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Case Laws
Showing 201 to 220 of 281 Records
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1997 (6) TMI 93 - CEGAT, NEW DELHI
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... ... ..... t is item 68). The Department has no case that the appellant was not following invoice price procedure in respect of goods falling under T.I. 68 and manufactured by the appellant. The case is that in respect of identical goods appellant was charging different prices to different customers. It is not a condition of the Notification that the assessee seeking to avail the benefit of the Notification cannot charge different prices for identical goods from different customers. The proviso (2) quoted above only requires the manufacturer to avail the benefit of the Notification in respect of all goods falling under T.I. 68 and sold by him and this condition has not been violated. The Additional Collector was not justified in denying the appellant benefit of the Notification and in confirming the demand. 3. emsp The impugned order is set aside except in regard to the sum of Rs. 5,950.00. Appeal is allowed as indicated above. The cross-objection, being merely supportive, is dismissed.
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1997 (6) TMI 92 - CEGAT, NEW DELHI
Appeal - Order - Appealable order ... ... ... ... ..... s no appealable order and therefore the appeal may be rejected. 3. emsp Heard the submissions of both sides. We find that in the instant case, the decision appears to have been taken by the Collector no order of the Collector has been conveyed to the Assessee. Only the gist of the decision of the Collector has been conveyed through an administrative order. Whether this administrative order is an appealable order or not is the main issue in this case. We find that remedy was sought from the Collector by the Assessee in terms of Rule 49(1) of the Central Excise Rules, 1944. Instead of passing a reasoned order, some decision taken by the ld. Collector was conveyed by a letter of the Asstt. Collector. In the circumstances, we find that this is a fit case for remand. The case is, therefore, remanded to the Commissioner concerned with the direction that he will pass a speaking order after giving opportunity to the appellants to represent their case. The appeal is allowed by remand.
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1997 (6) TMI 91 - CEGAT, NEW DELHI
Provisional assessment ... ... ... ... ..... s shown in column 12 as assessable value. This order having been confirmed by the Collector (Appeals), assessee has preferred the present appeal. 3. emsp The stand taken by the assessee that on the date of filing of the price list, they were not in a position to estimate the freight or insurance charges is not challenged. Therefore, instead of claiming deduction for specific amounts, appellant sought reservation of the right after paying duty on the freight and insurance charges, to claim refund. There was no justification to reject the claim of the appellant. If there was any difficulty in accepting the reservation, the Assistant Collector should have recorded that all assessments would be provisional, which would have given legal relief to the appellant. 4. emsp We modify the impugned orders by directing that all assessments made in respect of the clearances made pursuant to the price list referred to above, would be treated as provisional. Appeal is allowed to this extent.
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1997 (6) TMI 90 - CEGAT, NEW DELHI
Classification - Manufacture ... ... ... ... ..... e record and evidence on file. We find that in the Invoice No. 20, dated 19-6-1997 which is the subject matter of the present dispute, the goods have been described as ldquo top and bottom tools rdquo . We note that for tools designed to be fitted in machining tools there is a specific heading. We also note that for classification in the Central Excise Tariff if an item did not qualify for classification under any of the 67 Tariff items then it was consigned to Tariff Item No. 68. In the instant case we note that there is a specific Heading for ldquo Tools rdquo designed to be fitted in machine tools and therefore that Heading was specific instead of ldquo not elsewhere specified rdquo , (Tariff Item No. 68). We agree with the contention of the ld. DR emphasising the findings of the lower authorities that machining brought into existence a distinct product described as ldquo Top and Bottom tool rdquo . In these circumstances we uphold the impugned order and reject the appeal.
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1997 (6) TMI 89 - CEGAT, NEW DELHI
Synthetic waste ... ... ... ... ..... above facts the impugned order may be upheld and the appeal may be rejected. 5. emsp Heard the submissions of the Ld. D.R. None appeared for the appellants. However, there is a request for deciding their case on merits, perused Notification No. 38/83 has also 224/79. We find that the analysis of these Notifications has correctly been done by the Ld. Collector (Appeals). We also note that the Ld. Collector (Appeals) also took into consideration the classification of the imported product and held that the appellants have not been able to produce any evidence to prove that their case was not covered by the explanation under Tariff Item No. 18-IV. We do not see any legal and factual infirmity in this finding. On the question of limitation also we find that the Show Cause Notice was issued within six months from the date of payment of duty. Thus, the case is also not hit by limitation. 6. emsp Having regard to the above finding we uphold the impugned order. The appeal is rejected.
