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Case Laws
Showing 181 to 200 of 492 Records
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1998 (2) TMI 317 - CEGAT, CALCUTTA
Modvat - Reversal of credit wrongly ... ... ... ... ..... w on the ground that the prior permission of the Assistant Commissioner was not taken. I agree with this observation of the lower authorities that the appellants before re-crediting of the said amount, should have taken the permission of the Assistant Commissioner and should have sought his satisfaction as regards the validity of the duty paying documents. However, I find that the Modvat credit cannot be disallowed only on this ground. The Assistant Commissioner should have looked into the documents and decided the admissibility or non-admissibility of the Modvat credit after verifying the authenticity of the Modvatable invoices. Denial of the Credit on a limited ground of non-seeking of permission, in my view, is not justified. Accordingly, the impugned Order is set aside and the matter is remanded to the Assistant Commissioner for a fresh decision in the light of my observations made above. Thus the appeal is disposed of and the Stay Petition also gets disposed of, as such.
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1998 (2) TMI 316 - CEGAT, CALCUTTA
Classification ... ... ... ... ..... agree with the submission of the ld. Advocate for the respondents that there is a direct judgment of the Calcutta High Court in the case of Naffar Chandra mentioned (supra) which is against the Revenue. We also observe that this is a very detailed and comprehensive judgment dealing with both the issue on which the show cause notice was based namely, (i) the product is not made entirely of jute and (ii) it is not known in the market as jute bags. On the first issue, the High Court has held that the Notification does not indicate that the lower rate of duty would be applicable to jute bags if they are made entirely of jute. It also holds that the aforesaid product is known in the market as jute bags. In view of this direct judgment of the Calcutta High Court and there is being no other contrary judgment on the product in question on the issue involved before us, we need not go into the various submissions made by the ld. SDR. Consequently, we dismiss the Appeal of the Revenue.
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1998 (2) TMI 315 - CEGAT, CALCUTTA
Valuation - Undervaluation ... ... ... ... ..... o observe that the enhancement made by the Customs Authorities is only to the tune of 4 of the price actually assessed by the Customs Authorities. Such a small margin, we are of the view, can also happen due to proper bargaining in regard to quantity and quality of goods and various other commercial factors which may enter into agreement between the supplier and the purchaser/importer. There being no evidence to rebut that the value declared at U.S. 720 per M.T. is not a correct transaction-value, we accept the same. We also note at this stage that the transaction-value in a particular case can be discarded only in terms of Customs (Valuation) Rules and not otherwise. Hence, we allow the appeal with consequential relief to the appellants. Since the goods have already been cleared at higher value, the appellants may be entitled to some amount of refund. But the refund will be granted according to the present provision of law as contained in Section 27 of the Customs Act, 1962.
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1998 (2) TMI 314 - CEGAT, CALCUTTA
Show cause notice - Scope - Valuation ... ... ... ... ..... is not signed by any one (ii) it relates to a period long after the relevant period (iii) validity of the quotation is just for two days (iv) no import has been shown to have been made against the said quotation. We are, therefore, of the view that the appellant has been able to successfully rebut the evidence of the Revenue as being unworthy of reliance and prove his case with his own evidence of similar imports made through Calcutta Port. We, therefore, hold that there is no misdeclaration of value as held by the Commissioner. 6.1.3 emsp Next issue is regarding nexus between imported goods and its requirement for use in export product. Our finding above on this issue in favour of the appellant will hold good for this Appeal as well. 6.1.4 emsp Accordingly, we set aside the impugned order dated 25-9-1995 and allow the appeal CV-41/97A with consequential relief to the appellant. 6.1.5 emsp In short, all the three Appeals are allowed with consequential relief to the appellant.
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1998 (2) TMI 313 - CEGAT, NEW DELHI
Reference to High Court - Modvat ... ... ... ... ..... istence at an intermediate stage in the process of manufacture of flats, rounds, angles and channels. Ingots and billets become intermediate products. The law on the subject is very clear and the Tribunal had followed the same. Therefore, looking to the facts of the case, the Tribunal has held that the embargo of 57C will not be applicable. On the second point that steel scrap and ingots were not declared as inputs in the Modvat declaration. On perusal of the declaration referred to above, we find that tariff sub-heading No. 7206.90 and 7204.90 is indicated in the declaration. 7206.90 stands for ingots and 7204.90 stands for scrap. Therefore, the contention that the inputs were not declared is also not supported by the facts. In the circumstances as indicated above, we do not find any point of law arising out of the order of the Tribunal while deciding the appeal. In the circumstances, the application for reference to the High Court concerned is not maintainable and rejected.
