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Case Laws
Showing 81 to 100 of 287 Records
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1988 (8) TMI 307 - CEGAT, NEW DELHI
Classification list ... ... ... ... ..... llants to justify their action. This point was duly raised by them before the Collector (Appeals), but the latter has held that the Assistant Collector was justified in modifying the classification list No. 1/87 without any show cause notice or hearing given to the appellants. We are unable to agree with the Collector (Appeals). Modification of the classification list without giving a hearing or show cause notice to the appellants has resulted in the denial of natural justice. On this ground alone, the impugned order is required to be set aside and the appeal allowed by remand to the Assistant Collector of Central Excise for de novo decision on the classification list No. 1/87 dated 5-3-1987 after giving a notice to the appellants and also opportunity of personal hearing before deciding the issue. We order accordingly. 6. As we have allowed the appeal on the ground of principal of natural justice, .we have not considered it necessity to hear the parties on merits of the case.
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1988 (8) TMI 300 - CEGAT, NEW DELHI
Seizure - Confiscation ... ... ... ... ..... he Transfer of Residence Rule by Shri Amarsingh P. Rajput. Even, the finding of the Assistant Collector is not specific. It reads ldquo I am convinced that Shri Amarsingh P. Rajput has actually parted with the said refrigerator by way of sale, mortgage or another valuable consideration and Shri Bansiwala from whose possession the said article has been found is accountable and responsible for its acquisition and possession and also for the violation of the Customs as well as Import Control provisions. Shri Yogesh Kapadia is also responsible for the violation in light of the part played by him as per the evidence on record. rdquo So the Assistant Collector is not certain whether there was sale or mortgage or some other transaction for consideration. On the basis of such an indefinite finding neither confiscation nor penalty can be imposed. If these aspects are taken into consideration the order of the Collector (Appeals) becomes unassailable. Therefore, this appeal is rejected.
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1988 (8) TMI 299 - CEGAT, NEW DELHI
... ...
... ... ..... goods cleared during the period from 1.4.1982 to 10.6.1982 from the appellants rsquo factory and supplied to IISCO Ltd. were eligible to the exemption under Notification No. 224/75-C.E., dated 15.11.1975. Shri Sunder Rajan for the Revenue has argued that there is no provision for refund of duty paid in this case. We are unable to accept this argument. The appellants were compelled to clear the goods on payment of duty in view of the Superintendent of Central Excise, Asansol rsquo s letter No. C. No. CE/Oxy-DA/20/HPGR/81/247, dated 29.4.1982 to them. As the C.T.-2 certificate was made effective from 1.4.1982, the realisation of duty on the clearances made from 1.4.1982 to 10.6.1982 was erroneous and the appellants were entitled to get refund of the same the refund claim was filed on 10.8.1982, within the time limit of six months. 7. In the light of the above discussions, we set aside the impugned order and allow this appeal with consequential refund of duty to the appellants.
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1988 (8) TMI 294 - CEGAT, BOMBAY
Adjudication - Absolute confiscation ... ... ... ... ..... ment of fine had not been disputed. There is no allegation that the imports were made for the purpose of trade. In the circumstances, we are of the view that an option should have been given to the appellants to redeem the goods on payment of fine. But then, we have no evidence before us as to the market price of the imported goods. All that we have is the CIF value. It is therefore necessary to remand the matter to the Additional Collector for granting redemption to the appellants on payment of fine. The amount of fine shall be fixed by the Additional Collector after taking into consideration, the market price and the margin of profits. 7. In the result while confirming the penalty and order of confiscation, we set aside the order of absolute confiscation and remand the matter to the Additional Collector to grant an option to the appellants to redeem the goods on payment of fine to be fixed by the Additional Collector in the light of the observations contained in this order.
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1988 (8) TMI 291 - CEGAT, NEW DELHI
Stay - Demand of duty ... ... ... ... ..... the pleas advanced on both sides. 4. On the overall facts and the circumstances of the case we consider that strong prima facie case is in favour of the applicants inasmuch as there is not only an order passed by (he Collector (Appeals) in the case relied upon by the learned advocate for the applicants as mentioned above, but there is also a decision of the Tribunal in the case of the Collector of Central Excise, Chandigarh v. Kapson Electro Stampings 1988 (18) ECR 66 1989 (37) E.L.T. 323(Trib.) in appeal No. E/119 to 121/88-NRB and/Cross/174/8S-NRB vide order-in-appeal No. 88-NRB dated 1-7-1988. In view of the foregoing an unconditional stay for recovery of duty and penalty and disallowing the credit is given. The demand of aforesaid amount of duty and penalty would also be dispensed with the (he purpose of Section 35F of the Central Excises and Salt Act 1944. Needless to state that the department would have the liberty to move an application for early hearing if so desired.
