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Case Laws
Showing 41 to 60 of 209 Records
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1989 (5) TMI 234 - CEGAT, CALCUTTA
Export - Attempt to export Copra to Nepal ... ... ... ... ..... s, therefore, available to be confiscated by the Collector. Shri Narasimhan, therefore, submitted that there could be no fine in lieu of confiscation. The only way the Collector could have gone about was to enforce the bond in a Court of law. rdquo It is, thus, seen that the goods are released provisionally in favour of the appellants against the Bond. The Ld. Addl. Collector should not have confiscated the goods and given an option to the appellants to redeem the goods on payment of a fine. The proper course would have been to enforce the bond for breach of its provision in a Court of Law. On this ground also, the impugned order is to be set aside, both with respect to the imposition of penalty on the appellants to the extent of Rs. 1,000.00 and also with respect to the imposition of a fine of Rs. 40,000.00 in lieu of release of the property. Hence the appeal is allowed and the impugned order is set aside. If the amounts are paid by the appellants the same shall be refunded.
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1989 (5) TMI 233 - CEGAT, MADRAS
MODVAT Credit ... ... ... ... ..... ion and subsequent to the filing of the declaration, even according to the Department, the duty paid inputs were received by the appellants into their factory. We also incidentally note that the appellants had taken credit in respect of the inputs only on 2-7-1987. The learned D.R. was not able to convince us as to how in the facts and circumstances of this case Rule 57G would not be applicable to the appellants. We would also like to point out that when the Assistant Collector of Central Excise, Nellore, by his communication dated 24-11-1987 has given a finding that the MODVAT credit availed of by the appellants was in order, such a finding or the propriety thereof cannot be called in question by initiation of independent parallel proceedings by issue of show cause notice and can be set right only by having recourse to Section 35E of the Central Excises and Salt Act, 1944. Therefore, for the above reasons we set aside the impugned order appealed against and allow the appeal.
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1989 (5) TMI 232 - CEGAT, NEW DELHI
... ...
... ... ..... e hold that the Department did not prove under valuation. We, therefore, allow the appeal insofar as valuation of the goods is concerned. 8. The Collector imposed a fine of Rs. 1,00,000/- (one lakh) in lieu of confiscation. The value of the goods was a little less than Rs. 74,0007/-. The margin of profit at the relevant time was stated to be 50 . It is also submitted that subsequent to the importation of these goods similar goods were placed under OGL as a result of which the margin declined further. Also, we have set aside the findings of the Collector regarding ............ the confiscation was ordered both under 111(l) and 111(m) of the Customs Act. In the circumstances the fine deserves to be reduced as also the penalty. After careful consideration we order that the fine be reduced from Rs. 1,00,000/- (one lakh) to Rs. 25,000/- (Twenty-five thousand) and the penalty from Rs. 10,000/- (Ten thousand) to Rs. 5,000/- (Five thousand) only. 9. The appeal is thus partly allowed.
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1989 (5) TMI 231 - CEGAT, MADRAS
... ...
... ... ..... efit of the notification in the classification. Since the ruling in Modi Rayon and Silk Mills case is that of two learned Members rsquo of the Special Bench and the ruling in the Delhi Chemicals case is a concurrent finding of the view of three learned Members, we follow the ratio of the Special Bench ruling in the Delhi Chemicals case and hold that the respondent is entitled to the refund amount in question. In this view of the matter, we uphold the finding of the lower appellate authority in the impugned order and dismiss the appeal. 5. When the respondent has succeeded before the lower appellate authority and does not have any grievance against any part of the impugned order, we are unable to see as to how the cross-objection is tenable in law. Shri Ramakrishna, the learned consultant, to a query from us stated that only by way of an objection to the appeal he filed a cross-objection. Accordingly in the circumstances the cross-objection is dismissed as misconceived in law.
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1989 (5) TMI 226 - CEGAT, NEW DELHI
Import Computers ... ... ... ... ..... liable to act in the manner prescribed by the statute. rdquo In view of the above judgment of the Hon rsquo ble Supreme Court, we do not find any justification in the imposition of the penalty. The order as to the imposition of penalty of Rs. 2,50,000.00 is hereby quashed. 20. In the foregoing paras we have held that the importation of the hardware computer/parts was in conformity with the import Trade Control Policy. Accordingly, we direct the adjudicating authority to extend the benefit of notification No. 172/77-Cus., dated 8th August, 1977 as amended by notification No. 34/83-Cus., dated 1st March, 1983 and notification No. 117/80-Cus., dated 9th June, 1980 as amended by notification No. 49/83-Cus., dated 1st March, 1983 only in respect of hardware. The benefit of the notifications is not available to the appellants in respect of the software. 21. In the result, the appeal is allowed partly. The revenue authorities are directed to give consequential effect to this order.
