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Showing 21 to 40 of 144 Records
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1983 (6) TMI 190 - CEGAT BOMBAY
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... ... ..... he fact that the signatory of the appeal was holding a power of attorney duly constituted before a Notary Public was not brought to the notice of the Court and this was a material fact which was overlooked by the Court and has an important bearing on the ultimate decision or right of the appellant. Such a mistake can be rectified and original decision can be altered in view of the Judgment ITO v. Income Tax Tribunal - 58 ITR 634. Reference of the same has been taken from Law and Practice of Income tax by Kanga and Palkhiwala, 7th edition, Vol. I, page 928. In view of the legal position and facts of the case discussed above, we find that it is a mistake apparent from record and we hold that the appeal was properly instituted in conformity with the requirements of Law and we hereby direct reopening of the hearing of the appeal. We further direct the appellant as well as the respondent to appear in the Court on 20th July, 1983, at 11.00 A.M. for the final hearing of the appeal.
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1983 (6) TMI 189 - CEGAT NEW DELHI
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... ... ..... n the premises, it has to be held that the process carried out by the Appellant did not come within the scope of Rule 173(H) of the Rules, inasmuch as it amounted to “manufacture” of the pistons in question. 17. Accordingly, we hold on question (a) and (b) in para 1 supra, in favour of the Appellant and questions (c) and (d) against him. 18. Incidentlly, it is observed that cross-objections on behalf of the Revenue would appear to have been despatched to the Tribunal, as is quite often happening in other cases as well. Cross-objections are in the nature of an Appeal preferred by the Respondent and cannot be entertained unless the Appellant had gained some relief through the order under appeal and the Respondent wants to canvass against such relief granted to the Appellant. No relief has been granted to the Appellant in the order under appeal and hence there is no question of entertaining any cross-objection. 19. In the result the Appeal is allowed.
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1983 (6) TMI 188 - CEGAT NEW DELHI
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... ... ..... on, such as, finalisation of assessment or payment of duty in accordance with the approved classification/price list. In fact, the provisions of Section 11B, being of parent statute, will have overriding effect on the Rules 173B, 173C and 173I of the Central Excise Rules, 1944, otherwise Section 11B would be rendered nugatory and non-operative for the reason that there would be no case covered by it because if the assessee contests the approval of Classification List, then in that eventuality the assessee would automatically be getting the refund in those proceedings itself as a consequential relief. Even the excess payment can be refunded by the proper officer to him under Rule 173I at the time of finalisation of assessment. This decision of the Appellate Tribunal is likely to damage the provisions of Section 11A of the Excise Act also because all demands raised by the Department under this section are generally without disputing the approved Classification List/Price List.
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1983 (6) TMI 187 - CEGAT NEW DELHI
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... ... ..... ich governs the classification of parts and components under various machinery headings is itself subject to the provisions of other notes which exclude certain parts and components from the scope of the machinery chapters. One such exclusion note is Note 1(a) to Section XVI which says, inter alia, that articles of a kind used on machinery, mechanical or electrical appliances or for other industrial purposes, of un-hardened vulcanized rubber (for example, washers) are excluded from the scope of Section XVI (which encompasses all machinery chapters) and are to be assessed under Heading 40.05/16. Section notes and chapter notes are a part of the Customs Tariff and they determine the scope of the respective chapters and headings. In view of the specific provision made in Note 1(a) to Section XVI, rubber aprons, even though a part of the carding machine, have to be assessed under Heading 40.05/16(1) only. In the circumstances, we uphold the impugned order and reject this appeal.
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1983 (6) TMI 186 - CEGAT NEW DELHI
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... ... ..... subject consignment and it could not have related to this consignment. Furthermore, we ourselves saw the sample of the subject diaphragm produced before us by the appellants. The sample contained considerable elasticity. It had to be elastic because, according to the appellants’ own statement, it functioned by being inflated through the injection of air into it. Such an article cannot be called as made of hardened rubber in the sense this term is normally understood. The exclusion Note 3(c) relied on by the appellants is, therefore, not applicable. We agree with the Department’s representative that exclusion Note 1(a) to Section XVI, which we have already discussed earlier, applies to the subject goods. In view of the specific provision of this Note, the subject rubber diaphragm, even though a part of the textile printing machine, has to be assessed under Heading 40.05/16(1) only. 4. In the circumstances, we uphold the impugned order and reject this appeal.
