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Case Laws
Showing 161 to 180 of 387 Records
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1999 (5) TMI 254 - CEGAT, CALCUTTA
Stay/Dispensation of pre-deposit - Penalty ... ... ... ... ..... ther evidence shall be appreciated at the time of final hearing of the appeal. Keeping in view the over-all facts and evidences against the said applicant, we direct him to deposit a sum of Rs. 20,000/- towards penalty. 5.4 emsp As regards Smt. Manju Goba, she is only a registered owner of the truck and no evidence has been brought on record reflecting upon her involvement in transportation of the smuggled raw-silk. Accordingly, on finding a prima facie in favour of her on merits, we dispense with the condition of predeposit of entire amount of penalty. 5.5 emsp Applicants, Md. Ziauddin and Abu Taher are required to deposit the directed amount within a period of eight weeks from today. Subject to deposit of the above amount, the balance amount of penalty shall stand waived and its recovery stayed. It is made clear, in case of non-deposit, their appeals would be liable to be dismissed without any further notice. Matter to come up for ascertaining compliance on 26th July, 1999.
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1999 (5) TMI 253 - CEGAT, CALCUTTA
Appeal/Stay petition - Maintainability of ... ... ... ... ..... e Commissioner should have given another date of hearing to the appellants. As the order has been passed without hearing the appellants in person, we set aside the same and remand the matters to the Commissioner for de novo passing of the order. Needless to say that before passing the order, an effective opportunity would be given to the appellants. At this point, we also note that the Order No. AC/Demand/HS 77-78/98, dated 31-3-1998 passed by the Assistant Commissioner of Central Excise confirming the demand of duty as mentioned above, has been passed in pursuance of the Order-in-Appeal passed by the Commissioner (Appeals), which we have already set aside and remanded to him. If the appellants have filed any appeal against the above mentioned order of the Assistant Commissioner, the Commissioner (Appeals) would also take that into consideration and if possible, pass a common Order in all the appeals. Both the Stay Petitions and the Appeals are disposed of in the above terms.
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1999 (5) TMI 252 - CEGAT, MUMBAI
Classification of goods - Confiscation - Penalty ... ... ... ... ..... re there was a breach of the provisions arising from bona fide belief, then the offender was not liable to penal action. This judgment is dated later than the one cited by Shri Chatterjee and is more related to the facts before us. The importers at all times had claimed that the goods were printed PVC. This belief was shared by the Committee set up to advise the DGFT and therefore. In this case it cannot be held that the importers had acted contumaciously or in any mala fide manner. We also take note of the Supreme Court rsquo s mind in the case of Badruddin Jiwani rsquo s case as given in paragraph 60 that where any products were imported in the bona fide belief the imposition of heavy fine was not warranted. Therefore, on perusal of the facts and the cited judgment in case of Jiwani rsquo s we reduce the quantum of fine from Rs. 10 lakhs to Rs. 1 lakh and remit totally the penalty imposed upon the importers. 19. emsp But for the above modifications, the appeal is dismissed.
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1999 (5) TMI 245 - CEGAT, NEW DELHI
Modvat on capital goods ... ... ... ... ..... rol of electricity or for making or breaking circuits and for monitoring the performance parameters of the system. Credit has been denied on the ground that these goods by themselves cannot be used for bringing about any change in any substance or for producing or processing the goods for the manufacture of final products. However, the Larger Bench of the Tribunal has held that control panels, transformers which transmit and control electricity are capital goods within the meaning of Rule 57Q of the Central Excise Rules, 1944. The Larger Bench has not followed the decision of the Tribunal in the case of M/s. J.K. Pharmachem v. Collector of Central Excise, Trichy reported in 1998 (102) E.L.T. 488 (T) 1997 (21) RLT 868, which has been relied upon in the impugned order. 4. emsp Following the decision of the Larger Bench cited supra, I hold that the items in dispute are capital goods under Rule 57Q, and entitled to Modvat credit, set aside the impugned order and allow the appeal.
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1999 (5) TMI 244 - CEGAT, NEW DELHI
Appeal - Clubbing of clearances of three units ... ... ... ... ..... e Collector against M/s. Maganlal Nandlal and Sons. The CBEC has raised the point that all the three units as mentioned above were situated at same premises, used all the facilities in common and were also managed by the same persons namely family members i.e. father and sons. In other words, the Revenue now seeks in its appeal to club the clearances of all the three firms as mentioned above. But appeal has been filed by the Revenue only against one firm, i.e. M/s. Maganlal Nandlal and Sons, without impleading the other two firms namely S.K. Process and M/s. Haresh and Co. For this reason the Registry also served the notice of appeal only to one party i.e. to M/s. Maganlal Nandlal and Sons. In view of the aforesaid facts and circumstances, one appeal filed against M/s. Maganlal Nandlal and Sons without filing the appeals against other two firms is not maintainable because clearances of all the three are proposed to be clubbed. Hence we dismiss this appeal as not maintainable.
