Advanced Search Options
Case Laws
Showing 241 to 260 of 444 Records
-
1999 (3) TMI 213 - CEGAT, NEW DELHI
Demand - Limitation - ... ... ... ... ..... nts have not been rebutted by the Department. Accordingly, it cannot be now considered that the appellants had suppressed any fact from the department with an intent to evade the payment of duty in absence of which extended period for demanding the duty cannot be invoked. The ratio of two decisions in the case of Garlic Engineering and Escorts Ltd. (supra), relied upon by the ld. SDR is not applicable in the present matter as the facts are different. In both the cases the Tribunal observed that a knowledge that the assessee would follow the same modus operandi in subsequent period cannot be attributed to the department. In the present matter such is not the case. The Agreement was brought to the notice of the Department and afterwards the Assistant Collector approved the price list as it was filed by the Appellants. Accordingly we hold that demand of Central Excise Duty is hit by time limit and appeal is allowed on this ground itself without going into the merits of the case.
-
1999 (3) TMI 212 - CEGAT, CALCUTTA
Stay/Dispensation of pre-deposit - Penalty ... ... ... ... ..... y shows that the appellant rsquo s intention was to remove the goods clandestinely. No immediate explanation was also forthcoming from the appellant about the excess stock. 3. emsp In reply, Shri K.B. Chakraborty clarified that the appellant rsquo s factory did not have weigh bridge. Therefore, the goods were required to be first taken a public weigh bridge for weighing. That was reason for invoice not being prepared for the goods loaded on the truck. The goods had not left the premises and no evidence by way of statement from the driver or other person is on record to show that the goods were proposed to be taken out without payment of duty. Allegation of clandestine removal has no basis. 4. emsp I have perused the records of the case and have considered the rival submissions. The appellants have made out a prima facie case for waiver of pre-deposit of penalty. Accordingly, the pre-deposit of penalty is waived and the appeal is admitted. To be posted for hearing in its turn.
-
1999 (3) TMI 211 - CEGAT, MUMBAI
Modvat - Duty paying documents ... ... ... ... ..... different from the gate pass listed in the said rule nor was a photo copy of a gate pass which was certified different from the phrase used in the said rule. Thus if the original copy of the gate pass could be endorsed, there was certainly no objection to attested copy thereof to be used as an eligible document when endorsed. The logic of the Collector is self-defeating and cannot sustain. In his discussion, he has not taken cognizance of the cited judgment of the Tribunal in the case of S.B.S. Organics. In this judgment, the ratio of which is being followed today, the Tribunal had held that endorsed gate pass was not different from gate pass and that both were covered under the cited rule. 5. emsp I find that the Collector had ...........seeking to differentiate between the original copy of the gate pass and the attested copy of the gate pass, as far as the question of endorsement was concerned. His order does not sustain and the appeal is allowed with consequential relief.
-
1999 (3) TMI 210 - CEGAT, MUMBAI
Stay/Dispensation of pre-deposit ... ... ... ... ..... ere told by the departmental representative then that the department was contemplating filing of appeals against the order of the Commissioner by the Department. We are now told by the ld. JDR Shri Ashokan that the department is not contemplating filing of appeals against the order dropping of cases against Jindal Photo Films and Nisha Chemicals. As far as Kar Vivad Samadhan Scheme is concerned we do not express any opinion at this stage. 6. emsp However, since the department is not filing any appeal regarding that portion of the order against dropping of the penalty proceedings against the two, similarly placed persons, the quantum may require to be reduced. We, therefore, feel that ends of justice would meet if we direct the applicant to deposit Rs. 10 lakhs within two months from the date of receipt of this order. On such payment being made there will be waiver of deposit of the remaining amount of penalty imposed and stay recovery thereof. 7. emsp Compliance on 24-5-1999.
-
1999 (3) TMI 209 - CEGAT, MUMBAI
Modvat - Recovery of credit wrongly taken ... ... ... ... ..... ssued within six months from the date of taking credit and is therefore in time. The Collector (Appeals) gave no reason for this view that the Asstt. Collector has considered the date on which credit was utilized by the respondent for paying duty. Apart from this, it is not possible to see how these dates would have been known. When a credit entry is made in the RG 23A Part II Register, the amount of credit taken is added to the credit already shown. The credit is utilized towards paying duty by drawing from this balance. It would therefore not be possible except notionally, by applying some such principle as ldquo first in first out rdquo , to say when credit which was taken on a particular date was in fact utilized. The Collector rsquo s view that Assistant Collector has not considered the date of taking credit, is not justified. 5. emsp The appeal therefore succeeds and is allowed. Collector (Appeals) rsquo s order is set aside and that of the Assistant Collector restored.
