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Showing 21 to 40 of 175 Records
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1984 (10) TMI 231 - CEGAT NEW DELHI
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... ... ..... d that- (i) it is proved to the satisfaction of the Assistant Collector of Central Excise that such furnace oil is so used, and (ii) the procedures set out in Chapter X of the Central Excise Rules, 1944, is followed. vide M.F. (D.R.B.) Notification No. 195/76-C.E., dated 10th June, 1976. This notification applies in the case of furnace oil intended for use otherwise than as feed-stock in the manufacture of fertilizer. We have seen that the intention in the present case was to use the furnace oil as feed-stock in the manufacture of fertilizers. Therefore, this notification is of no application. 10. In the light of the above conclusion, it is not necessary to refer to the Ministry’s classification of 22-2-1974 or the Board’s order-in-appeal reported in 1982 E.L.T. 421. 11. We set aside the impugned order and allow the appeal with consequential relief to the appellants which shall be granted within three months from the date of communication of this order.
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1984 (10) TMI 230 - CEGAT NEW DELHI
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... ... ..... itioners does not fall within the scope of Rule 11 inasmuch as the excise duty was not paid through inadvertence, error or misconstruction. If that be the case, then the remedy of the petitioners is not under Rule 11. There is no provision under the Act or the Rules for making refund by the authorities except under Rule 11. If the case of the petitioners was that the duty was not paid through inadvertence, error or misconstruction, they should have enforced the remedy in a Court of law and not by application to the authorities under the Rules. Therefore, the petitioners are not entitled to seek any writ of mandamus seeking to enforce a statutory duty on the part of the respondents.” 8. Since in the appeal before us it is the appellants’ own case that Rule 11 did not apply to their refund claim and we agree with them, their appeal has to be rejected, in view of the authority of the Mysore High Court judgment extracted above. Accordingly, we reject the appeal.
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1984 (10) TMI 229 - CEGAT NEW DELHI
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... ... ..... e. There is no item in the tariff for “copper ore concentrates” or “metallic ore concentrates” to draw it into its cover. The so-called change is not such as to convert it into a non-ore, to make it a commodity that has no affinity with the ore and which should be freshly excised under Item 68. The metal obtained from it, copper is certainly a commodity that rates as a totally new, different and distinct commodity and one that stands apart from its ore. Its uses are not those to which the ore is put. We cannot say this of the concentrate. I wonder if anyone will say that brine with a 20% salt content and obtained by boiling a brine with a lower salt content, was different from its original source and, therefore, not a brine. If the concentrate is an ore, and there is no doubt it is an ore, it is not different from the (unconcentrated) ore. 17. The appeal deserves to be allowed. However, as the majority has decided contrarily, it is dismissed.
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1984 (10) TMI 228 - CEGAT NEW DELHI
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... ... ..... that iron castings after machining continued to remain under Item 25 and not Item 68. The Five Member Special Bench in M/s. Tata Engineering and Locomotive Co. (P) Ltd., Bombay v. Collector of Customs, Bombay, Orders No. 449-455/84, dated 31-8-1984 1984 (18) E.L.T. 65 again upheld these two decisions. These decisions would further reinforce the view taken by us. 6. We also notice that the Order of the Assistant Collector is dated 30-12-1979. The date of issue of the Order is shown as 8th May, 1980. The review show cause notice was issued on 13-3-1981. The learned Consultant argued that the show cause notice was barred by time. Though the date of order is mentioned as 30-12-1979, since it was issued only on 8-5-1980, the period of limitation has to be reckoned from that date. The show cause notice is, therefore, not barred by time. 7. However, in the view taken by us on merits, the impugned order is not sustainable. The order is set aside and the Appeal is allowed.
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1984 (10) TMI 227 - CEGAT NEW DELHI
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... ... ..... ads as follows - Heading No. Sub-Heading No. and description of article Rate of duty (a) Standard (b) Preferential areas Central Excise Tariff Item 84.35 Other printing machinery; machinery for uses ancillary to printing. (a) 40% 6. In this case from the brochure submitted by the appellants it is manifest that the imported item is a printing machinery. It is used for the purpose of printing the monogram or name of the particular capsule or tablet on the item by high quality offset garvure method. Under Rule 3 of the Rules for the Interpretation of the First Schedule to the Import Tariff “Heading which provides the most specific description shall be preferred to headings providing the more general description”. Applying this test, we held that the machinery in question could be more appropriately classified under Heading 84.35. 7. The impugned order is, therefore, set aside and the item imported is directed to be classified under Heading 84.35.