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1998 (2) TMI 312 - CEGAT, CALCUTTA
Appeal - Authorised representative ... ... ... ... ..... act on behalf of the appellant as an authorised representative rsquo of the appellant in this case. 1.2. emsp We further observe that the appellants were given a date of hearing for today on the last date of hearing on 5-1-1998 when Shri S.K. Seth, Accounts Officer appeared before us. The similar plea was given by Shri S.K. Seth that the appellant rsquo s factory was under lock-out for a long period and they have not been able to get any papers. Time was given to the appellant on the last date of hearing that they would inspect the file of the Tribunal and get themselves ready for argument today. But again, the same plea has now been made by Shri Thakurta. We do not understand this attitude of dilly-dallying by the appellant in the matter. Consequently, we hold that no Representation at all has been made by the appellant despite a notice of hearing to their Accounts Officer on 5-1-1998. Consequently, we dismiss the Appeal for default in appearance as well as non-prosecution.
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1998 (2) TMI 311 - CEGAT, MADRAS
Classification ... ... ... ... ..... ple that there is no estoppel against law. Therefore, what is to be decided in accordance with law is whether it is perfectly classifiable under T.H. 8414.99 or 8533. In this connection, we find that the regulator of the fan is an accessory specific to the fan itself and not capable of any other use as in the case of dimmers. Therefore, same is classifiable under T.H. 8414.99 and this is further strengthened in view of the Board rsquo s circular which was relied on by the ld. Advocate. 9. emsp It is needless to say that the circular of the Board is binding on all the authorities though it is not binding on the appellate authorities. However, the Revenue cannot plead against the circular of the Board. Our view finds support from the above said circular of the Board and we find no reason to depart from the view taken by the Board that the regulators in question are classifiable under T.H. 8414.99 and we order accordingly. 10. emsp The appeals are disposed of in the above terms.
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1998 (2) TMI 310 - CEGAT, CALCUTTA
... ...
... ... ..... ufactured by the respondents herein. He relies, for this proposition, upon the case of Bajaj Auto Ltd. v. C.C. Ex. reported in 1989 (44) E.L.T. 763 and the case of C.C. Ex. v. Lawkim Pvt. Ltd. reported in 1987 (31) E.L.T. 700. 5. emsp We have carefully considered the submissions. The fact that the bought-out items are not the integral parts of the Rotary Feeders and Bag Filters, is manifest by the finding of the Commissioner of Central Excise, Calcutta-I and not rebutted by the Revenue in the present appeal in view of the fact that in a large number of cases, these accessories were sent directly to customer rsquo s site without being brought to the factory. Even otherwise, no evidence has been brought on record that these are the integral parts of Bag Filters and Rotary Feeders. A mere ipse dixit of the Revenue is not a sufficient evidence by itself. Consequently, we do not find any infirmity in the Order of the lower authority and hence we dismiss the Revenue rsquo s appeal.
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1998 (2) TMI 309 - CEGAT, CALCUTTA
Kraft paper - Waste paper whether kraft paper ... ... ... ... ..... e total fibre content consists of fibres obtained by the chemical sulphate or soda processes. 2. emsp It has been observed by the authorities below that this definition is not satisfied by the appellants herein inasmuch as they have not used Chemical Sulphate or Soda process in manufacturing the Kraft Paper. This is admitted by the appellants, submits the learned Advocate. 3. emsp Their submission is that the Kraft Paper manufactured by them is from the waste of Kraft Paper and therefore, no new product comes into existence. It is an activity undertaken by the appellant firm on which no duty liability arises. 4. emsp We are unable to accede to this submission of the learned Consultant, Shri K.K. Bhattacharya for the appellant firm. Waste Paper even being of Kraft Paper cannot be termed as Kraft Paper and therefore, we cannot agree with him that no manufacture is undertaken by the appellants. Consequently, we do not find any substance in the appeal. Hence we reject the appeal.
