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Case Laws
Showing 81 to 100 of 222 Records
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1989 (11) TMI 174 - CEGAT, MADRAS
Exemption to S.S.I. units - Value of clearances ... ... ... ... ..... n labour contractor was supplying labour force to the two units or facility of common electricity meter or space has been provided, it cannot be considered as adequate reason to hold that the production in one unit could be considered as if that of the other unit. The operations in the two units, as held in the case referred to supra, may be colourable one and that cannot be taken to take the place of proof in the absence of any tangible evidence that the two units were actually being managed by the appellant and, therefore, the Acid Slurry being manufactured by the other unit should be taken as if by or on behalf of the appellant more so, when the Collector has recognised the two units as separate proprietory concerns. In view of this we hold that the case against the appellant has not been proved beyond reasonable doubt and, therefore, we hold that the lower authority rsquo s order is not maintainable in law. We, therefore, set aside the impugned order and allow the appeal.
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1989 (11) TMI 173 - CEGAT, NEW DELHI
Reference to High Court - Question of law although purely academic ... ... ... ... ..... ate for the non-applicant M/s. Prem Jewellers that the questions, even though, of law and arising out of the Tribunal rsquo s order, should not be referred to the High Court merely because the answer to these questions is not going to effect the final outcome of the Tribunal rsquo s order regarding imposition of penalty on the non-applicant M/s. Prem Jewellers. From a reading of the aforesaid observations of the Hon rsquo ble Supreme Court I feel that that is a discretion vested in the High Court. So far as the Tribunal is concerned it is bound to refer any question of law that arises out of its order there is no discretion in the Tribunal not to refer any such question in terms of Section 82B of the GCA, 1968. 12. Examining now the questions of law raised in the reference application I find that all the questions raised by the applicant are of law arising out of the Tribunal rsquo s order. Hence all the 5 questions mentioned in para 1 are referred to the High Court of Delhi.
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1989 (11) TMI 172 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... of classification of the products in question in Collector of Central Excise, Hyderabad v. Fenoplast (P) Ltd., Secunderabad. In this appeal, the lower authorities have held the base material as fabric. If we go by this finding of, the base material being fabric, then the test laid down in the decision of the Tribunal in Collector of Central Excise, Hyderabad v. Fenoplast has to be applied. In that event, we have to hold that the final product produced by the appellants are classifiable under Item 68. The test laid down by the case cited supra is squarely applicable to the facts of this case. The Department rsquo s contention for remand for consideration for classification under Item 22B has been rejected in the Fenoplast case cited. The reasoning has been noted by us. The same will also be our view with regard to the contention of Shri L.C. Chakbraborti for remand for reclassification under Item 22B. In view of our above reasons, we allow the appeal with consequential relief.
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1989 (11) TMI 171 - CEGAT, NEW DELHI
Notification - Date of publication in the Gazette ... ... ... ... ..... dings in fact imply that the departmental action amounts to causing obstruction to the course of justice. 24. However, we may also mention that in a similar matter (which had recently come up) the Ld. Departmental Representatives readily agreed to obtain and submit such information. In view of this position, there does not appear to be any need to take recourse to Section 129 C(7) at this stage and it would be sufficient to direct that the Departmental Representatives may report to the Tribunal the date on which the relevant Gazette notification was actually made available to public in this case. It is ordered accordingly Further, we note that during the course of hearing this application practically the whole case has already been covered and in view of the infirmities which have come to light the matter could be disposed of straightaway subject to consent of both the sides and an appropriate prayer in this regard. 25. With these observations, the application is disposed of.
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1989 (11) TMI 170 - CEGAT, NEW DELHI
Demand - Time limit ... ... ... ... ..... smissed. Assent per D.C. Mandal, Member (T) . 23. I have perused the order written by Shri Peeran, Member (Judicial). I agree with his view that there was no suppression of facts on the part of the appellants warranting application of five years rsquo time-limit in issuing show cause notice demanding duty under proviso to Section 11-A(1) of the Central Excises and Salt Act, 1944. I, therefore, hold the demand for duty to be time-barred and allow the appeal on this ground only, without going into the merits of the case, e.g. nature of the goods under dispute, their marketability and exciseability, etc. I do not, therefore, subscribe to the last sentence of paragraph-19 and the subsequent paragraph-20 to 22 of the order written by Shri Peeran. I also do not endorse the manner of presentation of the case laws in paragraph-7 of his order. 24. The cross-objection filed by the Revenue fails on ground of limitation alone. Hence, the same is dismissed without going into other points.
