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Showing 221 to 240 of 444 Records
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1999 (3) TMI 233 - CEGAT, CALCUTTA
Exemption - Set off of duty/C.V. duty already paid or raw material under Notification No. 225/86-C.E.,
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1999 (3) TMI 232 - CEGAT, CHENNAI
Reference to High Court - Valuation ... ... ... ... ..... hah and Shantibhai. The extracted portion of the order is at para 3 of the Tribunal rsquo s order which reflected the arguments of the learned Counsel. The Counsel had referred to the said findings to support his arguments pertaining to valuation. The said extract of Shah and Shantibhai case dealt both with valuation as well as the aspect pertaining to ITC valuation. In the present case there was no question of ITC valuation and the Tribunal was not called upon to deal with the said question. The only question which was dealt by the Tribunal pertain to loading of the value on the basis of a quotation. The Tribunal after discussing the matter on the aspect of valuation clearly held that the department had not made out a case for enhancing the value in the matter. Therefore, the question raised is totally outside the scope of the Tribunal rsquo s judgment and as such on this point also the reference application is not maintainable. 9. emsp The reference application is rejected.
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1999 (3) TMI 231 - CEGAT, NEW DELHI
Denatured ethyl alcohol is an excisable commodity liable to duty - Demand - Limitation ... ... ... ... ..... refore submits that the demand of duty is barred by time inasmuch as the show cause notice has been issued well beyond the period of limitation of six months. 5. emsp He also points out that this plea was taken before the adjudicating authority but the said authority has ignored the plea. 6. emsp Ld. JDR Shri Udhoji is not able to comment because the Collector has not made any comments on this plea of limitation. 7. emsp On the basis of the finding brought on record particularly the letter of Collector dated 14-12-1987, we are satisfied that department was fully aware about the activity of manufacture of denatured spirit by the appellants herein. Consequently we hold that the show cause notice has been issued well beyond the normal period of six months. Hence the demand of duty of Rs. 63,62,685.09 is set aside. 8. emsp In the facts and circumstances of the case, there is no case for imposition of penalty on the appellant. 9. emsp The appeal is disposed of in the above manner.
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1999 (3) TMI 230 - CEGAT, MUMBAI
Gentamycin sulphate - Exemption under Notification No. 122/86-C.E. ... ... ... ... ..... (supra) where the Tribunal has held that Notification 455/86 was clarificatory and retrospective in operation. The same objection has been raised by the department in respect of the product miconazole nitrate which was rejected by the Tribunal in that case. In the instant case the product in question, namely gentamycine appears in item No. 21 of the Notification 122/86. The same has been amended by Notification 455/86 and the same has been referred to in the Ministry rsquo s letter dated 25-11-1986. Hence the latter notification is a clarificatory one and the assessee has made its case and the appeal is accepted. Apart from that, period is also not mentioned in the show cause notice. The show cause notice also did not give any grounds on which the product gentamycine is different from gentamycine sulphate. Hence we reject the orders made by the lower authorities and accept the plea made by the appellants. 6. emsp Appeal is allowed with consequential relief, according to law.
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1999 (3) TMI 229 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... inter alia, that ldquo Flow-meters indicate the rate of flow (in volume or weight per unit of time) and are used for measurement of flow both through open channels (rivers, waterways, etc.) and through closed conduits (piping etc.) rdquo and ldquo the majority are based on the principle of differential pressure rdquo . 13. emsp Looking at it slightly differently, if a pressure gauge and a flow-meter are combined, such an item will fall either under heading 84.81 or in heading 90.26 depending upon its essential character. In the circumstances, the appellant rsquo s case that the combined apparatus does not retain the essential characteristics of an item falling, under 84.81 or acquires the essential characteristics of an item falling under 90.26 (and the use of the pressure regulator was only secondary) has remained unsubstantiated in this case. I, therefore, agree with my ld. Colleague and uphold the impugned order and reject the appeal as already announced in the open court.
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1999 (3) TMI 228 - CEGAT, CALCUTTA
Appeal to Appellate Tribunal - Territorial jurisdiction ... ... ... ... ..... s that the appeals filed by the four applicants except that by Shri Pankaj Gupta are entitled to be heard in East Regional Bench at Calcutta in terms of CEGAT rsquo s Public Notice. However, he submits that as Shri Pankaj Gupta is resident of Delhi strictly speaking his appeal would not be covered by the terms of the CEGAT rsquo s Public Notice. 4. emsp I have heard the submissions made from both the sides. There is no dispute that the appeals filed by the four applicants except by Shri Pankaj Gupta are entitled to be heard by East Regional Bench in terms of CEGAT rsquo s Public Notice No. 1/97 as the applicants are having the place of their business within the State of West Bengal. As the impugned Order is against all the five persons and the appeal of Pankaj Gupta cannot be segregated for the purposes of hearing I Order that all the five appeals be retained at East Regional Bench and listed together for hearing. All the Miscellaneous Applications are allowed in above terms.
