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Case Laws
Showing 161 to 180 of 419 Records
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1997 (8) TMI 268 - CEGAT, MADRAS
... ... ... ... ..... ould arise where such assessable value is to be determined on the basis of the cost of raw materials used and the cost of manufacture and profit. That was not the case here as there was sale of the goods and the price was fixed as per a contract. Price List in Part II was filed declaring the price which was agreed price between the Respondent and their Customer, the Electricity Board, in the normal course of trade. There is no case made out by the Department that over and above the said price, the Electricity Board was asked to pay or that they paid any amount on account of the Modvat credit or otherwise. In the circumstances, since the declared price was a genuine price conforming to the provisions of Section 4 of Central Excise Act, 1944, there is no justification for adding the element of Modvat credit availed to arrive at the assessable value of the final product. We see no reason to interfere with the order passed by the Commissioner. The appeal is accordingly dismissed.
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1997 (8) TMI 267 - CEGAT, CALCUTTA
Pot lining scrap or burnt pot lining scrap - Excisability of ... ... ... ... ..... p. 5. emsp We have carefully considered the pleas advanced from both sides. No evidence has been produced by the department that the product under consideration is known in the market as a raw material for cryolite or that it is otherwise marketable. The process of its arising in the course of manufacture clearly indicates that it is rubbish. Simply because a rubbish has sale value, it does not become a marketable product and, therefore, excisable. In this connection, reliance placed by the learned Advocate on Indian Aluminium rsquo s case supra is correct in the facts and circumstances of the case. 6. emsp Reliance placed by the Revenue on Section 2(f) and Chapter Note 1 (a) of Chapter 28 is not relevant at all when the product itself is not found to be marketable by any evidence worthy of reliance. Hence we hold that the product under consideration viz. burnt pot lining scrap is not excisable. Therefore, we allow both the appeals with consequential relief to the appellants.
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1997 (8) TMI 266 - CEGAT, CALCUTTA
Classification of goods ... ... ... ... ..... challenged the classification of cast rods of brass cannot unsettle the process of manufacture as stated by the Assistant Collector in his order dated 12-6-1987 ( 16-6-1987). This argument does not hold water because the question of filing an appeal and not filing an appeal is a matter entirely within the discretion of the respondents. We have to go by the process of manufacture as set out by the Assistant Collector. Keeping in view the process undertaken by the respondents not going beyond the stage of trimming and de-sealing, classification of cast copper rods other than of brass under sub-heading 7410.00 is correct. We, therefore, dismiss the appeal of the Revenue. 4. emsp Since the cross-objections are only in the nature of comments on the appeal of the Revenue and they are also not maintainable inasmuch as the classification contended by the respondents was accepted by the lower appellate authority, therefore, the cross-objections are also dismissed as not maintainable.
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1997 (8) TMI 265 - CEGAT, CALCUTTA
... ... ... ... ..... problems of segregation of inputs and many other consequential problem. Certainly an impractical result. 7.3 emsp Finally we agree with ld. Advocate that we have already held in 1997 (91) E.L.T. 422 (Tribunal) that crates rsquo are packaging materials, being containers of bottles of aerated waters, entitled to the benefit of Modvat credit under Clause (b) since Clause (iii) has not application in this case. Certificates of inclusion of cost of bottles and of crates rsquo has not been rebutted or controverted by the lower authorities, in fact one of the lower authorities has accepted the certificate of inclusion of cost of bottles in respect of one of the units of the assessee. This puts the seal of correctness on the certificates regarding inclusion of cost of bottles and of crates in the assessable values of aerated waters. 7.4 emsp In view of the foregoing discussions, the Appeal of the Revenue is dismissed and Appeals of assessee (M/s. Black Diamond Beverages) are allowed.
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1997 (8) TMI 264 - CEGAT, NEW DELHI
Cotton fabrics ... ... ... ... ..... tification does not equate curing with heat setting because the wording used is curing or heat setting. Condensed Chemical Dictionary by Gessner G. Hawley defines curing as conversion of a raw product to a finished and useful condition, usually by application of heat and/or chemicals. In the appeal memorandum itself, an admission is made that colour fixing could be done by heat, steam or chemical process. The Memorandum further goes to say that sodium silicate padding was necessary for some sort of dyes and curing for some other type of dyes. Since appeal memorandum equates curing with heat setting the admission that sodium silicate padding is required for some of the dyestuffs itself goes to support the belief of the Collector (Appeals) in the impugned order. On perusal of the definition and the appeal memorandum, we find nothing wrong in the belief of the Collector that sodium silicate padding was a process of curing. We, therefore, upheld his order and dismiss this appeal.
