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Showing 121 to 140 of 290 Records
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1990 (3) TMI 185 - CEGAT, NEW DELHI
Set-off of duty ... ... ... ... ..... E.L.T. 163 (Tribunal), Andhra Sugars Limited v. C.C.E., Guntur as reported in 1985 (22) E.L.T. 594, Collector of Central Excise, Allahabad v. Hindustan Aluminium Corporation, Mirzapur as reported in 1987 (28) E.L.T. 529, Indian Aluminium Company Ltd. Collector of Central Excise, Bangalore as reported in 1987 (30) E.L.T. 514 (Tribunal), Collector of Central Excise, Madras v. Madras Rubber Factory Ltd., Madras as reported in 1987 (32) E.L.T. 579 (Tribunal) and Jenson and Nicholson (I) Ltd. v. Collector of Central Excise as reported in 1988 (38) E.L.T. 174 (Tribunal) has considered the set-off duty of raw materials consumed in the manufacture of both intermediate and final product under Notification No. 201/79-C.E., dated 4-6-1979 and held in favour of assessees. 14. After careful examination of the facts of the case in the light of the case law, we are of the opinion that the appellants are entitled to succeed in this appeal and the appeal is allowed with consequential relief.
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1990 (3) TMI 184 - CEGAT, NEW DELHI
... ... ... ... ..... o the discussion portion in the order in original and the order of the Addl. Collector. 19. We find that the submissions of the learned counsel have a strong force. The department has not been able to show that the show cause notice was served within six months of the date of seizure on the appellants. As such the goods were required to be released in terms of Section 110(2) of the Customs Act, 1962 and the order of confiscation was liable to be set aside on this ground alone. 20. Even otherwise the departmental action is prima facie based on assumptions and presumptions and no case is made out against the appellants. 21. It is admittedly a case of transhipment and the department has not been able to show that the appellants had committed any offence and were liable to any penalty. 22. In view of the above position, we accept the appeals and allow consequential relief. 23. The goods should be immediately released and the penalty if already paid should be immediately refunded.
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1990 (3) TMI 183 - CEGAT, NEW DELHI
Stay - Order on stay application ... ... ... ... ..... which was decided by the WRB and so they had no occasion to express any opinion on this aspect of the case. So, this being a new point decision on which does not amount to reviewing or revising the order passed by the WRB, but it will be on a new ground. This is a point of law and we are satisfied that it can be raised and new Stay Petition would be maintainable on this ground. 13. It may also be noted that if, in view of the above citations, the department may not be able to recover the amounts before the adjudication of the show cause notices, the department cannot be permitted to recover any part, even temporarily by way of pre-deposit also. 14. In light of our discussion above, we are satisfied that the appellant/applicant has a prima facie case, therefore, we allow this application and pass the following final order This application is allowed and the requirement of pre-deposit of the amount of refund alleged to have been erroneously refunded to the appellant, is waived.
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1990 (3) TMI 182 - CEGAT, NEW DELHI
Exemption based on end use ... ... ... ... ..... -Use Certificate rsquo even at the time when the application for refund was made before the Assistant Collector of Customs does not dis-entitle the petitioner from claiming the benefits of the exemption mentioned in the notification . 8. In the present instance, the contention of the appellants has been that they could not consume the material within the extended time and were able to do so only towards December 1986. On the facts and in the circumstances of the case, we are of the opinion that the denial of the benefit of the duty exemption on the ground that the end-use evidence was produced beyond the extended period or that it was not a particular form was not proper. The impugned order is, therefore, set aside and the matter remanded to the Assistant Collector for looking into the end-use evidence submitted. He may, if necessary, subject it to such verification as he may deem fit and then pass appropriate orders on the appellants rsquo claim. 9. Appeal allowed by remand.
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1990 (3) TMI 181 - CEGAT, NEW DELHI
Adjudication - Evidence ... ... ... ... ..... not only be done but should also appear to be done rdquo is too well-known a concept to be lost sight of by the adjudicating authorities. 5. Original authority in the impugned order has, no doubt, stated that ldquo examination of the goods shows that all the items are new and do not require any repair as alleged by the party in reply to the show cause notice rdquo , but it is not clear from the impugned order that this examination of the goods was carried out by the adjudicating authority in the presence of the respondent herein and whether an opportunity was given to him to prove his contention that the goods were defective. It is a common experience of life, particularly in electronic goods and machinery items, that seemingly new goods may also be defective and require repair. 6. On the overall state of evidence on record and the pleadings made by the respondent before the adjudicating authority, the impugned order is correct in law and on facts. 7. The appeal is rejected.
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1990 (3) TMI 180 - CEGAT, NEW DELHI
Value of Clearances ... ... ... ... ..... according to the department, the legal inference that is to be drawn from the above fact is that it is a manufacture on behalf of the supplier of raw material whereas the Supreme Court took a different view of the matter. Where the liability to pay duty depends on the legal inference to be drawn from the facts, and there is a possibility of taking two views, it is difficult to hold that the department is entitled to invoke larger period of limitations. Declaration by the appellants as manufacturer does not amount to mis-declaration in view of the Supreme Court judgment in Ujagar Prints. Therefore, the department cannot invoke the larger period of limitation. 15. We, therefore, direct the Asstt. Collector to work out the aggregate value of the clearances for the period which falls within a period of six months prior to the issue of Show Cause Notice in accordance with the principle laid down by the Supreme Court in Ujagar Prints (supra). The appeal is, disposed of accordingly.
