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Showing 61 to 80 of 229 Records
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1990 (4) TMI 177 - CEGAT, MADRAS
Stay/Dispensation of prior deposit ... ... ... ... ..... the goods in respect of which they had taken MODVAT credit, the demand made was correct in law. 4. We have considered the pleas of both the sides. We observe that the applicants rsquo plea that the complexion of the show cause notice completely changed by the issue of the corrigendum dated 17-3-1989 has a lot of force and their plea in regard to the status of the show cause notice dated 17-2-1989 is prima facie acceptable. The authorities having substituted the relevant portion under which the demand in respect of 43.50 M.T. of scrap found unaccounted for was made, cannot maintain that the said portion of the show cause notice prima facie survived even after the substitution was done. In the above view of the matter, we feel that it is a fit case where the pre-deposit of the duty and penalty has to be waived and we order accordingly. We also grant stay of recovery of the same pending disposal of the appeal. 5. The Registry shall post the appeal for hearing in its normal turn.
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1990 (4) TMI 176 - BOMBAY HIGH COURT
... ... ... ... ..... above make the position quite clear. Since the first order is being set aside the second order debarring the petitioners as the export house for getting further licence will have to be set aside which has been done in the order dated 14/20th of February 1990. That petition will have to be allowed in terms of prayer clauses (a) and (b) both though the amount for the necessary certificate need hot be prescribed as it can be verified by the Department and that liberty is granted. In my opinion, therefore, no further discussion is necessary and both the petitions must be allowed. 8. Writ Petition No. 781 of 1990. - Rule made absolute in terms of prayer clause (a). 9. Writ Petition No. 1114 of 1990. - Rule made absolute in terms of prayer clauses (a) as also (b)(i)(ii) except deleting the figure for the purpose of REP licence, so that that issue can be examined by the Department on its own merits and pass the appropriate orders. . 10. There would, however, be no order as to costs.
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1990 (4) TMI 175 - CEGAT, NEW DELHI
Reference to High Court ... ... ... ... ..... suming that it results in postponement of duty even then the Collector has not been authorised under Rule 56-B to permit removal of a finished product for the manufacture of another finished product even if the manufacturer of both the products is one and the same person. 32. We agree with the contention of Shri Nariman that semi-finished has relation to subsequent manufacturing process but then we are unable to agree with his submission that the further manufacturing process would include converting an excisable semi-finished goods into a different excisable goods. The Collector could permit removal for carrying out manufacturing process which would complete semi-finished into finished product. Extracts of Rules 9 and 56B of the Central Excise Rules, 1944 are also enclosed (at Annexure 1) for the facility of the Court. 6. Accordingly, the aforesaid question, as mentioned in para 1 above is referred to the Hon rsquo ble High Court of Madhya Pradesh, Jabalpur for their opinion
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1990 (4) TMI 174 - CEGAT, MADRAS
MODVAT credit ... ... ... ... ..... 1987 when it was introduced after amendment it has to be held that the benefit of this Rule was intended to be given to the manufacturers even after March, 1987 and the wording ldquo immediately before rdquo in this context has to be read as ldquo preceding the date rdquo as set out in the Law Lexicon. In the light of this when we examine the facts of the present case, it has to be held that the appellants had the input with them i.e. the ship preceding the date of the dated acknowledgement and that the same was used in the manufacture of the finished product cleared from the appellants rsquo factory on or after the 1st day of March, 1987. The appellants rsquo case, therefore, has to be held to be falling within the purview of Rule 57H and in that view of the matter, the appellants rsquo plea therefore has to be allowed and the benefit of the MODVAT credit in respect of the duty paid by them on the input has to be allowed. The appeal is, therefore, allowed in the above terms.
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1990 (4) TMI 173 - BOMBAY HIGH COURT
Detention order ... ... ... ... ..... 14, 1989. By the second application, the bail period was sought to be extended up to February 14, 1990. It is interesting to note that on both these occasions, the detenu was not present in court and in spite of that fact, it is the customs Authorities, who were to execute the Order of detention, applied for extension of the bail. Mr. Karmali is, therefore, right in contending that the claim made in the return that efforts were made to serve the detention order is not correct. In our judgment, as the Order of detention was not served for a considerable length of time, the efficacy of the order is totally lost. The Order of detention is issued with a view to prevent prejudicial activity in the near future and it is not permissible to execute the order after a considerable length of time. In these circumstances, the Order of detention cannot be sustained. 3. Accordingly, petition succeeds and the order of detention is quashed and the detenu is directed to be released forthwith.