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1989 (5) TMI 225 - CEGAT, NEW DELHI
Exemption subject to execution of end use bond ... ... ... ... ..... cture of the machinery falling under T.I. 87.01(1) or 87.01 (2). 19. We observe that no definite exercise in this regard has been done by the lower authorities and it is desirable that this could be done and the appellants given full opportunity to establish their claim in this regard, with reference to the catalogue and other literature that they have in their possession. It is not possible to go into all these and at this stage before us as the position will be required to be examined in depth and which best can be done at the Assistant Collector rsquo s level. 20. We, therefore, in the facts and circumstances and pleas made, hold that it is a fit case for remand. 21. We, therefore, allow the Appellants rsquo appeal by remand and set aside the order of the lower authorities and direct that the matter should be adjudicated de novo by the Assistant Collector in the light of our findings and observations above after giving the appellants an opportunity to put forth their case.
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1989 (5) TMI 224 - CEGAT, MADRAS
MODVAT- Declaration ... ... ... ... ..... ng but Electric Motor and that since they had included Electric Motor in their initial declaration of 22-9-1986, there was no illegality in availing of MODVAT credit thereon, does not have much force because the description in the declaration given on 22-9-1986 merely specified Electric Motors against sub-heading 8501.00. The literature relating to Dynodrive describes it as electromagnetic eddy current coupling of being a totally new concept in variable speed drive systems for industrial applications. Unless there is specific description of the item in the declaration, the department cannot be expected to understand that Dynodrive is also nothing but Electric Motor. The item with its specific description was included as an input only in their letter dated 19-11-1986. The Collector rsquo s findings in this regard are therefore well founded. Hence the order to reverse credit availed of in respect of Dynodrive is valid and is upheld. The appeal is disposed of in the above terms.
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1989 (5) TMI 220 - CEGAT, BOMBAY
Demand - Limitation ... ... ... ... ..... matter, we hold that prima facie the demand beyond for a period of six months is time barred. Shri Satalvad indicated the duty involved for six months period prior to issue of show cause notice may work out to about Rs. 22 lakhs. He pleaded that even this amount is not within their financial reach because of the fact that theirs is a partnership firm with a capital of Rs. 32 lakhs including borrowed up capital and they have only made a profit of Rs. 3 lakhs. Having regard to this financial position, since they have an excellant case on merits, he pleaded for an appropriate deposit. Taking into account all these aspects, we direct that on the applicants depositing a sum of Rs. 5,00,000 (Rupee five lakhs) in cash, there shall be stay and waiver of recovery of the balance duty amount. The applicants are granted eight weeks time from the date of receipt of this order to make the deposit and report compliance within nine weeks, failing which their appeal is liable to be rejected.
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1989 (5) TMI 219 - CEGAT, NEW DELHI
Manufacture ... ... ... ... ..... entirely concur that it is not the mortar coating which gives to the product its essential character, but the base, that is, steel pipes. We also hold that the product is nothing but mortar coated steel pipes. We are not convinced by the arguments from the department rsquo s side that any substantial process of manufacture has taken place which brings into existence a new product. It has not at all been shown that the process undertaken changes essential character of the product from steel pipes into something else. It is true, as urged by Shri Nigam that it is the mortar coating, which renders the steel pipes fit for underground water conveyance, but the finishing of the steel pipe by mortar coating for this particular use does not justify the conclusion that the essential nature of the product as such, undergoes a change. 15. Concurring therefore, in the view that has been taken by this Bench already in the case of M/s. FACT Engineering Works (supra), we allow this appeal.
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1989 (5) TMI 218 - CEGAT, NEW DELHI
... ...
... ... ..... ovides that smuggled goods may be confiscated notwithstanding any change in their form. As rightly pointed out by the learned Adjudicating Authority the invoices produced by the appellant do not indicate that the cassettes purchased by the appellant are not of foreign. It has to be assumed that the said invoices do not cover the video cassettes in question. Video cassettes are also notified under Section 123 of the Customs Act. Therefore, the burden to prove that they are not smuggled lies on the appellant. That burden in the instant case has not been discharged. Accordingly, the video cassettes are liable to confiscation and no apparent reasons have been advanced by the learned Advocate for their release on payment of redemption fine. In the circumstances, I uphold the confiscation of the video cassettes. 8.1 As regards the penalty, having regard to the facts and circumstances of the case, I reduce it to Rs.1000/- from Rs. 5000/-. 9. Appeal is disposed of on the above terms.
