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Showing 21 to 40 of 255 Records
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1984 (8) TMI 344 - CEGAT NEW DELHI
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... ... ..... ce, it cannot be inferred from it that till acceptance in inspection, there is no concluded contract. As has been pointed out by Shri Narasimhan, the appellants had .open an irrevocable letter of credit on 28-2-1983. The letter of credit and other documentary evidence produced before us support the contention made by Shri Narasimhan that a firm contract for the importation of the goods in question was made according to the provisions of the saving clause. We, therefore, hold that the finding of the learned Collector that the goods in question were not entitled to be imported under OGL cannot be sustained in Law. 10. In the light of the discussion of the case above, the appeal succeeds on both counts of valuation as well as eligibility of importation under OGL. We, therefore, direct that relief flowing from this order may be made available to the appellants. The goods in question are reported to be under detention and hence our orders should be implemented expeditiously.
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1984 (8) TMI 343 - CEGAT BOMBAY
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... ... ..... ollector had knowledge of the alleged forgery or if the department at the time of enquiry had placed the material from which the Collector could either hold or come to a reasonable conclusion that the appellants herein were guilty of forgery but if the Collector ignores the aspect of forgery then, of course, the Board could probably hold that the order passed by the Collector was improper. 23. Having regard to my findings, I hold that no personal penalty could be imposed on a letter of authority holder. I further hold that the Board for the purpose of exercising its power under Section 129-D(1) cannot take into consideration the facts and circumstances which were not existing at the time when the adjudicating authority passed the order but were subsequently discovered and the Board also cannot seek modification of the order on the basis of the subsequently discovered facts. In the result, for the reasons stated in this order, this appeal fails and the same is rejected.
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1984 (8) TMI 342 - CEGAT NEW DELHI
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... ... ..... ve conclusion, we have kept in view the well-settled principle of law that the burden to prove that a product falls under a specified entry in the tariff schedule lies on the revenue. We are not, therefore, referring to the case law cited by Shri Lodha in this connection. Shri Lodha had also cited case law in support of his contention that a change in the Department’s stand without cogent reasons is impermissible, that affidavit is a normal mode of proof and a few other propositions. Since we are allowing the appeal, we do not think it necessary to refer to these authorities. The SDR, on her part, had cited certain authorities to support the proposition that interpretation of terms in a fiscal statute should consider latest developments and technology and that it should not be a static concept. There cannot possibly be any quarrel with this and, therefore, we are not referring to these authorities as well. 22. The result is that the appeal succeeds and is allowed.
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1984 (8) TMI 341 - CEGAT MADRAS
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... ... ..... assessable value from a cum-duty price adopted by the appellant, the fact remains that assessment was provisional. Once it is accepted as provisional, it cannot be treated as provisional only in parts. Assessment made provisionally is on a different footing from an assessment against which a protest had been made. While it would be correct to hold that a protest would relate only to the particular issue covered by it, an assessment that is provisional will have to be treated as provisional in its entirety subject to finalisation on the basis of claims and counter-claims of the department and of the assessee. In this view of the matter we hold that the time-limit for purposes of limitation under Rule 11 read with Rule 173J of the Central Excise Rules, 1944 starts from the date of finalisation by the department. As the claim in the present case has been filed even before the date of such finalisation, it should be treated as a valid one and refund granted. Ordered accordingly.
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1984 (8) TMI 340 - CEGAT MADRAS
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... ... ..... ave to withdraw, it is being dismissed. The Tribunal was not in any error as to facts or law in passing this order. Whatever be the basis of the appellant to assume that his Appeal ought to be withdrawn, that basis would not make it an “error apparent on record” in so far as the order of dismissal is concerned. As stated earlier, a misconceived request by the representative of the appellant was not initially accepted but the party allowed to think over the matter and then communicate with the Tribunal which he in fact did. There is no scope to urge at this late date that there was an error on the part of the appellant in submitting this written request. We, therefore, do not accept that there is any error apparent on record which requires to be rectified. In the light of these circumstances and as observed earlier, the case law cited by the Advocate is not apt. Accordingly, the application praying for restoration of the appeal No GC (T) (Mad.) 18/80 is dismissed.