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1999 (5) TMI 243 - CEGAT, MADRAS
SSI Exemption - Value of clearances ... ... ... ... ..... gligible. They clearly indicated that raw materials were received from TTL under the cover of proper documents and hence the Department was aware of these facts and hence larger period is not attracted in this case. This aspect requires to be considered afresh. 10. emsp In that view of the matter, we are of the considered opinion, that the impugned order is not a clear speaking order and it does not take into consideration the various facets of the issue involved and the matter has not been decided in the light of well laid down judgments of Apex Court/Tribunal on the aspect of manufacture of goods, clubbing of clearance, valuation, exemption notification and limitation Therefore, the impugned order are set aside and matter remanded for de novo consideration to original authority who shall grant personal hearing to the appellants and after detailed consideration of the material evidence on record pass a detailed considered order. The appeals thus are allowed by way of remand.
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1999 (5) TMI 242 - CEGAT, NEW DELHI
... ...
... ... ..... - in that case, the attention of the Bench does not appear to have been drawn to the clear distinction between components/parts on the one hand/and sub-assemblies on the other. Although various parts/components go into a sub-assembly, and a sub-assembly in turn is used along with other parts/components in the manufacture of photocopier machines, a component/part is different from a sub-assembly, as seen from the definitions set out above. 7A. emsp In the light of the above discussion, I hold that the items imported required a specific import licence for their clearance and in the absence of such licence,, the import was unauthorised. Confiscation of the goods is, therefore, upheld. However, the appellants are given the option to redeem the same on payment of a fine of Rs. 2 lakhs. I also uphold the penalty imposed upon the appellants, but reduce it to, Rs. 1 lakh, having regard to the facts and circumstances of the case, including the fact that the import took place in 1995.
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1999 (5) TMI 241 - CEGAT, NEW DELHI
Demand - Refund ... ... ... ... ..... lly considered the pleas advanced from both the sides. We agree with the submissions of ld. Advocate Shri M.P. Devnath for the respondents. As rightly pointed out by him proviso to Section 11C(2) does not apply in the facts and circumstances of the present case. Therefore, the ground of appeal taken by the Revenue is not sustainable. On this short point itself, the appeal fails. 7. emsp We also feel, as rightly pointed out by the ld. Advocate, appeal before us is not relating to an application for refund under Section 11B. The matter has originated by notice issued by the Department under Section 11A. Therefore, the question of unjust enrichment in the present case does not arise as sought to be made applicable by the respondents. In this connection, reliance placed by the ld. Advocate on Tribunal rsquo s decision in the case of C.C.E., Ahmedabad v. M/s. Nayan Tobacco Products, Final Order No. 358/99-D, dated 23-4-1999, is squarely applicable and hence we dismiss this appeal.
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1999 (5) TMI 239 - CEGAT, NEW DELHI
SSI Exemption - Brand name/Trade mark ... ... ... ... ..... mitted by the appellants rsquo partner Shri Mukesh Gupta in his statement recorded by the authorities at the time of visit of the Central Excise officers to the appellants rsquo factory. 3.1 emsp He, therefore, submits as regards the burden of proof, that the facts are very clear that the trader being a person not eligible for benefit of Notification 175/86 nothing more is required to be proved by the department in terms of para 7 of the notification. He, therefore, prays for dismissing the appeal. 4. emsp We have carefully considered the pleas advanced from both sides. We are of the view that the facts and circumstances of this case are similar to the facts and circumstances of Thio Pharma rsquo s case which is in favour of the Revenue. Consequently relying on the said judgment of Tribunal we confirm the amount of duty. However, having regard to the facts and circumstances of the case we reduce the penalty amount to Rs. 5,000/-. 5. emsp Appeal disposed of in the above terms.
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1999 (5) TMI 238 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... Ltd. (supra) supports this view. In that case, the item under dispute was a part/component of same machinery. It was held by the Hon rsquo ble Tribunal that the item under dispute would be classifiable as part or component of that machinery under Heading 84.31 and not along with the machinery under Heading 84.28 and 84.29. This was so because Tariff Heading 84.31 specifically covered parts of such machinery. Therefore, applying Section Note 2(b), the applicability of Section Note 4 was ruled out. The issue in the present case is fairly similar inasmuch as that when a separate and clear Tariff Heading i.e., 85.04 is available for the Transformer, then it cannot be classified along with the Electric Furnace by mis-application of Section Note 4. Instead, we find that the Collector (Appeals) has correctly applied Section Note 2(a). 8. emsp In view of the aforesaid findings and analysis, we do not find any merit in the appellant rsquo s Appeal and the same is therefore dismissed.
