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Case Laws
Showing 241 to 260 of 382 Records
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1998 (1) TMI 145 - CEGAT, NEW DELHI
Reference to High Court ... ... ... ... ..... s not cited during personal hearing. In Collector v. Binny Ltd. 1985 (22) E.L.T. 92 the Tribunal had held that even if a judgment had been rendered by the Tribunal per incuriam the finding of the Tribunal, even if erroneous, would not be a matter for reference to High Court. 7. emsp Having regard to the above discussion we find that no question of law that can be referred to the High Court has arisen in this case. The question whether there is an obligation on the Department to cite reference to the orders relied upon is not a question of law. It is a well settled principle that any applicant who files an application before any judicial or quasi-judicial authority has to cite the authority relied on. It is not the obligation of the judicial or quasi-judicial authority to search for relevant case law on the point even if none is cited before it either by the Appellant or its Representative. 8. emsp We therefore find no merit in this Reference Application. The same is rejected.
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1998 (1) TMI 144 - CEGAT, MADRAS
Towels - Terry towels - Use of power ... ... ... ... ..... anufacturing made-up articles of textile i.e. terry towels, no use of power has been done. Therefore, the benefit of Notification 65/87 should be made available to the respondents as has been rightly ordered by the ld. lower appellate authority. 6. emsp We have heard both the sides. We agree with the submission of the ld. Advocate for the respondents that the power used in manufacturing terry towelling cloth cannot be considered being used in manufacturing made-up articles i.e. terry towels. Therefore, the lower authority has rightly allowed the benefit of Notification 65/87, dated 1-3-1987, so far as the terry towels are concerned. 7. emsp As further rightly pointed by the ld. Advocate the dutiability of terry towelling cloth under T.H. 58.02 is not in dispute which further strengthens the case of the respondents insofar as grant of benefit of Notification No. 65/87 is concerned. 8. emsp Consequently, we do not find any force in the Revenue appeal. Hence we dismiss the same.
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1998 (1) TMI 143 - CEGAT, NEW DELHI
Return of duty paid goods for repair - Limitation ... ... ... ... ..... t was an input or not. He submits that since the Grinding Wheel is a tool as was held by the Tribunal in the case of Jhalan Tools (I) Ltd. 1994 (70) E.L.T. 788 , the Applicants may, therefore, be directed to deposit the entire amount of duty. 3. emsp Heard the submissions of both sides. I find that the issue is arguable requiring detailed examination of the terms and provisions covered by exclusion category under Rule 57A which can be done only while hearing the Appeal. Looking to the facts and circumstances of the case, I direct Applicant to deposit a sum of Rs. 50,000/- (Rupees Fifty thousand only) on or before 26th March, 1998. To come up for reporting compliance of this order on 2nd April, 1998. On compliance of this order, the deposit/recovery of the balance amount of duty shall remain stayed during the pendency of the appeal. 4. emsp It should be carefully noted that failure to comply with the above order shall lead to dismissal of the Appeal without any further notice.
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1998 (1) TMI 142 - CEGAT, NEW DELHI
Manufacture
... ... ... ... ..... (Tribunal) where the Tribunal had held that insulation of copper strips with varnish bonded glass fibre did not amount to the process of manufacture. The Adjudicating Authority in this case had observed that by coating cable wire with paper additional safety was provided to the insulation. We do not consider that that alone could be an adequate ground for deciding the excisability of the product in question. The Appellate Authority had also referred that the appellants had stated in their appeal memorandum that the process of coating resulted into a slight variation in the insulation of the cable wires. We consider that in view of the decisions of the Tribunal and the Apex Court, no case has been made out by the Revenue that the process involved was a process of manufacture. 6. emsp Taking all the relevant facts into account, we do not agree with the view taken by the ld. Collector (Appeals), Central Excise, Bombay and as a result, the appeal is allowed. Ordered accordingly.
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1998 (1) TMI 141 - CEGAT, NEW DELHI
Hydropneumatic accumulator and hydraulic cylinder ... ... ... ... ..... 31 of the Central (sic) Tariff Act, 1975 and has not considered the Annexure to the letter which gives individual items and the headings under which the items fall. Therefore, the authorities below committed an error apparent. We are of the considered opinion that the Annexure to the Certificate from the concerned authorities produced by the appellant is required to be verified by the lower authorities for coming to a conclusion. In this view of the matter, the impugned order is set aside and the matter is remanded to the original authority with directions to consider the appellant rsquo s prayer for grant of concession for imported items. The impugned orders pertain to other items also for which benefit has been granted and this order pertains only to the two items referred to above. The appellants shall be granted an opportunity of being heard in person and to produce any additional evidence in support of their case. 6. emsp In the result, the appeals are allowed by remand.