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1983 (6) TMI 185 - CEGAT NEW DELHI
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... ... ..... h a condition into the Board’s Tariff Advice. So far as the Customs Laboratory Test Report is concerned, it appears that the question posed to the Laboratory was whether the goods answered to the description of petroleum jelly, and the reply was in the affirmative. The Laboratory was not asked about the degree of purity of the goods, or whether they conformed to I.P. or U.S.P. standards, and no adverse inference can be drawn because the test report did not refer to these aspects. 15. In the result, we find that the goods, namely white petroleum jelly of U.S.P. grade, were correctly classifiable for countervailing duty purposes under Item 68 of the Central Excise Tariff Schedule. At the relevant time no countervailing duty was leviable on goods falling under the said item. The levy of countervailing duty on these goods was, therefore, not correct. In the result we allow the appeal and direct that the countervailing duty charged on the goods in question be refunded.
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1983 (6) TMI 184 - CEGAT NEW DELHI
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... ... ..... ean that the goods as imported were already polymerised. The goods were in fact a mixture of 80% Shellac and 20% Manilla gum and were described in the import documents as Shellac Bond Powder. There is nothing to show that they were in the nature of synthetic resins or plastic material. Heading 39.01/06, CTA and Item 15A, CET applied by the Department were, in the circumstances, not appropriate for these goods. Heading 13.02, CTA originally asked for by the appellants cover shellac as well as gums but not an article which was a mixture of these 2 products. Such mixtures of natural products are specifically covered by Heading 38.01/19(1), CTA which is the alternative classification prayed for by the appellants. The extent of relief available to the appellants under Heading 13.02 or Heading 38.01/19(1) is the same. Accordingly, we allow the appeal and direct that the goods shall be re-assessed under Heading 38.01/19(1) and consequential refund granted to the appellants.
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1983 (6) TMI 183 - CEGAT NEW DELHI
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... ... ..... at is comprehended in the Notification, since, the execution of the bond was a condition precedent for the exemption. Even if one were to assume that the bond was accepted, although it is not borne out by the record, it cannot be that an acceptance of the bond contrary to the terms of the notification in question can mean or imply that the requirements of the notification are fulfilled and accordingly the benefit of the notification is to be extended to the Appellant. The acceptance of the bond, if there be any, cannot derogate from the requirements of the notification which required the execution of the bond to be a condition precedent for the exemption to apply. Nor can the Appellant be heard to say that now that the bond was executed, the duty already paid at the appropriate time should be refunded inasmuch as the execution of the bond was a condition precedent for the exemption to apply. 8. There are no merits in this Revision/Appeal and it is accordingly dismissed.
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1983 (6) TMI 182 - CEGAT NEW DELHI
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... ... ..... e produced a copy of one other letter, issued under the signatures of the Deputy Secretary to Government of India, Department of Electronics bearing the date 2nd May, 1980, to the effect that the Department had considered the scope of the expression “Computer Sub-systems”, appearing in the aforesaid notifications, and had decided that the “Computer peripheral” unit would be covered by the expression “Computer Sub-system” used in the said notifications, and that this clarification would apply to the existing Notification No. 47/79, dated 1-3-1979 as well as earlier Notification No. 272/76, dated 2-8-1976. In view of this, we do not think that the matter admits of any doubt. 6. We, therefore, think it to be a fit case to allow the appeal. The appeal is, accordingly allowed, and it is directed that consequential relief by way of refund be given to the appellants, within a period of two months from the date of communication of this order.
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1983 (6) TMI 181 - CEGAT NEW DELHI
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... ... ..... ad valorem rates. The tariff items are different and the rates of duty are different. 9. The appellants’ contention that the issue of Notification No. 99/77-C.E., dated 31-5-1977 supports their case, is also without any substance. If the duty on the cotton yarn were not to be included in the assessable value of cotton fabrics, the question of issuing an exemption Notification under Rule 8(1) of the Central Excise Rules would not have arisen. 10. In passing, it is pertinent to observe that if the appellants’ stand were upheld, the resultant position at the relevant time would be to place composite mills, like the appellants, using cotton yarn manufactured by them captively, in a position of advantage vis-a-vis mills which procure duty paid cotton yarn from outside. This creates an anomalous situation which obviously would be discriminatory. 11. In the light of our observations contained above, we see no substance in the appeal and dismiss the same.