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1999 (3) TMI 227 - CEGAT, CALCUTTA
Demand - Non accountal of goods ... ... ... ... ..... penalty she observed that the Assistant Commissioner had gone beyond the statutory limit of Rs. 2,000/- while imposing penalty under Rule 226. As such the penalty for non-maintenance of proper records were reduced to Rs. 2,000/-. This order of Commissioner (Appeals) is challenged before the Tribunal by the Revenue. 4. emsp After hearing Shri R.K. Roy, ld. JDR and after going through the grounds of appeal put-forth by the Revenue I do not find any infirmity in the order passed by the Commissioner (Appeals). The excess found finished goods have to be entered in the RG 1 register as and when the same are cleared. Similarly the raw material is required to be entered in the registers as ordered by the Commissioner (Appeals). As regards penalty since Rule 226 prescribes the maximum statutory limit of Rs. 2,000/-, the same has been correctly reduced by the Commissioner (Appeals) to that level. Accordingly I do not find any merits in the department rsquo s appeal and reject the same.
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1999 (3) TMI 226 - CEGAT, NEW DELHI
Demand - Export under bond to Nepal ... ... ... ... ..... ertible currency. It is not disputed that the goods were exported to Nepal in terms of the said Notification No. 150/81-C.E., dated 29-7-1981. It is also not disputed that the appellants have not received any freely convertible currency. Learned JDR, therefore, submits that the conditions of the Notification have not been fulfilled. Therefore, demand of duty is clearly sustainable. 4. emsp We have carefully considered the pleas advanced from boths sides. We are not impressed by the pleas of the learned Advocate. Having chosen to export the goods to Nepal in terms of Rule 13(2) of the Central Excise Rules, 1944 and read with Notification No. 150/81-C.E., dated 29-7-1981, it is not tenable for the appellants to submit that they will not comply with the conditions of the Notification, namely, that the payment for the goods shall be received in freely convertible currency. We, therefore, do not find any substance in the pleas of the appellants. Consequently, we reject the appeal.
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1999 (3) TMI 225 - CEGAT, CALCUTTA
Stay/Dispensation of pre-deposit ... ... ... ... ..... e variation Application dated 22-8-1997 of the applicants/appellants for modification of the Stay Order. 5. emsp It is settled law that if the applicants/appellants have a prima facie case, pre-deposit would not be justified. In the instant cases, the applicants/ appellants had canvassed stay relying on decision of the Tribunal and judgment of the Honourable Calcutta High Court. As the Stay Order of the Commissioner (Appeals) has been passed without considering the prima facie aspect of the cases the same is required to be set aside and the matters remanded to the Commissioner (Appeals) for re-consideration. In these circumstances, the appeals themselves can be disposed of at this stage after waiving the requirement for pre-deposit. 6. emsp Accordingly, the appeals are allowed by way of remand, after allowing the Stay Petitions unconditionally. As the matters are very old, the Commissioner (Appeals) shall give them priority and dispose them of within a period of three months.
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1999 (3) TMI 224 - CEGAT, CALCUTTA
Confiscation and penalty ... ... ... ... ..... he offence. None has also stated that Nirmalendu Majumdar was aware that smuggled goods were being carried and that he was asked to send the car to Shri Sudarshan Saha so that the same could be used for transport of smuggled goods. Shri Sudarshan Saha was buying goods from Majumdar and had asked for the use of Nirmalendu Majumdar rsquo s car when he visited Gauhati. Nirmalendu Majumdar promised to send the car in view of the old acquaintance and the fact that Shri Sudarshan Saha was not well. None of the parties connected with this offence has in any way given evidence or suggested that Nirmalendu Majumdar knew about the plan to bring smuggled gold to Gauhati and to distribute the same and he had sent his car to facilitate the transport. In the circumstances, it has to be held that there is no evidence to justify the confiscation of the car and the imposition of penalty on Shri Nirmalendu Majumdar. The appeal succeeds and is allowed with consequential relief to the appellant.
