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Case Laws
Showing 81 to 100 of 233 Records
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1987 (10) TMI 217
MODVAT Credit - Intermediate products ... ... ... ... ..... . Such is not the case with the appellants because what is returned is the packaging, materials which are themselves finished products exempted from duty and which cannot appropriately be considered as intermediate products which .have to, undergo further processing before being used in the manufacture of final products. This is what is envisaged under Rule 57F(2). In the situation such as this, since the plastic jars and other packaging materials are themselves exempted, it cannot also be stated that there is a cascading effect of the duties. In such a situation, the conclusion of the lower authorities that HDPE, LDPE etc. finding used in the manufacture of plastic caps, jars, cannot be considered as input in or in relation to the manufacture of the appellants rsquo final products viz, cosmetics and toilet preparations etc. is valid and hastp,be upheld. In the result, there is no reason to interfere with the order passed by the Collector (Appeals) and the appeal is rejected.
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1987 (10) TMI 214
Refund made beyond limitation on basis of protest lodged ... ... ... ... ..... ously made. 37. I may mention that the department has not been able to prove beyond doubt in the instant case that the Asstt. Collector had, in fact, made an error in making the payment, because it was open to the Asstt. Collector to take due cognizance of the letter of protest and apply the well known principle that substantive benefit should not be disallowed on the plea of a minor technical infirmity, if it was otherwise due on merits and it is not denied in this case that the amount was otherwise due. 38. In any eventuality, the impugned demand was time-barred, having been issued more than six months after the date of payment. 39. Thus, whichever way we may look at the matter, the department has no case and the appellant rsquo s prayer is justified. In view of this position I set aside the order-in-appeal and the order of the Asstt. Collector No. 4-AC (REF)17-Paper/84 dated 13.11.84. As a result, the appeal succeeds and is accepted, as already announced in the open Court.
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1987 (10) TMI 213
Writ jurisdiction ... ... ... ... ..... mount after considering all the facts. The Appellate Committee after considering the total value of goods imported including customs duty and the value of goods which remained unutilised and the alleged sale value of production of imported goods took the view that approximate value of unaccounted goods was roughly Rs. 7 lakhs and it is in this light that the Appellate Committee declined to interfere with the order of imposing penalty of Rs. 2 lakhs. It will be noticed by and large such orders of penalty are passed after considering all the facts in the discretion of the Appellate Committee. The discretion has been again subject matter of check before the Appellate Authority though under the Act the penalty could be five times the value yet the penalty imposed was of Rs. 2 lakhs. We find no reason whatsoever to interfere with the impugned order imposing penalty in the circumstances of the case. The show cause notice is accordingly discharged and the writ petition is dismissed.
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1987 (10) TMI 208
Excess duty recovered from the assessee by mistake ... ... ... ... ..... on the limitation prescribed in Section 27 is not applicable. It is like refunding over time charges collected by the Department for not doing over time work. 5. Section 27 is intended to cover cases where the department is required to hold an enquiry as to the validity or admissibility of the refund claim. That section is not intended to cover the refund which is sought as directed by the department or else asking the party to seek refund becomes an empty formality and waste of public fund and time. 6. The appellants had also contended that duty had been paid under protest, if that be so, then, the authorities below were not correct in holding that the claim is barred by time. This aspect of the matter also had not been considered by the authorities below. I, therefore, allow this appeal set aside the orders passed by the authorities below and remand the matter to the Asstt. Collector (Refund) for consideration afresh in the light of the observations contained in this order.
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1987 (10) TMI 207
Smuggled goods ... ... ... ... ..... on to believe that they are liable to confiscation under Section 111 would not be sufficient to impose penalty. In the whole of his order, the Addl. Collector did not assign a single reason to hold that the appellant knew or had the reason to believe that the watches Shri Jain was keeping in his house were liable to confiscation. 9. According to the appellant he had received only Rs. 150/- in one month. Even if we are to consider that the consideration offered by Shri T.R. Jain to the appellant for keeping the watches is somewhat high it could only raise a suspicion in the mind of appellant. The keeping of the watches by itself would not impute knowledge of the smuggled nature of the watches. In the circumstances, the Addl. Collector was not correct and justified in imposing penalty on the appellant. I, therefore, set aside the penalty. 10. In the result, this appeal is allowed. The penalty on the appellant is set aside. The penalty if paid shall be returned to the appellant.