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1984 (8) TMI 339 - CEGAT NEW DELHI
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... ... ..... ted by the notification. We find accordingly. 11. Shri Lakshmi Kumaran, learned SDR, during arguments submitted that manufacturers using rotors and stators for captive consumption had been given certain concession under Notification No. 95/83-C.E., dated 1-3-1983 and accepting the appellants’ interpretation would cause havoc in Industry and result in denial of benefit of concession under the notification to others. He also pointed out that the Collector had given concession under the notification to the appellants in the matter of set-off in respect of stampings. As this argument is not necessary for decision of the appeal we do not consider it necessary to deal with the same. 12. As a result of aforesaid discussion we find that the appellants had exceeded the clearance limit stipulated by Notification No. 80/80-C.E., dated l9-6-l980. The appeal, therefore, fails and is dismissed. The order passed by the Collector of Central Excise (Appeal), Bombay is upheld.
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1984 (8) TMI 338 - CEGAT NEW DELHI
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... ... ..... not settle classification, if the opinions expressed therein involve deviations from settled rules of construction approved by our courts; and applying the commercial/common parlance test as relevant and germane; he justified the classification ordered by him. There is force in these reasons. We agree with the learned SDR that before coming to heading 84.34 it would be necessary to exclude Chapter 90. At the same time, no evidence has been led to establish that the wash-out unit is of a kind used in photographic or cinematographic laboratories, though they seem to have similarity with the goods like S.F. development tanks etc., mentioned by the SDR. The fact that for ITC purposes, it is treated as Printing Machinery and the inclusion and exclusions clarified in the CCCN and relied on by the learned Advocate, cannot be ignored. We would, therefore, hold that the goods are correctly classifiable under Heading 84.34 and set aside the order-in-appeal. The appeal is thus allowed.
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1984 (8) TMI 337 - CEGAT NEW DELHI
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... ... ..... ely for a period after 1-3-1969 to coincide with issue of Notification 27/69 till when the requirement for producing proof of payment of ingot duty was in force, so that the appellant could be on par with other manufacturers from whom ingot duty was being recovered. There is no room for equity in taxation and if the interpretation could be changed in this manner, there is added reason for extending the benefit beyond that date, for the reasons given by me. Besides, if no ingot duty was leviable in the peculiar circumstances of the case, the question of any benefit vis-a-vis any other manufacturers benefiting after 1-3-1969 only, does not arise. 15. For these reasons, I would find sufficient force in the ground of appeal as well as the arguments of the learned Consultant and would set aside the impugned order and allow the appeal, with consequential relief, except to the extent barred by limitation. In accordance with the decision of the majority, the appeal is rejected.
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1984 (8) TMI 336 - CEGAT NEW DELHI
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... ... ..... r the power to be brought into play is for a short levy to be discovered. What gave rise to the short levy is not at all an issue. We, therefore, reject this argument of the learned Counsel. We also reject this appeal. 54. The Counsel for the appellants has listed a very large number of Court decisions ; but our decision in respect of the assessment of kemicetine vaginal suppositories are based only on the nature of the product. None of the decisions quoted by the appellants relate to assessment of chloramphenicol vaginal suppositories or to whether or not they are parenterally administered medicines. The decisions, therefore, are not relevant to the case before us. Nor has there been any decision in the cases quoted before us what should constitute parenteral or oral, or local/topical administration. 55. We direct that duty be paid by M/s. Mac Laboratories as demanded; but such recovery shall be restricted to a period of six months before the date of the notices.
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1984 (8) TMI 335 - CEGAT BOMBAY
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... ... ..... 2,00,000/-. Shri Patel urged that the appellants would not have ventured to import but for the clearance of the previous imports of similar goods by the Customs. The past clearance of similar goods cannot operate as an estoppel against the Customs. An illegal or unauthorised clearance does not confer any right on the subsequent importer. But then that factor shall have to be taken into consideration for the purpose of imposing fine and penalty. The Additional Collector has not imposed any penalty even though he has held that import was illegal. The fine imposed by the Additional Collector in the circumstances of the case appears excessive. We, therefore, reduce the fine from ₹ 2 lakhs to ₹ 75,000/- (Rupees seventy five thousand only) in respect of each consignment. The impugned adjudication orders of the Additional Collector of Customs are modified accordingly. Subject to the above modification in the amount of fine, these appeals fail and the same are rejected.