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1990 (4) TMI 172 - CEGAT, NEW DELHI
Adjudication Order ... ... ... ... ..... allowed with consequential relief to the appellants. 11. Assent per D.C. Mandal, Member (T) . -I agree with the conclusions drawn by Shri Brahmadeva, Member (Judicial). In my view, however, the difference in the country of origin is not material for valuation if the goods originating from two countries are of the same brand and quality. In the present case, the Collector has compared the price of ldquo YKK rdquo brand and LFC 8 inches specification of Japanese origin Zip fasteners with the Zip fasteners of the same brand and specification of Taiwan origin. These are comparable goods for the purpose of Section 14(1) (a) of the Customs Act. However, there was huge difference in the quantity of imports in the two consignments under comparison. The appellants cited contemporaneous imports at comparable prices. Therefore, at least the benefit of doubt should be extended in their favour, particularly when there is no conclusive evidence to prove under valuation. Appeal is allowed.
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1990 (4) TMI 171 - CEGAT, NEW DELHI
Rectification of mistake ... ... ... ... ..... en received covered under valid vouchers in the afternoon of 7-11-1978 whereas the seizure took place the same evening, and hence the ratio of the decision of High Court would apply to the facts of this case. In the circumstances, in rectification of the Order No. cited above, we order that the confiscation of 254 gms and 438.300 gms of gold ornaments be set aside. At the same time in respect of the quantity of ornaments weighing 13 gms and Suhan weighing 20 gms (total 33 gms) the order of confiscation is maintained for the reasons already stated in Para 9 of the order dated 31-12-1986. However, the option to release that quantity on payment of fine in lieu of confiscation is maintained and the fine in lieu of the confiscation in respect of this quantity, namely, 33 gms as stated above is fixed at Rs. 5,000/- (Rupees Five Thousand only). The Tribunal rsquo s order is rectified only to the extent indicated above. The Rectification Application is disposed of in the above terms.
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1990 (4) TMI 170 - CEGAT, BOMBAY
Proforma Credit taken for differential duty transferable to Modvat ... ... ... ... ..... on available in Rule 56A itself, we hold that if credit for differential duty paid subsequently cannot be given in the proforma account because of its closure, it would still be available by way of credit in PLA. Hence, the whole exercise of taking initial credit in RG 23 (proforma) account and that too after its closure and thereafter transfer to modvat account in terms of Rule 57H, is redundant and is not called for. 9. Thus, though technically, the order passed by the Asstt. Collector could be construed to be not in accordance with the Rule 56A(9), we hold that the appellants are otherwise entitled to take the credit of the differential duty paid on inputs straightaway in the PLA. Accordingly, we direct the authorities below to allow the appellants to take credit in respect of the differential duly to the extent of Rs. 58,927.80 in the PLA and correspondingly make the debit in the RG-23A - Modvat Account to the same extent. 10. The appeal is disposed of in the above terms.
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1990 (4) TMI 169 - CEGAT, CALCUTTA
Confiscation and penalty ... ... ... ... ..... m from the jeep does. rdquo 9. On consideration of the entire evidence on record I hold that the charge of illegal export has not been brought home by the evidence available on record against appellants Suresh Ch. Sil (Appeal No. C-304/87), Manik Debnath (Appeal No. C-306/87), and Govind Laskar (Appeal No. C-307/87). In this view, I set aside the order of confiscation of the goods and also penalties imposed on these three appellants and allow respective appeals. 10. Appellant Smt. Biva Rani Laskar is only the owner of the jeep and when the goods are not liable for confiscation in the facts and circumstances set out above, the jeep also would not become confessable and consequently the fine is not tenable in law. In this view, I set aside the fine imposed on the appellant Smt. Biva Rani Laskar under Section 115(2) of the Act and allow Appeal No. C-305/87 filed by her. 11. In the result, the impugned order appealed against is set aside and all the captioned appeals are allowed.
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1990 (4) TMI 168 - CEGAT, MADRAS
Import - OGL ... ... ... ... ..... Court, is to the effect that there can be no discrimination against a particular importer. 21. I have no doubt that clarification issued by the J.C.C.I. or any other authority including the Central Board of Excise and Customs cannot form the basis of judgment by this Tribunal. It is only the law including Notifications that can be agitated here. However, in the facts and circumstances of the case as discussed above considered together with the ratio of the judgments cited before me by Shri Patel and also in view of the approach of the Department expressed quite fairly through the learned D.R., I am of the opinion that the matter should be remanded to the Custom House for a fresh examination. In this view I agree with the order proposed by learned Member (Judicial). 22. The difference of opinion having been answered accordingly I direct that the file be now placed before the Bench for further orders. FINAL ORDER The appeal stands disposed of in the light of the majority view.