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1999 (5) TMI 237 - CEGAT, CALCUTTA
Stay/Dispensation of pre-deposit ... ... ... ... ..... ubmissions of both sides. The various case laws relied upon by the learned Consultant lay down as per the Instructions issued by the Board, that the delivery challans issued by public sector undertakings have to be equated to the gate passes and a certificate on the said delivery challans to the effect that the duty has been paid on the material in question, is sufficient. If the delivery challans themselves have to be treated at par with the gate passes, I fail to understand the further requirement of the Department that the details of gate passes under which the duty was paid have to be incorporated in the delivery challans. The basis for availing the Modvat credit is the delivery challans which have been equated to the gate passes meaning thereby that the certificate on the said challans would suffice on the basis of Modvat credit. 5. emsp In view of this, I find sufficient force in the submissions made by the learned Consultant and allow the Stay Petition unconditionally.
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1999 (5) TMI 236 - CEGAT, NEW DELHI
Stay/Dispensation of pre-deposit ... ... ... ... ..... case the ends of justice will be secured on directing Hanumant Cement to pre-deposit a sum of Rs. 12 lakhs towards duty and one lakh towards penalty imposed under Rule 173Q within a period of eight weeks from today. We waive the requirement of pre-deposit of penalty imposed under Section 11AC, accepting prima facie the assessee rsquo s contention that penalty under this Section is not imposable in this case because the period in dispute is prior to the introduction of this Section in the statute. On deposit of the amount as above directed, the requirement of pre-deposit of the balance duty and penalty shall stand dispensed with and its recovery stayed during the pendency of the appeal. Failure to comply with this direction shall result in dismissal of the appeal without further notice. 5. emsp The requirement of pre-deposit of penalty by the three Directors is waived and its recovery stayed pending the appeal. 6. emsp Compliance by the assessee is to be reported on 24-8-1999.
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1999 (5) TMI 234 - CEGAT, CALCUTTA
Confiscation of goods used for concealing the smuggled goods ... ... ... ... ..... hey have been used for coverage, the provisions of Section 119 cannot be drawn attracted. I also find in the instant case that there is no nexus established between the owners of the coils in question and the owners of the smuggled goods. In fact, the adjudicating authority has himself come to the conclusion that the owners of the coils were not aware of the use of the goods for covering the smuggled yarn. I also find that in the Mafatlal Investment case relied upon by the learned Advocate, the confiscation of the goods allegedly used for concealment without the involvement of the owner, was held to be not justifiable and called for. I find that the ratio of the said decision is fully applicable in the instant case. Accordingly, I set aside the impugned order insofar as the same relates to the confiscation of 257 pieces of non-alloy steel coils/circles, totally valued at Rs. 3,55,005.00 and allow the appeal filed by M/s. Hindustan Wires Ltd. with consequential relief to them.
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1999 (5) TMI 233 - CALCUTTA HIGH COURT
Exemption Notification - Classification of goods ... ... ... ... ..... at the non-alcoholic beverage bases in India cannot be treated or understood as new nutritive material absorbed or taken into the body of an organism which serves for the purpose of growth, work or repair and for the maintenance of the vital process rsquo and an average Indian will not treat non- alcoholic beverage bases as food products or food preparations in that light. rdquo 43. emsp If a base of beverage is not food, how the beverage itself can be food? 44. emsp The said decision, therefore, applies in all fours in the present case. 45. emsp For the reasons aforementioned, we are of the opinion that Beer rsquo does not answer the description of Food rsquo for the purpose of the aforementioned Notification dated 17-2-1986 and in that view of the matter the judgment under appeal cannot be sustained. It is set aside accordingly and the writ petition filed by the petitioner is dismissed. However, in the facts and circumstances of this case there will be no order as to costs.
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1999 (5) TMI 232 - CEGAT, NEW DELHI
Custom House Agent’s Licence - Suspension of ... ... ... ... ..... garding any progress in the matter. Learned Counsel submits that pursuant to the appointment of the Enquiry Officer, the appellant appeared for personal hearing in January, 1997 but nothing has been heard from the officer till date. The appellants also wrote to the Commissioner on 23-4-1999, but no action appears to have been taken to complete the adjudication before the date given by the Tribunal viz. 22-4-1999. 2. emsp In the light of the above, and noting that the matter has been pending since December, 1997 and that the Tribunal rsquo s time frame has not been adhered to by the Department and noting that the Bench had directed that the licence suspension would stand revoked if the investigation and adjudication were not completed prior to 22-4-1999, we see no alternative but to revoke the suspension of the appellant rsquo s licence, with immediate effect. The suspension order stands hereby revoked with immediate effect. Copy of this order to be given to both sides. Dasti.
