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Showing 181 to 200 of 501 Records
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1996 (9) TMI 387 - CEGAT, CALCUTTA
Classification ... ... ... ... ..... centrate. In view of the earlier discussion I hold that the sales in these carboys (which were not being filled completely but with varying quantities depending upon the order of the customer) would not be sales in unit containers and would not therefore, be of products classifiable under Item 1B of Central Excise Tariff. rdquo 4.3 emsp There is no finding by the lower appellate authority that the containers in the present case were of larger sizes and the contents (tuity-fruity) were filled less than the capacity of the containers. There is, infact, no such clear averment of the respondents before the authorities below as per the records available on the file of the Tribunal. 4.5 emsp Hence we hold that on the facts of this case, Tribunal rsquo s judgments in the cases of H.P.M.C. and Agro Foods (supra) do not apply to the present matter. Relying respectfully on Tribunal rsquo s earlier judgment in the Respondent rsquo s own case (supra), we allow this appeal of the Revenue.
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1996 (9) TMI 386 - CEGAT, MUMBAI
Reference to High Court - Cross objection if not filed ... ... ... ... ..... cause for referring Question No. 1 as formulated. 19. emsp So far as Question No. 2 is concerned, the same is formulated on factual error. The Collector (Appeals) has upheld the department rsquo s contention that the refund is not payable and but for the technical objection, he would have allowed the appeal. It is, therefore, not correct to state that the Collector (Appeals) has held the applicant as entitled to the relief. On the contrary he has held that the applicant is not entitled to the relief but he cannot entertain the appeal as the relief claimed is hit by non-issuance of a fresh Show Cause Notice under Section 11A of the Act. That being the position, it was encumbent on the applicants to file cross-objections, if they intended to challenge the finding which was against them. Admittedly, no cross-objections were filed. The issue, therefore, does not merit reference to the High Court. 20. emsp In the result, the application for reference to the High Court is rejected.
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1996 (9) TMI 385 - CEGAT, NEW DELHI
Exemption Notification - Retrospective effect ... ... ... ... ..... the appellants were not availing of the small scale exemption and therefore the retrospective exemption will not make them eligible for small scale exemption from 1-3-1986. Although it is mentioned in the aforesaid Act that every Notification which had been issued for the purposes of or has the effect of maintaining the effective duties at the level prior to 28-2-1986, the effect of the same is that with effect from 1-3-1986 itself the Heading No. 7302.90 had to be read in place of Heading No. 7302.20 in Notification No. 175/86-C.E. As the exemption is subject to the various conditions as mentioned in the notification itself, the proper Central Excise authorities had to decide the claim of the appellants whether they were eligible for such an exemption or not. Such an exemption will however not be denied only on the ground that Heading No. 7302.90 was not mentioned in the annexure annexed to Notification No. 175/86-C.E. 7. emsp With these directions the matter is disposed of.
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1996 (9) TMI 384 - CEGAT, NEW DELHI
Appeal - Delay in filing - Condonation of ... ... ... ... ..... take his normal business activities and file the appeal and the certificate does not include any other detail. 10. emsp We have considered the above submissions. We observe that the appellant has produced a certificate of the Psychiatrist before us and we see no reason to doubt the same. 11. emsp The certificate relates to the relevant period i.e. the period during which delay took place. We feel that we cannot be highly technical in such matters and they cannot be disposed of in a mechanical way and humanitarian considerations are also required to be kept in view. Therefore, looking to the totality of facts and circumstances as mentioned before us, we consider that it is a fit case where delay ought to have been condoned. Hence, we set aside the order of the Collector (Appeals) and remand the matter to the Assistant Collector for de novo consideration in accordance with law and to pass appropriate orders after giving the appellant an opportunity of being heard in the matter.
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1996 (9) TMI 383 - CEGAT, NEW DELHI
Valuation - Related person ... ... ... ... ..... ceptance will not debar us in anyway from selling similar products of other manufacturers. Now we request you to send us the list of your products and the price thereof. 8. emsp It is also seen from the records that M/s. Pessa had to appoint further distributors in different parts of the country and they were required not to sell the goods directly to industrial consumers. The distributors appointed by M/s. Pessa had to comply with the terms and conditions of the distributorship. 9. emsp The facts and circumstances of this case indicate that M/s. Pessa had to comply with various terms and that they had further to organise sales in different parts of the country. In the facts and circumstances of the case, they could be considered as different class of buyers for the purposes of Section 4 of the Act. In the circumstances, the view taken by the learned Collector of Central Excise (Appeals) is not sustainable and we set aside the order and accept the appeal. Ordered accordingly.