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1997 (6) TMI 88 - CEGAT, NEW DELHI
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... ... ..... peals) on the ground that the Collector (Appeals) has exceeded his jurisdiction in remanding the matter. We are not convinced with this plea taken by the department. The issue with reference to the fresh classification can be considered even at the appellate stage and this was the view precisely taken by the Tribunal in the case of Roots Auto Products (P) Ltd. v. Collector of Customs, reported in 1988 (38) E.L.T. 310 (Tribunal). The High Court of Calcutta has taken the similar view in the case of Orient Paper and Industries Ltd. v. Special Secretary to the Govt. of India, Ministry of Finance, Department of Revenue, New Delhi and other, reported in 1987 (30) E.L.T. 67 (Cal.) that classification of goods, being a mixed question of law and facts that can be raised at any stage. In these circumstances, we do not find any infirmity in the impugned order passed by the Collector (Appeals) in remanding the matter. Accordingly, the appeal filed by the department is, hereby, dismissed.
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1997 (6) TMI 87 - CEGAT, NEW DELHI
Valuation - Penalty ... ... ... ... ..... duty on account of the escalated price on consideration of the instances pointed out above as other decision of the authority may also have a bearing on the quantum of penalty. We, therefore, direct the adjudicating authority to quantify penalty afresh. 8. emsp For the reasons indicated above, we set aside the decision of the Collector that pre-despatch inspection charges should be included in the assessable value and hold that such charges are not to be included in the assessable value. We set aside the amount added to the assessable value in view of the escalated price and direct that the instances referred to above of erroneous debit bills will be examined by the Authority afresh and if he is satisfied that there were any errors in such debit bills, to that extent the assessable value will be reduced and the duty demand shall be reworked in the light of these directions. On remand, the Collector shall also quantify penalty afresh. 9. emsp Appeal is allowed in this manner.
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1997 (6) TMI 86 - CEGAT, NEW DELHI
Valuation - Refund - Limitation ... ... ... ... ..... ation was not sustainable. The Collector (Appeals) did not indicate that the letter of protest in the instant case did not furnish detailed reasons in support of the protest. Therefore, the rejection of the protest on account of absence of detailed representation is not sustainable. 11. emsp We hold that there was substantial compliance of the requirements of Rule 233B. That being so, the limitation prescribed in Section 11B(1) of the Act was not be attracted to two of three refund claims but the factual aspects as we indicate earlier require consideration with an opportunity to the appellant to produce relevant materials before the adjudicating authority. In this view, we set aside the impugned orders and remand the cases to the jurisdictional adjudicating authority to pass orders afresh on the refund claims after giving a reasonable opportunity to the appellant to produce necessary materials as indicated above and of personal hearing. Appeals are allowed as indicated above.
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1997 (6) TMI 85 - CEGAT, NEW DELHI
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... ... ..... any, and the Collector would have been in a position to consider the same. We are of the opinion that in this state-of-affairs what is necessary to find is whether equalised freight was in excess of the actual freight and if so to what extent. 7. emsp For the reasons indicated above, we set aside the impugned order and remand the case to the jurisdictional adjudicating authority for decision afresh after supplying the appellant the data on the basis of which the actual expenditure on freight and insurance charges had been arrived at and after giving the appellant an opportunity to rebut the correctness of the calculation. The adjudicating authority will also have to consider the question of limitation in the light of the contentions raised by both the parties. The actual expenditure should be arrived at on consideration of relevant aspects. Naturally, on the basis of such findings the question of imposition of penalty has also to be considered. 8. emsp The appeal is allowed.
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1997 (6) TMI 84 - CEGAT, NEW DELHI
Valuation for cess - Rectification of mistake ... ... ... ... ..... Tribunal). 8. emsp Learned counsel for the assessee places reliance on a decision of the Tribunal in Collector of Central Excise v. T.I. Millers Ltd. and another, 1991 (33) ECR 759 (Tribunal). This decision laid down merely that the provisions of MRTP Act may not help the Department, since it is well settled that the definition given in one statute is for effectuating the provisions of the statute and not for effectuating the provisions of another statute. We do not think this decision has any bearing on the question under consideration in these appeals. 9. emsp We hold that sales tax on scooters manufactured by the assessee at Aurangabad factory was not payable under law and, therefore, the same cannot be deducted from the price declared by the assessee. 10. emsp For the reasons indicated above, all the appeals are dismissed with the clarification that the expression ldquo inclusion rdquo occurring at page 4 in the impugned order should really read as ldquo exclusion rdquo .
