Advanced Search Options
Case Laws
Showing 81 to 100 of 229 Records
-
1990 (4) TMI 157 - CEGAT, NEW DELHI
... ... ... ... ..... o decide judicially. In our view the Collector has a duty to act judicially for the simple reason the foundation of the action is the allegation against the importer that they have under-in voiced the goods. There is lis/controversy between the deptt. and the importer and the Collector is duty-bound to give an opportunity to the respondents to explain the allegation against them. Therefore, the Collector has to decide judicially and the decision required communication. In the instant case we have dealt with at length in the earlier pargraphs, the manner in which the Collector disposed of the matter. The mere affixing the signature seeking approval of the proposal does not amount to taking a decision judicially. Consequently, it ceases to be a decision. At the most it may be an executive decision which is not appealable under Section 129 Al (a) of the ACT. 15. In any view of the matter we are of the view that the appeals are not maintainable and accordingly they are dismissed.
-
1990 (4) TMI 156 - CEGAT, NEW DELHI
Copper Shapes and Sections ... ... ... ... ..... dant and they would have all to be assessed, according to the test laid down by the Collector, as components of machinery of which they are forgings or castings. 12.2 In this view of interpretation of Rule 2 (a) the citations given by the learned advocate in support of his case for determining the essential character of other articles as imported would not be relevant to the facts of this case. Similarly, the citations given during the course of hearing by learned SDR in support of his case in respect of the other articles would not be relevant and we do not propose to take into consideration those citations relied upon by other side. 12.3 Having regard to the aforesaid discussion, we are of the view that the imported products in the instant cases are classifiable as 74.03 (1) CTA. Accordingly, the appeals of TELCO are allowed and the appeals of the Revenue are dismissed with consequential relief to TELCO. 13. Cross-objections of TELCO are also disposed of in the above terms.
-
1990 (4) TMI 155 - CEGAT, CALCUTTA
Pre-deposit of duty ... ... ... ... ..... eir favour. Such decisions have taken note of the fact that the additional levy arising from such notifications affect the assessees adversely and hence their coming to know of the new rates of duty is vital. Such is not the case with notifications which confer a benefit to them. All the same the disparity in treatment with reference to the effective date of both types of exemption notifications creates an apparent no-win situation for the Government - heads the assessees win, tails the Government loses. The impact of exemption notifications granting fresh benefits may be more on Government considering the fact that such exemption notifications are far more numerous than exemption notifications rescinding previous ones and granting lesser level of exemption than before. In the circumstances, the practice being followed may require re-examination by the Government in the light of the settled position of the law with regard to the date from which notifications come into effect.
-
1990 (4) TMI 154 - CEGAT, NEW DELHI
Levy and collection of cess on vegetable oil manufactured in a mill ... ... ... ... ..... roduced from oilseeds or any other oil bearing material of plant origin and containing glycerides) which had been subjected to any processing subsequent to the recovery of oil. The term was expressly defined to mean any oil produced from oilseeds, or any other oil bearing material of plant origin and containing glycerides. There is no dispute that the appellants did produce oil in their mill from oil seeds. Cess was, therefore, leviable even in terms of this definition on the crude vegetable oil as extracted or produced from oil seeds. Of course, the definition excluded processed oil and processed oil could not have been levied with cess. In the present case, it is not the processed oil which was subjected to cess but the crude oil as extracted or produced from oil seeds. The second contention of the appellants is also not tenable. 9. In the above view of the matter, we do not see any merit in the appeal. Consequently, the impugned order is upheld and the appeal is dismissed.
-
1990 (4) TMI 153 - CEGAT, NEW DELHI
Premature seizure ... ... ... ... ..... be finally determined by the authorities concerned, therefore this by itself does not help the department rsquo s case at this stage. 38. Since it has not been contradicted that the goods had been duly accounted for in the records maintained in the normal course of business and were still in the factory at the time of seizure and the duty liability had not yet been finally determined, we hold that the goods were not liable to seizure and confiscation and the penal action against the appellants was premature. 39. We therefore set aside the impugned order. But in view of the fact that the matter regarding liability to duty was still pending, order that the consequential relief will be limited for the time being to the refund of fine and the amount of deposit, and the refund of amount charged as duty shall be subject to the orders of the Tribunal/Courts in respect of excisability and duty liability of the product for the period in question as already announced in the open court.