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1996 (9) TMI 382 - CEGAT, CALCUTTA
Confiscation of conveyance - Smuggling ... ... ... ... ..... Ginger recovered from the truck is definitely of foreign origin. Not even a prima facie case can be made out about the smuggled character of the dried Ginger when it is admitted by the Department that Ginger is profusely grown in the district of Darjeeling. No literature or other evidence has been brought on record that Ginger produced in Darjeeling is not dried in Darjeeling. It is merely an ipse dixit of the Adjudicating Authority that there is no trading in dried Ginger without any evidence. On the overall facts and circumstances as mentioned above, I am inclined to give the benefit of doubt to the appellant herein that the dried Ginger recovered from her truck was not of smuggled nature. Consequently, her truck could not be confiscated. Hence the confiscation of the truck in question is set aside and consequently redemption fine of Rs. 35,000.00 is also set aside. Thus the appeal of the truck owner namely the appellant herein, is allowed with consequential relief to her.
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1996 (9) TMI 381 - CEGAT, NEW DELHI
Set off of duty - Catalyst ... ... ... ... ..... al, it was held that Nickel Catalyst, Activated Carbon and Phosphoric Acid were not raw materials or component or use in the manufacture of vegetable product and the same were not eligible for exemption under Notification No. 201/79-C.E. 5. emsp The Revenue in appeal had referred to the definition of Catalyst in the condensed chemical dictionary 9th edition by G.G. Holewayat page 171 as under - ldquo Any substance of which a fractional percentage notably effects the rate of chemical reaction without itself being consumed or undergoing any chemical change. rdquo It has also been pointed out that under the Modvat Rules, the scope of the inputs was wider than in the Notification No. 201/79-C.E. 6. emsp Taking all the relevant considerations into account and following the Tribunal rsquo s above decisions, we consider that the views taken by the ld. Collector of Central Excise (Appeals) was not correct. As a result, this appeal filed by the Revenue is allowed. Ordered accordingly.
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1996 (9) TMI 380 - CEGAT, MADRAS
Valuation - Demand ... ... ... ... ..... pondents either to reduce the price upwards or downwards. There is no provision in the law which permits the central excise authorities to take note of these upward or downward revisions in prices, unless it could be shown that the price as declared to the authorities by the respondents at the relevant time of clearance of the goods was manipulated one and did not reflect the actuality as it existed at the relevant time. There is no averments in this regard from the revenue. If the respondents make a higher margin of profit by sale of the goods at a later point of time after clearance of the same from the factory, it cannot be presumed that a duty element can be read into that. In the facts and circumstances, we hold that the findings as extracted above of the learned lower appellate authority are sustainable in law and in this view, we dismiss the appeals. 6. emsp Since the cross-objection filed is only in the nature of comments, the same is dismissed as misconceived in law.
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1996 (9) TMI 379 - CEGAT, NEW DELHI
Madvat - Deemed Credit ... ... ... ... ..... ire from the market cannot be denied to him. The order of the Collector (Appeals) has to be set aside and the appeal by the Revenue has to be allowed. rdquo 5. emsp In the present case the application of Notification No. 208/83 is not disputed. From the very beginning the respondents had claimed that their inputs were covered by Notification No. 208/83-C.E. They have not purchased the inputs from the manufacturer but from the open market. This will not change the position as has been clearly brought out in the Tribunal rsquo s larger bench decision referred to above. 6. emsp The respondents have relied upon a number of decisions of the Tribunal but these decisions were rendered before the larger bench decision referred to above. 7. emsp Respectfully following the Tribunal rsquo s larger bench decision we find that the order passed by the Collector of Central Excise (Appeals) is not maintainable and we set aside the same. As a result the appeal filed by the Revenue is allowed.
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1996 (9) TMI 378 - CEGAT, MADRAS
Confiscation and Redemption fine ... ... ... ... ..... sideration. The case laws cited by the appellants is also to the effect that while imposing redemption fine the bonafides on the part of the appellants has to be taken into consideration. In this case the adjudication authority himself has come to the conclusion that there are bonafides on the part of the appellants. He has also stated that there is no intention on the part of the appellants to evade any payment of duty and no such evidence is brought on record. It is also urged before us that the appellants is a Government Undertaking of the Government of Andhra Pradesh and the goods are brought for captive consumption and not for sale. It is also not disputed that they are captively using the goods in question in their factory. Taking into consideration the facts and circumstances of the case we hold that the ends of justice will be met if the redemption fine is reduced to a sum of Rs. 1,75,00,000/- (one crore seventyfive lakhs). The appeal is accordingly partially allowed.