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1997 (8) TMI 263 - CEGAT, CALCUTTA
... ... ... ... ..... on any persons. 7. emsp As regards the allegation that the present applicants/appellants do not have any authority from the importer regarding filing of the CTD, we are again inclined to agree with the submissions of the ld. Advocate that the proper course for the Commissioner would have been to proceed against the concerned persons under CHA Regulation because M/s. Water Trading Corporation is a CHA and Shri Parimal Ch. Dey is an employee of CHA. The other person namely, Shri Vijay Kr. Banka in our view cannot be proceeded at all. Consequently we set aside the impugned order as regards the penalties on the applicants/appellants herein and allow the Appeals. 8. emsp In view of our order on the Appeals, Stay Petitions also get disposed of. 9. emsp We however state that the aforesaid direction is without prejudice to any order which the Commissioner of Customs may make against M/s. Water Trading Corporation and Shri Parimal Ch. Dey in terms of Customs House Agents Regulations.
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1997 (8) TMI 262 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... the chapter itself would indicate that articles as such are classifiable from 76.08 onwards. 76.16 covers other articles of aluminium. 7616.10 specifies certain articles which are classifiable under that heading. The goods admittedly going by the doctrine of Ejusdem Generis would not call for classification under 76.16.10. Heading 7616, however, also comprises sub-heading 7616.90 as ldquo Others rdquo . This sub-heading ldquo Others rdquo preceded by a single dash is a sub-classification of the heading ldquo Other articles of aluminium rdquo . This means Heading 7616.90 covers articles of aluminium other than those covered by 7616.10. That is what the department had sought to do. The impugned goods no longer remained mere foil but have assumed the shape and character of an article as blade-tucks in which blades were merely to be placed. 7. emsp In this view of the matter, we do not find any merit in the appeal and therefore, we uphold the impugned order and reject the appeal.
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1997 (8) TMI 261 - CEGAT, CALCUTTA
Reference to High Court ... ... ... ... ..... as observed by the Tribunal in the last para of its order dated 24-2-1997 any Appeal by the Revenue was filed by the Commissioner against the Order-in-Appeal dated 10-7-1996. Ld. JDR, Shri Ghosh submitted that this Appeal has been filed as stated in the subject Reference Application and it was also fixed for hearing on 4-6-1997 as mentioned in the said application. This matter was heard by the judicial Member on 4-6-1997 and order has since been passed by the Tribunal bearing No. A-727/Cal/97, dated 17-6-1997. In view of the dismissal of the Revenue rsquo s Appeal against the order dated 10-7-1996 passed by the Commissioner (Appeals), no cause whatsoever survived. 6. emsp At this stage, ld. Advocate, Shri M.L. Chatterjee also came and presented the Tribunal rsquo s Order dated 17-6-1997 referred to (supra), adding that there is no substance in the Reference Application because of this order. I agree with him. Hence as already held above, the Reference Application is rejected.
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1997 (8) TMI 260 - CEGAT, CALCUTTA
Confiscation and penalty - Burden of proof ... ... ... ... ..... at all. 11. emsp It is a well-established law that the burden to prove that the seized Indian Currency was the sale proceeds of smuggled gold, is on the Department, which is required to be discharged by production of sufficient legal and tangible evidence. There being not even an iota of evidence in the instant case to suggest the tainted character of the Indian Currency, I fully agree with the submissions of the appellants. Accordingly, I order release of the Indian Currency to the appellants. 12. emsp In view of the foregoing discussions, the appeal filed by M/s. S.C. Dey and B.N. Sil and Co. succeeds with directions to release the three gold lump pieces, 24 gold Sovereigns and Indian Currency amounting to Rs. 4.5 lakhs to the first appellants. 13. emsp As the appeal of the first appellant company has succeeded on merits, there is no warrant for imposition of penalty on the other appellants herein. Accordingly, their appeals also succeed with consequential reliefs, if any.
