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Showing 281 to 300 of 444 Records
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1999 (3) TMI 173 - CEGAT, NEW DELHI
Modvat - Removal of inputs for home consumption ... ... ... ... ..... of Central Excise, Coimbatore v. American Auto Services reported in 1996 (81) E.L.T. 71 is concerned, it was contended by the Departmental Representatives that in that case the issue was classification of the inputs and since the inputs were not manufactured in the factory of the respondents, therefore, the issue was a different one and not identical or even similar to the facts of the present case. On careful consideration of the submissions made and the case law cited and relied upon by the authorities below, I find that there is force in the contentions of the Departmental Representatives and that the reliance placed by him on Rule 57F(1)(ii) is well conceived and supports the view of the Revenue. Since Notification relied upon by the respondents is of a subsequent date and, therefore, it will not be applicable to a situation prior to the date of issue of that Notification. 5. Having regard to the above discussion, the impugned order is set aside and the appeal is allowed.
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1999 (3) TMI 172 - CEGAT, CALCUTTA
Stay/dispensation of pre-deposit - Penalty ... ... ... ... ..... taken. They have also submitted that the credit was due to them and should not be denied on account of procedural infringement by authorised dealer. 2. emsp None appeard for the appellant today. Heard Shri S.N. Ghosh, ld. JDR for the Revenue. 3. emsp There is no dispute raised about the inputs being eligible for the credit. The objection is only with reference to procedural irregularities. The pre-deposit of penalty is waived and appeal is admitted. To come up for hearing in due course.
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1999 (3) TMI 171 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... High Speed Automatic Wrappers, also performs the function of forming and cutting of toffee that the machine has been classified under Heading 84.22 of the First Schedule to the Customs Tariff Act as Wrapping Machinery. Once the Department, for the purpose of classification, has classified the impugned machine as wrapping machine, the Department cannot claim that the impugned machine is more than a wrapping machine for the purpose of extending the benefit of Notification No. 125/86-Cus. Serial No. 29 of Notification No. 125/86 refers to ldquo High Speed Automatic Wrappers - Other than Cigarette pack wrappers rdquo . As the machine has been classified as a Wrapping machine, the benefit of Notification No. 125/86 (Sl. No. 29) cannot be denied. This was the view of the Tribunal in the case of Collector of Customs v. MOI Engineering Ltd. - 1998 (97) E.L.T. 96. In view of these facts and following the ratio of MOI Engineering case (supra) we reject the Appeal filed by the Revenue.
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1999 (3) TMI 170 - CEGAT, MUMBAI
Stay/Dispensation of pre-deposit ... ... ... ... ..... ing the delivery of the goods and preparing the documents. Sharma rsquo s statement shows knowledge by him, and hence the applicant of the forgery and manipulations made by Sharp Industries. 4. emsp The basis of the case against the transport company is not very clear. There is considerable force in the contention of its advocate that since some gate passes were given, it is not unreasonable that their authenticity could not be checked in each case. We are not, prima facie persuaded by the reference to the contents of Sharma rsquo s statement. What this shows is that more than one delivery challan had the same number. Given the status of a working of the transport company, it could prima facie, be unreasonable to expect that the booking clerk should verify the details of each delivery challan and make sure that these numbers has not been used earlier. This statement alone is not prima facie sufficient to justify penalty. Accordingly we waive the deposit and stay its recovery.
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1999 (3) TMI 169 - CEGAT, MUMBAI
Stay/Dispensation of pre-deposit ... ... ... ... ..... or whether even in the absence of this note, their scope would be defined by the HSN is arguable. Prima facie, however, it appears that the basis for classification of goods under Chapter 21 is that they are not mixtures and hence not classifiable under Heading 33.02.The major thrust of the notice appears to indicate, thus, although in the appeal to the Commissioner (Appeals) the point was specifically made that the goods form part of the product as are not odoriferous substances defined in note to Chapter 33. The Commissioner (Appeals), however, does not appear to have gone by this, but has, it appears, based his conclusion only on the ground, that the goods uniquely compounded formulation, i.e. not mixtures under Heading 33.02. 5. emsp The applicant thus has a good case prima facie. Further, whatever duty is paid could be taken as credit. We list the appeal itself for hearing on 17th May, 1999 in view of the recurring effect. Status quo is to be maintained in the meantime.
