the appeal is rejected.
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1996 (5) TMI 168 - CEGAT, MUMBAI
... ... ... ... ..... emsp The contention that the goods are ldquo restricted rdquo spares is also not tenable. As we have already noted, the goods do not appear individually, in Appendices 2, 3 Part A or 10. The word ldquo individually rdquo , which is used in Para 51 (1)(ii) is also used in Para 241(5). In the latter sub-para its meaning is explained as ldquo in its own name rdquo . Since both these provisions relate to import of spares by an Actual User it is permissible to ascribe this meaning to the words in Para 57(1)(ii). Since the goods do not appear as feeding rollers for chipboard on a manufacture would therefore be permissible spares and their import would be governed by provisions of Para 51(1). The import of these goods as spares by an Actual User under OGL would be permissible. Since the appeal can be decided on the basis of this reasoning we do not consider it necessary to examine the alternative contention made by the appellant. 7. emsp Appeal allowed. The impugned order set aside.
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1996 (5) TMI 167 - CEGAT, NEW DELHI
Valuation - Dutiability of accessories ... ... ... ... ..... or and the Collector (Appeals) rejected this claim. Hence, the present appeal. 3. emsp According to Rule 2 of the aforesaid Rules, accessories of or for any article when imported alongwith the article shall be chargeable at the same rate of duty as that of article if the proper officer is satisfied that in the ordinary course of trade such accessories are compulsorily supplied along with the article and no separate charge is made for such supply, their price being included in the price of the article. 4. emsp Copy of the invoice produced before us indicates that the price of accessories was not separately shown but was included in the price of the machines but there is nothing to indicate that in the ordinary course of trade these accessories (tools, blades, knives, soldering powder, dies and blocks) are compulsorily supplied alongwith the machine. In the absence of such material, the lower authorities were justified in rejecting the claim for refund. The appeal is dismissed.
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1996 (5) TMI 166 - CEGAT, NEW DELHI
Valuation - Refund ... ... ... ... ..... see. We find that the matter is covered by the Bombay High Court rsquo s decision in the case of Roche Products Ltd. v. Union of India as reported in 1991 (51) E.L.T. 238 (Bom.). The Hon rsquo ble Bombay High Court had held that there was no provision under Section 4 of the Act which authorises the Asstt. Collector to levy duty on the amount of refund. They had stated that in that case the Asstt. Collector had overlooked that the refund was claimed because under erroneous orders, the department recovered the excise duty from the company and that as soon as those orders are set aside, the company would be entitled to get the refund and this refund could not be denied to them. 5. emsp We consider that the facts of this case are similar to those before the Hon rsquo ble Bombay High Court, in the case referred to above. In the circumstances, we find that the view taken by the ld. Collector of Central Excise (Appeals) Madras is not correct. As a consequence, the appeal is allowed.
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1996 (5) TMI 165 - CEGAT, NEW DELHI
Refund of Modvat credit earned on inputs used in export goods ... ... ... ... ..... en is admissible subject to such conditions or limitations as set out in the relevant Notification. Notification No. 85/77, dated 1-3-1987 itself specifies bill of lading or shipping bill as acceptable documents on the basis of which export could be proved. In this case since GP 2 and shipping bill and bank certificates had been produced nothing more remained to be done to establish proof of export. Commissioner (Appeal rsquo s) order therefore cannot be faulted. We are also not able to agree that Commissioner was not competent to sanction refund. Commissioner (Appeals) in fact has allowed refund claims, if the credit is otherwise admissible. The actual sanction was to be accorded by Assistant Commissioner. We therefore do not find any infirmity in the order of Commissioner (Appeals) holding that in these circumstances shipping bill can be considered as valid document in absence of AR 4/AR 4A. 5. emsp In the result, we reject the revenue appeals and uphold the impugned order.