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1998 (2) TMI 308 - CEGAT, MADRAS
Reference to High Court - Modvat ... ... ... ... ..... that the tribunal had followed its earlier decision. But in view of the decision of the Hon rsquo ble High Court of Calcutta, it is seen that question of law has arisen in this regard. It is only a question of law if arises from the order which is referred are referred to the High Court. 7. emsp In these above circumstances, we are of the view that questions of law has arisen in this case and accordingly we refer the following questions of law to the High Court of Kerala for their valued opinion in the above said matter - ldquo Whether in the facts and circumstances of the case, the lubricating oil in question which is used by the appellants in their factory with respect to the above said machines are eligible for Modvat credit in terms of Rule 57A of the Central Excise Rules, 1944. rdquo 8. emsp The Registry is directed to send necessary papers to the Registrar, High Court of Kerala for placing the same before the high Court for their valued opinion in the above said matter.
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1998 (2) TMI 307 - CEGAT, NEW DELHI
... ...
... ... ..... that it could be the mistake of one of their employees who was maintaining the records that he did not make the correct entry ignoring the width of the flat bars. Since the deptt. has not been able to prove any intention and since in the very first statement, the partner clarified the position and also having regard to the fact that the tariff entry for flat bars of thickness 3 mm below is the same, I hold that the allegation of clandestine removal is not proved. The mistake of incorrect maintenance on records is admitted by the assessees inasmuch as the partner of the company admitted the fact that the shortages and excesses were there but the figures could be complementary and compensatory. Having regard to this, I hold that there was contravention of Rule 226 of the Central Excise Rules. In this view of the matter, I hold that a penalty of Rs. 2,000/- will be sustainable in law. In the result, the impugned order is set aside and the appeals is allowed to the above extent.
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1998 (2) TMI 306 - CEGAT, NEW DELHI
... ...
... ... ..... that procedural lapse if any would not come in the way of substantial right. It appears that in the instant case the modvat credit has been denied only on the ground that fresh declaration was not filed. Further, in view of the clause 3 of the Notification 175/86 it is clear that the value of clearances, if any, which was manufactured under brand name of another person is not eligible for exemption would not be taken into consideration for the purpose of calculation of the value. In the instant case, the appellants were manufacturing the Britannia brand of biscuits and were paying duty regularly as it is an admitted fact and in the circumstances, value of goods manufactured under registered brand owner has to be excluded, as per the provisions of Notification 175/86. In the facts and circumstances of the case department was not right in denying the modvat credit. Accordingly I accept the contention of the assessee and in the result appeal is allowed with consequential relief.
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1998 (2) TMI 305 - CEGAT, MADRAS
Stay/Dispensation of pre-deposit ... ... ... ... ..... these two orders and find out as to what is the correct position. 6. emsp The learned SDR stated that the previous decision of the Commissioner is appealed by the department before the Tribunal. However, it is seen that the matter is highly contentious, the appellant, no doubt, has an arguable case. 7. emsp We have also perused the Tariff Entry in this regard as pointed out by the learned SDR. 8. emsp In the facts and circumstances of the case, we are of the view that interest of justice will be met if the appellant is directed to deposit a sum of Rs. 1,50,00,000/- (One Crore and Fifty Lakhs) on or before 30-3-1998 and report compliance on 31-3-1998. 9. emsp We make it clear that since the issue is a recurring one, both the sides are at liberty to file early hearing petition, since the revenue involved is large. 10. emsp If this order is complied with, the pre-deposit of the balance amount of duty and penalty is dispensed with and the recovery thereon stayed, pending appeal.
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1998 (2) TMI 304 - CEGAT, MUMBAI
Penalty - Smuggled goods ... ... ... ... ..... ppellant. He orders confiscation of the goods on the ground that they were smuggled. He also accepts that the appellant did not smuggle the goods but imposes the penalty on the grounds that the appellant rsquo s version is not credible and it does not wish to have the owner of the goods. While the departmental representative reiterates the reasoning of the Collector but it is seen to be contradictory. The Collector says that he takes a lenient view because there is no evidence that the appellant knowingly and with mala fide intention took smuggled goods into the possession. If this was the case and in the absence of knowledge of mala fides is accepted it would follow that no penalty can be imposed in terms of sub-clause (2) of Section 112 of the Act which requires the presence of knowledge or reason to believe that goods are liable to be confiscated. The order of Commissioner is therefore, not sustainable. Appeal allowed. Impugned order set aside. Consequential relief if any.