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1987 (10) TMI 202
Waste or scrap obtained in the course of manufacturing the end-product,is not excisable ... ... ... ... ..... ty of the product. To the same effect are the Delhi High Court rsquo s observations in para 11 of its judgment in the Modi Rubber case (supra). The Court further noted that wherever the Legislature sought to tax waste or scrap, it specifically provided for the purpose, as for example, in Item Nos. 18-1V, 15A. No such provision exists in the case of rubber scrap under Item No. 16, CET. 6. All the aforesaid observations apply with equal force in the present case with reference to ldquo Bhagar rdquo . The Tribunal rsquo s decision in the case of Hindustan Scientific Glass and Fancy Glassware Works (supra) was rendered long before the Delhi High Court rsquo s judgment in the Modi Rubber Ltd. case (supra). As such, respectfully following the ratio of the Delhi High Court rsquo s judgment, we hold that ldquo Bhagar rdquo were not ldquo goods rdquo for the purpose of levy of excise duty. As such, we uphold the impugned order of the Collector (Appeals) and dismiss the present appeal.
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1987 (10) TMI 201
Dextrose and Glucose ... ... ... ... ..... d under controlled conditions to arrest the rate of deterioration. The syruppy liquid which is marketed, as stated in the passage aforesaid, is corn syrup which is stated to be usually not pure glucose as it contains some dextrins and maltose. There is no material on record to show that the present goods are the same thing as corn syrup or akin to it. We have also seen the notes on ldquo Glucose rdquo and ldquo Glucose syrup rdquo at P. 500 of the 10th edition of the Condensed Chemical Dictionary by Gessner G. Hawley as also the relevant passages in Kirk Othmer rsquo s ldquo Encyclopaedia of Chemical Technology rdquo and the ldquo Merck Index rdquo . We have not been able to see any material in these books to support the department rsquo s contention that wet dextrose and mother liquor are products which are capable of being marketed under controlled conditions to arrest the rate of deterioration. 12. In the circumstances, we set aside the impugned order and allow the appeal.
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1987 (10) TMI 200
... ...
... ... ..... Similarly, the rate of interest on capital employed is reportedly the normal bank landing rate. The rates adopted are, therefore, in order. However, since we are burdening the respondents with the costs of maintaining an efficient facility, it is only fair that the fruits of that efficiency should also accrue to them. We, therefore, order that dispatch money earned because of unloading of the chartered vessel before the stipulated lay time should be deducted from the costs. Conversely, if the appellants have paid any penalty for delayed unloading of the ship, the same should be added to the costs. 14. In the light of our discussion, we allow these appeals of the department subject to the condition that the Assistant Collector should re-quantify the unloading charges to be added in the light of our observations in the preceding paragraph. The three impugned orders-in-appeal are, accordingly, set aside and the orders-in-original are restored with the modification ordered by us.
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1987 (10) TMI 199
Exemption to goods if intended for specified use in the manufacture of other specified excisable goods
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1987 (10) TMI 198
Blending taking place on different occasions ... ... ... ... ..... 30 of 83 are to be set aside for the ground mentioned earlier, the question then would be whether a re-adjudication is to be ordered. The sample had been drawn in 1980. As in the other case, the result, if a retest is now ordered, could be applied only to a proportion of the total quantity in the said lot. Taking into consideration the time that has lapsed and the quantum of duty evaded, if any, that may be involved, it appears to us that a remand for readjudication may not be called for. 15. In the result, Appeal No. 1330 of 83 is allowed and the orders of the lower authorities in the said appeal are set aside. So far as Appeal No. 1329 is concerned, the said appeal is also allowed, to the extent of setting aside the penalty and also setting aside the orders of the lower authorities in confirming the duty demanded but remitting the matter to the Assistant Collector for quantifying the duty with reference to that part of the lot from which sample had been drawn on 29-10-1980.