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1984 (8) TMI 334 - CEGAT CALCUTTA
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... ... ..... sistant Collector as to the creation of demand of ₹ 34,478.79. In view of the peculiar circumstances of the case, I do not feel that it is a fit case where penalty of ₹ 2,000 under Rule 173Q of the Central Excise Rules, 1944 should be levied. Accordingly, the order of the Collector (Appeals) is confirmed to the extent of quashing of the penalty of ₹ 2,000 (Rupees two thousand only). For the statistical purposes, the appeal is partly allowed. 9. The respondent has also filed a cross-objection. No notice for the hearing of the cross-objection was issued and during the course of arguments, I had asked both the parties if they had got objection as to the hearing of the cross-objection, both the parties have pleaded that they have no objection if the cross-objection is disposed of today. No new issue has been raised in the cross-objection. The cross-objection is in the support of the order passed by the Collector (Appeals). The cross-objection is dismissed.
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1984 (8) TMI 333 - CEGAT NEW DELHI
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... ... ..... ly on the drums cleared along with cables or on other drums used for the manufacture. It was confirmed that the exemption was in respect of the former only. Thereupon, Shri Lakshmikumaran stated that the set-off is claimed in respect of duty paid under T.I. 68 on complete wooden drums used for winding the electric wires and cables and which are cleared on payment of duty and in the value of which (i.e. electric wires and cables), the value of the wooden drums is already included then the set off under Notification No. 178/77-C.E., dated 18-6-1977 will be admissible in view of the orders of the Tribunal cited by the learned Advocate for the appellants. 8. We agree that the wooden drums in this case are to be treated as inputs for the purpose of Notification 178/77-C.E. and agree with the view expressed by the learned Senior Departmental Representative. In these circumstances, accepting the arguments of Shri Sorabjee, we set aside the impugned order and allow this appeal.
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1984 (8) TMI 332 - CEGAT CALCUTTA
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... ... ..... ssued under Rule 8 and/or Rule 192 will affect the rate of duty. Such cases certainly would involve a question in relation to rate of duty of excise which are contemplated under sub-section (2) of Section 35D to be dealt with by a Special Bench. To repeat, when the question comes up for determination of duty, may be with reference to an exemption or concession notification, it would necessarily affect the rate and, therefore, the question would be in relation to the rate of duty. Therefore, I cannot be a party to my Brother’s viewpoint that the jurisdiction of the case did not vest but a chance factor brought the case before the Special Bench." 7. I am in full agreement with my learned Brothers. Accordingly, I hold that in the instant appeal, rate of duty is involved and the jurisdiction vests with the Special Bench. The Assistant Registrar is directed to transfer the file to the Special Bench, Customs, Excise and Gold (Control) Appellate Tribunal, New Delhi.
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1984 (8) TMI 331 - CEGAT NEW DELHI
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... ... ..... ubsequently, and that on account of those new revelations the Collector took up the review proceedings but there is no such allegation here. The Collector, in this case, as a plain reading of the review notice will indicate, basis of his action on the facts which were already before the Assistant Collector, and which formed part of the original notices of demand, but differs from the view taken by the Assistant Collector. We are thus very clear on the point, that in this situation respondent cannot now urge that Collector could have recourse to larger period, as covered by proviso to Section 11A. 12. We are, therefore, of our firm view that the review notice issued long after the expiry of six months, which was the period available at the relevant time under Section 11A, was barred by time and any order based on such a review notice is liable to be quashed. We accordingly set aside the order of the Collector based on review notice dated 13-11-1981, and allow the appeal.
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1984 (8) TMI 330 - CEGAT NEW DELHI
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... ... ..... explicitly stipulates. Only what is equivalent to the duty of excise already paid on the inputs is exempted. This assumes that the (input) duty is available and known for the calculation. When that duty is not available (as when credit has been taken), the exemption cannot be founded on the input duty. In short, there must first be an input duty seen to be levied and available for computation of what is to be exempted. Therefore, if there is no input duty, there can be no exemption under Notification 201/79-C.E. This is the natural product of the department’s logic. This demonstrates that the department’s reasoning is not correct. (The department has no objection to the concession under Notification 201/79-C.E., in spite of its claim that the input becomes non-duty paid). That being the case, it is not correct to say that the concession under Notification 217/79-C.E. is not available. I, therefore, agree with and endorse learned brother Sankaran’s Judgment.
