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Case Laws
Showing 41 to 60 of 211 Records
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1985 (10) TMI 217
Limitation - Appellate Tribunals stage ... ... ... ... ..... d in Rule 10. This amendment came into effect from 16th August, 1977. The effect of this amendment was that period of limitation for five years was introduced for issue of demands under Rule 9(2) of the Central Excise Rules, 1944, in the case of clandestine removals of goods. Prior to this amendment, demands could be issued without limitation of time. We, therefore, hold that demand for duty was valid and limitation, as under Rule 10, did not become applicable. As regards penalty, we find some relief has already been given by the Central Board of Excise and Customs, who have reduced it from Rs.25,000.00 to Rs.10,000.00. They also set aside the redemption fine relating to confiscation of plant and machinery to the extent of Rs.10,000.00. Having considered the matter carefully, we feel that no further relief is merited so far as penalty is concerned. 8. emsp In view of our foregoing findings, we uphold the order of the Central Board of Excise and Customs and dismiss the appeal.
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1985 (10) TMI 216
Refund claim ... ... ... ... ..... ion. Therefore, it is within time. 10. emsp The Asstt. Collector and the Appellate Collector were not correct in holding that the application for refund received on 12-12-1981 was after the expiry of six months from the date of payment of duty. Apparently, the two authorities below did not take into consideration the provisions of Section 9 of the General Clauses Act. 11. emsp Since the application for refund was received on the last day of limitation, the rejection of the claim on the ground that it was barred under Section 27(1) is incorrect in law. I, therefore, allow this appeal set aside the orders passed by the authorities below. 12. emsp Since the claim for refund of duty was not considered on merit, the matter is remanded to the Assistant Collector (MCD) for consideration of the refund claim on merits. As the claim relates to the year 1985, I direct the Assistant Collector to dispose of the matter within a period of three months from the date of receipt of this order.
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1985 (10) TMI 215
Exemption - Two notifications issued separately ... ... ... ... ..... ersed by the competent authority, after observance of due process of law, there was no cause for demanding duty, we do not quite understand how this arises. The Department is not questioning the eligibility of the appellants to availing of the relevant notifications, which were approved as per the classification lists. The question is only one of determining the value limit of exemption for goods cleared under Notification No. 71/78. 7. emsp As an alternative plea, appellants have stated before us that, should we decide to uphold the stand taken by the department in the interpretation of the relevant notification, the demand should be suitably revised on the basis of ex-duty value of clearances. This point was conceded by the learned Departmental Representative. However, as this has not been urged before lower authorities, we leave it to them to take a view in the matter after going through the facts of the case. 8. In view of our foregoing findings, the appeals are rejected.
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1985 (10) TMI 214
Confiscation ... ... ... ... ..... f the ship. This has no relation to value of any contraband goods, whether recovered or not. Existence of a cavity per se makes the ship liable to confiscation. The question thus does not arise from out of the order of the Tribunal. Regarding question (i) - As already observed in question (c) above the provisions of Section 117 is hardly attracted hence reference to the residual provision of Section 117 in preference to Section 115 does not arise. This is a well settled principle of law and hardly merits a reference to the High Court. 5. emsp However, the questions raised in (d) and (g) deal with the same aspect and could be merged together The following question of law is accordingly referred to the Hon rsquo ble High Court of Andhra Pradesh in terms of Section 130 of the Customs Act, 1962 - ldquo Whether the non-framing of Rules contemplated under Section 115(2) of the Customs Act, 1962 could be pleaded as a valid point against the action on the vessel under the Act rdquo .
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1985 (10) TMI 213
Customs - Refund of duty on goods lost before clearance for home consumption ... ... ... ... ..... It is probable that the BPT which was constituted as the agency to receive all the goods landed in the Customs area has been authorised to give direct delivery of bulk cargo. If that is so, the certificate which that authority issues shall have to be respected by the Customs Authorities. 8. emsp In the instant case the weighment certificate issued by the BPT establishes the quantity cleared by the importers. If this certificate is read alongwith the invoice, manifest and the Bill of Entry, it would be clear that the quantity cleared fell short of the manifested quantity. Though the weighment certificate by itself may not be sufficient to establish shortage the other documents namely, the survey report and BPT non-delivery certificate establish the shortages claimed in the instant case. 9. emsp In the result and for the reasons stated above I allow this appeal, set aside the orders passed by the authorities below and direct that the appellants be granted consequential relief.