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1999 (3) TMI 168 - CEGAT, MUMBAI
Demand - Clandestine removal of goods - Penalty ... ... ... ... ..... arked. It is only such a situation that chain of payments which would result in the additional consideration being received by the appellant would be established. In a situation where a manufacturers in order to comply with the provisions of other laws this raises the safety we do not think that there has been any clandestine removal if the manufacturer had communicated in the classification list that the goods might contain upto 205 grams of the powder there is every reason to believe that classification list would have been approved by the same value. The marginal increase in the contents of the product could not by itself prove the clandestine removal of goods and evasion of duty. Hence following the ratio of the decision cited we hold that duty was not payable. The technical and procedural contravention of the rule which may have taken place as a result of the shortage do not in our view justify imposition of a penalty. 8. emsp Appeal allowed and impugned order set aside.
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1999 (3) TMI 167 - CEGAT, NEW DELHI
... ... ... ... ..... a commercial considerations had been shown to exist between them. We observe that in the instant case the Collector has not given any finding as to the existence of any extra commercial consideration in fixing the normal price between the appellant and the distributors. In view of this, we find merit in the point urged by the ld. Counsel that the impugned order fails to satisfy the test laid down in Atic Industries case and followed in the Ralliwolf case. We find that the appellant rsquo s contention that their sales to the distributors were on retail basis has also not been refuted by the Department. As regards the question of limitation also having regard to the fact that the price lists had been regularly approved by the proper officer the bar of limitation raised by the appellants is well founded. 8. emsp In the light of the discussion above we are of the view that the Appeal has merit and has to be allowed. Accordingly, the impugned order is set aside and Appeal allowed.
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1999 (3) TMI 166 - CEGAT, NEW DELHI
... ... ... ... ..... . 4. emsp We have carefully perused the records of the case and have considered the rival submissions. We find that the importer has produced at the time of clearance of the goods final invoice and proforma invoice. These invoices cover the import in question and both these invoices give the price of machinery in a consolidated manner. Therefore, this is a case of price of machinery and spares and accessories being given together by the supplier. We also observe from the proforma invoice of 1995 that even that mentioned the spare parts as ldquo recommended spare parts rdquo . This makes it clear that the manufacturer recommends the spare parts for supply alongwith the machine. In the circumstances, we hold that the Custom authorities are not justified in holding that this was not a case of compulsory supply of spare parts and invoice giving a consolidated price. The appeal is, accordingly, allowed with consequential relief to the appellant and the impugned order is set aside.
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1999 (3) TMI 165 - CEGAT, MUMBAI
Modvat - Duty paying documents ... ... ... ... ..... dit was taken.These facts that the appellant paid some additional amount to Nagani are entirely irrelevant in deciding the eligibility of Modvat credit. There is no requirement that such transaction have to be brought to the notice of the department. Hence there is no suppression or mis-representation (we notice that both cannot exist at the same time) by the appellant in bringing these facts to the department rsquo s notice. 7. emsp The facts in the decision cited by the department are to be distinguished. The invoice in that case was issued by Terene to Reliance who endorsed it to the consignee, the appellant before the Tribunal. The discussion in para 6 of the decision, disposed of the argument of the appellant that Reliance was the actual manufacturer of the goods and the alternative argument M/s. Emsons Agencies P. Ltd. was the agent of Terene who issued the invoice . 8. emsp The appeal therefore succeeds on limitation and merits and is allowed. Impugned order set aside.
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1999 (3) TMI 164 - CEGAT, MUMBAI
Video cassette housing ... ... ... ... ..... e provisions of Rule 209A and that therefore they are liable to penalty. The finding with regard to Rajeev Mital is also similarly sketchy saying that he is responsible for direct and undeniable part played in the evasion. The liability of a person to penalty and determination of quantum of that penalty requires greater consideration than meted out in this case. The Commissioner shall therefore also give reasoned finding on their liability to penalty, if any, and where necessary the quantum thereon. 9. emsp Accordingly, we allow the appeal to the extent that the goods are classifiable under Heading 39.23. The matter is now remanded to the Commissioner to determine the eligibility of goods to the notification and thereafter work out duty payable and consequently the penalty, if any, imposable on the other appellants. The Commissioner shall, after considering the material that the appellant may produce before him within two months, pass orders on these aspects according to law.