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1984 (10) TMI 226 - CEGAT NEW DELHI
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... ... ..... that the test for tensile strength of Compreg is to be carried out by the same methods as for plywood, but this evidently does not mean that it is plywood). The mere fact that this material is made by assembling a number of layers of impregnated wood does not make it plywood. Since on the evidence before us, the material, namely Wipchek compressed floor board (referred to in Chemical Examiner’s report by number CX. 2941) satisfies the requirements of “Compreg”, which is not a variety of plywood, and since it is not the Department’s case that it falls under any of the other descriptions in Item 16-B, we hold that this material was correctly classifiable under Item 68. 42. In the result, we allow the appeal in so far as it relates to “Wipchek compressed floor board” and reject it in so far as it relates to “Wipchek floor board” and “Wiptread floor board”. The appellants shall be entitled to consequential relief.
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1984 (10) TMI 225 - CEGAT NEW DELHI
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... ... ..... features or utility about them. They are simply building materials. (iv) The Tribunal in 1984 ECR 1134 1984 (16) E.L.T. 555 held that windscreens for automobiles were not “other glassware” falling under Item No. 23A(4) but goods falling under Item No. 68. During the relevant period, Item No. 34A (parts and accessories of motor vehicles), the other item in the field, did not comprehend windscreens (admittedly, parts or accessories of motor vehicles) within its compass and one could, therefore, argue that “glassware” was a more appropriate item than the residual Item 68. Yet, the Tribunal found that Item No. 68 wag the appropriate item. 19. Keeping in view the aforesaid considerations, the state of the evidence on record and the Supreme Court’s decision in the Judo-International Industries case, there is no escape from the decision that the subject goods did not fall for classification under Item No. 23A, CET. Accordingly, I allow the appeal.
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1984 (10) TMI 224 - CEGAT NEW DELHI
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... ... ..... cision of the Supreme Court in the case of Union of India and Others v. Bombay Tyre International Ltd. (1980 E.L.T. 1896). Thus, there is no warrant for holding the stockists to be “related persons” within the meaning of Section 4, or for requiring the appellants to pay duty on the basis of the price at which the stockists sell their goods to other dealers. 23. I would, therefore, hold that the lower authorities were not justified in directing the assessment of the goods to duty on the basis of the prices at which the stockists sold them to other dealers. In the absence of any other reason for rejecting the prices at which the appellants sold their goods to their stockists, those prices would be the assessable values in terms of Section 4, Central Excises and Salt Act, and should form the basis of valuation. I would accordingly, like my learned brother Shri Murthy, though on different grounds, allow the appeal and direct that consequential relief be granted.
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1984 (10) TMI 223 - CEGAT CALCUTTA
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... ... ..... date of clearance by such person or passenger or member of crew, or (b) and, in the case of a T.V. set, also that such a T.V. set shall not be gifted or otherwise parted with, until such T.V. set has been used for a period not less than five years from the date of clearance by such person or passenger or member of the crew, or (c) and, in the case of any other goods until the market price of such goods has depreciated to less than fifty per cent of their market price when new." The moment this Court comes to the conclusion that the appellant is entitled to the benefit of Transfer of Residence Rules, 1975 the appellant gets exemption from duty. Otherwise, he has to pay duty at the rate of 100% 20%. Accordingly, I hold that in the instant appeal, rate of duty is involved and the jurisdiction vests with the Special Bench. The Assistant Registrar is directed to transfer the file to the Special Bench, Customs, Excise and Gold (Control) Appellate Tribunal, New Delhi.
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1984 (10) TMI 222 - CEGAT NEW DELHI
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... ... ..... eal on the basis of this new factor. Apart from the fact that the learned senior representative of the respondent conceded that so far as this new concept is concerned, the finding was not sustainable, as cost of buildings could not be made part of the cost of ‘plant and machinery installed’; otherwise also we are of our considered view that the Collector (Appeals) not only erred in including the cost of buildings in the cost of capital investment on plant and machinery ; there was a manifest error, in introducing this element for which there was never any show cause notice to the appellants, nor was the same subject matter of the Order-in-Original, challenged before him. This order of the Collector (Appeals) thus suffers from this inherent infirmity, apart from, as discussed above, being erroneous otherwise. We accordingly find it to be a proper case to set aside the Order-in-Appeal. This appeal is accordingly allowed with consequential relief to the appellants.