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1997 (6) TMI 83 - CEGAT, NEW DELHI
Demand to be prospective in case of change of classification of goods - Limitation ... ... ... ... ..... ent demand can be raised eve 2. emsp When the matter was posted for hearing none-appeared on behalf of the appellants. However, there was a request from them to decide the case on merits. Accordingly, we proceed to pass this order after hearing Shri M. Haja Mohideen, learned JDR. 3. emsp We find that the issue involved in this case has been covered by the ratio of the latest decision of the Supreme Court in the case of Collector of Central Excise, New Delhi v. Bhiwani Textile Mills, reported in 1996 (88) E.L.T. 639 (S.C.) 1996 (17) RLT 1126 (S.C.). In that case following the earlier decision in the case of Union of India and Ors. v. Madhumilan Syntex Pvt. Ltd., reported in 1988 (35) E.L.T. 349, it was held that the demand can be raised from the date of show cause notice proposing revision of classification and not for earlier period. Respectfully, following the ratio of the decision of the Apex Court, we accept the contention of the party and in the result, appeal is allowed.
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1997 (6) TMI 82 - CEGAT, NEW DELHI
Valuation - Related person ... ... ... ... ..... er to their customers, without any deduction, should be adopted as assessable value under Section 4(1)(a) of the Act. If sole buyer was, as a matter of fact, passing on any part of the discount to their customer and if trade discount so passed on was legitimate trade discount deduction of that amount must necessarily be granted in arriving at the assessable value. Since this aspect was not considered by the lower authorities, the matter has to go back for decision afresh on this aspect and consequential orders on the refund applications. We find it unnecessary, at this stage, to pass separate order on price lists. 5. emsp In the result, the impugned orders passed on the refund applications filed by the manufacturer are set aside and the refund claims are remanded to the jurisdictional adjudicating authority for decision afresh in the light of the observations contained in this order and after giving the appellant opportunity of personal hearing. 6. emsp The appeal is allowed.
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1997 (6) TMI 81 - CEGAT, NEW DELHI
Demand - Limitation ... ... ... ... ..... uch ado. In 1979, the audit party required the appellant to produce various documents including balance-sheets, debit notes and the like and it was asserted that all these were produced before the audit party. 6. emsp The above circumstances are relied on to show that during the period from 1976 to 1979, such amounts were being collected as per debit notes and the Department was in full know of such recovery and there was complete disclosure on the part of the appellant and the appellant was led to believe ultimately that no duty was payable on the amounts so recovered. This is yet another indication to show that in not disclosing the extra amounts in the price lists, there was no intention to suppress any fact or to evade duty. In these circumstances, we hold that the show cause notice was barred by time. In this view, it is unnecessary to go into the merits of the question relating to advertisement charges which alone is pressed before us. The appeal is accordingly allowed.
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1997 (6) TMI 80 - CEGAT, NEW DELHI
Exemption notification ... ... ... ... ..... pt pending indefinitely. This order of the Collector rejecting the application was attested on 2-12-1988 and was issued on 6-1-1989. Notification bearing No. 35/88-N.T. was in the meanwhile issued on 21-12-1988 under Section 11C. The effect of this notification was that the person who was required to pay duty was exempted and a person who had paid duty was eligible to claim refund thereof. But for the order of the Collector, the assessees could avail benefit of this notification since the Government had accepted the anomaly. We set aside the order of the Collector and direct de novo consideration of the refund in terms of Notification issued under Section 11C. The appeal is decided in these terms.
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1997 (6) TMI 79 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... tton fabrics and trade samples. On appeal filed by the assessees, the Collector (Appeals) accepted the contention of the party holding that no handloom cess is leviable on chindies of cotton fabrics and trade samples. Aggrieved by the said order, the department has come before us by way of this appeal. 2. emsp When the case was posted for regular hearing, none appeared on behalf of the respondents. Shri Haja Mohideen, learned D.R. appearing for the Revenue, fairly conceded that the issue involved in this case has already been considered by the Tribunal as per Final Order No. 192/97-D, dated 20-2-1997 in Appeal No. E/290/89-D in the case of Collector of Central Excise v. M/s. India United Mills. 3. emsp We find that issue involved in this case has already been considered by the Tribunal in the aforesaid order as it was pointed out by the D.R. Following the precedent, we accept the contention of the party, and accordingly, the appeal filed by the department is hereby dismissed.
