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Case Laws
Showing 41 to 60 of 227 Records
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1988 (11) TMI 271
Demand - Limitation ... ... ... ... ..... be called for. The Department rsquo s view regarding penalty is based on the decision of the Nizam Sugar Factory case of the A.P. High Court 1987 (27) E.L.T. 40 . However, the Hon rsquo ble A.P. High Court was dealing in that case with the offence of non-accountal and unauthorised clearance of excisable goods etc. detected against Nizam Sugar Factory, a Central Excise licensee, following the seizure of sugar being transported from the factory without payment of duty and without any valid documents, whereas in the present case, the Department itself decided the excisability and classification of the product only in the impugned order of the Collector classifying it under Item 68 CET. In the result, the demand for duty invoking the extended period under Rule 9(2) read with Section 11A of the Central Excises and Salt Act, 1944, is not sustainable, and the penalty imposed on the appellant is also, for the reasons discussed above, not justified. The appeal is accordingly allowed.
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1988 (11) TMI 270
Importation of goods by Nepal Government undertaking ... ... ... ... ..... isposed of within three months from the date of receipt of this order. 55. Before parting, we may mention that as a result of concurrent hearings of these three matters, the picture which emerges before us shows that various defects, inconsistancies, irregularities and improprieties, as pointed out by the Ld. Counsel (as also the Court itself) have been prima facie, committed by the department in dealing with the matter. Indeed, there is no doubt that investigations were not properly carried out, but how far it was due to ignorance or mis-conception of law and how far it was deliberate action with a view to harass the appellants and cause inconvenience or loss remains to be seen. As the matter stands now, the charge of mala fides brought out by the appellants is not proved beyond doubt. It is, however, open to the appellants, in the circumstances, to pursue the matter with the concerned administrative authorities, if they so choose and seek redressal in the appropriate forum.
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1988 (11) TMI 266
Incentive production rebate ... ... ... ... ..... cation No. 198/76 or any fresh notification granting exemption in respect of tools newly added in the amended Tariff Item 51A. In the aforesaid circumstances, the contention of the appellants that there was a typographical error in the drafting of the amended notification is totally unfounded, and in any case untenable in law. 11. The benefit is sought for an exemption notification. It is settled that the exemption notification has to be construed strictly and there is no scope for intendment. There is no scope also to add or subtract so is to infirmity with the so-called intention of the authority which issued the exemption notification. 12. The Collector (Appeals) was justified in observing that rock drilling bits were not covered by the amended Tariff Item 51A. There is no scope to give any benefit of exemption contemplated by Notification 198/76. 13. For all the reasons stated in the preceding paragraphs, we see no merit in this appeal and accordingly, we reject the same.
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1988 (11) TMI 265
Adjudication ... ... ... ... ..... agitate against the cancellation as well as the order of confiscation. Prima facie this is the position flowing from the Letter of Authority. However, to my surprise I find that this basic issue has not been considered by the authorities below. In the interest of justice and in the absence of availability of all the records, namely Bill of Entry, Bill of Lading and other connected documents it has become necessary for me to remand the case back to the Collector (Appeals) for considering the issue afresh. In view of this position, I set aside the orders of the authorities below and remand the matter to the Collector (Appeals) for consideration of the appellants rsquo locus standi with regard to their claim for release of the goods and also the maintainability of the order of absolute confiscation. While doing so, reasonable opportunity may be given to the appellants for hearing and perusal of records on which the department rely on and pass such orders in accordance with law.
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1988 (11) TMI 264
... ...
... ... ..... gitate against the cancellation as well as the order of confiscation. prima facie this is the position flowing from the Letter of Authority. However, to my surprise I find that this basic issue has not been considered by the authorities below. In the interest of justice and in the absence of availability of all the records, namely Bill of Entry, Bill of Lading and other connected documents it has become necessary for me to remand the case back to the Collector (Appeals) for considering the issue afresh. In view of this position, I set aside the orders of the authorities below and remand the matter to the Collector (Appeals) for consideration of the appellants rsquo locus standi with regard to their claim for release of the goods and also the maintainability of the order of absolute confiscation. While doing so, reasonable opportunity may be given to the appellants for hearing and perusal of records on which the department relies on and pass such orders in accordance with law.