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1999 (5) TMI 231 - CEGAT, CALCUTTA
SSI Exemption - Brand name ... ... ... ... ..... name it was. The appellants rsquo reliance on the Tribunal rsquo s judgment in the case of Jay Drinks Pvt. Ltd. reported in 1999 (105) E.L.T. 134, that the onus to prove that the assessee is hit by Para (7) is upon the Revenue and is required to be discharged by them, is appropriate in the facts and circumstances of the case. The appellants before us still maintain that the said brand name - CITRA rsquo belongs to M/s. LFFL who are small scale industrial Unit entitled to the benefit of exemption Notification No. 175/86, dated 1-3-1986. If that be so then the appellants would not be hit by Para (7) of the said notification. We find that this fact needs verification at the original level. Accordingly, we set aside the impugned order and remand the matter to the Assistant Commissioner with direction to investigate into the appellants rsquo claim and re-decide the matter. Needless to say that the appellants would be given an opportunity of personal hearing before re-adjudication.
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1999 (5) TMI 230 - CEGAT, MUMBAI
Tapes - Narrow knitted fabrics of man-made textiles ... ... ... ... ..... ddeshwari Cotton Mills (P) Ltd. v. Union of India - 1989 (39) E.L.T. 498 (S.C.). In this judgment the Court had taken cognizance of wording of Notification No. 230/77-C.E. In interpretating the notification, the Court had taken into account the definition in Section 2(f) of the Central Excises and Salt Act, 1944. The Court observed that for a processes to be likened to the process of bleaching, dying, printing etc., the process must be of a such nature so as to impart a change of lasting character to the fabric. The Collector rsquo s finding that the process in the case was merely of rolling which did not result in any change in the structure of the fabric has not been contested in the appeal memorandum. We therefore endorse the view of the Collector that the process undertaken on the fabric did not amount to a process which would render the benefit of the notification as not available. 5. emsp On this observation we uphold the Collector rsquo s order and dismiss this appeal.
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1999 (5) TMI 229 - CEGAT, NEW DELHI
Accessories imported along with machines ... ... ... ... ..... ld not be charged separately. In the instant case, invoice shows consolidated price for both machine and accessories. The same is the position in the contract also, even though an Appendix to the contract indicates the split up of prices. We observe that the Tribunal has already held in the aforesaid judgment that indication of split up prices would not amount to charging prices separately. In any event, it cannot be held that charging for the goods was in terms of this Appendix. Therefore, this appendix cannot be the reason for holding that importers were charged separately for the machinery and accessories by their supplier. In these facts and circumstances, we hold that this was not a case of price being charged separately for the machine and the accessories and spare parts warranting assessment of machinery and accessories at different rates of duty. Therefore, appeals succeed and are allowed with consequential relief to the appellants and the impugned order is set aside.
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1999 (5) TMI 228 - CEGAT, MUMBAI
Stay/Dispensation of pre-deposit - Valuation ... ... ... ... ..... stated that accumulated loss due to the fact that the applicant for 5 years losses cannot be shown it is economic liability taking this account and taking note where the pre-deposit of question of applicant to deposit Rs. 3.00 lacs. 9. emsp We do not find a prima facie case for Mahindra. The invoice does not show that duty was paid and that the purchase order does not mention excise duty is to be reimbursed. The fact that the certificate was provided by Mahindra to SRC Roll is significant and cannot be overlooked while it may be true that the duty is payable of SRC Roll available as credit. That by itself does not justify misdeclaration of duty. Rule 209A does not require actual confiscation of goods. In these circumstances, we direct the applicant to deposit Rs. 2,00,000/- (Rupees Two lakhs only). On such deposit being made within three months from today, we waive deposit of the remaining amounts of penalty and duty and stay their recovery. 11. emsp Compliance on 15-6-1999.
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1999 (5) TMI 227 - CEGAT, MUMBAI
Stay/Dispensation of pre-deposit - Demand - Clandestine removal ... ... ... ... ..... he tempo, who all have admitted to the modus operandi adopted by the Applicant No. 1 to remove processed fabrics without payment of duty. Learned DR draws our attention to the impugned order wherein the claim made by the applicant that some duty has been paid on some quantity, has been rejected as not being substantiated in the absence of any details regarding duty payment. 3. emsp From what is set out above we are not satisfied that strong prima facie case has been made out for waiver and stay of recovery of duty and penalty, and having regard to the facts and circumstances of the case we direct pre-deposit of Rs. 10 lakhs towards duty within a period of two months from the date of receipt of this order, and on such deposit, the requirement of pre-deposit of balance amount and penalty stands waived and their recovery stayed during the pendency of this case. Further to comply with this direction shall result in vacation of stay and dismissal of appeals without further notice.
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