-
1990 (4) TMI 152 - CEGAT, NEW DELHI
Fertilizers - Ammonia used for specified purposes ... ... ... ... ..... the goods, namely, the holder of the L6 licence, who had undertaken to use the goods for the specified purpose and had executed a bond to ensure compliance with the notification, was responsible for payment of duty in such circumstances. In the present instance, the demand for duty has been raised against the manufacturer, and not the consumer, of ammonia. On this ground also, the demand raised against the appellants is not sustainable. 11. In the light of the foregoing discussion, we set aside the orders of the lower authorities with consequential relief to the appellants. 12. The Revenue has filed what is purported to be a cross-objection against the order of the Collector (Appeals). Since the Collector rsquo s order is entirely in favour of the Revenue and the only relief claimed in the purported cross-objection is that the appeal filed by Fertilizer Corporation of India may be rejected, there was no cause for filing so called cross-objection. It is accordingly dismissed.
-
1990 (4) TMI 151 - CEGAT, NEW DELHI
Proforma credit ... ... ... ... ..... a notification cannot be denied if the procedural provisions have been substantially followed. Applying the same ratio, we hold that the appellants are entitled to the benefit of Notification 95/79 as amended by Notification 58/82. The objection of the DR that a refund claim is not maintainable against the direction of the Supdt. to expunge credit and that only remedy available is by way of appeal, is over-ruled as we find that the adjudicating authority has entertained the refund claim and disposed of it on merits. 8. Regarding adjustment of credit the appellants would be entitled to adjustment under Rule 57H which was introduced in 1986 on the termination of proforma credit. In the event of the present procedure not permitting credit adjustment, the Department should then pay the amount of relief in cash or by cheque, as has been held by this Tribunal in the appellants rsquo own case in order No. 397/89-C dated 17-8-1989. 9. The appeal is allowed with consequential relief.
-
1990 (4) TMI 150 - CEGAT, NEW DELHI
Confiscation and penalty ... ... ... ... ..... partnership with the purchase of the said machine. Statement of Chander Parkash though a son-in-law of Shadi Lal and somewhat belated, however, makes it clear that the partnership never really started. The investment as a partner had been made was converted into a short term loan. This fact appears to be corroborated by the statement of Miss Praveen Bala who in the first instance gave out to Customs that the photostat machine belonged to Prem Rattan. Had it appeared a partnership business, there is no reason as to why Miss Praveen Bala a totally independent witness would not have given the correct position. Accordingly, I see that there is no justification for imposition of penalty on Shri Shadi Lal the penalty of Rs. 12000/-imposed on him by the adjudicating authority is, therefore, set aside. 5. In sum, the appeal of Shadi Lal is allowed, appeal of Prem Rattan is rejected subject to modification in the order of absolute confiscation of the machine and reduction in penalty.
-
1990 (4) TMI 149 - CEGAT, CALCUTTA
Account of stocks of goods ... ... ... ... ..... al causes. The demand is on the basis of annual stocktaking findings. The appellants record the quantum of production from RPC to CPC following the ratio of estimated recovery of 100 75. In this method of calculation, there is bound to be certain variation and in fact, variation is inherent in this method. The ratio of 100 75, by its very nature, cannot be a constant, fixed, rigid, invariable, mathematically precise one. The appellants have satisfactorily explained the shortage and therefore there has been no infringement of Rule 223A. Regarding the discrepancy between the RG-I Register figures and the balance sheet figures, as already noted, the proceedings against the appellants were dropped by the Collector of Central Excise, Calcutta by his order dated 24-12-1983. The reasoning in the impugned order are thus not sustainable on either count. 9. The appellants are entitled to succeed both on limitation and on merits. 10. We set aside the impugned order and allow the appeal.
-
1990 (4) TMI 148 - CEGAT, BOMBAY
Classification ... ... ... ... ..... 6 of Policy AM 1985-88. Reading the same entry it is clear that all the Hand Tools, which include pneumaticlly operated tools, classifiable under T.I. 8467.19 are importable under OGL unless they are specifically listed in Appendix 3 Part A Entry No. 590 in Appendix 3 Part A deals with tools. In 27 items listed therein, the items imported by the appellants are not included. When there is no specific inclusion the inference that can be drawn is that they are importable under OGL vide entry 549 (10) of list 8 of Appendix 6. 10. Under the circumstances, the items imported are nothing but the tools, which instead of manual force, are operated on pneumatic force and they are not excluded from Entry 549 (10) of list 8 of Appendix 6 of Policy AM 1985-88 and import thereof is permissible without any specific licence. 11. The appeals are therefore allowed, and all the orders appended against are set aside. The import of the items are allowed under OGL. Consequential relief to follow.