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1985 (10) TMI 212
Proforma credit ... ... ... ... ..... t the credit lapses when the duty is removed on the raw materials etc., concerned. The special duty of excise is levied under the Finance Acts from year to year and is also a duty of excise for all purposes and has to be administered as such, the only exception being that this is accounted separately from the basic duty. Thus, there is hardly any difference between the basic excise duty and the special excise duty. Rule 56-A itself permits the credit of special excise duty or regulatory duty or audiliary duty to be utilised towards the payment of duty on any finished excisable goods. When this is the law, it is not understood how the Assistant Collector could come to the conclusion that the credit should have lapsed on 1-3-1979. There is no justification for this interpretation. In view of this fact I find that the order of the Collector (Appeals) is correct. There is no substance in the appeal of the Collector, Central Excise, Bombay-II and the same is accordingly dismissed.
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1985 (10) TMI 211
Appellate Tribunal’s jurisdiction ... ... ... ... ..... on, it is not necessary to refer to the provisions of Rule 12 or 13 of the Central Excise Rules, 1944. The relevant rule is 49A and as construed in the above manner it does not authorise the Department to charge interest where fabrics are exported without payment of duty under Rule 13 by a composite mill who has opted for payment of duty on yarn under Rule 49A. In this view it is not necessary for me to go into the contentions of the Learned SDR that the Department had debited the amount of interest to the bond account maintained by the Respondents with the Department for the export of fabrics under Rule 13. In this way, the definition of lsquo duty rsquo under Section 2(5) excluding the interest charges as urged by the SDR does not in any way militate against the interpretation of Rule 49A. In view of these facts, I find that the contentions advanced by the Collector of Central Excise, Bombay I in his appeal are not sustainable. Accordingly, I reject the appeal filed by him.
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1985 (10) TMI 210
Confiscation ... ... ... ... ..... on 33(a) as these are ldquo things rdquo in terms of the aforesaid section. Therefore, Section 33 also draws distinction between ldquo things rdquo and ldquo goods rdquo which are not things. 5. emsp The foregoing authorities clearly lay down that ldquo goods rdquo cannot be immovable property as held by the Respondent. It is rather surprising that in the face of the various authorities cited by the Advocate, the Collector has come to such an obviously wrong conclusion. 6. emsp The authorities relied on by the Departmental Representative do not deal with this aspect viz. whether the plant and machinery are ldquo goods rdquo or not. Hence they are not relevant to the present case 7. emsp Since the machinery has been installed, the same has ceased to be ldquo goods rdquo and it is not liable to confiscation under Rules 9 and 173Q(1). Hence the Collector rsquo s order is bad and the same is accordingly set aside. The appeal is allowed with consequential relief to the appellants.
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1985 (10) TMI 209
Drawback (Customs) ... ... ... ... ..... observations are apt to be construed that had there been any allegations or arbitrariness or mala fides, it would have been open to this Tribunal to interfere in the matter. Such a conclusion is not warranted by the provisions of law. Under Section 74(1) all the powers of granting extension in the period of reshipment have been specifically vested in the Board. It cannot, therefore, be proper and legal for this Tribunal to exercise the Board rsquo s power in terms of the aforesaid provisions. Besides, only the Board rsquo s orders of the type specified under Section 129E are appealable to this Appellate Tribunal. The order in question does not fall within the scope of Section 129A, and hence, such an order is not appealable to the Tribunal. Therefore, even if such an order be arbitrary or mala fide, the remedy against such an order will lie elsewhere than with the Tribunal. With these remarks I come back to the conclusion reached by my learned brother, and reject the appeal.
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1985 (10) TMI 196
Revision-Show Cause Notice by Government for suo moto review ... ... ... ... ..... d before the amendment of Rule 11. The duty payment was made between 22-2-1972 and the claim for refund was made on 30-3-1973. In holding that the refund application was not covered by Rule 11, the High Court went by the wording of the Rule as it stood before the amendment. The observations of the Delhi High Court on the applicability of Rule 11 to the case before it, would therefore also not be of assistance to the respondents in this case. As regards the general observations regarding the applicability of the time-limit in such cases, there is substance in Shri Tripathi rsquo s submission that the position has subsequently been clarified and confirmed by the Supreme Court in the case of Miles India Ltd. 23. We, therefore, find that the order of the Appellate Collector was not a legal, proper and correct order. We, accordingly, allow this appeal, set aside the Appellate Collector rsquo s order dated 23-11-1981 and restore the Assistant Collector rsquo s order dated 4-7-1979.