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1996 (9) TMI 377 - CEGAT, NEW DELHI
Appeal - Additional/Alternate ground ... ... ... ... ..... uld have been permitted to raise alternate ground and that the goods in question should have been classified under Item 68 and not under Item 26AA. The Apex Court observed that it was originally contended that the appellants was not chargeable to excise duty at all. It was therefore entitled to put forward an alternate contention before the Tribunal that even if dutiable it was dutiable under Item 68 and not under Item 26AA. 5. emsp Since alternate plea has been raised before us which was also urged before the Collector (Appeals) we are of the view, following the ratio of the Hon rsquo ble Apex Court decision that alternate grounds ought to have been allowed to be taken, the matter would have to go back by way of remand. In view of this we set aside the impugned order and remand the matter to the Assistant Commissioner for de novo decision on the claim relating to the exemption Notification after observing the principles of natural justice. Appeal is allowed by way of remand.
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1996 (9) TMI 376 - CEGAT, NEW DELHI
Ring Tube (Xenon Flash Tube) ... ... ... ... ..... en issued by one of the prescribed authorities but this certification was required from Actual User angle and not from classification angle or for certifying whether it was covered by Notification or not. However, it has not been disputed before us that the respondents are Actual Users (Industrial) and it appears that this aspect although relevant had been missed at the Asstt. Collector rsquo s level but noted by the Collector. 30. emsp Subject to the satisfaction of this condition the imported item is apparently covered by Serial No. 3(b) which includes electronic tubes (all types) including cathode ray tubes, (but excludes TV picture tubes). The words all types rsquo are significant and would cover such electronic tubes whether used in photography or otherwise i.e. whether used for lighting or other purposes. 31. emsp In view of the above circumstances, we see no reason to interfere with the order passed by the Collector (Appeals). The department rsquo s appeal is rejected.
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1996 (9) TMI 375 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... overed or not covered under sub-items (1) and (2) of T.I. 29A of the Tariff would be clearly covered under that sub-item. 7. emsp In the sub-item, there is nothing to indicate that parts should be such parts as could be exclusively used in Refrigerating and Air Conditioning Appliances and Machinery. Both the Asstt. Collector and the Collector (Appeals) had not disputed that these parts were usable in the Refrigerating and Air Conditioning Appliances and Machinery and the benefit has been denied only on the ground that they could be used for other purposes also. In our view, this approach was not correct, keeping in view, that the Tariff Entry was wide as seen in the light of the Supreme Court rsquo s decision in the case of Frick India Ltd., referred to above. 8. emsp Taking all the relevant considerations into account, we set aside the Order-in-Appeal passed by the Collector of Central Excise (Appeals) in this case and as a result, the appeal is allowed. Ordered accordingly.
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1996 (9) TMI 374 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... sts of 3 ingredients, i.e., zinc, carbonecious coating and a film laminate. Zinc is electro chemically dissolved and generates electrical energy. Film laminate serves as the electrolyte of the electro-chemical system and carbonecious coating on zinc serves as a carbon electrode. In the case of Union Carbide India Ltd. v. C.C., Madras reported in 1995 (79) E.L.T. 521 (Tribunal), the Tribunal, after considering in detail the technical literature, as also interpretative the Rule 3(b), and relying on earlier orders of the Tribunal in case of Collector of Customs v. M/s. National Carbon Company - 1989 (41) E.L.T. 433 (Tribunal) - held that film lined electrodes are classifiable under Heading 85.03 as component parts of battery. 6. emsp Following the ratio of earlier orders of the Tribunal, we hold that the impugned goods have been correctly classified under Tariff Item 8506.90 of the Customs Tariff, 1986. 7. emsp In view of this, we uphold the impugned order and reject the appeal.
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1996 (9) TMI 373 - CEGAT, NEW DELHI
Demand - Limitation ... ... ... ... ..... e the longer time has been invoked. The limit of five years will run from the date of alleged removal and this cannot be curtailed by the intervening development of the officers detecting the offence and coming to know of the non-payment of duty. Any appearance of their representative before the Assistant Collector after the detection of the case was apparently in the course of investigation. The delayed issue of show cause notice thereafter though not justified or proper did not vitiate the notice as such. Date of such knowledge is not one of the relevant dates under Section 11A(3) of the Act. The Tribunal had considered the submissions and agreed with the findings including the application of the extended time limit, though a specific finding thereon was not recorded. This is made good now and this order is passed in amplification of the earlier order dated 25-7-1994, spelling out the finding on the plea of limitation. The plea is rejected and the order passed is confirmed.