-
1999 (3) TMI 208 - CEGAT, MUMBAI
Demand - Confiscation of goods ... ... ... ... ..... lant believe that the value declared was correct value of the goods. We find force in his contention. The invoice of the software developer, manufactured by M/s. WordStar or its buyer at Singapore from whom the appellant purchased the goods is at US 25 per set. It would appear that the Singapore supplier chose to make no profit in this matter. In any case there is an offer made by M/s. WordStar, to the appellant by fax of 3rd Jan. 1993 for supply of the goods at the same price. This therefore supports the case of the appellant that it believes in the correctness of the value that was declared. Although the departmental representative contends that the extent of under valuation is substantial and question of bona fide is irrelevant in imposing penalty for contravention of clause (m) of Section 111, we are, however, of the view that the facts of the case do not call for imposition of penalty. Accordingly we allow the appeal by setting aside the penalty imposed on the appellant.
-
1999 (3) TMI 207 - CEGAT, MADRAS
Import - Export Promotion Capital Goods scheme [EPCG] - Notification No. 110/95-Cus. ... ... ... ... ..... ision to relocate these machines. While non-intimation to the Assistant Commissioner of Customs was certainly a procedural lapse on the part of the appellants, however, since the DGFT has allowed under EPCG scheme to the unit where the machines have been relocated and a revised LUT has also been accepted by the authorities concerned, therefore, we find that even if the appellants had approached the Assistant Commissioner of Customs for permission to relocate the machines, the Customs authorities could not have been able to give such a permission and could have only directed the appellants to approach the DGFT. Thus, it is the Order-in-Original. DGFT who are the final authority to sanction under EPCG scheme, for the relocated premises. This has been done on post facto basis. We feel there is no contravention involved after this regularisation under the Customs Act therefore, we set aside the Order-in-Original impugned and allow the appeal with consequential relief, as per law.
-
1999 (3) TMI 206 - CEGAT, MUMBAI
Rate of duty ... ... ... ... ..... the Custom House agent under Regulation 21(2)) for being allegedly involved in an attempt to export narcotic drugs. That order was passed before the Calcutta High Court judgment was pronounced. The decision in Eagle Shipping (India) Services v. Collector does not help the department rsquo s case. It only affirmed that the Collector has power to pass order under Regulation 21(2) where immediate action is called for and emphasised that there must be cause for such immediate action. 11. emsp Accordingly we allow the appeal and set aside the impugned order. We make it clear that we do not in any way comment upon the liability to suspension of the licence on the basis of the acts alleged against the licensee. The Commissioner is at liberty, if so advised, to suspend the licence in accordance with the Regulation 21(1) in respect of the acts in question needless to say his right to suspend the licence under Regulation 21(2) in respect of the other acts is not affected by this order.
-
1999 (3) TMI 205 - CEGAT, CALCUTTA
Stay/Dispensation of pre-deposit - Natural justice ... ... ... ... ..... he ld. Commr. prima facie, was extraordinary to say the least. I am refraining from making any further observation as it is only a stay rsquo stage but would like to mention this much even at this stage that absolute confiscation and imposition of heavy penalty without discussing the reasons and indicating sufficient basis for the finding shows that the appellants rsquo grievance on this count, is prima facie, required to be given due weightage. 9. emsp I also take note of the fact that the goods having been absolutely confiscated are already in the custody of the Department and therefore, the revenue rsquo s interest to that extent is safeguarded. 10. emsp Looking to the totality of the facts and circumstances and noting the above aspects in particular, I consider that the applicants rsquo request for waiver of pre-deposit of penalty and stay its recovery during the pendency of the appeal was justified. The prayer is therefore, granted as already announced in the open Court.
-
1999 (3) TMI 204 - CEGAT, NEW DELHI
Smuggling - Burden of proof - Redemption fine ... ... ... ... ..... udging the confiscation is empowered to give the person from whose possession the goods have been seized an option to pay in lieu of confiscation such find as the said officer thinks fit rsquo . Though it is true that both in the case of penalty and fine, it is the same person who is concerned with making the payment, it has to be borne in mind that in the case of penalty it is imposed directly on the person, while in the case of fine, it is on the goods. It follows that while mens rea may be relevant for purposes of penalty it is not required to be established in the case of fine. 6. emsp We have therefore, no hesitation in holding that the demand of redemption fine of Rs. 1000/- in the case is legally sustainable. Further, in terms of Section 125(2), we also uphold the duty demand against the present appellants in terms of the Annexure to the impugned order. 7. emsp In the result, the impugned order in relation to the present appellants is sustained and the appeal rejected.