-
1990 (4) TMI 147 - CEGAT, NEW DELHI
Stay/pre-deposit of duty ... ... ... ... ..... been pointed out that rdquo void is meaningless in an absolute sense and that unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable lsquo orders rsquo . In the words of Lord Diplock, ldquo the order would be presumed to be valid unless the presumption was rebutted in competent legal proceedings by a party entitled to sue. rdquo 4. In view of the above discussion, we are of the view that prima facie the applicants appear to have a good case on merits. We dispense with the predeposit of the duty amount of Rs. 8,38,922.13. We further order that during the pendency of the appeal, the revenue authorities shall not pursue the recovery proceedings. We further direct that to safeguard the interests of the revenue, the applicants shall not alienate their fixed, movable or immovable assets without the prior permission of the Tribunal.
-
1990 (4) TMI 146 - CEGAT, NEW DELHI
Dutiability and refund ... ... ... ... ..... tio of the Hon rsquo ble High Court of Bombay rsquo s judgment in the Dukes case we hold that the appellant was entitled to the benefit of exemption in terms of Notification No. 18/70 and 30/72 and hence liable to pay duty only at the rate of 10 only. Consequentially the refund was due to them. 38. As the approval of classification list was provisional, it was required to be finalised immediately on the above basis. Further as the Asst. Collector has himself admitted that the duty had been paid under protest and refund claim was not time barred. the amount due was required to be paid forthwith. 39. However since the refund claim has not been examined on merits of the lower stage and its calculation, etc., in ail probabilities have not been checked, we pass the following order. 40. The appeal is accepted and the appellant is entitled to consequential refund which may be duly calculated and sanctioned by the Asst. Collector within one month of the date of receipt of this order.
-
1990 (4) TMI 145 - CEGAT, MADRAS
Titanium metal Anodes essentially required for manufacture of Caustic Soda ... ... ... ... ..... as under - ldquo The goods referred to in clause (b) of sub-s. (3) of S. 8, which a registered dealer may purchase shall be goods intended for use by him as raw materials, processing materials, machinery, plant, equipment, tools, stores, spare parts, accessories, fuel or lubricants in the manufacture or processing of goods for sale or in mining or in the generation or distribution of electricity or any other form of power . In view of the wide amplitude of the words lsquo in or in relation rsquo to the manufacture of specified finished product under Rule 57A, it can be said in the light of the judgment of the Hon rsquo ble Supreme Court that Aluminium sheets are used in relation to the manufacture of the goods which are specified products covered by the Notification issued under Rule 57A of the Central Excise Rules. This Tribunal in the case of Graphite Anodes has also held that MODVAT credit is admissible for the same as inputs . In view of the above, the appeal is allowed.
-
1990 (4) TMI 144 - CEGAT, MADRAS
Manufacture of Steel Castings ... ... ... ... ..... ding effect of the duty paid on the machinery used in or in relation to the manufacture of the finished goods is not to be mitigated and as a corollary thereto the parts which are used in these machineries to make them functional also are not entitled to the benefit of the MODVAT scheme. These parts which are used as replacement from time to time have to be held to have been used in relation to the machines themselves and not in relation to the manufacture of the goods. rdquo Following our rationale set out above, we hold that the inputs used in the manufacture of sand moulds, which are by themselves in the nature of tools or apparatus, have to be held to be used in the manufacture of the sand moulds and not in or in relation to the manufacture of the castings. The appellants are also not eligible for the benefit of Rule 57D, as the sand moulds do not qualify to be lsquo intermediate goods rsquo for the reasons given above. The appellants rsquo appeal, therefore, is rejected.
-
1990 (4) TMI 143 - CEGAT, MADRAS
MODVAT credit ... ... ... ... ..... and not in relation to the manufacture of the goods. In the scheme of MODVAT if the parts of the machines are included there is no reason why the lighting equipment and other structural fittings which are used in the factory in which the goods are produced would not have to be allowed the benefit of the input duty relief under the MODVAT scheme. Going by the ratio of the judgment of the Hon rsquo ble Supreme Court cited supra, it has to be concluded that the credit has to be allowed only in respect of such of those inputs which are used in the process of manufacture and which go directly into the manufacturing stream by themselves or are used in the manufacture of materials which go into the manufacturing stream resulting in the manufacture of the end product. The parts of the machines which produce the finished goods do not pass this criterion and in that view of the matter we hold that the appellants have rightly been denied the MODVAT credit in relation to chipper knives.
