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Case Laws
Showing 101 to 120 of 270 Records
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1990 (2) TMI 188
Exemption to S.S.I. Units - Value of clearances ... ... ... ... ..... here the authorities have been content in making seizure on a particular day and have not followed up with further investigation to establish the evasion. We find no reason why no statements were recorded from the employees and no further efforts were taken to ascertain the facts regarding the operations of the two units and to establish that the unit of M/s. Surendran Match Works was only a front dummy unit set up to evade payment of duty. In this view of the matter we hold that there is no warrant for demand of differential duty as alleged and also duty on the sticks as demanded. So far as the confiscation of 60 gross of matches under seizure under Rule 210 of the Central Excise Rules is concerned, the same is upheld and so also the levy of the redemption fine in regard to the same. In the facts and circumstances of the case the penalty on the appellant under Rule 210 is reduced to Rs. 50/- (Rupees Fifty only). The appeal is, therefore, partially allowed in the above terms.
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1990 (2) TMI 187
... ...
... ... ..... At the time when the credit was taken, the department had allowed the same rightly as the input was duty paid. It was only after the decision of the Delhi High Court that the Malt Extract was exempted and a refund of the duty was granted to the manufacturers of the Malt Extract for the period from 1977 to 1985. There arises a peculiar situation that it was not within the knowledge of the department that the input will be exempted. There was neither a wrong or erroneous credit at the time when the credit was availed by the appellant. So when the amount of refund was paid to the input manufacturers, the appellants were not entitled to the credit of duty availed and should have paid back to the department. On the other hand, if the department was to raise the demand, it has to be governed by substantive provisions of limitation for raising such demand under Section 11-A of the Central Excise Act. Eventually the demand being hit by limitation, the appeal succeeds and is allowed.
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1990 (2) TMI 186
Refund - Duty paid erroneously under protest ... ... ... ... ..... and the claim could not be treated as time barred in the above facts and circumstances, we consider that the Asstt. Collector could have proceeded on the basis of the material available with the department and in any case it would be only fair to give one more opportunity to the respondents to submit relevant documents and satisfy the authorities below about quantum of amount actually paid and due to be returned. In view of the above, we confirm the order of Collector (Appeals) in so far it relates to time bar and allow the appeal and set aside the order of the Collector (Appeals) in so far as it rejects the respondent rsquo s appeal and remand the case back to the Asstt. Collector to consider the matter de-novo, in the light of above observations and orders and grant refund of the amount which may be found due on the basis of records. The learned Asstt. Collector may give the appellants an opportunity to be heard in person and to produce evidence before he passes the order.
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1990 (2) TMI 185
Clandestine removal ... ... ... ... ..... e consider that it was open to the department to have probed these aspects in order to ascertain the facts. 21. As this has not been done by the authorities and both the sides have submitted that it could be even now done, the orders of the lower authorities are set aside and the matter is remanded to the Asstt. Collector with the directions that he should allow an opportunity to the appellants to submit evidence in support of their contention and show, inter alia, the records maintained in terms of the Explosives Act or the contracts. The Asstt. Collector may also allow them to co-relate the cylinder numbers and particulars with the particulars and specification in ISI certificates and the valve record for this purpose. The Asstt. Collector should grant them a hearing and then pass appropriate order in accordance with law after taking into account, inter alia, the submissions made by them in these proceedings and the above observations. The appeal is accordingly disposed of.
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1990 (2) TMI 184
Evidence - Penalty ... ... ... ... ..... loyee, had implicated the appellant at the instance of Sri Sarkar falsely. But without giving any reason the learned Collector did not grant the cross-examination. It is no doubt true that in all cases cross-examination need not be granted. It all depends on the circumstances of each case. If the appellant had asked for cross-examination only for the purpose of dragging the proceedings or if the learned Collector comes to the conclusion that the cross-examination is not material, then by assigning sufficient reasons, he can reject the prayer. But in this case, no such effort is made by the Collector to reject that prayer by assigning sufficient reasons. The order, therefore, suffers from that infirmity. 13. In the result, we are of the opinion that the appellant should be extended the benefit of doubt and, accordingly, this appeal is allowed. The imposition of penalty of Rs. 25,000/- on the appellant is hereby set aside. The appellant is entitled to the consequential reliefs.