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1999 (3) TMI 223 - CEGAT, CALCUTTA
Stay/Dispensation of pre-deposit - Penalty ... ... ... ... ..... ts that the penalty provisions are separate from duty recovery provisions. Therefore, it is permissible to impose penalty even when duty demand is not sustained. He refers to the decision of the CEGAT in the case of Amar Processors v. Collector of Central Excise 1993 (68) E.L.T. 134 wherein it has been held that for non-accountal of goods in the RG 1, penalty could be imposed under Rule 173Q. Shri Ghosh also submits that the appellants rsquo conduct in this case has been totally inconsistent. The Collector has relied on the decision of the Tribunal in the case of Sree Ram Drinks Pvt. Ltd. v. C.C.E., BBSR 1994 (72) E.L.T. 427 . 3. emsp I have perused the records of the case and have considered the rival submissions. The issue has to be gone into in depth at the time of final consideration of the appeal. As much can be said on both the sides, the appellants have a prima-facie case. Accordingly, the recovery of penalty is dispensed with for the purposes of hearing of the appeal.
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1999 (3) TMI 222 - CEGAT, NEW DELHI
Smuggling - Burden of proof - Penalty ... ... ... ... ..... the car into the country. This may, at the most, create a suspicion but the penalty cannot be imposed on the basis of suspicion alone under Section 112 of the Customs Act. We also note that the Appellate Tribunal in HMP Engineers Ltd. and Others, supra, had set aside the penalties imposed on all other parties to the case, holding out that ldquo no concrete evidence as such has been brought on record by the department to show the involvement of M/s. HMP Engineers in the alleged mastermind of plan by Shri Bagla. rdquo The Tribunal also set aside the penalties imposed on the employees of M/s. HMP Engineers Ltd. as the Company had acted bona fidely. The penalty imposed on Shri Rajesh Arora was set aside as Tribunal observed that there was no evidence on record to suggest his involvement. In view of these facts and circumstances, the benefit of doubt is given to the appellant and the penalty imposed on him is set aside. 7. emsp The appeal is, thus, disposed of in the above terms.
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1999 (3) TMI 221 - CEGAT, NEW DELHI
Demand - Undervaluation - Penalty ... ... ... ... ..... id findings of the lower authority. As long as the laminated sheets supplied by appellants were found to be complying with the ISI specifications, there can be no warrant for a further presumption that only laminated sheets of Grade I would correspond to ISI Standard and sheets graded as Grade II or Grade III will not be of ISI standard. If there was any doubt on the said question a conclusion could be arrived at only be on the basis of a competent test report. In the absence of any contrary technical opinion to show that the laminated sheets supplied did not conform to ISI specifications, no allegation of undervaluation can sustain. The differential duty demand confirmed by the adjudicating authority has to be set aside in the facts of the case. The penalties imposed on the appellants are also set aside for the same reason. 6. emsp Both the appeals succeed as a result. Impugned orders in both cases are hereby set aside with consequential benefits under law to the appellants.
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1999 (3) TMI 220 - CEGAT, CALCUTTA
Confiscation of goods - Smuggled gold ... ... ... ... ..... is a gold coin with marking as Credit Suisse rsquo . He, therefore, submits that the burden of proving that the gold was imported in terms of Section 123 of the Customs Act was on the appellant. He submits that as this burden has not been discharged by the appellant, confiscation was justified. 3. emsp I have perused the records of the case and considered the rival submissions. The appellant has not given any clear particulars about how he acquired the gold in question except vaguely stating that he purchased it from a person of village Porakashia. His contention that there were no marking indicating the foreign origin of the gold is also not factually correct. As the item attracted the provisions of Section 123, the authorities cannot be faulted for confiscation of the gold in the absence of proper explanation by the possessor. However, the redemption fine is too high. Accordingly, the same is reduced to Rs. 5,000/. Subject to this modification, the impugned order is upheld.
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1999 (3) TMI 219 - CEGAT, MUMBAI
Modvat - Copper scrap received from ordnance factory ... ... ... ... ..... Machine Builders in para 23 had explained that if prima facie the goods were covered by exemption notification, the assessee should take the stand that it is not attracted. The department should then verify the claim as is necessary. However, I do not see the need for any such enquiry where the assessee himself bases his stand in the appeal that the goods are covered by exemption notification, which is totally exempts from duty. There would be no requirement for the department to establish that they were so covered. No such claim was made in the decisions cited by the assessee before me. The fact that the legal or logical conclusion following from this claim have not been upheld, does not show that the claim itself was wrong. The claim is one relating to fact and it cannot now be changed. It follows that the assessee accepted the Notification No. 172/84 covered the goods and hence they were non-duty paid. 10. emsp Accordingly, I allow the appeal, set aside the impugned order.