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1984 (10) TMI 221 - CEGAT NEW DELHI
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... ... ..... ended period of limitation was available, with the result that demand for duty in so far as it relates to products manufactured out of imported scrap, was wholly enforceable. 12. We also do not find it possible to accept the plea that since proceedings, to determine whether countervailing duty was payable or not, were pending; this demand of duty may be kept in abeyance inasmuch as in case the countervailing duty were held to be payable, then these products, would be entitled to benefit of Exemption Notification No. 119/66. We do not have any indication as to the stage those proceedings were pending, or about the likely result of the same. We, therefore, do not feel inclined to suspend this duty demand which we have found to be fully enforceable on merits. It is for the appellants to safeguard their rights appropriately, while paying the duty amount. With these observations, we confirm the order in review of the Collector, dated 9-4-1984, and dismiss the present appeal.
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1984 (10) TMI 220 - CEGAT CALCUTTA
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... ... ..... eir existing finality orders which, when the statute came into force, were final, are provisions which touch existing rights. My learned brothers, while deciding the appeal of M/s. Associated Capsules Pvt. Ltd., Bombay v. Collector of Customs, Bombay reported in 1983 E.C.R. 439D 1983 E.L.T. 809, had held that the right of cross objection arises only when the party demanding such right had a right of an appeal and did not exercise such right and wants to file cross-objection, when the other party has filed an appeal. The Respondent admittedly had no right of an appeal. Therefore, the Respondent cannot claim a right to file cross objection. The prayer, therefore, of the respondent, for grant of time to enable him to file cross objections for the aforesaid reasons was, by summary order dated 15-12-1982, rejected. 9. In view of the above observation, we hold that the respondent had no right to file a cross objection. The Cross Objection filed by the respondent is dismissed.
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1984 (10) TMI 219 - CEGAT CALCUTTA
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... ... ..... c. (2) of Section 129B ibid.- Undoubtedly, there is no mistake in the order and no party has argued or alleged the same. I very respectfully agree with the findings of the Hon’ble Supreme Court in the case of Rafiq and anor. v. Munshilal and anor. referred to by Shri Ukil. But the judgment of the Hon’ble Supreme Court does not help the appellant in any way in view of the Supreme Court judgment reported in AIR 1969 S.C. 1068. The judgment of the Hon’ble Calcutta High Court in the case of Dr. S.C. Law v. Dr. K.S. Roy also does not help him in view of the Hon’ble Supreme Court findings reported in AIR 1969 S.C. 1068 wherein the Hon’ble court had held that where the exercise of the inherent powers of a court comes in conflict with the provisions of the Statute the inherent powers cannot be exercised. 8. Accordingly, I hold that the appellant’s appeal cannot be restored and the miscellaneous application filed by the appellant is dismissed.
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1984 (10) TMI 218 - CEGAT CALCUTTA
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... ... ..... f this appeal vests with this Tribunal as this order falls in Clause (c) of Sub-section (1) of section 129A of the Customs Act, 62. Only those cases which fall under Section 129A(1) (b) ibid are to be transferred to the Central Government, in view of the provisions of Section 40 of the Finance Act, 1984. I have already decided this issue in the case of Mackinnon and Mackenzie in Appeal No. CD(T) Cal-7/80 vide Order No. 225/Cal/84-1740, dated 18th July, 1984 1984 (18) E.L.T. 565 . Accordingly, I hold that this court has got the jurisdiction to decide the appeal. 4.1. The appellant has not been able to make out a case for condonation of delay. The circumstances mentioned by him are not sufficient enough to justify the exercise of discretion vested with this court under Section 129A (5) of the Customs Act, 1962. Accordingly, I hold that the appellant was not prevented by sufficient cause in the late submission of the appeal. The appeal being hit by limitation is dismissed.
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1984 (10) TMI 217 - CEGAT NEW DELHI
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... ... ..... ent to the withdrawal of duty, could not be treated as duty; it was only a deposit held with the Government and it ought to have been refunded as such. We find no force in the two grounds on which the Asstt. Collector rejected the appellants’ claim. Refund of monies held as deposit with the Government did not require the authority of a specific rule in the Central Excise Rules, 1944. Secondly, the saving clause in Notification No. 146/77-C.E., dated 18-6-1977 applied to past acts ; it did not affect the appellants’ right of refund which. accrued on 18-6-1977 itself (i.e., the date of deletion of Rules 961-96MMMMM. Sanctioning such a refund could not amount to re-opening of any past cases. No authority in law has been brought to our notice whereby the Department could appropriate the money deposited in advance for the period for which the duty liability itself was subsequently withdrawn. Accordingly, we allow the appeal with consequential relief to the appellants.