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1990 (2) TMI 183
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... ... ..... lector could not be struck down. 25. Since the cost of primary packing had been correctly included in the assessable value by the Asstt. Collector And it is found that in the light of the Supreme Court rsquo s judgment in the case of Bombay Tyre International this was the correct position in law Hence the order of the Collector (Appeals) was required to be set aside and the deemed appeal of the Department was required to be accepted. 26. I may also mention that in the case of M/s. Pulgaon Cotton Mills, Pulgaon, this Bench had passed an order No. 242-249/89-D, dated 7-7-1989. In this order also, the latest judgment of the Supreme Court by which the matter was concluded, has been relied upon. 27. A similar view about judgment to be relied upon has also been taken in the case of M/s. Davangere Mills by this Bench. In the light of ratio thereof also the appeal was required to be accepted. It is ordered accordingly. In view of the majority decision, the deemed appeal is dismissed.
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1990 (2) TMI 182
Classification ... ... ... ... ..... formity with the classification adopted by the manufacturers of radiators by M/s. Banco Products, Baroda, where parts of Railway or Tramway Locomotives or rolling stock - radiators, are classified under 86.07. 16. It is relevant to point out that the appellants have themselves classified their radiators suitable for use solely or principally with the engines of Heading 84.07 or 84.08, under 84.09. The classification of these items in the classification list has not been disputed. Their appeal is only with regard to the radiators assembly and radiator core, as being parts of Railway or Tramway locomotives, which is found to be acceptable in view of the foregoing conclusions. In view of the appeal being allowed, the other issues on maintainability of the revised classification after approval of the earlier classification list is not gone into as the appellants appeal on the main issue of classification stands decided in their favour. In effect, therefore, the appeal is allowed.
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1990 (2) TMI 181
Evidence - Statement before Customs Officer ... ... ... ... ..... Yusuf or the appellant rsquo s elder brother, Sahabuddin. The appellant in his statement claimed the goods as that of his. Sahabuddin had at no time claimed it. His father Md. Yusuf stated that he had no knowledge of the goods and he never claimed it. Therefore, these circumstances corroborate the version of the appellant that he is the owner of the goods which were seized. No other conclusion can be drawn from the circumstances in this case. In the circumstances, the appellant a person who is concerned with the storing of the contraband goods in the above said premises for the purpose of dealing with the same and, accordingly, the conclusion of the learned Collector that he is liable for penalty under Section 112(b) is justified. However, it is stated that the appellant is a student and is also young. In such circumstances, we hereby reduce the penalty from Rs. 5,000/- to Rs. 3,000/- (Three thousand). In the result, the appeal is dismissed, subject to the above modification.
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1990 (2) TMI 180
Excess and shortages of tyres, tubes and flaps found upon physical verification of stock ... ... ... ... ..... of penalty. It was emphasised therein that in the contest of statutory purpose legislature has used peremptory language creating an absolute liability that does not require the presence of any mens rea against those that remove goods without posting the relevant entries in the statutory books and that the rules seeking the protection of the public revenue proceeds on the basis that the removal of excisable goods could not but be intentional and could only be with the knowledge of the manufacturer. While observing as aforesaid their Lordships distinguished the case of Hindustan Steel Ltd. v. State of Orissa, supra cited at the Bar by observing that in such a situation that case would not be of any assistance to the manufacturer of the excisable goods because that was a case which did not deal with an absolute offence. Thuse, we find no force in the contention raised by the learned counsel for the appellants. 11. In the result the appeal is dismissed being devoid of any merit.
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1990 (2) TMI 179
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... ... ..... is impugned order passed in appeal No. 238/86 holding that since appeal No. 310-CE filed by the appellants was time barred the adjudication Order No. 112/CE/86 cannot be assailed. At the time of hearing it was contended by Shri M.A. Rangaswamy that if their appeal No. E/339/88-D is allowed by remand, this case may also be remanded to the Collector (Appeals), since the fate of the present appeal would depend upon the ultimate result of the said appeal. Since we have set aside the order passed in appeal No. 310-CE by the Collector (Appeals) (which is the subject matter of appeal No. E/339/88-D before us) and remanded the case to him as aforesaid, we also set aside the Order passed by him in Appeal No. 238/86 (which is the subject matter of the present appeal) and remand the case to him to decide the case after taking a fresh decision in accordance with our direction given in appeal No. E/339/88-D as aforesaid. Conclusion 11. In the result both the appeals are allowed by remand.