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1988 (8) TMI 290 - CEGAT, BOMBAY
Gold control licence ... ... ... ... ..... in so far as the appellants are concerned. In the said circumstances Rule 3(ee) cannot be made applicable to the applicants. It is not clear how the Department could issue a show cause notice specifying only 4 months when that is not the provisions under the Rules. The authorities below have not properly construed the rules and they have committed an error in law in refusing the renewal of licence having regard to the facts and circumstances of the case. 8. emsp As observed by us earlier, since the licence itself was issued in June, 1982 there is no scope to apply Rule 3(ee) in respect of the renewal application made in November, 1982. We, therefore, set aside the orders passed by the authorities below and direct the licencing authority to consider the renewal application without reference to Rule 3(ee). 9. emsp Since the matter in question is of the year 1982, we direct the Deputy Collector to dispose of the matter within three months from the date of receipt of this order.
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1988 (8) TMI 289 - CEGAT, NEW DELHI
Valuation
... ... ... ... ..... and that the question of jurisdiction would arise. We find that this is a new plea of fact raised for the first time. The learned representative of the department also submitted that this was an hypothetical ground taken by the respondents belatedly and that the facts regarding it were not clear. He suggested that the Assistant Collector, to whom the matter regarding the duty demand was proposed to be remanded, could determine the facts and then deal with the point. We agree with him. 7. No other plea was pressed for by either side during the hearing. 8. In the result, while we confirm the penalty of Rs. 250/- imposed on the respondents, we set aside the lower orders insofar as they relate to the duty demand and remand the matter to the Assistant Collector to re-determine the differential duty payable by the respondents in the light of this Tribunal s earlier judgment in the Sunray Computers case aforesaid and our observations above. The appeal is disposed of in these terms.
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1988 (8) TMI 288 - CEGAT, NEW DELHI
Set-off of duty ... ... ... ... ..... ned Consultant of the respondents, we are satisfied that Dolomite could be considered as an article which was directly employed in steel making. The respondents have a point when they say that Dolomite was essential for steel making. Steel Ingots could not be manufactured without a furnace and the furnace required Dolomite for melting the scrap without causing a damage to itself. Dolomite ultimately got dissolved and became a part of the molten metal in the same way as the slag of the molten metal. Notification No. 201/79-CE, as it stood at the material time, did not restrict the benefit to such in-puts only as were in the nature of raw-materials and components for the finished goods the benefit was available for all item 68 goods used in the manufacture of any excisable goods. The scope of the un-amended notification was wide enough to take in articles like Dolomite. We find nothing wrong with the view taken by the Collector (Appeals) and, accordingly, dismiss these appeals.
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1988 (8) TMI 287 - CEGAT, NEW DELHI
Seizure, confiscation ... ... ... ... ..... re the Adjudicating Authority. None of the alleged customers was ever produced by the appellants as a witness before the Adjudicating Authority. Thus, if the Adjudicating Authority after taking into account the overall picture of the case and circumstances on record did not think it proper to call any deponent (customer) for cross-examination no fault can be found with him. rdquo 12. Thus it is clear that the affidavits on record were rejected by the Tribunal after appreciating the facts and circumstances of the case. Therefore, no question of law meriting any reference arises. As regards Question Nos. (n) and (o) 13. As stated above both these questions were not pressed at the time of hearing of the application and in our opinion rightly so, as both these questions relate to the appreciation of the evidence on record. 14. In the result all the applications are dismissed as no question of law meriting any reference arises out of the Order passed by this Tribunal on 31.8.1987.
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1988 (8) TMI 286 - CEGAT, BOMBAY
Penalty - Imposed on firm as well as partners ... ... ... ... ..... not understandable. That apart, for a trivial and technical breach no penalty should have been imposed either on the firm or on the partners. Just because the Act provides for imposition of penalty for a contravention of a provision, the Collector is not legally bound to impose penalty if the breach is trivial or technical or unintentional. The Collector is required to use his discretion in the matter of imposition of penalty. The Collector in the instant case appeared to have acted mechanically without applying his mind. 16. emsp On consideration of all the aspects I hold that the facts and circumstances of the case did not justify imposition of penalty either on the firm or on the partners. I, therefore, allow the appeal filed by the firm as well as by the partners other than the appeal 63/83 which had abated insofar as it related to the personal penalty on the appellant herein. 17. The penalty, if paid by the firm and the other partners the same shall be refunded to them.