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1989 (5) TMI 217 - CEGAT, NEW DELHI
Stay - Dispensation of pre-deposit of duty ... ... ... ... ..... d and the matter would require to be remanded to the Collector (Appeals) for re-decision. 3. We have gone through the records of the case and the arguments advanced by the learned counsel before us. We are convinced that passing of the impugned order by the Collector (Appeals) without granting personal hearing to the appellants for non-compliance of the provisions of Section 35F of the Central Excises and Salt Act, 1944, as resulted in gross violation of principles of natural justice. Since on this ground the impugned order deserves to be set aside, we dispensed with the pre-deposit, as prayed in this stay application. 4. With the consent of both the parties, we have taken up the main appeal for consideration. After considering the facts and circumstances and the arguments of the learned Advocate, we set aside the impugned order and remand the matters to the Collector of Central Excise (Appeals), Calcutta for de novo decision after granting personal hearing to the applicants.
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1989 (5) TMI 216 - CEGAT, NEW DELHI
Redemption fine and penalty ... ... ... ... ..... Ganesan made a submission that even the fine and penalty proposed by the Member (Technical) are harsh. However, I cannot go into that question because in these proceedings I cannot go beyond either of the orders. 26. For the reasons recorded above, I agree with the order of the Member (T). Accordingly while upholding the confiscation of the ornaments I reduce the redemption fine to Rs. 25,000/- and penalty to Rs. 10,000/- thus partly allowing the appeal. 27. Final Order The points of difference in this appeal were referred by the President in terms of Section 81 B of the Gold (Control) Act, 1968 read with Section 129-C(5) of the Customs Act, 1962 to the third Member and that Member has since recorded his findings. 28. As per the provisions of these Sections, the appeal has to be disposed of in terms of the majority opinion. Accordingly, the appeal is partially allowed as held by the third Member agreeing with the order of the Member (Technical) in para 26 of the order above.
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1989 (5) TMI 210 - CEGAT, NEW DELHI
Appeal - Limitation ... ... ... ... ..... s received from the Assistant Collector (Legal), on 8-12-1986 received in this office on 22-12-1986, stating that order-in-appeal No. 116/86(B) dated 22-12-1986 passed in appeal No. 8/86(B) in respect of appeal filed by M/s. Dynamatic Hydraulics Ltd., Bangalore against the order-in-original No. 56/85 dated 14-10-1985/29-10-1985 of the Assistant Collector, had not been received in his office so far. In reply to this letter, a copy of the order-in-appeal was sent vide this office letter dated 9-3-1987 and despatched on the same day. A photo-copy of the despatch letter is enclosed, which may be taken as the date the order-in-appeal was received by you. End. One Sd/- (A.K. DUTT) COLLECTOR (APPEALS) 6. Keeping in view the affidavit of the Collector of Central Excise, Bangalore and the connected correspondence, we are of the view that there is no delay in the filing of the appeal and as such the preliminary objection of the learned Advocate on the point of limitation is over-ruled.
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1989 (5) TMI 209 - CEGAT, NEW DELHI
Stock taking - Accountal of goods ... ... ... ... ..... -12-1977. The said case is not relevant to the present controversy. The question whether the cellulosic spun yarn and cotton yarn in plain (straight) reel hanks whether single or multiple fold are exempted under Notification No. 275/82 as amended by Notification No. 104/83 or not is a question of fact. This question was never taken up by the appellants at any stage of the adjudication proceedings or before the Collector (Appeals) as would be evident from the reply to the Show Cause Notice, Adjudication order and the Order passed by the Collector (Appeals). Hence the contention of Shri Chaudhary that it cannot be the case of the department that the appellants removed the straight Reel Hanks so as to evade any duty has no relevancy while deciding the question as to whether the appellants succeeded in accounting for the deficiency to the extent of 7.70 in terms of Rule 223-A of the Central Excise Rules, 1944. 14. In the result, the appeal is dismissed being devoid of any merits.
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1989 (5) TMI 208 - CEGAT, NEW DELHI
Appeal - Condonation of delay ... ... ... ... ..... pression of the fact that the court had already by an earlier order on 8-11-1985 rejected their writ petition. The Hon rsquo ble High Court recalled the roder of 23-1-1986, and the Supreme Court also upheld this order of the High Court on 5-10-1987. 5. There is no direction in order of the Supreme Court that the period spent in pursuing the remedy before the courts is to be excluded for purposes of limitation. Therefore in these circumstances, and in view of the legal position when the Appellate Authority constituted under statute has not been vested with any power to condone delay of more than 3 months, the rejection of the appeal as time-barred is correct. We are also of the view that when the Collector (Appeals) was dismissing the appeal as being beyond 6 months as time-barred, there is no necessity in such a situation, in view of the legal position stated out as above, to give a hearing in the matter. We do not find any substance in the appeal which is therefore rejected.