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1990 (2) TMI 178
Appeal - Customs House Agent’s Licence ... ... ... ... ..... cannot be said that the general forum provided under the statute is not invested with such powers. 15. Even otherwise, a fact remains that the Regulations of 1984 do not provide for the Appellate forum and in absence of specific forum prescribed thereunder, the forum provided for under the statute has the authority. It may be made clear here, that the reasonings given here, are only for the purpose of negativing the submissions made, and, as discussed earlier, we hold that by virtue of Section 129A of the Act, the Tribunal is the only competent forum to hear the appeal against the order of the Collector, inasmuch as the order of suspension has been passed by the Collector as an adjudicating authority and it is not hit by the first proviso to the said Sec. 129-A. 16. In the result, we hold that the appeal against the order of the Collector of Customs, suspending or cancelling the licence under Regulation 21, would lie to the Tribunal and the Tribunal has to entertain the same.
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1990 (2) TMI 177
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... ... ..... llants. The Tribunal in the case of Mudeeresware Mining Industries Co., Bangalore v. Collector of Customs, Bangalore - 1989 (39) E.L.T. 630 (Tri.) in appeal No. C/3531/87-A, Order No. 197/88-A dated 9th March, 1988 had reduced the redemption fine from Rs. 50,000/- to Rs. 25,000/- on the ground that the machine on its importation had remained under detention. Keeping in view the facts that the goods are under detention we reduce the fine in lieu of confiscation from Rs. 1,00,000/- to Rs. 50,000/- in respect of Bill of Entry No. 1957/176 and in respect of Bill of Entry No. 2065/111 from Rs. 2,80,000/- to Rs. 1,40,000/-. The Collector had imposed personal penalties in respect of Bill of Entry No. 1957/176 at Rs. 10,000/- and in respect of Bill of Entry No. 2065/111 at Rs. 25,000/-, and we hold that these are not excessive. Except for these modifications made above the appeals are otherwise rejected. The revenue authorities are directed to give consequential effect to this order.
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1990 (2) TMI 176
MODVAT Credit - SSI Unit ... ... ... ... ..... le manufacturer entitled to the benefit of Notification No. 175/86 dated 1-3-1986 as evidenced by the certificate admittedly issued by the Inspector of Central Excise, the learned S.D.R. submitted that there is no finding contra nor a plea is taken even now that the input supplier was not either a small scale manufacturer or one not entitled to the benefit of Notification No. 175/86 dated 1-3-1986. 4. In the light of the above admitted facts we note that the fact that the gate passes did not contain a specific endorsement about the character of the supplier of the input and the supplier rsquo s entitlement to the benefit of Notification No. 175/86 dated 1-3-1986 is only a procedural irregularity which has been rectified by production of a proper certificate from the Inspector of Central Excise. The omission in the gate passes can only be characterised as an irregularity which is curable. Therefore, we do not find any merits in the appeal and the same is accordingly dismissed.
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1990 (2) TMI 175
Demand - Limitation ... ... ... ... ..... of RBD Palm Oil was provisionally assessed free of duty, we are not satisfied that the provisional assessment extended to the new drums also. It was a belated bestirring on the part of the Department that apparently led to the issue of the demand notice. In the circumstances, we do not agree with the finding of the Collector (Appeals) that the drums had been subjected to provisional assessment. In that view of the matter, any demand for non-levied or short-levied duty should have been served on the appellants within six months from the date on which the proper officer made the order for clearance of the goods. This date, as could be gathered from the notation in the Bill of Entry, is 25-11-1978. The demand notice in this case has been issued on 5-8-1980 i.e. long after the stipulated period of six months. As such, we hold that the notice was barred by time. 6. In the result, the impugned order is set aside and the appeal is allowed with consequential relief to the appellants.
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1990 (2) TMI 174
Demand - Limitation ... ... ... ... ..... other than food intended to affect the structure or any function of the human body or intended to be used for the destruction of vermin or insects which cause disease in human beings and animals, as may be specified from time to time by the Central Govt. by Notification in the Official Gazette rdquo . There is no requirement of conforming to pharmacopoeial standards in the definition while, for eligibility for benefit of exemption under Notification 234/82, such requirement is set out. 23. As the product of the appellants is not covered by the definition of ldquo bulk drug rdquo under Explanation I to Notification 234/82, it falls outside the purview of the notification and the appellants cannot avail of the benefit of exemption under the aforementioned notification. 24. In the light of the above, we uphold the order of the Collector (Appeals) dated 28-3-1988 and dismiss E/A 3501/88. 25. In the result, E/A Nos. 3197 and 3198/88-C are allowed and E/A No. 3501/88 is dismissed.