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1985 (10) TMI 195
Classification of goods ... ... ... ... ..... ecisions, we hold that in all the 9 cases before us the Department did not discharge its burden of showing that the goods had their sole or predominant use as antioxidants in the processing of rubber. They had followed a wrong approach, namely that if a possible or alternative use in the processing of rubber could be shown, that was conclusive for adopting classification under T.I. 65. This assumption, as already pointed out, is unsustainable. The Department would not be precluded in a future case from seeking to establish the classification of the goods under T.I. 65, provided they have cogent reasons for doing so, in the shape of evidence justifying such a classification, taking into account the guidelines laid down by the Tribunal, particularly in the Hico Products case. However, so far as these appeals are concerned, we have to decide them in the light of the material placed before us. We accordingly allow all these appeals and direct that consequential relief be granted.
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1985 (10) TMI 194
Customs valuation ... ... ... ... ..... demurrage charges cannot be part of valuation under Section 14 of the Customs Act, 1962. 5. emsp Since demurrage charges are not freight charges for consigning the goods in a time chartered ship these charges cannot be added to the assessable value of imported goods. A time chartered vessel has to pay demurrages to the real owner of the vessel (as contrasted to the temporary owners) time charting the vessel. In other words, the parties that had chartered the importing vessel in lsquo time charter rsquo terms had to pay demurrage for exceeding the time limit of the charter. It is not relevant for determining the valuation of the imported goods that the time charterers passed on the demurrage to the importers. 6. emsp In view of the above position, the less charge demand for duty after calculating the assessable value of the imported goods by way of addition of the demurrage charges in it was obviously not correct and is ordered to be set aside. The appeal is therefore allowed.
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1985 (10) TMI 193
Set-off of duty ... ... ... ... ..... e the issue has not been gone into in detail regarding the use of Fluo-Solid Lime, whereas in the present case (Sree Rayalaseema Paper Mills case) such an enquiry has been undertaken and a finding recorded. Thus, if anything the decision in the case of Fluo-solid lime was rendered in the case of Rayalaseema Paper Mills Ltd. (EDM 399/83 and 157/84) in the absence of full details regarding the use of the article which was not canvassed fully before the Tribunal at the relevant time. In so far as the decision of the lsquo C rsquo Bench of the Tribunal in the case of lsquo Titaghur Paper Mills rsquo is concerned, we are afraid we are unable to agree that raw materials which are used in the production of chemicals which are indirectly used in the manufacture of pulp/ paper would be entitled to the benefit of Notification No. 201/79. 7. emsp Thus the order of the Collector of Central Excise (Appeals) in respect of Burnt lime is upheld and the appealing thereto (E/149/84) dismissed.
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1985 (10) TMI 192
Demand-Duty liability ... ... ... ... ..... , is ldquo I state that I was not a licensee during 19-6-1980 to 29-11-1981. I could not give reply to the show cause notice relating to that period. As the licensee is dead the show cause notice is invalid. rdquo Apparently, this point about refuting the liability for payment of duty during the said period by Seeni Kumar as licensee of Ganapathy Match Works in July 1982 has not been dealt with by any of the authorities below. It is one thing to call upon the legal heirs of the estate of Nataraja Pillai to fulfil an obligation or meet a liability in and by Netarajan Pillai but it is another to call upon Seeni Kumar as licensee of Ganapathy Match Works to pay the duty, particularly when he disclaims liability for the said period. Under these circumstances we set aside the order of both the Collector (Appeals) and Assistant Collector and remand the case to the Assistant Collector for de novo proceedings after issue of notice to the legal heirs of Nataraja Pillai, if so advised.
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1985 (10) TMI 191
Assessment on the basis of invoice value- ... ... ... ... ..... s by itself does not create any commercial, financial or other relationship. There have been authoritative pronouncements as to how the term related person has to be interpreted as set out under Section 4 of the Central Excises and Salt Act, 1944. The Supreme Court in the case of Union of India v. Atic Industries Limited 1984 (17) E.L.T. 323 (S.C.) have dealt with this issue in great depth. The matter has not been examined by the lower authorities in the light of this pronouncement, and it is desirable and in the interest of justice full facts are examined as to the nature of relationship between the appellants and their buyers in the light of this judgment. In view of the above, we set aside the order of the lower authorities and remand the case to the concerned Assistant Collector for de novo consideration. The Assistant Collector shall decide the case as early as possible but not later than six months from the date of. the receipt of this order as the matter is an old one.