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1989 (11) TMI 169 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... ldquo artificial waxes rdquo from the scope of Chapter 15. If the goods are to be considered as falling in Section VI of the Customs Tariff Schedule as ldquo artificial waxes rdquo , then, the Revenue will have to show that the goods are indeed ldquo artificial waxes rdquo . The invoice, as already noted, describes the goods as ldquo fatty alcohol rdquo . That is prima facie evidence of the position that the subject goods are traded as ldquo Fatty Alcohols rdquo and not as ldquo artificial waxes rdquo . 9. In the state of the evidence on record, we consider that heading 15.08/13 is more appropriate than heading 34.01/7(2) of the Customs Tariff Schedule. In which event, the goods would be exempt from payment of additional duty of customs because of Customs Exemption Notification No. 48/79 dated 1-3-1979 as amended by Notification 4/83 dated 1-1-1983. In this view of the matter, the impugned order is set aside and the appeal allowed with consequential relief to the appellants.
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1989 (11) TMI 168 - CEGAT, NEW DELHI
Testing Equipments for automative industry - Exemption ... ... ... ... ..... film processing the machine can perform other function of paper processing as well, exemption cannot be denied rdquo , the Tribunal granted the benefit of the notification to the assessee. In the case of T.I. Diamond Chain Ltd., Madras v. CC, Madras (Order No. 278/89-B.2 dated 18-8-1989), the Tribunal has held that merely because a machinery (Vickers Hardness Tester) could perform other functions, benefit of the exemption cannot be denied. 9. The ratio of the above cited cases fully covers this appeal. The benefit of Notification No. 243/78-Cus., dated 26-12-1978 cannot be denied to the appellant merely because the equipment imported, in addition to its use for testing purposes in the automotive industry, is also used for general purposes. 10. In the light of the above discussion, we hold that the appellant is eligible for the benefit of exemption under Notification No. 243/78-Cus., dated 26-12-1978, set aside the impugned order and allow the appeal with consequential relief.
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1989 (11) TMI 167 - CEGAT, NEW DELHI
Dutiability - Pre-Budget Stock ... ... ... ... ..... icularly rule 9A of the said rules, reveals that the taxable event is the fact of manufacture or production of an excisable article, the payment of duty is related to the date of removal of such article from the factory. In that view of the matter less, the Tribunal dismissed the appeal and rejected the assessee rsquo s rsquo contention. rdquo Accordingly, it was held therein that the Tribunal was right and there was no ground to assail the order of the Tribunal. The appeal filed by Wallace Flour Mills Company Ltd. was dismissed by the Hon rsquo ble Supreme Court. 5. In the light of the above discussions and following the judgment of Hon rsquo ble Supreme Court delivered in the case of Wallace Flour Mills Company Ltd. (supra), we hold that special excise duty was payable on the stock of Glycerin manufactured prior to 19-6-1980, but cleared from the respondents rsquo factory after 19-6-1980. Consequently, we set aside the impugned orders and allow the appeals filed by Revenue.
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1989 (11) TMI 166 - CEGAT, CALCUTTA
MODVAT Credit ... ... ... ... ..... corporate that condition specifically. The fact that condition (b) is there, could only mean that it is an alternate condition only and it would not be proper to insist on the fulfilment of condition (a) namely inputs being in stock on 1-3-1986 if condition (b) is satisfied. That condition is there only to take care of same situation where condition (a) is not satisfied. Hence we accept the plea of the respondents which is also supported by the clarification issued by the Ministry. In the circumstances, we dismiss the appeal but remand the case to the Assistant Collector of Central Excise, Rishra for de novo adjudication on merits in the light of our observations above. He should also satisfy himself whether the respondents in the present proceedings satisfy the requirements under Rule 57H(2) of the Central Excise Rules regarding payment of duty after 31st January, 1986 unless in respect of such inputs credit was being availed under any Rule or Notification prior to 1-3-1986.
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1989 (11) TMI 165 - BOMBAY HIGH COURT
Prosecution - Bail ... ... ... ... ..... ility of absconding is concerned, the Court can take precaution of impounding her passport. The Customs Authorities can take such precautions at the airports as they think are proper. But merely because there is a chance that the foreigner may abscond, I do not think that she should be deprived of the liberty in the circumstances of her own illness and the illness of her child. The trial of the case and economy of the country are important. But the human element highlighted by the child rsquo s need of the mother in these circumstances, is no less important. On a balancing of all factors, I make the following order. 7. The Applicant shall be released on bail in the sum of Rs. 1,50,000/- with one surety in the like amount. Liberty to deposit cash in lieu of bail bond is rejected. The Applicant shall furnish her residential address in Bombay and shall report to the Respondent No. 1 every Monday between 5.00 p.m. and 7.00 p.m. She shall deposit her passport with the Trial Court.