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1998 (1) TMI 140 - CEGAT, CALCUTTA
Proforma credit ... ... ... ... ..... urning loss is not significant. He, therefore, prays for allowing the appeal with consequential relief to the appellant. 3. emsp Opposing the contention, ld. Advocate, Shri P.K. Dutta submits that Explanation was brought into force by Notification No. 118/80-C.E., dated 19-7-1980. Therefore, the Explanation should be given an effect only on the said date and not from the earlier date as also held by the lower authorities. 4. emsp We have carefully considered this short point as made by the ld. Manager of the appellant rsquo s Company. We agree with this plea of the appellant that the Explanation introduced by Notification No. 118/80-C.E., dated 19-7-1980 as mentioned above will have retrospective effect as it is clearly of a clarificatory nature. This was also upheld by the Tribunal in the case of Orient Paper Mills (supra). Consequently, we allow the appeal with consequential relief to the appellant. 5. emsp Since appeal has been allowed, Stay Petition also gets disposed of.
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1998 (1) TMI 139 - CEGAT, NEW DELHI
... ... ... ... ..... order, having been confirmed by the Collector (Appeals), the present appeal has been filed. 3. emsp In the Memo. of Appeal it is stated that bottles are manufactured according to the design and specification of different buyers. Whenever any customer requires a new type of bottle, he requests the appellant to manufacture a few bottles for his approval before placing the order and for this purpose the appellant has to carry out design and development work for which substantial expenditure has to be incurred. Appellant undertakes design and development work only on the customers agreeing to pay charges therefor. Order is placed only after bottle has been developed and sample shown to the prospective buyer. From these averments it is clear that drawing and designing charges in respect of the product are includible in the assessable value. See Triveni Engg. Works Ltd. - 1996 (88) E.L.T. 238 (Tribunal) . We therefore find no ground to interfere and accordingly dismiss the appeal.
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1998 (1) TMI 138 - CEGAT, NEW DELHI
Natural justice - Show cause notice ... ... ... ... ..... ing was brought on record to show that personal hearing was granted. Non-furnishing the reply and taking sufficient time is not a ground to arrive at the conclusion that party has waived the right of personal hearing. It was also brought to our notice by the learned Counsel that Tribunal has taken the view in the case of Vishnu Rolling Mills v. Collector of Central Excise, Pune 1995 (76) E.L.T. 96 (Tribunal) that personal hearing is necessary even if no reply to the show cause notice was filed. In the facts and circumstances of the case and since personal hearing was not granted as can be seen from the impugned order, we are of the view that matter will have to go back for reconsideration. Accordingly, we are remanding the matter to the jurisdictional Adjudicating Authority to pass an appropriate order after providing an opportunity to the appellants inasmuch as personal hearing and to decide the issue accordingly. 6. emsp Thus, these two appeals are allowed by way of remand.
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1998 (1) TMI 137 - CEGAT, NEW DELHI
... ... ... ... ..... herefore, the question of the three wholesalers referred to above falling in one class of wholesalers and the bank falling in another class of wholesalers would not arise. Classification must be among wholesalers. 6. emsp The above discussion would show that in cases of sales in wholesale at the factory gate trade discount of 14 was allowed as approved in the price list and cases where no discount or less discount was allowed were cases of sales to consumers in retail and the same cannot detract from the approved wholesale price. If retail price had been declared, the price would have to be worked out backwards to arrive at wholesale price. Such an exercise is unnecessary in this case, since there were sales in wholesale at the factory gate at the approved wholesale prices. In this view, the appellant could not have been held liable to pay any differential duty in respect of sales to bank made in retail. The impugned orders are, therefore, set aside and the appeal is allowed.
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1998 (1) TMI 136 - CEGAT, NEW DELHI
Excisability and marketability ... ... ... ... ..... The High Court has taken into consideration the judgment of Delhi High Court rendered in the case of Modi Carpets Ltd. v. Union of India as reported in 1980 (6) E.L.T. 320 and that of Union Carbide of India v. Union of India as reported in 1986 (24) E.L.T. 169. 4. emsp The learned DR reiterates the departmental view. 5. emsp On a careful consideration of the submissions, we notice that the issue raised by the appellants with regard to non-marketability of the item and the item being not goods and not excisable has already been upheld by the Bombay High Court and Delhi High Court in the noted judgment. The Hon rsquo ble Supreme Court has also dismissed the Special Leave Petition filed by the UOI. As the issue is no longer res integra and the Courts have held that the item in question is not marketable and they are not goods and that they are not excisable, therefore, respectfully following the ratio of these judgments, the impugned order is set aside and the appeal is allowed.