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1990 (2) TMI 173
Stay/Dispensation - Pre-deposit of duty ... ... ... ... ..... unt of closing stock shown in the balance-sheet represents raw-materials and packing stores. Therefore, the applicants are not expected to procure any fund by selling the closing stock. This being the position, we are of the view that it will amount to hardship if the Tribunal persists on the deposit of the full amount of Rs. 3 lakhs by the applicants. In the circumstances, in partial modification of the earlier order of the West Regional Bench, we give the following directions to the applicants - (i) They should deposit Rs.l lakh in cash within the period of one month as offered by the learned advocate during the time of arguments before us today. (ii) They should deposit another sum of Rs. 1 lakh within the period of three months after expiry of the first month from today. (iii) They should give an undertaking to the satisfaction of the Collector of Central Excise, Vadodara not to dispose of their land and buildings and plant and machinery till the disposal of their appeal.
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1990 (2) TMI 172
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... ... ..... d by the revenue. 9. Assent per Shri V.P. Gulati, Member (T) . - I agree with the conclusions in the order recorded by Brother Shri Harish Chander. I would like to add that the Collector (Appeals), after holding that there was no mutuality of interest between the Respondent and their collaborators, has dealt with the question of loading in respect of the spare parts imported from M/s. Fuji Xerox, Japan, as also the import of the capital goods by the Respondent from M/s. A.J.R. Machinery and Equipment and other capital goods. It is observed the learned Collector (Appeals) has given a very reasoned order in respect of these and the appellant-Collector has not made out any case against the findings given by the learned Collector (Appeals). The learned Departmental representative at the time of hearing before us has not adduced any evidence which would warrant any further loading in the case of imports from M/s. Fuji Xerox and any loading in respect of the capital goods imported.
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1990 (2) TMI 171
Gas - Dutiability ... ... ... ... ..... nt and that quantity alone should be the guiding factor for levy of excise duty has no force. In this case the quantity has to be computed on the basis of the gas meter readings placed at the factory gate. The loss of gas in the pipe is no criteria for remission of duty under Section 5 of the Act. The procedure followed by Calcutta Collectorate relied on by Sh. J.S. Agarwal is no criteria for determining this case. The method which the Department has been following, is the correct procedure for the levy of excise duty in this case. We further note that the appellants had not raised these grounds before the Assistant Collector of Central Excise in their refund application and as such on this ground also the appeal should fail. The citations relied upon by Shri J.S. Agarwal are not helpful for determination of the question involved in this appeal. The citation relied on by the Revenue is also not directly on this point. There is no merit in the appeal and hence it is dismissed.
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1990 (2) TMI 170
Appeal - Condonation of delay ... ... ... ... ..... if successful could have given him effective relief. We are satisfied that he had sufficient cause for not filing the application under Section 17-A within the prescribed period. Accordingly the delay caused in filing that application must be condoned under Section 5 of the Limitation Act and the application under Section 17-A must be allowed. rdquo In view of the judgment of the Hon rsquo ble Supreme Court and the judgments cited by the learned Consultant we hold that the respondent applicant was prevented by sufficient cause in the late submission of the cross objections, the delay in the filing of the same is condoned . 4. In view of the observations made above, we are of the view that the applicant was prevented by sufficient cause in the late filing of the appeal. The bona fide of the applicant should not be doubted. Accordingly, we condone the delay and the appeal may be taken on record. Registry to intimate the next date of hearing of the appeal for hearing on merits.
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1990 (2) TMI 169
Reimportation of articles - Exemption ... ... ... ... ..... is a settled law that the terms of the notification have to be construed very strictly in view of the judgment of the Supreme Court in the case of M/s. Hemraj Gordhandas v. H.H. Dave, Asstt. Collector of C.E. and Customs, Swat and Others reported in 1978 (2) E.L.T. J-350 where the Hon rsquo ble Supreme Court had held that ldquo It is well established that in a taxing statute there is no room for any intendment but regard must be had to the clear meaning of the words. If the taxpayer is within the plain terms of an exemption he cannot be denied its benefit by calling in aid any supposed intention of the exempting authority. In a Court of Law or equity what the legislature intended to be done or not to be done can only be legitimately ascertained from that which it has chosen to enact either in express words or by reasonable or necessary implication. rdquo 4. Accordingly, in view of these observations, we confirm the findings of the lower authorities. The appeals are dismissed.
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