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1996 (5) TMI 164 - CEGAT, NEW DELHI
Proforma Credit/Modvat ... ... ... ... ..... sioner (Appeals) has erred in allowing such credit. 4. emsp Arguing for the respondents the learned advocate submits that they do not remove the electric motors from the factory but these motors are captively used in production of electric fans. The credit would have been inadmissible only in case electric motors had been removed from the factory without payment of duty. This is not the case here. In this connection he draws attention to Chandigarh Collectorate Trade Notice 72/80, dated 19-7-1980 reported in 1980 (5) E.L.T. - T88. 5. emsp We have heard both sides. There is no dispute about the fact that electric motors are not removed from the factory but are used captively in the manufacture of fans. It is now well settled law that even if intermediate products which are fully exempted are produced profroma credit cannot be denied provided goods are captively used in the manufacture of final products. In the result, we reject the revenue appeal and uphold the impugned order.
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1996 (5) TMI 163 - CEGAT, MUMBAI
Modvat - Transitional provisions ... ... ... ... ..... tion, there is no rationale in interpreting the said Rule on covering only the actual duty paid. If the benefit conferred vide Rule 57B was intended to be withheld in relation to inputs lying in the stock, then, there would have been exclusion clause, as the normal reading would be that benefit conferred earlier and available prospectively was not to be given to inputs lying in stock. 10. emsp The logical reading of the entire scheme, and particularly Rules specifically discussed earlier, the objection that Rule 57H of the Rules, permits availment of credit only to the extent of actual amount paid as duty and not at notionally higher rate, does not appear in conformity with the Modvat Scheme. 11. emsp The objection, as also the demand raised, therefore does not appear justified and the order of the authority below, on its merits cannot be sustained. 12. emsp In the result, the appeal is allowed, and the order confirming the demand is set aside. Consequential relief to follow.
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1996 (5) TMI 162 - CEGAT, NEW DELHI
Cigarettes - Sample check ... ... ... ... ..... cks undertaken on 5th, 6th and 8th September, 1986 and this change was neither reported to the department nor fresh approval sought from the competent authority before 8-9-1986 we hold that there was suppression in respect of cigarettes sorted out on 5th and 6th September, 1986 and therefore, the extended period beyond 6 months shall be applicable only to these cigarettes and not to other clearances prior to 5-9-1986. 14. emsp Having regard to the above discussions, we hold as under (a) Duty shall be chargeable at tariff rate on the cigarettes found packed in packets whose surface design did not conform to the approved surface design and segregated on 5th and 6th September, 1986, (b) The quantum of penalty is reduced to Rs. 1.0 lac (one lac), (c) The appellants shall be eligible to benefit of concessional rate of duty under Notification No. 201/85, dated 2-9-1985. 15. emsp But for the above modifications, the impugned order is upheld and the appeal is disposed of accordingly.
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1996 (5) TMI 153 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... ing having been issued to them on 26-4-1996, hence, we heard the learned DR and perused the records. 3. emsp The imported goods are toothed tapes of steel in running length. The appellants have not been able to substantiate their claim that the item is ready for fitment in lifts, even though they have stated in their memo of appeal that it had all the specially required properties and characteristics of lift machinery. It has not been disputed that the toothed tape is used as endless belt by joining two ends after cutting the tapes to required size and hence applying Note l(h) to Section XVI of the CTA, 1975, which excludes endless belts of metal from the coverage of Chapter 84, classification under Chapter 84 is ruled out. The original assessment under Heading 73.33/40 (1) ldquo as other articles or iron and steel not elsewhere specified rdquo is more appropriate. Hence, we, therefore, see no reason to interfere with the impugned order, uphold the same and reject the appeal.
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1996 (5) TMI 152 - CEGAT, NEW DELHI
... ... ... ... ..... lowed in view of the reasons given in the application, in particular the fact that the department has initiated prosecution proceedings and the delay is likely to cause irrepairable loss. 2. emsp Fixed for hearing on 24-7-1996.
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1996 (5) TMI 151 - CEGAT, NEW DELHI
Appeal dismissed for default in appearance ... ... ... ... ..... mitted that there was no negligence on his part and it will cause his client grave injustice if the stay application and... (sic) 2. emsp Shri Haja Mohideen, learned JDR, has no objection for the restoration of the appeal and the stay application. 3. emsp In the interest of justice, the appeal is restored to its original number and the stay application will be heard on 24th April, 1996.
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