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1996 (9) TMI 372 - CEGAT, NEW DELHI
Waste and Scrap - Exemption ... ... ... ... ..... rrect. The application in form E.A. 2 is rejected. rdquo 8. emsp This order is not before us and we do not want to make any observation on the merits of that order. In the present case however we find that the scrap had arisen at the stage of blanking and at that stage the waste and scrap had not arisen from the goods classifiable under Item 28A of the Tariff. At the stage of blanking the sheets were not classifiable under Item No. 28A. They remain classifiable under Item No. 25 of the Tariff. The expression used in the Notification is ldquo such waste and scrap have arisen from goods falling under any item other than the said item No. 25. rdquo In the order relied upon by the learned Advocate there is no discussion that the waste had arisen in the process of blanking or after the process of blanking. 9. emsp In view of the above we consider that the view taken by the Collector, Central Excise (Appeals) does not suffer from any infirmity. In the result the appeal is rejected.
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1996 (9) TMI 371 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... uch articles are produced out of scrap of plastic then it could enjoy exemption from duty. This aspect of the matter is not before us and we do not give any finding whether these articles were eligible for full exemption from duty. It has to be decided on the basis of the fulfilment of the conditions referred to above. 4. emsp The ld. Collector of Central Excise (Appeals) had also referred that the Assistant Collector had not issued any show cause notice to the assessee before modifying the classification which he should have done. We also find that the classification list had been modified and no appealable order had been passed. However, as we have taken a view on merits of the case, we are not going into this aspect of the matter. 5. emsp Taking all the relevant considerations into account, we consider that the goods in question are classifiable under sub-heading No. 3922.90 and not under Heading No. 84.48. The appeal is disposed of in the above terms. Ordered accordingly.
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1996 (9) TMI 370 - CEGAT, NEW DELHI
Classification - Demand - Limitation ... ... ... ... ..... pression to invoke the larger period. Supreme Court time and again has clearly said that commissions and omissions to be clearly brought out in the show cause notice to invoke the larger period including in the case of HMM Ltd. referred to above. Since such specific allegations are not forthcoming in the show cause notice and in the absence of averments as envisaged under Section 11A of the Act, we accept the plea of the respondents that demand was clearly barred by time in the appeals filed by the Department. With reference to the appeal of party it is (sic) academic interest to decide the excisability in view of the fact that Government of India has issued exemption notification exempting the items, i.e., cycle accessories falling under Item 68 of the Ist Schedule to the said Act commencing from 19-6-1980. Accordingly demand from 19-6-1980 is not sustainable. In the result, we accept the plea of the party and accordingly all these appeals are disposed of in the above terms.
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1996 (9) TMI 369 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... -2-1988 is required for manufacture of JOB type valve at a set pressure of 3.3 Kg./sq. cm G or 46.86 Psig. You would observe from the Spring Table No. 251 that this spring can be used only when the set pressure ranges from 41 Psig to 50 Psig. (It can be seen from the above that the springs are designed and manufactured to suit a specific type of valve, specific size and also a particular set pressure range within which falls the set-pressure at which the valve is supposed to function). 9. emsp On reading of the above technical write up it is very clear that springs are designed and manufactured to suit a specific type of valve, specific size and also a particular set pressure range. 10. emsp In that view of the matter, on a careful consideration of the technical write up and on perusal of the judgment cited, we do not find any infirmity or illegality in the order passed by the Collector (Appeals) and the same is sustainable. Hence, we uphold the same by dismissing the appeal.
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1996 (9) TMI 368 - CEGAT, NEW DELHI
Remission of duty - Duty liability in case of breach of condition ... ... ... ... ..... h the proper officer in the form AL-6 and the proper officer had to grant licence to such persons in form. L-6. The person concerned was required to execute a bond in prescribed form. The goods were required to be removed from the factory of manufacturer under authority of CT-2 certificate to be issued by the proper officer at the place of intended receipt. Under Rule 196 if any excisable goods obtained under Rule 192 are not duly accounted for as having been used for the purpose and in the manner stated in the application or are not shown to the satisfaction of the proper officer to have been lost or destroyed by natural causes etc., then the duty had to be paid by the applicant i.e. the person who applies for a AL-6 licence. This also clarifies that the liability in case of default, mis-use etc. is on the user. The view taken by the Collector (Appeals) is thus not valid. Accordingly, the order of the Collector (Appeals) is set aside and the appeal of the Revenue is allowed.
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