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1998 (2) TMI 303 - CEGAT, MUMBAI
Modvat - Phosphoric acid used in the manufacture of sugar ... ... ... ... ..... ct that phosphoric acid is not an input, since sugar can be manufactured without it. The question, to my mind, is not whether a commodity can be made without use of another commodity. If a manufacturer chooses to use one article to manufacture another, that first article is an input. No manufacturer would employ processes which were not required, or spend money upon goods in the use of these processes unless the requirements of manufacture compel him to do so. The fact that some manufacturers may not use phosphoric acid in the manufacture of sugar does not justify denial of credit on the ground that phosphoric acid is not an input even when it is used. That would in effect amount to imposing on a manufacturer a technology and a system of manufacture of the department rsquo s choosing. As long as phosphoric acid has been used, it has to be considered as an input and there is no dispute that it has not been used. I therefore see no reason to interfere. 4. emsp Appeal dismissed.
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1998 (2) TMI 302 - CEGAT, MADRAS
Reference to High Court - Modvat ... ... ... ... ..... ery important for taking the Modvat benefit. He pointed out that the provisions are very clear and it cannot be said that a point of law has arisen. 5. emsp We have considered the submissions. We have clearly held in the order that the facility of Modvat has to be read in the context of receipt of certain inputs in a factory and the utilisation thereof. We have also held that even there is a change of management so long as the operations carried out in the factory are relatable to the events before its takeover, the goods manufactured and inputs brought in are the same the eligibility which had already been determined continues. It is therefore clear that when the inputs as well as the finished products are the same which were before taking over of the company, the question of denial of the Modvat credit on the face of it is not warranted. That being the case, it cannot be said that a question of law has arisen in this regard. Accordingly, we reject the reference application.
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1998 (2) TMI 301 - CEGAT, CALCUTTA
Trusses, columns, wireless and lighting towers - Dutiability of - Demand - Limitation - Suppression of facts
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1998 (2) TMI 300 - CEGAT, MADRAS
Pillows - exempt under Notification No. 108/73-C.E.- Manufacture ... ... ... ... ..... are cushions stitched in a particular manner and therefore, these cushions themselves are manufactured from waste and scrap and no further duty can be charged. 5. emsp The learned DR on the other hand stated that claim of exemption is made by the appellants in terms of Notification 69/71 wherein only sheets, sheetings, mattresses, quilts and the like, pillows, cushions and mats and others are mentioned. He, therefore, stated that carry-cots does not figure in the above said Notification as an exempted item. 6. emsp We have considered the submissions made before us. It is seen from the impugned order itself that carry-cots are manufactured by stitching the cushions. In the above Notification, mattresses and the like are also indicated. Therefore, these carry-cots are also goods within the purview of mattresses and like. Further they are made of cushions and stitched. In this view of the matter above said exemption is applicable. In this view of the matter, we allow the appeal.
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1998 (2) TMI 299 - MADRAS HIGH COURT
Prosecution ... ... ... ... ..... Metropolitan Magistrate (E.O. II) Egmore, Madras is set aside. The case in C.C. No. 881/93 is adjourned or postponed till 31-8-1998 under Section 309 of Cr. P.C. to enable or facilitate the petitioner/accused to get a disposal of the appeal preferred by him before the FERA Board at New Delhi in Appeal No. 171/93 as expeditiously as possible, and thereafter no further extension of adjournment or postponement of the trial in C.C. No. 881/93 pending on the file of Additional Chief Metropolitan Magistrate (E.O. II) Egmore, Madras shall be given or extended by any one of the Courts on the ground of pendency of appeal or stay order before FERA Board. Consequently the stay petition in Crl. M.P. 120 of 1998 is dismissed as unnecessary. 17. emsp The Registrar is directed to send a copy of this order to FERA Board at 4th Wing, B rsquo Wing, Janpath Bhavan, Janpath, New Delhi-110 001 by Registered Post with Acknowledgement Due with reference to Appeal No. 171 of 1993 pending before it.
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1998 (2) TMI 298 - BOMBAY HIGH COURT
Import - Auction sale of uncleared consignment of electrolytic copper wire bars by Port Trust
............
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