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1999 (3) TMI 163 - CEGAT, NEW DELHI
Classification - Demand - Limitation ... ... ... ... ..... heard the ld. JDR for the Revenue also on the aspect of classification. Having regard to the judgment of the Apex Court in the case of LML (mentioned supra) we hold that the left over material in the present case would be classifiable under Tariff Heading 72.10 and not under 7203.20 as claimed by the appellants herein or under Tariff Heading 7212.20 as claimed by the Revenue. 5. emsp Apart from the foregoing, ld. Advocate has also contended that the demand of duty is fully barred by time inasmuch as the show cause notice has been issued on 4-4-1991 for the period 1-3-1986 to 28-2-1988, even though the classification list has been duly approved by the concerned competent authority under Tariff Heading 7203.20. We have seen the relevant classification list. We agree with the ld. Advocate that the demand is wholly barred by time. Consequently, we set aside the demand of duty of Rs. 1,30,075/-. We also set aside the penalty of Rs. 20,000/-. Appeal disposed of in the above manner.
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1999 (3) TMI 162 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... s described under Tariff Heading 84.85 and not 84.83. 5. emsp We have, carefully, considered the pleas advanced from both sides. We observe that no doubt the goods have not been described as shaft couplings in the various purchase orders presented by the appellants for evidence in their support. But we have also noticed that the expression shaft couplings have been explained in HSN Explanatory Notes. Scope of Tariff Heading 84.83 has to be looked at as to how it has been explained in the HSN Explanatory Note. It is a settled proposition that since the Tariff Heading is based on HSN. Therefore, HSN Explanatory Notes acquire a high persuasive value as hold by the Apex Court in 1995 (77) E.L.T. 23. Having regard to the Explanatory Notes as mentioned above we are inclined to agree with the submissions of the ld. SDR Shri R.K. Sharma. Accordingly, the classification of the goods has been correctly made by the lower authority under Tariff Heading 84.83. Hence we dismiss the appeal.
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1999 (3) TMI 161 - CEGAT, NEW DELHI
Modvat - Duty paying documents ... ... ... ... ..... ase and, therefore, they will not be entitled to the benefit of Modvat credit on the strength of the three challans. This view is supported by the decision of this Tribunal in the case of General Electric Company by said Order No. A. 204/97-NB and further in the case reported in 1998 (27) E.L.T. 385 (sic). 6. emsp In so far as, denial of Modvat credit on the strength of extra copy of invoice given by IOCL is concerned, I find that there is no explanation tendered by the appellants as to why they could not produce the duplicate copy of the invoice which is the requisite document for taking Modvat credit. In the absence of such satisfactory explanation for non-submission of the duplicate copy, I hold that the lower authorities have rightly denied the benefit of Modvat credit. 6. emsp In view of the above discussion and findings, I do not find any legal infirmity in the order of the authorities below. In the circumstances, the impugned order is upheld and the appeal is rejected.
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1999 (3) TMI 160 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... ustion piston engines as well as parts thereof though the Tariff Heading 84.06 mentioned in the Table to the notification did not at all include the parts of internal combustion engines. It was held by the Apex Court that since the exemption was specifically to both internal combustion engines and parts thereof, the Tariff Heading was not material. It was found as a fact in that notification that the said Notification No. 218/86-Cus. in- tended to grant exemption to parts also irrespective of the fact that Tariff Hea- ding therefore was not mentioned. There is no such controversy before us. The exemption is intended only for parts of gas compressors falling under Tariff Headings mentioned in Column (2) of the Table to the notification. Therefore, it is apparent that both the description in Column (3) and the Tariff Headings in Column (2) of the Table to the notification should be satisfied before a part of gas compressor could be extended the benefit of the said notification.
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1999 (3) TMI 159 - CEGAT, NEW DELHI
Classification - Appeal - Limitation ... ... ... ... ..... oned above, is correct in our view inasmuch as the Heading 73.08 relates not only to structurals or goods used in structures but also to other articles of iron and steel. The electrode casing is definitely an ldquo other article of iron and steel rdquo and therefore, its proper classification prior to 1-3-1988 would be 7308.90. To this extent Revenue rsquo s appeal is valid and we allow the same. 6.However, we observe that the whole issue is only academic even the issue before the Collector (Appeals) was academic in nature. The main issue before the Assistant Collector, as pointed out in the show cause notice, was regarding the extension of benefit of Notification No. 217/86. That benefit had been extended by the Assistant Collector in his order-in-original. There was, therefore, no reason for the Collector (Appeals) to entertain the appeal of the respondents. 7.Despite our observation as above, we allow the appeal of Revenue to the limited extent, as already mentioned above.