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1985 (10) TMI 181
Yarn (Man-made) exempt from Customs duty ... ... ... ... ..... manufacture of belting from yarn, the benefit of the notification, in our opinion, would be available to such on importer. If this be so, it does not stand to reason why, if the belting is manufactured by another manufacturer, and so long as such use is established, the benefit of the notification should not be available to the importer of the yarn who has also manufactured the belting ducks. 7. emsp We allow the appeal with consequential relief. The relief will, however, be limited to that quantity of the imported Nylon filament yarn which the appellants establish to the satisfaction of the Assistant Collector as having been used in the manufacture of belting for machinery. 8. emsp When this decision was announced in the open Court, the Counsel for the appellants did not pursue another line of argument which he had earlier canvassed that belting duck would be covered by the expression ldquo belting rdquo . As such we are not expressing any view on this aspect of the matter.
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1985 (10) TMI 180
Cess on Paper and Paperboard ... ... ... ... ..... 84 in C.M.P. Nos. 14576, 14596 and 14597/84 in W.A. Nos. 1051 to 1053 of 1984 respectively. Apart from this, insofar as the present case before us is concerned, the decision in the Asia Tobacco Co. case has no application or relevance. We say this because we have already found following the Supreme Court rsquo s decision in the Dhanpat Oil and General Mills case, that though the provisions of the Central Excises and Salt Act and the Rules were made applicable to the levy and collection of the subject cess only on 16-2-1981 (though the impost itself came into force on 1-11-1980), the Collector was competent to collect the cess for the back period and the appellants were liable to pay the same. It, therefore, would not make any difference whether we take the date of notification of the rules or the date of the Collector rsquo s trade notice into account. 17. emsp In the light of the foregoing discussion, we do not find any merit in the appeal which, in consequence, we dismiss.
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1985 (10) TMI 179
CLASSIFICATION ... ... ... ... ..... roviso to Section 36 alone would apply to the present facts. If the third proviso applies, the show cause notice should have been issued within a period of six months, in so far as the demand covered by order dated 25-2-1971 is concerned. In this case the show cause notice was issued beyond the period of six months. The rulings cited by both sides on the question of limitation merely set out the law and the principles are well settled and beyond dispute. 25. emsp We therefore hold that the show cause notice issued under Section 36(2) dated 6-9-1980 is barred by limitation in so far as it relates to the order-in-appeal No. V/34/3/2/69. B.I dated 25-2-1971. The appeal in so far as it relates to the classification is approved. 26. emsp In the result, the appeal is partly allowed in respect of the classification under T.I. 34. The appeal as regards the demand relating to the order-in-appeal dated 25-2-1971 is held to be barred by limitation. The appeal is disposed of accordingly.
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1985 (10) TMI 178
‘Excisable goods’ do not become ‘non - excisable’ after exemption ... ... ... ... ..... able such on those goods referred to in the First Schedule rests with the Government. The submissions made on behalf of the petitioner that the moment a manufacturer is allowed exemption in respect of any goods by virtue of a notification, it ceases to be lsquo excisable goods rsquo for all other puposes under the Act, has to be rejected The contention advanced on lsquo behalf of the respondents that the words, ldquo as being subject to a duty of excise rdquo in Section 2(d) is only descriptive of the goods and not to the actual levy, is the correct approach to the question. lsquo Excisable goods rsquo do not become non-excisable merely by the reason of the exemption given under a notification. lsquo Excisable goods rsquo get exemption from the payment of duty by virtue of the notification under which the Government chooses to grant exemption from the whole or part of the duty. 13. emsp In this view of the matter, the Writ Petition has to fail and it is accordingly dismissed.
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1985 (10) TMI 177
Timber waste not dutiable ... ... ... ... ..... cut pieces are capable of being used in manufacture of wooden furniture, as contended by the department, yet the fact is that they remain cut pieces of rough sawn timber only and nothing more. They have not assumed the form of identifiable articles of wood. The parent material in the form of logs was wood or timber. So are the cut pieces of rough and sawn timber, termed as ldquo timber waste rdquo . In the facts and circumstances of this case, it cannot be said that just by the process of rough sawing any transformation of timber into different commercial articles having a distinct name, character or use has taken place. We, therefore, agree with the Collector (Appeals) that no conversion of timber into a different manufactured product can be said to have resulted when ldquo timber waste rdquo arises as a by-product in the course of manufacture of veneers and hence no duty liability on such ldquo timber waste rdquo is attracted. 4. emsp In the result, we dismiss this appeal.
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