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1983 (6) TMI 180 - CEGAT CALCUTTA
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... ... ..... and obtain the approval of the Assistant Collector before availing of the exemption. In such a setting, when an assessee submits the prescribed declaration to the Assistant Collector, it has to be inferred therefrom that the assessee has staked the claim for the benefit of the Notifications. Once the claim has so staked in time (i.e., within the time limit starting from the date of payment of duty as prescribed in Rule 11 read with Rule 173 during the material time), submission of specific refund claims by the assessee after receipt of approval by the Assistant Collector is not material so far as the limitation aspect is concerned. We, therefore, find force in the appellant plea that their refund claims were not hit by time-bar since they have staked their claims for the benefits of the Notification on 5-11-1976, i.e. before their excess clearances even started on 24-12-1976. 8. Accordingly, we allow all the 8 (eight) appeals with consequential relief to the appellants.
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1983 (6) TMI 179 - CEGAT CALCUTTA
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... ... ..... of ₹ 2,78,593.68 to their import licence. But their claim for refund of the double duty paid was rejected on the ground of time-bar under Section 27 ibid since it was made late. The Departmental Representative did not dispute the facts as given out by the appellants. 2. We have carefully considered the matter. Both sides have agreed before us that while only one set of goods was imported, the duty was charged in this case on two sets of invoices. In other words, duty was charged on the second set of goods which were, in fact, non-existent and had never been imported. This Bench had already held that in cases of non-importance of goods, the amount collected has to be treated as a deposit with the Government and not as duty and the time-bar of Section 27 would not apply to the refund of such a deposit. For the same reason, we allow this appeal, set aside the impugned order and direct the Appellate Collector to consider the appellants’ claim afresh on merits.
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1983 (6) TMI 178 - CEGAT BOMBAY
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... ... ..... shifting the onus on the appellant, as no show cause notice was issued by the department. Therefore, the Asstt. Collector’s reliance on Section 123 in his order is without any legal foundation. There is no record or mention in the order that the provisions of Section 123 were explained and invoked by the Asstt. Collector before he passed the aforesaid order. In this view, Section 123 of the Customs Act does not apply to the case. There are other glaring omissions as pointed out by the learned Advocate, like the statement being explained by a minor child, the waiver of the show cause notice in the statement and the expeditious order and non-consideration of the Advocate’s letter dated 15-6-1982 by the Asstt. Collector. I, therefore, see no reasons to justify the confiscation and the order of penalty. Accordingly, I direct that the goods be released to the appellant and the amount of ₹ 1000 paid as penalty be also refunded to her. The appeal is thus allowed.
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1983 (6) TMI 177 - CEGAT NEW DELHI
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... ... ..... s belting. In the instant case, there is no doubt that what comes off the looms is belting and the appellant has also shown that it is used as a belting by the biscuit factory. That the belting has to be cut to size to be fitted in the machine cannot be a circumstance against calling it belting because it is not possible to contemplate a situation in which belting would come off the looms in the exact required shapes and sizes. The notification, therefore, could not have contemplated such a situation. We, therefore, hold that the cutting of the belting cloth for fitment to the machines as conveyor belt should not stand in he way of granting the exemption in terms of the notification. 9. In the circumstances, we hold that the belting cloth manufactured by the appellant and used after cutting to size on machines, has to be considered as “belting woven as such”. The benefit of the Notification No. 70/69 should be extended to it. We accordingly allow the appeal.
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1983 (6) TMI 176 - CEGAT NEW DELHI
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... ... ..... izes of oval shape and more than two such layers are then assembled pressed and a layer of rubber stock is applied at the back. The final product is cured and it is in oval shape and edges are also shaped. Having regard to the process of manufacture, as stated by the appellants, which has not been disputed by the Department, these products would be more appropriately classifiable under Item 68 of the CET Schedule. 7. In the result, we hold that the classification made by the lower authorities of Cord Repair Fabric under Item No. 16A(2) is correct; the appeal against this classification is rejected. In so far as Criss-Cross Patches and Pre-shaped Cord Fabrics are concerned, we hold that the correct classification is under Item No. 68 CET. These should be re-assessed to duty on this basis. The consequential rely should be granted to the appellants by the excise authority within two months from the date of communication of this order. The appeal is disposed of accordingly.