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1989 (11) TMI 164 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... nits I and V do not seem to qualify for the concession. We would, however, add that the Customs House should examine whether all the machinery in Units II, III and IV discharge the functions necessary to qualify them for concessional assessment. If some distinct machines in these Units do not so qualify, they should not be given the concessional assessment. However, any single Unit should not be artificially divided for denying the concession. 30. With these directions we set aside the impugned order and remand the matter to the Assistant Collector to pass a fresh order in the light of our directions, after giving a reasonable opportunity to the appellants to represent their case. The Assistant Collector should conduct the necessary examination to ensure that the concession is not denied to those machines which comprise the Units and which work on metals and to ensure that the concession is not given to machines which are not so used. 31. The appeal is thus allowed by remand.
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1989 (11) TMI 163 - CEGAT, NEW DELHI
Electronic Tax Equipment ... ... ... ... ..... pliance for despersing liquids (Heading 84.21) a milking machine (Heading 84.26) machinery for mixing mineral substances with bitumen (Heading 84.56) a welding machine (Heading 85.11) radio-communication or radar apparatus (Heading 85.15) a burglar alarm (Heading 85.17) etc. When imported separately, compressors, vacuum pumps, transformers, generators, rectifiers, power packs, amplifiers, control panels, microphones, infra-red lamps, photoelectric cells, etc. fall to be classified in their own appropriate headings. 8. The C.C.N. Explanatory Notes have the persuasive value. In view of the reasoning given above and in the light of these notes it has to be held that the Collector (Appeals) has mis-directed himself while holding that the components of the exchange imported separately in different lots should be classified under Heading 85.13 treating them together as an exchange. In view of this I allow the appeal of the Revenue and set aside the order of the Collector (Appeals).
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1989 (11) TMI 162 - CEGAT, NEW DELHI
Refund - Limitation ... ... ... ... ..... he Central Excise Rules, was not necessary. The second case relates to a notification granting concession to certain goods dependent upon base period and base clearances, wherein the assessees were neither in a position to avail of the concession under the Notification or quantify their refund claim till fixation of base period and the base clearances by the Assistant Collector which determination was delayed. 8. In this case, the respondent company claimed the benefit of exemption under Notification No. 89/79-C.E. on the basis of annual turnover. Hence the company should have filed its refund claim within 6 months from the date of payment of duty. However, the claim was filed only on 27-12-1980 i.e. after 6 months even calculated from the end of the financial year 1979-80. The claim is barred by limitation under Section 11B of the Central Excises and Salt Act, 1944. 9. In the result, we set aside the order of the Collector (Appeals) and allow the appeal filed by the Revenue.
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1989 (11) TMI 161 - CEGAT, NEW DELHI
Penalty for attempt to export silver improperly ... ... ... ... ..... anguage of Section 115(2) that the conveyance is liable to confiscation unless the owner of the conveyance proves that it was so used without the knowledge or connivance of the owner himself, his agent, if any, and the person in charge of the conveyance. In the present case the person in charge of the Truck No. PJE 1555 was obviously Jagir Singh. His knowledge about the truck carrying the contraband goods is not in doubt on the basis of his own statement. Accordingly, the truck is liable to confiscation under Section 115(2) irrespective of the fact that the appellant company did not have any knowledge of the truck being used for the purpose of smuggling. Accordingly, in view of the position in law, mentioned above, we do not have any reason to interfere with the findings and order of the adjudicating authority on the confiscation of the truck. We, therefore, reject the appeal of the appellants namely M/s. Deep Motor Finance Pvt. Ltd. 4. Appeals disposed of in the above terms.
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1989 (11) TMI 160 - CEGAT, NEW DELHI
Demand for differential duty - Limitation ... ... ... ... ..... in the High Court. If they succeed in their writs they would be entitled to get the refunds whereas the Department would be made to lose the revenue legimately due to it, if this appeal is allowed. This argument does not appear valid and is to be rejected. If short-levy has taken place there are remedial provisions in the Customs Act. If the correct provision has not been applied to rectify the short-levy here, the case cannot be stretched to fit into the exceptional category covered by the proviso to Section 28 of the Customs Act, 1962 by raising the allegation of wilful misstatement. The facts of the case do not point to such a state of affairs, particularly as the alleged misstatement related to exchange rates which is not an information in the special or peculiar knowledge of the appellants but very well know or ought to be to the Departmental Officers who could have taken appropriate coercive action within the normal time limit governing short levy. The appeal succeeds.