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1999 (3) TMI 218 - CEGAT, MADRAS
Demand - Jurisdiction and maintainability ... ... ... ... ..... vers a period out of which some period would fall beyond the time limit of 3 months prescribed by the then Rule 10 under existence and therefore that Show cause notice would also be partially time barred. Similarly, the last Show cause notice dated 14-3-1980 also would be partially hit by time bar. 8. emsp In view of the fact that we have arrived at a conclusion that the Order-in-Original impugned does not stand in view of the Rule 10 during both the periods having been repealed before the said Order was passed, therefore that ground alone compels us to order the setting aside of the Order-in-Original impugned. Apart from this we have also found, as noted above, that large part of the demand is hit by limitation. In view of these two findings, we are not inclined to further go into the merits of the excisability/dutiability of such a dyeing process. No order is therefore passed on this issue. 9. emsp The appeal accordingly succeeds with consequential relief if any as per law.
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1999 (3) TMI 217 - CEGAT, MADRAS
... ... ... ... ..... ar dated 2-9-1997, the Board has clarified that since cess is collected as duty of excise, additional duty of customs equivalent to such cess is also leviable on the imported goods. 5. We have considered the rival submissions and records of the case. We find that this issue is already covered by the decision of the Tribunal in the case of M.M. Rubber Co. Ltd v. CC vide Final Order No. 2547/98, dated 8-12-1998 wherein it was held that cess would not be applicable to the imported rubber. We also find that since the import of the goods was vide B/E dated 2-2-1996 and 4-4-1996 and the Ministry of Finance circular withdrawing their earlier circular dated 22-7-1997 was issued on 8-10-1998, therefore, the effect of that circular would not be applicable to the goods imported almost two and half years earlier. Therefore, following the ratio of the final order dated 8-12-1998 noted above, we set aside the impugned order and allow the appeals with consequential relief if any as per law.
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1999 (3) TMI 216 - CEGAT, MUMBAI
Stay/Dispensation of pre-deposit - Modvat ... ... ... ... ..... w Cause Notice, which was confirmed by the ld. Counsel, it appears that when the goods were cleared on payment of duty by the present applicants, using the Modvat credit of duty paid by Dr. Beck and Co. on the basic raw material and such clearance was done under the invoices in the name of Dr. Beck and Co. This was a most unusual circumstances which had attracted the attention of the department earlier. On 30-8-1996 the department was informed of such use of the invoices of Dr. Beck and Co. The department took objection thereto and made certain queries in December, 1996. This fact was also known to the department from 24-6-1996. In such a circumstance it cannot be stated that the department was kept in the dark especially when copies of such invoices were annexed with the RT 12 returns. 6. emsp Prima facie, therefore, the appellants appear to have made a strong case on limitation. We, therefore grant unconditional stay and waiver of the duty confirmed and the penalty imposed.
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1999 (3) TMI 215 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... ven by the lower appellate authority that the tubes and rods rsquo in the present case are not unworked rsquo , cannot be said to be unreasonable. As regards the reliance placed by the Revenue on the Affidavit of Shri V.V. Gokhale, Sr. Manager in the respondent rsquo s Co. we do not find anything objectionable in that. The glow switch, as mentioned by him, can also be considered to be electric bulb at least not very materially different from the same and in any case, as pointed out by the ld. Advocate for the respondents, such a use of tubings and rods in glow switches is very minimal that is to the extent of 1 to 2 . The general and predominant use of the goods in question is for electric light bulbs and fluorescent lighting. In view of the foregoing discussions we are of the view that the finding regarding classification by the lower appellate authority for the goods in question under Tariff Heading 7008.10 cannot be interfered with. Hence we dismiss Revenue rsquo s Appeal.
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1999 (3) TMI 214 - CEGAT, MADRAS
Dutiability and classification of goods - Marketability ... ... ... ... ..... of structures was considered and after a detailed examination in the light of the judgments of Hon rsquo ble Apex Court, High Court and Tribunal, the Tribunal concurred that merely because of the items are specified under the Tariff, that by itself has no ground to classify the same under the said heading, unless the individual items are goods or marketable. Therefore, the said judgment of the Tribunal has to be taken into consideration by the authorities below. 5. emsp In that view of the matter the impugned order is set aside and the case is remanded for de novo consideration with a specific direction that the original authority shall grant full opportunity to the appellants and the burden of classification has to be discharged by the revenue and not by the assessee. The revenue should point out the evidence to the assessee as to how the items are marketable or goods, so that the assessee can counter the evidence and a speaking order is required to be passed in the matter.
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