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1988 (8) TMI 285 - ORISSA HIGH COURT
Unauthorised primary gold and gold coins found in business premises ... ... ... ... ..... in dispute that besides the petitioner No. 2, other people had also access to the shop. It even appears from the evidence of P.W. 4, the Inspector of Central Excise, that by the time the seizure was made from the drawer inside the shop, it was found to be unlocked. Thus the possession of gold cannot conclusively be said to be with the petitioner No. 2 and the petitioner No. 1 being admittedly absent, it cannot be said that the case against the petitioners has been established. 9. emsp In the result, the order of conviction and sentence passed against the petitioners cannot be sustained and is hereby quashed and the revision stands allowed. 10. emsp In view of the fact that no offence has been committed by the petitioners, the order of forfeiture of the seized gold lump passed by the learned Magistrate and confirmed in appeal is also quashed and the petitioners are entitled to return of the seized gold marked as M.O. I, M.Q. II, M.O. III, M.O. IV, M.O. V and M.O. IX forthwith.
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1988 (8) TMI 284 - BOMBAY HIGH COURT
Detention order ... ... ... ... ..... ed the order vacating the condition of attending before the Enforcement Directorate. We fail to appreciate how alteration of condition of bail is a relevant circumstance which should have been brought to the attention of the detaining authority. Once the detenu was released on bail, his mere attendance every day in the Office of the Enforcement Directorate has no bearing to his carrying on Havala transactions. Whether the condition exists or otherwise, that could not prevent the detenu from carrying on Havala transaction. In these circumstances, the fact that the condition requiring the detenu to attend the office every day was vacated by the Magistrate has no relevance and the submission that this order of the Magistrate was not brought to the attention of the detaining authority and, therefore, the order stands vitiated cannot be accepted. In our judgment the order of detention does not suffer from any infirmity and the petition must fail. 6. Accordingly rule is discharged.
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1988 (8) TMI 283 - CEGAT, BOMBAY
Classification of goods for imports ... ... ... ... ..... nce is called for. 16. emsp The only other argument which requires to be noticed is the release of similar goods during the previous policy period. It is common knowledge that certain importers deliberately with ulterior motive import small quantity as a pilot consignment. Looking to the quantity and value of the goods imported, the customs do order clearance without proper examination since the revenue implication at that juncture is negligible. Therefore, such clearances cannot be considered as precedents. It is not after adjudication such clearances are ordered. 17. emsp Moreover, an earlier erroneous interpretation of the Policy or an entry in the Appendix or a Schedule by the Department would not confer any enforceable right on the same importer or other subsequent importers. On the same anology the appellant authority cannot compel the Department to perpetuate that error. 18. Viewed from any angle, there appears no merit in this appeal. Accordingly the same is rejected.
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1988 (8) TMI 282 - CEGAT, NEW DELHI
Solvent extracted oilcakes untreated for removal of toxic solvent ... ... ... ... ..... nces we feel that it is unnecessary to go into the other pleas (technical in nature) raised on behalf of the respondents. These were to contend (i) the demands must fail as there was no preceding show cause notice (ii) the fact that a hearing had been later given would not cure the defect (iii) the show cause notice was further defective, in that no details were given (iv) the orders of the Assistant Collectors were bad for the very reason that they ran contrary to an earlier decision of the Appellate Collector of Bombay within whose jurisdiction the Assistant Collectors concerned in these cases were functioning. (v) a subsequent notification cannot be relied upon to draw a presumption of dutiability in the preceding period. We are not going into these contentions. 26. As earlier mentioned, there are no appeals, or even cross-objections, with reference to that part of the order of the Collector (Appeals) in which a remand had been ordered. 27. These appeals are all dismissed.
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1988 (8) TMI 281 - CEGAT, BOMBAY
Stay/Dispensation of pre-deposit of duty and penalty ... ... ... ... ..... has been upheld by the Collector of Customs (Appeals). He, therefore, prayed that there may be unconditional stay. 2. emsp Shri Prabhu appearing for the Collector opposed the application and contended that ldquo flare rdquo is goods and is captively consumed and therefore are liable to duty. 3. emsp We have considered the submissions made on both the sides. Having regard to the decision of the Asstt. Collector and the Collector (Appeals), we consider it to be a fit case to grant an unconditional stay and accordingly we grant an unconditional stay as to the pre-deposit and recovery.