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1997 (6) TMI 78 - CEGAT, NEW DELHI
Demand - Limitation ... ... ... ... ..... cannot be interpreted as the action of a person intending to suppress facts or to evade duty. It is clear that the conduct of the appellant in filing the declaration on 5-4-1982 is inconsistent with any intention to suppress the material fact. The filing of the declaration would clearly put the department on notice of the fact, if the department was not already aware of the crucial fact, that the appellant had cleared organic surface active agents of the value referred to during the preceding financial year. In a more or less similar case in Collector of Central Excise v. Chemphar Drugs and Liniments the Supreme Court held that the proviso to Section 11A could not be invoked. Following this decision, we hold that the proviso was not attracted in this case and the notice was barred by time. 4. emsp In the light of our conclusion indicated above, we find it unnecessary to go into other aspects raised in the appeal. 5. emsp The impugned order is set aside and appeal is allowed.
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1997 (6) TMI 77 - CEGAT, NEW DELHI
Demand beyond Show Cause Notice - Appeal ... ... ... ... ..... Department would have merited serious consideration if the show cause notices had laid a foundation for such a claim. We have adverted to the substance of the averments of the show cause notices. The show cause notices were specifically confined to the alleged clearances and non-payment of duty in respect of tools, moulds and dies. The show cause notices did not allege that in computing duty on the component parts, there was failure to determine the assessable value correctly by inclusion of the proportionate cost of the moulds, dies and tools in the assessable value. In the absence of such an allegation in the show cause notices, the Collector (Appeals) could not have held that the cost of such goods should be included in the value of the component parts for the purpose of computing duty payable. Therefore, the contention urged by the Department in the present appeal is not tenable. 8. emsp The appeal is dismissed. The cross objection being merely supportive is also closed.
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1997 (6) TMI 76 - ITAT PATNA
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... ... ..... ssing Officer as well as by the CIT(A) that the C.A. of the assessee-firm was ill and that was put forward as reasonable cause by the assessee from the very beginning, it constitutes reasonable cause. A fact admitted need not be proved. Therefore, I hold that sufficient facts were already on record to prove the reasonable cause put forward by the assessee from the beginning. In the result, I entirely agree with the learned Accountant Member that this is a case where the penalties should be deleted. In answer to the point of reference, I hold that the assessee has proved under section 271B existence of reasonable cause for failure to get the accounts audited for the two years under appeal and, therefore, the assessee is not liable for penalties for both the years, i.e., asst. years 1987-88 and 1988-89 under section 271B of the Act. Now, the matter should go back to the Division Bench who should decide the issue according to the majority view on the subject of reasonable cause.
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1997 (6) TMI 75 - ITAT PATNA
Appellate Tribunal ... ... ... ... ..... that being so could it be said that although the assessee delayed the production of evidence in question whatever be the reasons which in this case incidentally are none, and brought it, for the first time at the second appellate stage, the department has to be punished and put in a disadvantageous position. The answer to this situation is an emphatic no. A stand to the contrary cannot be seconded in law. I would, therefore, also answer question No. 2 in the affirmative. 18. Insofar as question No. 3 is concerned, since, it turns on to the merits of the matter I am of the considered view that in view of the admission of the additional evidence and right granted to the department to rebut it, it would be an exercise in futility to give any opinion thereon. On the facts and in the circumstances of the case, question No. 3 does not require any answer by the Third Member. 19. The file would go back to the regular Bench for its final disposal in terms of section 255(4) of the Act.
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1997 (6) TMI 73 - ITAT PATNA
Unexplained Money, Cash Credits ... ... ... ... ..... confirmed. I feel that this order of the ld. Accountant Member is fair and just in the facts and circumstances of the case and is liable to be accepted. After going through the learned Judicial Member s order, I feel that it proceeded on mere superficial appreciation and did not take care to go deep into the matter and also did not keep in mind the Hon ble Supreme Court s decision in Sumati Dayal s case before deciding the point at issue. I am of the opinion that the learned Judicial had not correctly applied the ratio of the Hon ble Supreme Court in Sreelekha Banerjee s case to the facts of the present case. In the facts of the case, it is not a question of converting good proof said to have been offered by the assessee stands to the scrunity of human probabilities. I, therefore, cannot agree with the conclusions reached by the learned Judicial Member. 11. Now, the matter will go back once again to the Division Bench who should decide the case according to the majority view.
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