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1988 (11) TMI 263
Refund - Compounded levy scheme ... ... ... ... ..... rate of compounded levy, is mandatory. Note the use of the word shall. Therefore, whereas in the ordinary course the assessee is expected to make a claim for refund of duty on the ground that such duty was not payable by him, in terms of Central Excise Rule 11, in so far as excess payment of compounded levy is concerned. Rule 92B makes it obligatory on the part of the Central Excise Authority to refund the excess amount paid in the event of alteration in the rate of compounded levy without the assessee having to make a claim for the purpose. We are of the opinion that in view of the specific phraseology used in Rule 92B, the requirement in Rule 11 that the assessee shall make a claim within 6 months from the date of payment of duty, has no application to cases of excess payments of compounded levy which, in terms of Rule 92B, are obliged to be returned to the assessees without any claim being made therefor. In the result, we uphold the impugned order and dismiss this appeal.
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1988 (11) TMI 254
Adjudication on Remand ... ... ... ... ..... in S.P. Gramophones Co. v. ITAT and Ors. - (1986) 160 ITR 417, that after the remand the assessing authority had to frame the assessment in accordance with the remand order and could not take up any point beyond its scope. In the present case, the order of remand passed by the Board was not challenged by the Revenue through appropriate proceedings and, therefore, it had become final as between the parties to the dispute. Therefore, the ratio of the High Court rsquo s judgment applies to the facts and circumstances of the present case. 7. ensp It is, therefore, that we have allowed the appeals, without going into the merits of the dispute, on the short ground that the Additional Collector had not complied with the Board rsquo s directions on remand. In this view of the matter, we do not consider it necessary to go into the point made in the additional ground that the Additional Collector was not the authority to whom the case was remanded by the Board for de novo proceedings.
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1988 (11) TMI 253
Confiscation, redemption fine and penalty ... ... ... ... ..... icating documents to sustain a false claim and putting forth a false claim ipso facto would not make him an abettor inasmuch as acquisition of gold and ornaments in contravention of law had taken place previously. Under the law of abetment, there must be evidence to show that the abettor had been privy to the commission of an offence or participated by abetment in an offence prior to the commission of the offence and subsequent to the commission of the offence he would become only an accessory after the event and in this view of the matter, we give him the benefit of doubt and exonerate him of the charge of abetment and set aside the penalty imposed on him and allow his appeal. 12. emsp In the result, the appeals of appellant Murugesan (G/115/88 and C/331/88) under the Gold (Control) Act and the Customs Act, 1962 are dismissed. The Miscellaneous Application G/Misc/272/88 is also dismissed. The appeal of appellant Chandra Kumar under the Gold (Control) Act G/116/88 is allowed.
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1988 (11) TMI 252
Import not valid under OGL ... ... ... ... ..... sition of redemption fine is justified and is therefore uphold. 7. emsp However, as regards the penalty, though there is an admission that they have not declared the goods to be old and used, all the same they had declared the goods to contain spares of Electrolytic Tinning Line Machinery. From the beginning, they were contending that these goods could be construed as spares as per the Policy, which became the subject-matter of dispute and also the cause in this appeal. In the circumstances, we feel that there is an area of doubt with regard to the allegation of deliberate mis-declaration attracting imposition of penalty and also confiscation under Sec. 111(m). Extending the benefit of doubt, we set aside the personal penalties imposed on the appellants on each Bill of Entry, while upholding the order of confiscation under Sec. 111(m) of the Customs Act read with Sec. 3(2) of the Imports and Exports (Control) Act, 1947. Penalties, if paid, shall be refunded to the appellants.
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1988 (11) TMI 251
Ships stores - Foreign going vessel ... ... ... ... ..... ha to Bombay. If in the course of that voyage it took some cargo which was even larger than the foreign cargo, it was carrying for delivery at the Port of Bombay it did so only not to waste the carrying capacity of the vessel which would have been a dead loss to the company. As has been held by the Bombay High Court, the voyage between Okha and Bombay cannot be treated as a coastal run. The ship stores consumed during the course of a compulsory voyage from Okha to Bombay which was necessitated by the existence of foreign cargo on board would be exempted from payment of duty as provided under Section 87 of the Customs Act. 14. ensp The contention of Shri Chakraborty that the ratio of the decision of the Bombay High Court is inapplicable to the facts of these appeals, in our opinion, is not correct. The ratio of the decision of the Bombay High Court applies in all fours to the facts of these appeals. Following the decision of the Bombay High Court, we reject both these appeals.