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1988 (8) TMI 280 - BOMBAY HIGH COURT
Detention order ... ... ... ... ..... ubmission and passed any order. The Detaining Authority merely examined whether parole should be granted and proceeded to reject the request. The Detaining Authority has clearly failed to discharge the duties required to be carried out under the provisions of the Act in not examining the representation against the order of detention and passing appropriate orders thereon. From the perusal of the file, it is clear that the Detaining Authority has not considered or rejected the representation dated May 10, 1988 and the claim made in the return that it was rejected and merely not communicated due to inadvertence is incorrect. As the Detaining Authority has failed to consider the representation made from May 10, 1988 onwards, the continued detention cannot be sustained and the order of detention is required to be struck down. 4. emsp Accordingly, rule is made absolute and the impugned order of detention is quashed and set aside and the detenu is directed to be released forthwith.
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1988 (8) TMI 279 - CEGAT, MADRAS
Adjudication ... ... ... ... ..... justice. 4. Heard Shri Vadivelu, the learned D.R. 5. We find that in para 18 of the impugned order the adjudicating authority has observed that ldquo though the matter was posted for personal hearing on 24th August, 1987 the appellant did not appear and that, therefore, the case was adjudicated on the basis of the records available rdquo . Presumably the adjournment application of the learned counsel for the appellant was not put up before the learned adjudicating authority. Since we find that the personal hearing on 24th August, 1987 was the first hearing and since the learned counsel had prayed for an adjournment, we are inclined to think that in the facts and circumstances of the case the appellant should be given an opportunity of being heard. In this view of the matter, without going into the merits of the issue, we set aside the impugned order appealed against and remit the matter for reconsideration after affording the appellant a reasonable opportunity of being heard.
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1988 (8) TMI 278 - BOMBAY HIGH COURT
Detention order ... ... ... ... ..... an also submitted that the grounds of detention recite that the detenu was a frequent visitor to Dubai, but this statement is not supported by any material placed before the detaining authority. The submission is correct and deserves acceptance. The detaining authority claims that the fact that detenu was a frequent visitor was known from the proposal made to the detaining authority. Now, the copy of this proposal is not furnished to the detenu and so it is not known what are the contents of the proposal. There was no other material before the detaining authority to warrant conclusion that the detenu was frequent visitor. It is, therefore, obvious that the detaining authority has taken into consideration certain facts which were not placed before it. In our judgment, the order of detention suffers from infirmities and cannot be sustained. 4. emsp Accordingly, rule is made absolute and the impugned order of detention is quashed. The detenu is directed to be released forthwith.
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1988 (8) TMI 277 - HIGH COURT BOMBAY
Detention order ... ... ... ... ..... arat was not brought to the attention of the detaining authority. In answer to the petition, it is claimed by the detaining authority that the fact of retraction was not known. The submission is clearly incorrect, because the detenu had made interim bail application before the Magistrate and in that application it was specifically stated that Kishinchand and Bharat had retracted their statements. Indeed the statement retracting the statements recorded by the Enforcement Directorate was filed in open Court and it is futile for the Enforcement authority to claim that they were not aware of the same. The fact that statements were retracted, is extremely crucial as the order of detention is passed only on the strength of statements. Failure to bring this vital and material circumstance to the attention of the detaining authority has vitiated the order. 4. emsp Accordingly, rule is made absolute, the impugned order of detention is quashed and the detenu is directed to be released.
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1988 (8) TMI 250 - CEGAT , NEW DELHI
Refund - Duty paid under protest must be specific ... ... ... ... ..... ugh to proceed on the footing that there is no liability to pay the duty in question and because of Bengal demand involuntary payment was made. In my view, it is also necessary to lodge protest in clear terms that the payment was made not only involuntarily but under protest. Involuntary payment and payment under protest are not the same thing. For imposition of unjust duty one may be compelled to make payment and such payment will then be involuntary but every involuntary payment cannot be held payment under protest within the meaning of proviso to Section 27 of the Customs Act. rdquo 9. As regards the other contention of the learned Counsel for the appellants that the time limit of six months as prescribed under Section 27 of the Customs Act that an application for refund of duty must be made before the expiry of six months from the date of payment or duty the contention of the learned Counsel for the appellants cannot be accepted. 10. In the result the appeal is dismissed.
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