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1987 (10) TMI 197
A question of law if well-settled, question not fit for reference ... ... ... ... ..... tioned in the rule and subject to action for review being taken within the prescribed period of limitation. In this case the Tribunal has clearly found that what has been sanctioned was a refund of duty which was duly issued by a formal order of the Assistant Collector dated 15-12-1983 and this was sought to be recovered as it was found that it was an erroneous refund. Therefore, the ratio of the Bawa Potteries case is fully applicable. Secondly, as rightly urged by the learned Departmental Representative, the question in the manner it has now been raised in the Reference Application, namely, with reference to the provisions of Section 35E and Section 11A was not an issue argued before the Tribunal, and has not been dealt with as such in the order of the Tribunal. Therefore, we agree that this question does not arise out of the Tribunal rsquo s order. In the result, there are no points of law arising out of the Tribunal rsquo s order and the Reference Application is rejected.
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1987 (10) TMI 196
Food products or food preparation includes beverage bases ... ... ... ... ..... or had made no reference at all thereto in his order. As earlier noted, the chemical examiner has definitely stated that the subject goods may be deemed to fall in the category of food preparations, though he has suggested that enquiry may be made as to the common parlance and trade in this regard. There is nothing to show that any such enquiry was further conducted by the Department or that it went against the tentative opinion offered by the chemical examiner. 10. In view of the above discussion, we are satisfied that there are no reasons not to follow the earlier decision of this Tribunal under which it had not held that the non-alcoholic beverage bases manufactured by this appellant itself were food preparations eligible for exemption under Sl.No. 1 of the Schedule to the Notification No. 55/75. In that view it is unnecessary to go into the other contentions raised regarding limitation etc. 11. The appeal is accordingly allowed and the order of the Collector is set aside.
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1987 (10) TMI 195
Classification of Import ... ... ... ... ..... the finished article. Delhi High Court judgment 1983 (12) E.L.T. 328 relied on by the appellant itself says that a different order on classification passed by a higher Court would constitute sufficient reason for changing the earlier classification. All the three impugned orders passed by the Collector (Appeals) took note of this Tribunal order, dated 25-1-1983. We hold, therefore, that there were good and cogent reasons for the lower authorities to change the classification held by the earlier Appellate Collector on 5-4-1980. 8. However, so far as the additional customs duty is concerned, we agree that for the reasons given by the learned representative of the Department, the additional customs duty could only be levied with reference to Item 26AA of the Central Excise Tariff. 9. In the light of our above discussion, we allow these appeals with consequential relief to the appellants so far as only the additional customs duty is concerned. The appeals are otherwise rejected.
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1987 (10) TMI 194
Waste, parings and scrap of plastics ... ... ... ... ..... ading 3921.90 - Other - Residuary item. We observe that for this waste and scrap, Heading 39.15, sub-heading 3915.00 ldquo Waste, paring and scrap of plastics rdquo is specifically there in Central Excise Tariff Act, 1985 and this should have been the proper classification. In fact, Shri Lakshmi Kumaran, Advocate for the respondents also agrees that this would be the proper classification of the goods in question. 4. We, therefore, set aside the classification of Top Skin, Bottom Skin, Side Skin, Shreadings and Foam Cut pieces under heading 3921.90 and substitute sub-heading 3915.00 of the Tariff Act for the same. The order is modified to this extent. The appeal is thus allowed.
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1987 (10) TMI 193
Valuation when goods sold directly to consumers in retail through dealers ... ... ... ... ..... or the subsequent period, i.e. period after 2-2-1986. Secondly, they explained that no free after-sale service was promised by the respondents to the customers. The respondents rsquo warranty to the customers was only for replacement parts of the motor cycle. The after-sale service by the dealer was governed by the terms of the agreement between the customer and the dealer and the respondents had nothing to do with it. In view of the explanation given by the respondents, we do not consider that it is necessary to go into this point of the learned representative of the Department any further. 11. In the light of our discussion, we order that deduction towards freight and transit insurance should be allowed after verification of the amount by the Assistant Collector. Further, deduction of Rs. 550/- also be allowed from the retail price to arrive at the assessable value in terms of Rule 6(a) of the Central Excise (Valuation) Rules, 1975. The appeal is disposed of in these terms.