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1989 (11) TMI 159 - CEGAT, CALCUTTA
Appeal - Condonation of delay ... ... ... ... ..... week. He has stated that he had a fall from a moving mini bus. In support of his contention he has filed a medical certificate from Dr. S.P. Das, Calcutta. 3. Shri M.N. Biswas, the learned SDR has got no objection for the condonation of delay in view of the personal difficulty of the learned Consultant. 4. We have heard both the sides and have gone through the facts and circumstances of the case. During the course of arguments, we had enquired from the learned Consultant as to the date of payment of appeal fees. Shri Bhattacharya, the learned Consultant stated that the same was paid on 5th of April, 1989 in all the above-captioned six matters. Accident, and or sickness of the Consultant is a sufficient cause. Accordingly, we hold that the applicant was prevented by sufficient cause in the late filing of the appeals. The delay of seven days in all the above-captioned six appeals is condoned in terms of the provisions of sub-section (5) of Section 129A of the Customs Act, 1962.
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1989 (11) TMI 158 - CEGAT, NEW DELHI
Fertilizers - Exemption ... ... ... ... ..... al constituents namely, ammonia and carbon dioxide, a re-generated product emerges albeit with the same name and chemical composition. The ammonia so obtained is not the original ammonia that was used in the manufacture of molten urea. The ammonia re-generated after decomposition of molten urea is a new product, attracting fresh excise duty. However, to the extent that the re-generated ammonia sent back to the lsquo Horten rsquo s Sphere rsquo is used for manufacture of fertilizers falling under Tariff Item 14HH, it will be eligible for the benefit of exemption under Notification No. 145/71-CE dated 26-7-1971. 9. The decision relied upon by learned Counsel is not relevant to this case as that matter related to a claim for set-off of duty on pig iron to the extent of duty paid on pig iron being the remelted scrap used in the manufacture of steel ingots. 10. In view of the foregoing discussion, subject to the modification contained in paragraph 8 above, the appeal is dismissed.
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1989 (11) TMI 157 - CEGAT, BOMBAY
Appeal - Joint appeal ... ... ... ... ..... to have been committed is same, and the finding of the Collector is that both the appellant firm and the partner committed the offence under Rule 209A of the C.E.S. Rules. Therefore, I am of the view that a joint appeal both the firm and the partner can be filed. 11. This Tribunal has already expressed a similar view in its Order No. 145/87, dated 11-2-1987 and while holding that a single joint appeal is maintainable, considered the principle underlying in order 2 rule 1 and other relevant provisions of Civil Procedure Code. 12. However, I find from the cause title that only M/s. Universal Automobiles and Ancillary Industries are figuring as appellants, and Shri S.K. Lakhani has not joined as one of the appellants. The firm as well as the partner should figure as appellants in the memorandum of appeal. I, therefore, direct the appellants to amend the cause title by adding the name of the partner Shri S.K. Lakhani. 13. The miscellaneous application is disposed of accordingly.
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1989 (11) TMI 150 - BOMBAY HIGH COURT
... ...
... ... ..... eated under a scheme for welfare of the particular industry and for the benefit of the consumers of the product. In case the excisable product is of mass consumption, benefit of refund may be given by way of reduction of its price for a certain period or by promotion of research, rationalisation, etc. It would be always preferable in those cases to leave the discretion with Court to decide how the consequential relief ought to be formulated. 34. The aforesaid discussion answers the question posed to us by the learned Single Judge. It will now be for him to apply those principles to the facts of the present case. 35. We clarify that the learned Single Judge had referred to the Full Bench the question of applicability of doctrine of unjust enrichment to Writ Petitions filed for obtaining refund of illegal tax. Therefore, we have not examined the further question whether the said doctrine has any application to suits before Civil Courts or to departmental proceedings for refund.
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1989 (11) TMI 149 - HIGH COURT BOMBAY
Prosecution ... ... ... ... ..... d the Criminal Cases Nos. 12/S/1981,15/S/1981,17/S/1981 and............. ................................................ in the Court of Additional Chief Metropolitan Magistrate, 38th Court, Ballard Pier, Bombay, are hereby quashed. Bail bonds of each of the accused in each of the above Criminal Cases are cancelled. Sureties discharged. Similarly, all the prosecutions under Criminal Cases Nos. 4/S/1983, 5/S/1983, 6/S/1983, 7/S/1983 and 8/S/1983, which are all pending in the Court of the Additional Chief Metropolitan Magistrate, 38th Court, Ballard Pier, Bombay, are also quashed. Similarly, Sessions Case No. 446 of 1982 pending in the Court of Sessions for Greater Bombay is also quashed. Bail bonds of each of the accused in these cases are also cancelled. Sureties discharged. At the request of Mr. Jaisinghani, the operation of my order with regard to cancellation of bail and discharge of the sureties in each of the above cases is stayed for a period of eight weeks from today.
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