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1984 (8) TMI 329 - CEGAT NEW DELHI
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... ... ..... Collector relate to different classification lists which are operative for two different periods, she was fully competent to change the classification/assessment in the light of fresh facts or even re-evaluation of the existing facts. This can hardly be called a ‘review’. It is merely a change in classification made after reconsideration and re-evaluation of facts as ascertained by her and that too for a subsequent period. In the matters of taxation, there is no estoppel or res judicata to prevent such a course of action, provided, of course, such action is not arbitrary or capricious. Accordingly, I agree with the orders incorporated in para 11 of Shri Rekhi’s judgment. The appeal is thus partially allowed. Tribunal’s Order In accordance with the orders of majority of the Members who have heard this appeal, the appeal is partially allowed in terms of the order incorporated in paragraph 11 of Shri K.L. Rekhi, Member (Techunmical)’s order above.
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1984 (8) TMI 328 - CEGAT NEW DELHI
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... ... ..... printed cartons - which are used for packing synthetic detergent are constituents or parts of the detergent. We do not accept Shri Gupta’s contention. 10. In the result, we hold that the appellants were entitled to the benefit of Notification No. 201/79 in respect of printed cartons on which duty under Item No. 68 CET had been paid. This position would hold good till the notification was amended by Notification No. 105/82, dated 28-2-1982. All relief flowing from this order shall be granted to the appellants within 3 months from the date of communication of this order. 11. In the view which we have taken, it is not necessary for us to go into the alternative submission of the appellants, namely, that if it is held that packing is not a process of manufacture, the cost of packing should be excluded from the assessable value. In any event, this point is no longer open to. argument in the light of the Supreme Court decision in the Bombay Tyre International case.
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1984 (8) TMI 327 - CEGAT NEW DELHI
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... ... ..... uantifying the duty to be paid by the assessee has been finalised and the duty has been paid after a home consumption Bill of Entry is filed. 12. In this case, the Government of India seeks a review of the decision regarding the rate of duty and this review notice has been issued within one year from the date of the order proposed to be reviewed. It is, therefore, well written the time-limit prescribed in Section 131, in my opinion. 13. Besides, to deal with these two cases differently would be to make an invidious distinction. Merely because in one case duty was paid and the matter was agitated, the party should not be at a disadvantage vis-a-vis another party, who chooses not to pay duty or have the goods cleared for home consumption. Even the law as interpreted above does not seem to provide for this In the circumstances, I would respectfully differ from my learned brothers and - reject this appeal also. 14. However, the majority decision is accepted by me.
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1984 (8) TMI 326 - CEGAT NEW DELHI
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... ... ..... hem. It is contended that since the process of conversion of palm oil into palmolein does not amount to “manufacture”, the latter is not liable to excise duty under item 12-CET. This contention is misconceived for it has no application whatsoever to the levy of additional duty of customs on imported goods, though it may be relevant to determine the excisability of indigenous goods in given circumstances. The only relevant question is whether the imported goods fall under one or the other of the classes of the goods specified in the CET. The answer is yes palmolein is, according to the appellants, palm oil. And, palm oil falls under Item 12-CET. Though we have not accepted this stand, we consider that palmolein is a vegetable non-essential oil falling under Item 12-CET, though not the same thing as palm oil. In this view, the question of classifying palmolein under Item 68-CET also does not arise. 11. The result is that both the appeals fail and are rejected.
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1984 (8) TMI 325 - CEGAT NEW DELHI
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... ... ..... which reasonably they could have known about quantum of appellants’ product of utensils. Collector’s order would suggest that in the classification list, the appellants suppressed fact of manufacture of utensils. The appellants have not been able to show that this finding is wrong. The mere fact that the excise authorities were coming to appellants factory, as claimed by the appellants, would not mean that they knew of the quantum of appellants’ production. From this state of evidence the learned Collector was right in holding the appellants guilty of suppression of facts. As to the question of penalty, while Sh. Kapil, learned Counsel for the appellants assailed it as unjustified, the learned Departmental Representative left the matter entirely to the Bench. On the facts and circumstance of the case, the penalty of ₹ 80,000 clearly appears harsh and excessive. It is reduced to ₹ 5,000. With this modification in penalty, the appeal is dismissed.
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