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1990 (4) TMI 167 - CEGAT, NEW DELHI
Appellate Tribunal ... ... ... ... ..... f the original additional licence. But then in the present case it would not serve any purpose because as already held by the learned brother Shri K.S. Venkataramani, under provisions of 95 Para 1 and 2 of Hand Book of the Procedure relating to Import and Export Policy 1988-1991, Additional Licence would not be available to the appellant. The appellant has cited Poonam Plastic Industries v. Collector of Customs -1989 (39) E.L.T. 634 (Tri.) and we have carefully perused it but on perusal it appears that provisions of Para 95(1) and (2) had not been brought to the notice of the Bench. Because it has been stated in Para 12 of that order as under ldquo it has not been shown to us that there is anything in law which requires that a licence can be accepted only if it is mentioned in the letter of credit. rdquo 42. I agree with the conclusions of the learned Brother Shri K.S. Venkataramani and I agree with the final order proposed by him and so the appeal is disposed of accordingly.
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1990 (4) TMI 166 - CEGAT, NEW DELHI
Refund - Limitation ... ... ... ... ..... rchases and removals of steel furniture are more imaginary than real, in case of dealers regularly buying and clearing throughout the year. And, as for exceptional case of heavy concentration of clearance and removal in the early part of the year, with a rule of the type here involved, there is no reason why an application for refund should not be made each time clearance is made, upto the limit of Rs. 50,000 leaving the authorities to reject the same, it the ceiling of Rs. 2 lakhs for obtaining refund had been exceeded. (Emphasis supplied) This Tribunal has also taken a consistent view that the limitation for refund is to be counted under erstwhile Rule 11 from the date of clearances and 1 from the end of the assessment year/financial year. 8. In view of the above we allow the appeal, set aside the impugned order-in-appeal passed by the Collector (Appeals) and restore the order dated 19-9-1980 (20-9-1980) passed by the Assistant Collector, Central Excise Division-II, Kanpur.
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1990 (4) TMI 165 - CEGAT, NEW DELHI
Rate of dutty - Dutiability ... ... ... ... ..... ich we have already referred, and also considering that the nomenclature, nature, quantification and modality of collection of the duty remained identical throughout. We also observe that the other case law relied upon by the assessee, namely, that of the Tribunal in the Sri Ram Refrigeration case is no more good law in the light of the subsequent Supreme Court judgment in the Wallace Flour Mills case, and we also observe that this Tribunal on this very issue already found the ratio of the Supreme Court decision in Wallace Flour Mills case applicable, and had followed the same, in respect of CCE Bombay-II v. Amar Dye Chem, 1990 (26) ECC 199 (SB) and also in the case of CCE Bombay-II v. Godrej Soaps Ltd. 1990 (26) ECC 202 (SB). In the circumstances, therefore, we hold that the collection of SED on the clearances on or after 1-3-1988 on goods which had been fully manufactured prior to that date is valid and in accordance with law. The appeals are disposed of in the above terms.
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1990 (4) TMI 164 - CEGAT, CALCUTTA
... ... ... ... ..... it is not mandatory to put the mark on each and every sheet. The Rule in question only lays down that after any excisable goods had been packed and made ready for removal from the factory, the manufacturer should mark clearly on each wholesale package inter alia, the number of retail packages contained in each wholesale package and the quality of goods contained in each retail package and a distinguishing marking to denote the kind and quality of the goods contained therein. This requirement, which is applicable to wholesale packages to be removed from a factory has been made applicable to goods seized in godown without considering the defence plea that the plywood sheets were found in loose condition because the packages had been opened. The Additional Collector rsquo s findings cannot be supported. I have, therefore, no hesitation in allowing the appeal. I order accordingly and set aside the confiscation and the fine imposed in lieu of confiscation and the demand for duty.
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1990 (4) TMI 163 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... pt these test reports, to prove that the yarn in dispute contained synthetic staple fibre. On the other hand, the Collector (Appeals) has given convincing reasons to hold the classification of the yarn under Heading 55.05. 16. In the light of the above discussion, classification under Heading 54.06 is ruled out. The yarn also does not fall within the ambit of Heading 5504.31 as it is not yarn containing other synthetic staple fibre in the form of waste or in the form of fibre produced out of such wastes, in which acrylic or modacrylic staple fibre predominates by weight. The yarn is rightly classifiable under Heading 55.05. 17. In the result, we uphold the order of the Collector (Appeals) and dismiss the appeal. 18. The respondents filed a cross-objection. The same gets disposed of by our above conclusion. As the classification is decided in their favour, we are not required to give any findings regarding limitation under Section 11A of the Central Excises and Salt Act, 1944.