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1988 (11) TMI 242
Prosecution ... ... ... ... ..... the charge should be perfectly clear in the mind of the Court and made clear to the minds of the accused persons. In matters like the present ones, where there is a provision for minimum imprisonment and possibility of imposition of a sentence of imprisonment for a term upto two years, it is always desirable to frame a formal charge. 6. At any rate, the first duty of the Special Court would be to ascertain whether there is sufficient ground for proceeding as required under Section 204, Cr.P.C. With the above direction, the complaint is forwarded to the Special Court constituted under the Essential Commodities Act, Coimbatore, and that Special Court shall deal with the matter de novo. All the records received from the Magistrate shall also be forwarded to that Court and the Magistrate shall be informed of that operation. 3. In the result, both the petitions are allowed only to the extent that the summons issued by the Judicial First Class Magistrate of Dharapuram are quashed.
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1988 (11) TMI 239
... ...
... ... ..... utilised balance against the licence is Rs. 1,66,000/-. From this endorsement, it is clear that licence No. 2978842 for Rs. 41,500/- is the off-spring of licence No. 2978841 and it is to be read in conjunction with the parent licence. It is not the department rsquo s case that the parent licence has been utilised for restricted items figuring in Appendix 3 or in the parent licence also. Appendix 3 items have been permitted for import. Unutilised balance is only for the listed items figuring in Appendix 17. Once this is conceded, it follows that the off-shoring licence issued for Rs. 41,500/- is only for 20 of the face value of the parent licence available for import of Appendix 3 items, subject to actual user/non-transferable condition. 9. In view of the aforesaid findings, I hold that the order of the authorities below in holding the goods liable to confiscation is not just and proper. Accordingly, I set aside the said order and direct consequential relief to the appellants.
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1988 (11) TMI 238
Demand for differential duty ... ... ... ... ..... he Customs House agent only drawn their attention to the powers for recovery of sums due to Govt. in terms of Section 142 of the Customs Act if the importer fails to pay up the same. In this context, the obligation of the Customs House Agent as laid down in Regulation 14(d) of the Customs House Agents Licensing Regulations, 1984 is also relevant, according to which the Customs House Agent shall advise his client to comply with the provisions of the Act and in case of non-compliance of any provision, he shall bring the matter to the notice of the Assistant Collector of Customs. The Act casts an obligation on the Customs House Agent for ensuring compliance by the importer with the provisions of the Act and in this context also the service of the notice demanding short levy in time on the Customs House Agent would assume validity. Therefore, in this view of the matter, there is no infirmity in the order passed by the Collector (Appeals), and the appeals are accordingly rejected.
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1988 (11) TMI 237
Clarification by CCI ... ... ... ... ..... clarification given by the licensing authority cannot be brushed aside by him. On this short point, we hold that the order passed by the Collector is bad in law and is required to be set aside. We, however, note that as per the order of the Collector, discharging the show cause notice, the goods have been released and no useful purpose would be served in remanding the case to the Collector inasmuch as in a case of this type where the authorities themselves were in doubt and sought for a clarification, there is no justification for consideration of imposition of penalty. Inasmuch as the goods have already been released and also because we are of the view that no penalty is justifiable in this case, we confine ourselves to the prayer made in the appeal viz. that the order of the Collector is required to be set aside. We, however, hold that the case does not call for sending back to the Collector in view of the circumstances, stated above. The appeal is disposed of accordingly.
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1988 (11) TMI 236
Demand - Limitation ... ... ... ... ..... ot be accepted on the facts and circumstances of the case. 13. It was pointed out during the hearing of this appeal, that if the respondents have been clearly informed by the Co-ordinating Assistant Collector as to the availability of the benefit Exemption Notification No. 198/76 in terms of both the units together, then in respect of one of the unit they would have been entitled to claim concessional rate of duty much earlier of the date when they actually started availing of the benefit. This aspect appears to have not been examined by the department. Therefore, it cannot be said that there was any undue advantage taken by the respondents in the matter of availment of the concessional rate of duty. However, having regard to our finding that the Collector of Central Excise (Appeals) did not commit any error while holding that the demand is barred by time, it is unnecessary for us to go into the merit of the case. 14. In the result, this appeal fails and the same is rejected.
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1988 (11) TMI 235
... ...