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1998 (1) TMI 135 - CEGAT, NEW DELHI
... ... ... ... ..... td., 1997 (93) E.L.T. 435 (Tribunal) 1997 (70) ECR 537 (Tribunal). He requested that in view of the different views of the different Benches, the matter may be placed before the Larger Bench to resolve the issue. 3. emsp We have carefully considered the matter. We find that the decisions referred to and relied upon by the appellants are decided by the Single Member Bench, whereas the decision referred to by the DR is of Division Bench and that too in their own case. In the party rsquo s own case, the Tribunal has already taken a view that the process of manufacture and packing of medicine in question completes when the medicine is put in ampoule and that ampoule is a complete product in itself and can be merketable independently. Syringe and needle cannot be said to be packing material. Since the issue has already been considered by the Tribunal in their own case. Following the judicial discipline and the ratio of the said decision, we dismiss the appeal. Ordered accordingly.
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1998 (1) TMI 134 - CEGAT, NEW DELHI
Metal articles - Precious metal articles - Interpretation of exemption notification ... ... ... ... ..... articles of such metals and proposes to sell the same, the price would be calculated on the basis of the value of the metal content as on the date of the sale and the charges incurred and the profit element. Therefore, there should be no difficulty to work out the extent of the exemption as visualised by Shri K. Srivastava, SDR. There is no ambiguity about the language used in the first part of the notification. The second part cannot be understood as importing any ambiguity in the first part of the notification. 8. emsp For the reasons indicated above, we agree, with respect, with the view taken in Final Order No. 618/97-D and following the view, we find the impugned orders unsustainable and accordingly set aside the same. The appeals are allowed. 9. emsp The dispute arose on two refund claims and, therefore, grant of refund would be subject to provisions of Section 11B of the Central Excise Act, 1944 and the decision in Mafatlal Industries Ltd., 1997 (89) E.L.T. 247 (S.C.).
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1998 (1) TMI 133 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... ollector (Appeals) on an appeal filed by the party following the ratio of the decision of the High Court of Tamil Nadu ordered for re-classification of the item under 73.31. 3. emsp It was the contention of the department that the High Court of Tamil Nadu was not correct in classifying the item under 73.31 and not being accepted with the verdict of the High Court, the department has filed an appeal before the Supreme Court which is pending. 4. emsp Heard both sides. We find that the High Court of Tamil Nadu has considered the matter in detail and classified the item under 73.31. Filing of appeal before the Supreme Court is not a ground to have a different view and since the issue has already been considered and covered by the decision of the High Court of Tamil Nadu, following the raito, we accept that the item is classifiable under 73.31. Since we do not find any infirmity in the impugned order, we uphold the impugned order and in the result, these two appeals are dismissed.
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1998 (1) TMI 132 - CEGAT, NEW DELHI
Valuation - Trade discount ... ... ... ... ..... assessable value and in this view the demand would not lie. 5. emsp The present dispute relates to a subsequent period. The facts referred to by the Collector in the aforesaid order are similar to the facts in the present case. There is no reason why the findings recorded by the Collector in the order dated 29-10-1991 should not be applied to the subsequent period covered by the present dispute. There is no dispute that the bulk of the sales were effected at the factory gate to wholesalers at the approved prices. There was variation in the percentage of discount granted to direct buyers other than wholesalers. Even in such cases the balance discount was granted to the wholesalers within whose jurisdiction the direct buyers were operating. In these circumstances, we find that there was no justification to demand any duty on assessable value different from the approved factory price. 6. emsp For the reasons indicated above, we set aside the impugned order and allow the appeal.
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1998 (1) TMI 131 - CEGAT, NEW DELHI
Dutiability - Marketability ... ... ... ... ..... question were mere impurities and described as a waste in the manufacture of Beta Naphthol Tar or Bon Acid Tar is immaterial from our point of view for the simple reason that while these may be waste from their point of view, they are apparently not a total waste or entirely useless substance of not commercial value as evident from the evidence of their regular almost continuous sale month after month from 2-3-1984 to 1-4-1985 as evident from Annexure B rsquo to the show cause notice and these facts have not been shown to be wrong. What is the extent of profit or non-profit is not our concern. What is important is whether these constitute regular sales of items known in the market and these are not merely stray cases of sale of some useless material at throw-away prices. 9. emsp In view of the above discussion, I agree with my learned Colleague that the impugned order is required to be set aside and the appeal is required to be allowed as already announced in the open Court.