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1987 (10) TMI 192
adduce evidence ... ... ... ... ..... k be held mineral within the meaning of notification, there is no evidence as to end use of the material as specified in the notification. On going through the Tribunal decision, which reads as under - ldquo If chalk includes, as it does in the notification precipitated chalk, we are of the view that rdquo coated precipitated chalk is covered by expression ldquo precipitated chalk rdquo because both are recognised in literature as mineral fillers. Besides the above findings of the Tribunal, the notification has no condition precedent as to end use. We do not think that long after the materials have been used, we should call upon the respondents to adduce evidence of end use. Besides, this point though raised during arguments is not urged in the memo of appeal. Considering all this, we are not inclined at this stage to call upon the respondents to adduce evidence of end use before the Assistant Collector of Central Excise. 4. Considering the foregoing, the appeal is dismissed.
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1987 (10) TMI 191
Appeal to Appellate Tribunal impleading as party ... ... ... ... ..... which is being impugned in the present petition, may be vacated. 4. In the civil suit the point for decision is as to whether the petitioner, or Respondents Nos. 3 and 4 are the owners of the gold which was first confiscated and thereafter ordered to be redeemed on payment of a certain sum of money. It appears that one of the pleas taken by the petitioner is that suit is impliedly barred and, therefore, an application under Order 7 Rule 11 has been made requesting the Civil Court to reject the plaint. That application is pending. The grievance is that the learned Civil Judge is not disposing of the application. 5. The learned Civil Judge shall dispose of the application of the petitioner within a period of four months from the date of presentation of a certified copy of this order before him. With these directions the petition is disposed of summarily. 6. A copy of this order shall be given to the learned counsel for the petitioner in two days on payment of the usual charges.
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1987 (10) TMI 190
Statement recorded before Customs Officer ... ... ... ... ..... 1962 and the Gold (Control) Act, 1968 has been clearly brought home. We, therefore, confirm the findings of the adjudicating authority under the impugned order. 6. At this stage the learned counsel prayed that atleast the case may be remitted with an opportunity to the appellant to cross-examine the officer who effected seizure and recorded statements during investigation. We have already dealt with this issue and we, therefore, do not think that a remand is called for in the facts and circumstances of this case. 7. Having regard to the fact that 60 gold biscuits of foreign origin valued at Rs. 13,94,505/- (market value) have been transported in the instant case to which the appellant has been privy as an abettor, we do not think that the circumstances of the case call for any reduction in the quantum of penalty imposed on the appellant under the provisions of the Customs Act and Gold (Control) Act. We, therefore, confirm the penalty. In the result the appeals are dismissed.
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1987 (10) TMI 189
Seizure and confiscation ... ... ... ... ..... eferred to above the learned Senior D.R. submitted that he is not in a position to state anything with reference to the same as he does not have any specific instruction in this regard. 6. We have carefully gone through the entire case records. We should confess, we do not find an iota of evidence against the appellant to hold that the currency of Rs. 55,050/- seized from her represented the sale proceeds of contraband goods. We also do not find any material on record to show that the Customs authorities either entertained a reasonable belief or could have had reasonable belief to effect seizure of the same in terms of Section 110 of the Act. The mere possession of currency and an unsatisfactory explanation with reference to acquisition of the same may possibly engender suspicion in the mind of an authority. But suspicion however grave it might be, cannot take the place of proof. In this view of the matter we set aside the impugned order appealed against and allow the appeal.
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1987 (10) TMI 167
Writ jurisdiction ... ... ... ... ..... ntentions were raised to challenge the order of Mr. Justice Jahagirdar on the ground that it is in conflict with the decision in Navinchandra rsquo s case. In spite of this, the Supreme Court dismissed the petition summarily and it would be judicial indiscipline on our part, in case we give directions to modify the order of Mr. Justice Jahagirdar on the spacious ground that the Supreme Court did not examine the merits of the matter. It is undoubtedly true that the decision of the Supreme Court summarily dismissing Leave Petition is not a speaking order, but, in our judgment even that decision is entitled to respect and it is not desirable that the relief sought by the Union of India should be grated in the motion. It was open for Union of India to move the Supreme Court to review the order, but instead of that a totally misconceived course has been adopted. In these circumstances, the order appealed against need not be disturbed. 6. Accordingly, appeal is summarily dismissed.
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