-
1999 (3) TMI 203 - CEGAT, MADRAS
Modvat - Capital goods - Penalty ... ... ... ... ..... ed above, that the Modvat credit cannot be denied for non-compliance of Rule 57T(2) and in view of the fact that in the cases above the Modvat credit denied is now found to be available to the appellants, therefore, there is clearly a case for re-considering the imposition of penalty to the extent contained in the order-in-original. In view of the fact that the denial of credit noted above has been now allowed in this order, therefore, the only infraction remaining on record is with respect to those items where the order-in-original has denied credit and appeal against them not having been pressed before us. Since these are very few in number, we find that justice requires that the quantum of penalty be reduced accordingly. We, therefore, reduce the penalty on the appellants to Rs. 5,000/- (Rupees Five Thousand only). 14. emsp The order-in-original impugned is ordered to be modified to the above extent. The appeal succeeds partially with consequential relief as ordered above.
-
1999 (3) TMI 202 - CEGAT, MADRAS
Seizure - Burden of proof ... ... ... ... ..... arly did not cover these goods or that the goods were otherwise of smuggled origin. Since I have already held that Section 123 cannot be invoked against the appellants in this case, and since no other evidence has been led by the Department, therefore it is clearly concluded that the benefit of doubt clearly goes to the appellants. I find that Shri Ghewarchand is the only person who has claimed ownership of the gold. The statement of Satyanandam that the gold was paid for by money given by Shri Ghewarchand has not been disputed by anyone. Therefore the claim of Shri Ghewarchand also cannot be brushed away under law. 12. In view of the aforesaid analysis, the Orders-in-Appeal impugned are set aside and both the appeals succeed with consequential relief. If the gold absolutely confiscated has already been disposed of by the Department, then the consequential relief granted herein shall be to the effect that the Sales proceeds thereof would be made available to Shri Ghewarchand.
-
1999 (3) TMI 201 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... referred to by the ld. Counsel. In fact once there was no classification dispute and the goods were accepted as falling under Heading 39.21, the benefit of notification could not be denied. This only leaves us with the question as to which serial number of the table annexed to the notification will be more appropriate. 10. emsp The item has been described by the A.C. as Thermollyd Expanded Polystyrene Blocks and Polystyrene is covered by 3903.10 (and since admittedly it is not of polyurethane) therefore this condition of the notification is satisfied and only thing that is required to be seen is whether they are made from the duty paid raw material and if such goods are purchased from market they were deemed to have been duty paid otherwise the proof of payment of duty would be required. Subject to fulfilment of these conditions the appellants would be entitled to the benefit of Serial No. 36 in the Notification 53/88. The appeal is allowed in terms of the above observations.
-
1999 (3) TMI 200 - CEGAT, NEW DELHI
Import Policy - Phased manufacturing policy - Valuation ... ... ... ... ..... his price list was not submitted immediately and further this may be issued only in respect of supplies to the appellant who was the representative of the foreign supplier. Looking to the fact that there was special relationship between the foreign supplier and the Indian Importer, we are prepared to accept that the Fax message and the proforma invoice are important piece of evidence and have rightly been relied on and accepted by the lower authorities for enhancing the value. Thus, under-valuation of the goods renders the goods liable to confiscation under Section 111(d), read with Section 111(m) of the Customs Act, 1962. 21. emsp In view of the above findings, we hold that the goods have been rightly confiscated. Looking to the value of the goods, we do not find that the penalty amount is excessive. Having regard to the above findings we do not see any reason to interfere with the impugned order. In the circumstances, the impugned order is upheld and the Appeal is rejected.
-
1999 (3) TMI 199 - CEGAT, MUMBAI
Classification ... ... ... ... ..... at interest should be determined and communicated to the party. Hence this appeal. 3. emsp After hearing Shri D.B. Shroff, the learned Advocate for the appellant and the Departmental Representative Shri K.L. Ramteke, and after going through the precedent decisions of the Tribunal in the case of Apollo Tyres Ltd. in E/1791-R/98, and E/1288 to 1295-R/98, dated 10-6-1998 it is found that the appeal is required to be allowed by holding that the product is correctly classified under Heading 59.05 now under 59.06 of the Central Excise Tariff Act, 1985, and the duty demand if any, on applying has such classification for the product, has to be redetermined by the Commissioner according to law. 4. emsp We also set aside the order imposing penalty on the appellant. The learned Advocate has raised the question of limitation by denying alleged suppression for invoking the longer period. Since, we are allowing the appeal on merits the question of limitation does not require consideration.