... ... ..... lso we find there is absolutely no evidence against the appellant except the statement of one Balasubramaniam, who claimed to have purchased the contraband gold from the appellant. Balasubramaniam admittedly went back on that version and gave a different version. There has not been any independent investigation prior to adjudication with reference to the connection or complicity of the appellant or his involvement in regard to the commission of any offence relating to the alleged contraband gold. The proceedings under the Acts are penal in nature and the Department has to discharge the burden and establish the charge at least by preponderance of probabilities. In the facts and circumstances of this case the appellant would at any rate be entitled to the benefit of doubt. We, therefore, give the appellant the benefit of doubt and hold that the charge is not sustainable on the evidence available on record. In the result the impugned order is set aside and the appeal is allowed.
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1988 (11) TMI 224
Appellate Collector bound by its earlier order of remand ... ... ... ... ..... ference in duty following the final assessment. Rule 9B is a self-contained code and does not stipulate issuance of a show cause notice for demanding duty consequent on finalisation of the provisional assessment. Section 11A notice requirement would come in from the date of final adjustment of duty if a cause for demanding further duty arises. The present case is one covered by Rule 173-I because, at the material time, the classification was not in dispute and no appeal had been filed and the final adjustment of duty had not taken place. 26. Since we are remanding the main issue of classification to the Asstt. Collector, we would not like to express any opinion on the aforesaid contentions since they were apparently not raised before the lower authorities. The Asstt. Collector will give an opportunity to both sides for putting forth their respective cases before arriving at his decision. 27. In the result, the appeals and cross objections stand disposed of in the above terms.
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1988 (11) TMI 223
Confiscation - Clandestine removal ... ... ... ... ..... s argument that these 26 drums were shown in the audit report also does not help him as the quantity of 26 drums was never shown in the actual stock taking report as signed by the appellant and duly verified by the central excise authorities. It also does not appear in the balance-sheet of the appellant and it cannot be believed that the goods were lying unsold for 7 or 8 years. Accordingly, we confirm the finding of the adjudicating authority that during the period from 1977-78 onward till 1980-81 the appellant had cleared conductors worth Rs. 29,81,516.01 involving central excise duty of Rs. 2,98,151.50 as basic excise duty and Rs. 14,907.58 as special excise duty. We also confirm that personal penalty was leviable in the case. To meet the ends of justice, we reduce the personal penalty from Rs. 3,00,000/- to Rs. 2,00,000/- and we reduce the fine in lieu of confiscation from Rs. 2,00,000/- to Rs. 1,30,000/-. Except for this modification, the appeals are otherwise rejected.
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1988 (11) TMI 222
Appellate Tribunal’s Order ... ... ... ... ..... Assistant Collector of Central Excise. (2) 1986 (24) E.L.T. 23 -1986 (10) Part 4 ECC 281(Kart) Alembic Glass Industries Ltd. v. Union of India and others. No contrary judgment of any other High Court has been brought to our notice. The aforesaid two judgments have already been accepted by this Tribunal in quite a few cases. Respectfully following the ratio of these High Court judgments, we hold that cost of packing supplied by the customer cannot be included in the assessable value of the goods packed therein. In the result, we allow all the 8 appeals with consequential relief to the appellants. 15. In view of the above discussion, we are of the view that it is not necessary that durable container must be actually returned by the buyer before an assessee could claim abatement. The Revenue rsquo s argument that the respondent had paid sales-tax on the packing has got no relevance in the matter. Accordingly, we find no merit in the Revenue rsquo s appeal. The same is dismissed.
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1988 (11) TMI 221
Stay/Dispensation ... ... ... ... ..... He reiterates the findings of the adjudicating authority so far as the prima facie nature of the case is concerned. He also submits that no affidavit has been submitted by the applicants/appellants regarding their poor financial condition as made out in the stay application. 4. We have carefully considered the pleas advanced on both sides. On the basis of decision of Punjab and Haryana High Court referred to above, we feel that there is a strong prima facie case in favour of the applicants. This Tribunal having an all India jurisdiction does not consider the argument of the Collector regarding non-applicability of the judgment of Punjab and Haryana High Court, as mentioned above, a valid one. Accordingly, we dispense with the pre-deposit of both penalty and duty adjudged in the impugned order unconditionally. We also order that the Revenue shall not recover the aforesaid amounts during the pendency of this appeal before the Tribunal. 5. Stay petition disposed of accordingly.
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