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1984 (10) TMI 216 - CEGAT NEW DELHI
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... ... ..... goods were excisable or not and that they did not object to clearance of those goods without payment of duty. The decision of this Tribunal in M/s. Rishi Enterprises, Bombay v. Collector of Central Excise, Bombay 1984 E.C.R. 762 1984 (15)E.L.T. 260 relied upon by appellants also does not help the appellants in the present case. In that case Special Bench ‘D’ of the Tribunal found that the goods were removed within the knowledge of the excise authorities and the excise authorities did not take any step to collect the duty amount and in those circumstances it was held that the provisions of Rule 9(2) would not be applicable in that case but here in the case before us the appellants removed the goods without the knowledge and consent of the excise authorities and the excise authorities were never a consenting party in getting the goods removed without payment of duty. 27. Under these circumstances, we find no merit in this appeal. The same is hereby dismissed.
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1984 (10) TMI 215 - CEGAT NEW DELHI
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... ... ..... td. v. N.K. Kapoor and Others (1980 E.L.T. 557) in whch the said High Court had established the principle of predominant use for classifying the goods in question. 3. The learned Departmental Representative has not disputed the basic facts urged by the appellants, that is to say, that the Filters in question are manufactured in accordance with the drawings and specifications of Kirloskar Cummins Ltd. and that over 90% of the engines manufactured are utilised in stationary and industrial applications. 4. We have carefully considered the matter and hold that in view of the fact that it is not disputed that the Filters in question are predominantly utilised in stationary and industrial applications, it would be incorrect to classify them as parts of Motor Vehicles. We, therefore, hold that the subject Filters were not chargeable to Excise Duty as applicable to Motor Vehicle Parts. 5. We allow the appeal accordingly with consequential relief to the appellants.
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1984 (10) TMI 214 - CEGAT NEW DELHI
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... ... ..... rder. If the Collector, Bhubaneswar, considered that the order of the Collector (Appeals), Calcutta, was not legal, or proper, for any reason, the proper course for him would have been to file an appeal before the Appellate Tribunal in terms of Section 35-B(2) of the Central Excises and Salt Act, 1944. He had no powers to pass an order in respect of the same matter as was before the Collector (Appeals) and which matter had been disposed of by the Collector (Appeals) by his order dated 4-1-1984. The effect of the Collector’s order is, as it were, to wipe out the effect of the order of the Collector (Appeals). This the Collector had no jurisdiction or authority to do. Apart from this, the Collector admittedly had passed the order without issue of a show cause notice and an opportunity of being heard being granted to the appellants. In the circumstances, the impugned order of the Collector of Central Excise, Bhubaneswar, is liable to be set aside and we order accordingly.
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1984 (10) TMI 213 - CEGAT BOMBAY
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... ... ..... nce with Col. 4 or Col. 5 hereunder, except if such Absolute Banned Item is specially described for import either under Col. 4 or under Col. 5 or against an Advance Licence issued under this policy." Serial No. 622 in Appendix 3 (list of banned items) and Serial No. 62 in Appendix 4 (absolutely banned list) specify staples without any qualification. We are concerned here with construing not the headings in the Schedule to the Import Control order but of entries in the appendices which do not, on their face, spell out necessary or inevitable linkage with any headings of the Schedule. As such, we have to give the widest meaning to the item “staples” in the said appendices. Stationery staples are certainly staples. In this view of the matter, there is no need to consider the C.C.I.E.’s circular. 8. In the result, we hold that the licences were not valid to cover the subject import. We confirm the orders of the lower authorities and reject the appeal.
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1984 (10) TMI 212 - BOMBAY HIGH COURT
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... ... ..... import all the items and that it was open to the petitioner to import any of the 35 items, the only limitation being that the value of the items actually imported should not have exceeded the value of the licence. As the licences were vague so far as quantity and value of each of the items to be imported it cannot be said that there was any excess licensing in respect of a particular item. It would be preposterous to say that in such a case there was excess licensing to the extent of entire value of the licence. The JCCIE, therefore, proceeded on a wrong assumption that there was excess licensing in this case and wrongly assumed jurisdiction to make adjustment on the basis of the undertaking given by the petitioner company. Moreover, as observed above, the order was passed without giving any opportunity to the petitioner of being heard. The petition, therefore, must succeed. 19. The petition is allowed with costs. Rule made absolute in terms of prayers (a), (b) and (c).
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