-
1999 (3) TMI 198 - CEGAT, MUMBAI
Natural justice - Hearing - Classification of goods ... ... ... ... ..... e made in accordance with the import tariff, not of the Customs Tariff Act and such classification is governed by the general rules for the interpretation of that tariff. The classification of the goods therefore would have to be done by reference to these rules, particularly Rules 3(a), (b) and (c). This is clear from Rule 2B which provides for application of rule or in determining classification of goods consisting of more than one materials or substance. We do not have the details of the goods of which overhaul kits are composed and are unable to give any conclusion. The classification of goods will have to be made by the Assistant Commissioner with reference to the goods of which these kits are made by reference to these rules. A speaking order will have to be passed in respect of these goods as well as the other goods. 7. emsp Accordingly, we allow the appeal, set aside the impugned order and remand the matter to the Assistant Commissioner for appropriate classification.
-
1999 (3) TMI 197 - CEGAT, MUMBAI
Stay/Dispensation of pre-deposit ... ... ... ... ..... he subsequent reduction in the prices would not adversely affect the interest of the parties for payment of excise duty. 8. We have considered the Commissioner’s finding as also the submissions of Shri Yadav about the applicability of the provisions of Section 11A. We do not find any merit in his submissions especially when we find that the demand was made under Rule 9(2). Rule 9(2) is coupled with the said Section only for calculating the time frame. But the basic requirement is for the department to show surreptitious removal of the goods. In this case the goods were cleared with full knowledge of the department. Nor are we impressed with the invocation of Section 11D because it has not been referred to in the show-cause notice. 9. On perusal of the order and the law cited we are of the opinion that the applicants have made an extremely strong, prima facie, case. We therefore grant unconditional stay and waiver of the duty confirmed and the penalty imposed.
-
1999 (3) TMI 196 - CEGAT, MUMBAI
Natural justice - Hearing ... ... ... ... ..... he final hearing, after the cross-examination. In these circumstances, it was incumbent upon the Commissioner to grant a hearing following the cross-examination. The fact that the importer or its representative failed to specifically ask in writing for hearing would not justify not affording such a hearing. The departmental representative was also not able to convincingly explain why such hearing could not be granted. Another relevant factor is that the import was made under three licences. The Commissioner has not yet passed order on the goods imported under two of them. The fact that the licensing authority by its letter dated 13th August, 1997 has clubbed the three licences together could also have some relevance. It would be more appropriate to dispose of all together. 5. emsp Accordingly we allow the appeal and set aside the order. The Commissioner shall now dispose of all the three notices relating to imports out of the three licences at one time in accordance with law.
-
1999 (3) TMI 195 - CEGAT, MUMBAI
Modvat - Paper and paper board - Demand - Limitation ... ... ... ... ..... quitable. But then the Collector and the Tribunal are creature of statute and cannot go beyond a limit specified by the law. 17. emsp With these finding I uphold the orders of confirmation of duty to the extent of Rs. 3,37,667.70. 18. emsp Ld. Advocate argued that there was no justification for imposition of a penalty of Rs. 10,000/-. I find this statement has force. The loss to the assessee has occurred because of the different classifications adopted by the different manufacturers. It could be that the correct classification in all cases should have been under heading 4823.19 and in no other heading. In that case the assessee would clearly have been shown to be in the wrong. But in a situation where considerable confusion existed in the minds of the manufacturers of the inputs, there was no justification for a penalty, especially in view of my finding that the extended period invoked could not sustain. The order of penalty are set aside. The appeals are thus partly allowed.
-
1999 (3) TMI 194 - CEGAT, NEW DELHI
Refund - Return of goods from EPZ to DTA on payment of duty ... ... ... ... ..... . Having regard to these provisions, we are in agreement with the view taken by the adjudicating Assistant Commissioner that the permission of Customs on the Gate Pass would not constitute the permission of the Development Commissioner of NEPZ. Since the clearance has thus been effected without observing the proviso of para 4 of the exemption Notification No. 133/94-Cus., we are satisfied that no claim of refund of duty already paid can be maintained in the facts of the case. We therefore, find no infirmity in the view taken by the lower authorities in rejecting the refund claim. 7. emsp However, since nothing has been brought to our notice by the Respondents to question the order of the Commissioner (Appeals) allowing the appellants to agitate their claim relating to refund of a part of the duty paid, viz., Rs. 79,550.80, on the ground of excess payment, we find no reason to interfere with that part of the impugned order. 8. emsp Subject to the above, the Appeal is rejected.
............
|