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1999 (3) TMI 158 - CEGAT, NEW DELHI
Refund - Unjust enrichment ... ... ... ... ..... bmitted number of documents before the Assistant Collector in support of his contention that duty has not been passed on to the customer. On the other hand, the Commissioner has given a finding that the party has produced only the certificate issued by the Chartered Accountant. Assuming that the party has not placed other documents before the Commissioner, he should have directed the party to file the documents referred to in the Assistant Collector rsquo s order. In the facts and circumstances, I am of the view that the matter will have to go back for reconsideration. Accordingly, I am remanding the matter to the concerned Commissioner (Appeals) to examine the issue afresh. The party may make use of this opportunity and substantiate his claim before the Commissioner (Appeals) that the duty element has not been passed on to the customer. On considering the evidence, the Commissioner (Appeals) may pass an appropriate order. Thus, these two appeals are allowed by way of remand.
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1999 (3) TMI 157 - CEGAT, NEW DELHI
Rolls - Entitled to benefit of Notification No. 281/86-C.E.
... ... ... ... ..... 4-1986 to 31-3-1991. 3. emsp Opposing the contentions ld. JDR, Shri. S. Nunthuk submits that benefit of the Notification could not be available to the appellants because of the replacement of rollers in the rolling mill nor can it be repair of the rolling mill. 4. We have carefully considered the pleas advanced from the both sides. We are not inclined to agree with the submission of the ld. JDR. Replacement with a grooved roller of a roller which has outlived its utility will be covered within the scope of the expression ldquo maintenance and repair rdquo of the rolling mills. We are, therefore, of the view that the appellant is clearly entitled to the benefit of the Notification 281/86-C.E. His case is further strengthened by the two judgments relied upon by him mentioned (supra). Consequently, we set aside the demand of duty and in the facts and circumstances of the case, the penalty as well. Appeal disposed of in the above manner with consequential relief to the appellant.
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1999 (3) TMI 156 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... a rough sketch given by the ld. Advocate in the course of arguments. That being the position the cooling plates/plate coolers become part of the furnace as rightly held by the lower authorities. In that view they are rightly classified under Tariff Heading 8417.00. 3. emsp Arguments of the appellants ld. Consultant Shri T.N. Srivastava that they are meant only for the cooling of furnace may be correct but they are kept outside the furnace is not correct. The manner of use as described by the lower authorities is not disputed by the appellant, the coolers become part of furnace. Therefore, the said castings even though not machined, therefore, would be classifiable under the aforesaid Tariff Heading 84.17. This being a more specific item than the Tariff Heading 73.25 which relates generally to castings not otherwise specified. 4. In view of the foregoing discussion, we do not find any substance in the appeals before us filed by the appellant. Consequently, we dismiss the same.
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1999 (3) TMI 155 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... ority has fallen into an error of fact and law. It is pointed out that Note 2(e) of Section XVII, excludes ldquo machines and apparatus of Heading Numbers 84.01 to 84.79 and parts thereof rdquo . Filter elements are specifically classified under Tariff Heading 84.21. Therefore by virtue of Note 1 (b) of Chapter 84, Ceramic parts of Chapter 84 will be covered under Chapter 69 and not under Chapter 84. It has, therefore, been urged by the Revenue and reiterated by the ld. JDR that the proper classification of ceramic filter elements would be under Tariff Heading 69.11. 6. We have carefully considered the pleas advanced from both sides. We agree with the reasoning advanced by the Revenue in its appeal. The lower appellate authority has obviously not noticed Note 2(e) of Section XVII of the CETA, 1985 and that is why the error has occurred into his order. Consequently we set aside the impugned order, so far as this item is concerned and allow the appeal of Revenue to this extent.
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1999 (3) TMI 154 - CEGAT, NEW DELHI
Dutiability on the basis of capacity of production ... ... ... ... ..... all be abated in respect of such period if the manufacturer of such goods fulfills such conditions as may be prescribed rsquo . From the above, it is seen that the requirement is that the factory should not have produced during the continuous period of not less than seven days. In the instant case, factory has been producing notified goods and production has taken place in two furnaces. Therefore, we are unable to accept the contention of the learned Counsel that abatement is to be granted furnacewise. The reliance by the Counsel of affixing of annual capacity of production independently for each furnace does not advance the appellants case in view of the fact that total annual production capacity has been taken as only one figure and further the language of the proviso is very clear that abatement is permissible only if the factory does not produce notified goods. In the light of the above discussion, we see no reason to interfere with the order passed and reject the appeal.
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