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1989 (5) TMI 207 - CEGAT, NEW DELHI
... ...
... ... ..... stitute to the ldquo show cause notice rdquo and personal hearing. The appellants should have an opportunity to explain as to why the declared value is not acceptable to the custom authorities specially so, when they have accepted the declared value in respect of previous imports of the same commodity. By enhancing the assessable value, rejecting the declared value to the prejudice of the appellants resulted in civil consequences. Therefore, compliance with principle of natural justice is essential and mandatory. It is a case where a show cause notice and a personal hearing ought to have been issued. The order of the Assistant Collector is in violation of principle of natural justice and is liable to be set aside. The appeal is allowed accordingly and remanded to the Collector. The Collector is directed to determine the assessable value in accordance with the law after giving them a show cause notice and personal hearing within 3 months from the date of receipt of this order.
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1989 (5) TMI 206 - CEGAT, NEW DELHI
Value of clearances ... ... ... ... ..... the process of manufacture, as has been clearly laid down by the decision of the Larger Bench in the case of Guardian plasticote, which we respectfully follow. The department also considered that Blown Bitumen will fall under Item 11 of the Central Excise Tariff as is seen from the tariff advice dated 16-7-1982 given by the C.B.E.C, The Appellate Collector rsquo s decision relied upon by the appellant is also found to be the one issued on 18-12-1981 prior to the department rsquo s view as reflected in the Board rsquo s Tariff Advice referred to above. In this view of the matter and in terms of para 2 of the Notification 77/83 when the aggregate valuation of clearances of both the excisable items exceeded rupees 40 lakhs in the previous financial year, the appellants had rightly been held to be ineligible for the exemption under the notification. In the result we see no reason to interfere with the order passed by the Collector (Appeals) and the appeal is accordingly rejected.
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1989 (5) TMI 205 - CEGAT, NEW DELHI
Accountal of goods ... ... ... ... ..... that employee as to how he got hold of the notebook and in what connection he was maintaining. His statement would have, we feel, thrown some light about this note-book and other activities of the appellants in general. 6.4. emsp While coming to the aforesaid finding of non-removal of the goods without payment of duty on the basis of the rough note-book, we also take into account our findings on other issues involved in this case which had been taken as adverse basis by the adjudicating authority for coming to his finding of removal of goods without payment of duty. Since we have held that the appellants had not indulged in non-accountal of the goods, the very basis of adjudicating authority rsquo s finding regarding removal of goods is knocked out. 7. emsp In short, none of the allegations against the appellants survive. Consequently, the imposition of penalty on the appellants also does not survive. Accordingly, the appeal is allowed while setting aside the impugned order.
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1989 (5) TMI 204 - BOMBAY HIGH COURT
Provisional assessment - Demand ... ... ... ... ..... made. Upon the material that is shown to us it rsquo s not possible to so hold at this stage. The argument will require consideration at the stage of the final hearing of the petition. 5. emsp Mr. Sethna submitted that this was not a case where all the assessments were provisional and that some assessments had been Finalised. There is no affidavit filed by the respondents. There is, therefore, no material upon which we can presently decide this. 6. emsp Mr. Sethna submitted that the appellants should be allowed to proceed with the hearing on the show-cause notice and appropriate safeguards may be given. Having regard to our doubts about the validity of the show-cause notice, we do not think that course of action can be allowed. 7. emsp In this view of the matter on merits, we do not find it necessary to consider the submission made by, Mr. Hidayatullah, learned counsel for the respondents that the appeal is filed beyond time. The appeal is dismissed. No order as to the costs.
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1989 (5) TMI 203 - CEGAT, NEW DELHI
... ...
... ... ..... of India October 10,1987. It clearly mentions that Shri Sivaraman was given the post of Additional Collector of Customs and assumed charge on 8-12-1986. Shri Sivaraman has himself confirmed the position. 24. emsp I have also taken note of the various judgments of the Tribunal referred to by Shri G.P. Agarwal, the learned Judicial Member and yet another order passed in appeal No. C/3840/88-NRB by a Single Member holding that Shri Sivaraman was posted as Additional Collector and passed the adjudication order in that capacity only. 25. emsp In this view I am of the opinion that both on facts and in law, Shri Sivaraman was an Additional Collector at the appropriate time. I, therefore, agree with the order passed by the learned Judicial Member. 26. emsp In view of the opinion on the point of difference referred to the third Member, the majority view is that the appeal before the Tribunal is maintainable. The Registry is, therefore, directed to list the appeal for regular hearing.
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