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1990 (4) TMI 162 - CEGAT, CALCUTTA
... ... ... ... ..... ants were found acceptable by the Collector and he dropped the demand. However, for failure to maintain the statutory records they have been imposed a penalty of Rs. 2,000/- under Rule 173-Q. The only provision under Rule 173-Q that appears relevant in this case is sub-rule (1) under that Rule which refers to removal of any excisable goods in contravention of any of the provisions of the Central Excise Rules. Non-maintenance of records and the failure to submit the required certificates within a period of 90 days do not constitute contravention of any of the provisions of the Rules. Even the charge of non-maintenance of proper records which could have been provided against under Rule 226, as pointed out by the appellants in their appeal, loses its sting in view of the actual disposal of the goods in the manner laid down in the exemption notification. In the circumstances, I set aside the order imposing penalty on the appellants and allow the appeal with consequential reliefs.
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1990 (4) TMI 161 - CEGAT, NEW DELHI
Appeal - Condonation of delay ... ... ... ... ..... part from the general criticism made against the appellants lack of diligence during the period of limitation no other fact had been adduced against it. Indeed, as we have already pointed out, the learned Judicial Commissioner rejected the appellant rsquo s application for condonation of delay only on the ground that it was appellant rsquo s duty to file the appeal as soon as possible within the period prescribed, and that, in our opinion, is not a valid ground. rdquo In view of the above legal discussion, we hold that the appellant was not prevented by sufficient cause in the late filing of the appeals. We hold that these are not the fit matters where the Tribunal should exercise its discretion for condoing the delay. The above captioned 7 applications for condonation of delay are rejected. 3. Since we have rejected the applications for condonation of delay, we are not going into the merits of the appeals. The above captioned 7 appeals are dismissed being hit by limitation.
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1990 (4) TMI 160 - CEGAT, NEW DELHI
Demand and penalty ... ... ... ... ..... in the R.G. 1 record. These are, liable to confiscation and we accordingly uphold their confiscation. In view of the reduced number of Ingots liable to confiscation, as found above, we reduce the redemption fine from Rs. 5000/- (Rupees Five thousand only) to Rs. 1000/- (Rupees One thousand only). 4.2. As regards the suppression of production and demand of duty thereon we accept the appellants rsquo plea that they should be entitled to the benefit of excess recordings made in the R.G. 1 vis-a-vis the Daily Performance Report if they are hauled up on the basis of short entries between the two accounts. Accordingly, the demand of duty should be made on the shortage of Ingots and runners and risers i.e. 59.975 M.Ts of M.S. Ingots and 17.859 M.Ts of runners and risers. Having regard to the overall facts and circumstances of the case we reduce the penalty from Rs. 5000/- (Rupees Five thousand only) to Rs. 2000/- (Rupees Two thousand only). 5. Appeal disposed of in the above terms.
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1990 (4) TMI 159 - CEGAT, NEW DELHI
Manufacture - Dutiability ... ... ... ... ..... wn condition and assembled at site and further, there is an observation by the Collector (Appeals) that the dairy plant manufactured by the appellants installed at the site of the factory of the National Dairy Development Board and that if there is a demand for erection of such plants in other place, the appellants would undertake such installation also and from the above, it follows that the articles at the time of removal from the factory were movable property and hence the action of the Assistant Collector to bring the dairy plant manufactured by the rsquo appellants under Item 68 of Central Excise Tariff is quite legal. We find that the ratio of the Supreme Court and Tribunal decisions cited supra, is applicable to the facts of the present case. In this view of the matter, the case law cited and relied upon by the appellants will not be of much avail and we, accordingly, find no reason to interfere with the orders passed by the lower authorities. The appeals are rejected.
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1990 (4) TMI 158 - CEGAT, MADRAS
SSI Exemption - Value of clearances ... ... ... ... ..... ituation, the well established judicial practice and precedents will have to be followed by the Tribunal. We find that this 3-Member Bench ruling of the Special Bench was not brought to the notice of the South Regional Bench when the Judgment in the case of Radhika Enterprises v. CCE, Coimbatore cited supra was rendered. We, therefore, are of the view in the facts and circumstances of this case and in the interests of justice, the question with reference to the appellant s eligibility and entitlement to the benefit of Notification No. 175/86, in the light of the rulings cited by the learned Counsel will have to be considered, more particularly when the learned adjudicating authority has not considered the appellant s plea referred to in para 16 of the impugned order at all. In this view of the matter, without expressing any view on the merits of the issue, we set aside the order appealed against and remit the matter for re-consideration in the light of our observations above.
........
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