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1997 (8) TMI 259 - CEGAT, MUMBAI
Stay/Dispensation of pre-deposit ... ... ... ... ..... st incurred in erecting such structures is to be included in the assessable value. 3. emsp By application of the Interpretative Rules, the goods, when cleared, would have had to be assessed as complete product. This is in fact what has been done in some of the cases, where the classification under heading 7326 as complete structures has been approved. In this context, it is prima facie difficult to hold that there has been manufacture at the premises of the customer, by assembling of these goods into the finished goods. There are also number of decisions of this Tribunal or the Court that erection of goods at customers site are post manufacturing activities and are therefore not includible in the assessable value. Considering prima facie these aspects, we dispense with pre-deposit of duty and penalty amounts. 4. emsp Prayer for early hearing on the ground that notices are repeatedly being issued on this ground is accepted. Appeal to come up for final hearing in November,1997.
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1997 (8) TMI 258 - CEGAT, NEW DELHI
Valuation - Bought out article ... ... ... ... ..... ollector approved the price lists directing inclusion of the value of the starter in the assessable value of the fan. Collector (Appeals) allowed the appeals filed by the assessee and directed that the value of the starter should not be included in the value of the fan. This common order is being challenged now. 3. emsp In another case of the respondent namely E/1719/85-A the Tribunal has held that the value of the starter cannot be included in the assessable value of the fan. This is seen in Final Order No. 554/96-A, dated 10-1-1996. Following this decision we dismiss the appeals.
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1997 (8) TMI 257 - CEGAT, NEW DELHI
Modvat - Declaration - Demand - Limitation ... ... ... ... ..... losed the fact that the inputs has been utilised for the manufacture of the final product, namely, flexible layflat tubing which was an exempted item. The fact that G.P. 1s and RT 12 returns did mention the name of the final product does not absolve them of their duty to disclose the name of the final product irrespective of the fact whether the final product was exempted from duty or not. In view thereof I do not find any merit in the present appeal. As regards the question of time bar, the appellant rsquo s contention that their failure to mention flexible layflat tubing in the declaration was a bona fide mistake without any intention to evade duty is not sustainable since they have clearly mentioned the same item in their Classification List and claimed exemption for it. 9. emsp In view of the foregoing I find no infirmity in the impugned order and do not feel called upon to interfere with the same. 10. emsp The appeal is accordingly rejected and the impugned order upheld.
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1997 (8) TMI 256 - CEGAT, MADRAS
Classification ... ... ... ... ..... In Chapters 73 to 76 and 78 to 82 (but not in Heading No. 73.15) references to parts of goods do not include references to parts of general use as defined above. Subject to the preceding paragraph and to Note 1 to Chapter 83, the articles of Chapter 82 or 83 are excluded from Chapters 72 to 76 and 78 to 81. The springs are covered as articles of general use. Therefore by reason of these two Section Notes, the goods would be assessable straightaway under Chapter Heading 73.20. The reliance of the appellants on the HSN notes under which the springs assembled to form parts of the machinery stand excludes from the purview of the Chapter 7320 (sic), in our view, is not correct inasmuch as the exclusion covers only such of those springs which are imported in assembled form and which answer to the description of the excluded items as set out in the note. What has been imported is the springs as such. We, therefore, find no force in the plea of the appellants and dismiss the appeal.
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1997 (8) TMI 255 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... e under consideration. 7. emsp The Collector of Customs (Appeals) had referred that there was an anomaly in the notification and that in view of the apparent anomaly, the scope of the exemption got limited to the main equipment only so far as Serial No. 3 of the table under that Notification No. 93/86-Cus. is concerned. We consider that as the parts of the cinematographic projectors were included under Heading No. 90.07, the reflectors was not a excluded part for the purposes of that notification and as the Board rsquo s clarification confirms exemption in respect of the goods in question, the view taken by the learned Collector of Customs (Appeals) was not correct. 8. emsp Taking all the relevant considerations into account, we allow this appeal. 9. emsp Any refund, however, will be subject to the observations of the Supreme Court in the case of Mafatlal Industries Ltd., 1997 (89) E.L.T. 247 (S.C.). 10. emsp Subject to the above observations, the appeal is otherwise allowed.