-
1990 (4) TMI 142 - CEGAT, BOMBAY
Appeal - Condonation of delay ... ... ... ... ..... onths. The Collector (Appeals) has in his order made a reference to the short receipt of the goods against the Bill of Entry filed on the first occasion. However, it is not clear as to how he arrived at this conclusion. No other data is available on record to show as to when the short landing was noticed and when the necessary certificates for the same were issued. Rejecting that claim also as time barred without giving proper consideration of the said certificates cannot be sustained and hence the matter ought to go back to the adjudicating authority to examine the claim for refund to the extent of alleged short landing. 10. The appeal is, therefore, partly allowed. The orders of the authorities below is confirmed so far as it relates to the claim to the tune of Rs. 59,554.00. However, the matter shall stand remanded back to the adjudicating authority for examining the claim of Rs. 6114.28 in the light of the documents available and to pass orders in accordance with the law.
-
1990 (4) TMI 141 - CEGAT, MADRAS
Stay - Predeposit of duty ... ... ... ... ..... regard to the fact that production of the petitioner has also registered a downfall and also keeping in mind the fact that the petitioner has overdrawn over and above the sanctioned limit by the bankers and above all, keeping in mind that these factual information have also been confirmed by the Department on verification, we are inclined to think that in the above facts and circumstances, the order of the Tribunal would call for a modification. To a specific query with reference to the offer of the Learned Consultant of making a pre-deposit of Rs. 2 lakhs it was submitted that subsequent to that the financial position of the petitioner has become very precarious jeopardising the very existence of the company. Therefore, in the above circumstances, we modify the order of the Tribunal cited supra and direct the petitioner to make a pre-deposit........ of Rs. 50,000/- (Rs. fifty thousand) on or before 31st July 1990 and report compliance. The appeal will be called on 31-7-1990.
-
1990 (4) TMI 140 - CEGAT, MADRAS
MODVAT Credit ... ... ... ... ..... use by him as raw materials, processing materials, machinery, plant, equipment, tools, stores, spare parts, accessories, fuel or lubricants in the manufacture or processing of goods for sale or in mining or in the generation or distribution of electricity or any other form of power rdquo . In view of the wide amplitude of the words lsquo in or in relation rsquo to the manufacture of specified finished product under Rule 57A, it can be said in the light of the judgment of the Hon rsquo ble Supreme Court that Aluminium sheets are used in relation to the manufacture of the goods which are specified products covered by the Notification issued under Rule 57A of the Central Excise Rules. This Tribunal in the case of Graphite Anodes has also held that MODVAT credit is admissible for the same as inputs. 2. Since the facts in this case are identical with those in the case decided by the Tribunal, following the ratio of the above decision, we allow the appeal with consequential relief.
-
1990 (4) TMI 139 - CEGAT, CALCUTTA
... ... ... ... ..... sed under Section 112 of the Customs Act, 1962 without specifying as to whether Section 112(a) or (b) has been violated. In the case of Collector of Customs and Central Excise, Chandigarh v. Shri Ajit Singh reported in 1987 (32) E.L.T. 769 (Tri.) 1987 (13) ECR 1265 (CEGAT-SB-A) the Special Bench of this Tribunal set aside the penalty following the judgment of the Madras High Court in the case of B. Lakshmichand v. Government of India reported in 1983 (12) E.L.T. 322 (Madras). It has been held by the Madras High Court that if a penal action is proposed to be taken and proceedings initiated which are likely to culminate in the imposition of penalty then the authorities must be clear in mind as to whether clause (a) or clause (b) of Section 112 will apply or both, and the order must make specific reference to the provisions failing which the order of penalty is not sustainable. 7. In the light of the foregoing discussion the impugned order is set aside and the appeal is allowed.
-
1990 (4) TMI 138 - CEGAT, DELHI
Export of costos roots ... ... ... ... ..... and the learned departmental representative has also accepted that they apparently cover the consignment and their only objection was that the certificate did not indicate the name of the exporter. This was not a valid objection. Once the goods were covered by the certificate, it could not be stated that an attempt to export the goods illegally was involved. Therefore neither Section 113 was attracted nor Section 114 particularly so when the department is unable to show that a certificate in the name of the exporter was required to be issued. No rule of provision or public notice has been brought to the notice of the Bench in this regard. 11. In the circumstances, I hold that the department has not been able to establish the charges. Once this is the position, neither the appellant M/s. Indo World Trading Corpn. nor the clearing agents could be said to be at fault. As such the order in original is set aside and the appeals are accepted as already announced in the open Court.
........
|