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1983 (6) TMI 175 - CEGAT NEW DELHI
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... ... ..... of the case, we find that the bone cement imported by Dr. Tanna was a dual polymer formulation of rigid quality standards required for use in the human body. We hold, therefore, that it could not be regarded as a synthetic resin or plastic material of Heading 39 CTA. At the same time, it was also not a medical appliance like plates, nails etc., which were inserted inside the human body to hold together two parts of a broken bone or for similar treatment of fractures. The classification of bone cement as a medical appliance under Heading 90.19 CTA as ordered by the Appellate Collector was also, therefore, not correct. We hold that bone cement, being akin to dental cement falling under the Heading 30.04/05, was correctly classifiable under the same heading. Accordingly we set aside the impugned order-in-appeal and order that the subject bone cement shall be re-assessed under Heading 30.04/05 CTA and consequential refund of the customs duties shall be granted to the respondent.
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1983 (6) TMI 174 - BOMBAY HIGH COURT
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... ... ..... length, we are not satisfied that there is any substance in the challenges raised to the Amendment Act. Since, as already pointed out, these petitions for directions for refund were wholly based on the alleged constitutional invalidity of the Amendment Act, we have no other alternative but to reject these petitions. 19. emsp Rules issued in all these petitions are discharged. There will be no order as to costs in all these petitions. 20. emsp Mr. Rana has made a request that the operation of this judgment be stayed for a period of four weeks. As we have found no substance in these petitions, we are not inclined to stay the operation of the judgment as requested. 21. emsp Mr. Rana and Mr. Patel have made application for leave to appeal to the Supreme Court in Miscellaneous Petition Nos. 481 and 2079 of 1979 and Writ Petition Nos. 622 and 623 of 1979, and the same is rejected. Similarly, application for leave made by Mr. Menon and Mr. Singhvi in their matters is also rejected.
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1983 (6) TMI 173 - MADRAS HIGH COURT
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... ... ..... d to somebody else and not to its business. It was, however, not accepted by the authorities below. It cannot be stated that section 12(3) cannot be invoked. If penalty should be levied only when there are actual suppressions, the scope of section 12(3) would be considerably restricted, for, every assessee will give some explanation or other to sustain his plea that there are no suppressions and merely on the basis of the explanation given, it cannot be said that section 12(3) cannot be invoked. In this case, admittedly, the assessee is a dealer and slips have been found in its place of business. Its explanation that the slips belong to somebody else has not been believed and there was an estimate of suppressions by the assessing authority which has been sustained by the Tribunal. In these circumstances, we do not see any reason why section 12(3) cannot be invoked. We are, therefore, not in a position to interfere with the order of of the Tribunal. The tax case is dismissed.
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1983 (6) TMI 172 - CALCUTTA HIGH COURT
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... ... ..... med exempt under this clause were of goods manufactured in such an industrial unit set up by him and that no amount by way of sales tax has been realised by him in respect of such sales . There is no requirement to maintain vouchers or records relating to installation charges. In my view, in the aforesaid facts, it may be reasonably contended that the cost for purchase of plant and machinery and not the cost of installation was meant in the expression investment of the dealer on plant and machinery excluding land and building as referred to in the preceding clause, namely, clause (ii). In the circumstances, this writ petition succeeds and the respondents are directed to issue the eligibility certificate as prayed for by the petitioner-firm. There will be no order as to costs. Mr. Dutt, the learned counsel appearing for the State-respondents, has asked for stay of the operation of the judgment. Let the operation of the judgment be stayed for a period of four weeks from today.
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1983 (6) TMI 171 - MADRAS HIGH COURT
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... ... ..... y the assessee the revenue is going to request the Tribunal to enhance the assessment. In this case, as already stated, no such enhancement petition was filed by the State before the Tribunal, nor was it brought to the notice of the Tribunal that incorrect rate of tax has been applied by the assessing authority as well as by the first appellate authority. Thus, before the Tribunal the revenue did not even ask sub-section (3)(a) of section 36 of the Act, the Tribunal has got power suo motu to pass an order prejudicial to the assessee by way of enhancing the assessment, the power of jurisdiction of the Tribunal to enhance the assessment has not been invoked by the State (sic). Therefore, the Tribunal in this case cannot be said to be in error in not interfering with the order of the lower authorities regarding the rate of tax. In this view of the matter, we feel, that the order of the Tribunal does not call for any interference. Therefore, this tax case is dismissed. No costs.
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