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1998 (1) TMI 130 - CEGAT, NEW DELHI
Lime/Lime fines - Classification ... ... ... ... ..... nder Heading 25.05. We find that on the last occasion the Bench directed the DR to find out whether any appeal has been filed by the department against the subsequent order in which the contention of the party has been accepted. Shri Jain, learned DR submits that no such appeal has been filed against that order. 3. emsp In the facts and circumstances of the case, we are of the view that the matter will have to go back for reconsideration. Since the department has accepted the classification for the previous period and also for the subsequent period, we are unable to understand why it has classified the item under Heading 28.25 for this period. Since reasons are not forthcoming, this matter will have to go back for re-examining the issue afresh and accordingly, we are directing the concerned Assistant Commissioner to examine the issue afresh and to pass an appropriate order after providing an opportunity to the appellants. 4. emsp Thus, this appeal is allowed by way of remand.
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1998 (1) TMI 129 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... , etc., which are incidental, Note 10 to the chapter would continue to apply. The exception would be made only where such printing is not incidental to the primary use of the goods, but is of a nature which contributes something more than incidental printing. In the cited case, the Supreme Court observed that the printed label announced to the customer whether the product was or was not of his choice and his purchase of the commodity would be decided by the printed matter on the label. In this case, the printing on the sheet would enable the buyer to make a decision as to purchase or otherwise. Reading the batch number and date of manufacture, he would be able to make up his mind whether the goods were fresh enough to be consumed by him. Such details are not incidental, but of primary purpose. In this situation, the Section Note would prevail and the classification has to be under Chapter 49. We, therefore, see no merit in the department rsquo s appeal and dismissed the same.
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1998 (1) TMI 128 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... er had given a categorical opinion as to the includibility or otherwise of the impugned goods under the contested entry. 7. emsp The Supreme Court in their judgment in the case of Ranade Micronutrients reported in 1996 (87) E.L.T. 19 had held that the circulars issued by the Board to field formations were not advisory in nature but were binding on the jurisdictional officers. In this case, the department rsquo s advice was very clear. In departing therefrom the adjudicating officer did not even make any attempt to indicate how and why he was justified in departing from this advice. On this count alone, the impugned order does not survive. Apart from this, we find that the case of the department as to suppression, etc. as far as it related to the injection, could not survive. The adjudicating authority has not even cared to discuss the aspect of limitation. 8. emsp The appeal, thus, succeeds and is allowed. The impugned order is set aside and the appropriate relief is ordered.
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1998 (1) TMI 127 - CEGAT, NEW DELHI
eligible for benefit under Notification No. 62/87-C.E ... ... ... ... ..... rther observed that ldquo looking from different angles, we are inclined to take the view that benefit of exemption from duty can legitimately be claimed by the respondents in respect of those goods referred to in the Notifications under consideration, the raw materials of which were not exigible to any excise duty at all rdquo . Thus the Supreme Court has not only held that the goods which were wholly exempt from duty under an exemption were required to be considered as those on which appropriate amount of duty had been paid but extended the concession to inexigible goods also. Hence the ratio would all the more apply in cases where the goods are chargeable to nil rate of duty under the tariff itself, i.e. to put in other words, which were excisable but not dutiable. In view of the factual and legal position, we consider that the benefit of exemption notification was required to be extended in the present case. We therefore, set aside the impugned order and allow the appeal.
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1998 (1) TMI 126 - CEGAT, NEW DELHI
Demand - Limitation ... ... ... ... ..... ambit increases and it is upto the investigating agency or the Department to decide whether to confine the enquiry to a particular period of time initially, to take care of normal period of time bar or otherwise, and thereafter, extend the enquiry, whenever and wherever called for and thereafter, book the case and the law allows this much of liberty obviously because the investigating agency has to collect the evidence and is expected to book a case only when sufficient and reasonable evidence appropriate to a particular case comes to light and meets all the requirements of the law. 10. emsp In the facts and circumstances of the case, the Department was justified in invoking the larger period of limitation and therefore, the demand is not hit by time bar. 11. emsp However, looking to the totality of facts and circumstances, the penalty appears to be on the high side and therefore, we reduce it to Rs. 10,000/- (Rupees ten thousand only), as already announced in the open Court.
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