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1997 (8) TMI 254 - CEGAT, NEW DELHI
Confiscation of goods - Redemption fine ... ... ... ... ..... and challans. They had not entered in RG 1 register nor they had issued the bills/invoice. As the goods seized were not in a preparation of leaving the factory but they merely had not been entered in RG 1 register, therefore, a presumption pertaining to its clandestine removal cannot be drawn in terms of the law cited and noted above. Hence following the ratio of the judgments cited by the Counsel, the confiscation fine in respect of the goods lying within the factory is required to be set aside. As regards the imposition of penalty for non-maintenance of records up-to-date, the Tribunal has looked into this aspect in the light of the several judgments as noted in the case of M/s. Balls and Cylpebs Ltd. (supra) and penalty has been confirmed. Looking into totality of all facts and circumstances, the penalty of Rs. 5,000/- in this case is appropriate. Therefore, the confiscation fine imposed in this case is set aside and penalty is reduced to Rs. 5,000/-. Ordered accordingly.
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1997 (8) TMI 253 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... d that at the time of bill fo entry for warehouse, the classification had been shown under sub-heading No. 8477.90 which had been changed to Heading No. 9806.00. 5. emsp We consider that in the peculiar facts and circumstances of this case at the time of the clearance, Heading/sub-heading under which the original assessments had been made at port of import was no more in the Tariff and so it is not the case of changing the classification. The correct rate of customs duty in respect of the warehoused goods is as on the date of clearance for home consumption and in this case at the point of clearance, the correct sub-heading for assessment was 8477.90 of the Tariff. We have already recorded that the goods falling under sub-heading were eligible for the concessional rate of duty under Notification No. 172/89-Cus. In view of the above discussion, we do not agree with the views taken by the Collector of Customs (Appeals) and as a result, the appeal is allowed. Ordered accordingly.
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1997 (8) TMI 252 - SUPREME COURT
Penalty amount not mandatory but only the maximum - Offence - Penalty - Mandatory penalty - Entry tax
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1997 (8) TMI 251 - CEGAT, NEW DELHI
Confiscation of silver ... ... ... ... ..... argument of the appellants, both on circumstantial evidence of procuring the goods 30 to 50 years before the date of seizure and also that the foreign markings alone is not a conclusive proof to prove that the goods were smuggled into the country. We note further that during the material period, silver was not a notified item and, therefore, the onus to prove that the confiscated silver slabs were smuggled into the country was on the Department. The Department has not brought on record any evidence to prove that the silver was brought into the country violating the restrictions or prohibitions of law and/or without payment of duty. 10. emsp In view of the above findings and the case law cited and relied upon by the Appellants, we hold that the respondents have not been able to make out a case. In the result, the impugned order is set aside in respect of these 85 Silver slabs/bars and the appeal is accordingly allowed with consequential relief, if any, in accordance with law.
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1997 (8) TMI 249 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... ermining their content of carbon dioxide, carbon monoxide, oxygen, hydrogen, nitrogen or hydrocarbons. It has been explained in Clause-8 under Heading No. 90.27 that the electrical gas or smoke analysis apparatus are mainly for determining and measuring the content of the following gas - (i) emsp Carbon dioxide (ii) emsp Carbon monoxide and hydrogen (iii) emsp Oxygen (iv) emsp Hydrogen (v) emsp Sulphur dioxide (vi) emsp Ammonia. 7. emsp The appellants were engaged in the manufacture of LPG related products and we consider that their final products gas detectors and monitoring system was classifiable under Heading No. 85.31. The sensor separately imported and which admittedly was a part of this system was correctly classifiable under sub-heading No. 8531.90 of the Tariff. 8. emsp In view of the above discussion, we do not find any ground to interfere with the views taken by the Collector of Customs (Appeals), Bombay and as a result, the appeal is rejected. Ordered accordingly.
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1997 (8) TMI 248 - CEGAT, NEW DELHI
Appeal - Limitation ... ... ... ... ..... each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of non-deliberate delay. 5. emsp There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. 6. emsp In view of the fact that no AD has been received by the respondents, therefore, there is no evidence to show that the enforcement order was served upon the appellants. In view of the above discussion and respectfully following the ratio of the above decision of the Hon rsquo ble Supreme Court, the impugned order is set aside and the matter is remanded to the Commissioner of Cusotms (Appeals), Bombay, for deciding the appeal on merits after affording an opportunity of personal hearing to the appellants, in accordance with law. The appeal is disposed of by way of remand.
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