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1990 (3) TMI 179 - CEGAT, NEW DELHI
Mosquito repellent coils although used for repelling insects and not killing them are ‘insecticides’
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1990 (3) TMI 178 - CEGAT, CALCUTTA
MODVAT Credit - Gases ... ... ... ... ..... contentions raised in the appeal and those urged by the learned JDR at the lime of the hearing. It was mentioned by Shri Mookherjee, learned Counsel that most of the goods in question had been received directly from the manufacturers against Gate Passes in their own name. In that case they should have no difficulty in producing the gate passes for claiming Modvat credit. Here also the learned Counsel submitted that no opportunity was given to them to submit their reply in the matter. This also would justify the remand of the matter back to the Assistant Collector to deal with the matter de novo after giving the respondents in these proceedings proper opportunity to represent their case. The question of admissibility of Modvat credit on oxygen and acetylene gas should also be decided in the light of our observations made in this order. 9. The Stay Petitions and the Appeals are disposed of accordingly. 10. Operative part of this order was pronounced in the open Court on 8-3-90.
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1990 (3) TMI 177 - CEGAT, NEW DELHI
Claasification ... ... ... ... ..... ked. Sh. Kohli has cited several decisions. We do not think it necessary to discuss them at length because principles laid by catena of decisions are quite clear. At the same time, considering that the appellant would be eligible to claim benefit of exemption notifications for the period the amount of penalty imposed would be excessive. So, we reduce it to Rs. 25,000/-. 19. In light of above discussion, we pass the following final order Appeal is allowed and the impugned order is modified as under (i) The appellant would be liable to pay C.E. Duty but would be entitled to claim exemption benefits under provisions of Notification No. 175/86 and other earlier Notifications in force at the relevant time, if any. (ii) Amount of penalty is reduced to Rs. 25,000/-. (iii) The matter is remanded back to the adjudicating authority for calculating the duty in light of the above order and he shall decide the matter after giving an opportunity to the appellant for representation/hearing.
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1990 (3) TMI 176 - CEGAT, NEW DELHI
HDPE Jerrycans ... ... ... ... ..... e book. In the present case, before the changes in the Finance Bill became an Act, the exemption Notification No. 149/82 dated 22-4-1982 has come into effect exempting the appellants rsquo goods from duty and hence the effective date is the date of the notification i.e. 22-4-1982 and not the date of the passing of the Act i.e. 11-5-1982. Hence the benefit of the Notification No. 149/82 has to be given to the appellants from its date i.e. 22-4-1982. They are entitled to claim refund for duty paid beyond this day. 13. The ruling relied on by Shri S. Chakraborty, learned Departmental Representative in the case of Wallace Flour Mills reported in 1989 (44) E.L.T. 598 lays down the ruling that the effective date of charging duty is the date of clearance of the goods and not the date of manufacture. This ruling has no relevance for determining the facts of this case. 14. In view of the matter taken by us, the appeal is allowed in the terms laid down by us, with consequential relief.
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1990 (3) TMI 175 - CEGAT, NEW DELHI
Cess - Vegetable Oil ... ... ... ... ..... in which or in any part of which vegetable oil is produced, or is ordinarily produced with the aid of power. Column 8 of Form-A provides for the information regarding actual quantity of oil seeds crushed, oils and oil cakes produced during the month and column 9 of the same Form-A further provides for the information regarding actual quantity of Oil Cakes solvent extracted, oils and solvent extracted cake produced during the relevant month and further column 10 and 11 provides for the information regarding the stocks. In the instant case it was not in dispute that oil was produced from oil seeds and, therefore, apart from the legal submissions made as above, the Cess was leviable. Under these circumstances the contention raised by the learned Counsel for the appellants is of no consequence even presuming, though not admitting that there were no express columns for oil produced by the method adopted by the appellants. 9. In view of the above all the three appeals are rejected.
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1990 (3) TMI 174 - CEGAT, NEW DELHI
Interpretation of statute ... ... ... ... ..... tion No. 77/86 with reference to basic excise duty could only be interpreted to mean as referring to that quantity of a variety of sugar on which, in effect, no basic duty was required to be paid by virtue of being one of the varieties covered by exemption notification(s) issued under the Central Excise Act (although the word lsquo quantity rdquo has not been explicitly used). 24. We also observe that the judgment of the Calcutta High Court cited by the learned DR was distinguishable as rightly pointed out by the learned counsel. 25. We are of the view that the learned counsel also rightly relied upon the order of the Tribunal reported in 1986 25 E.L.T. 318 with which we are in agreement. Hence following the ratio thereof we accept the plea of the learned counsel. 26. We may also mention that even otherwise the order of the learned Collector (Appeals) does not squarely deal with the above issues. 27. In view of the above position, we set aside the order and accept the appeal.
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1990 (3) TMI 173 - CEGAT, NEW DELHI
Demand - Limitation ... ... ... ... ..... of experts who are concerned with the products in the discharge of their regular professional functions and deserve utmost credence. In the absence of any other technical basis to come to a decision contra, there is no reason to reject this evidence. The test to be applied in regard to classification of a product is how the product is identified by the class or section of the people who deal with or use the product. rdquo 20. In the light of the above, leather sandwiched beltings, being T.I. 68 goods manufactured in a factory covered by the ldquo tanning industry rdquo they are eligible for the benefit of exemption under Notification 115/75 dated 30-4-1975. 21. Having answered the issue of availability of Notification 115/75 in favour of the appellants, it is not necessary to discuss the issue of inclusion of trade discount/commission in lsquo assessable value rsquo of the goods. 22. As a result, we set aside the impugned order and allow the appeal with consequential relief.
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1990 (3) TMI 172 - CEGAT, CALCUTTA
MODVAT credit on packing material ... ... ... ... ..... nd the normal meaning of the said term. Thus, packaging material is different from package or container. Further, the specific exclusion of the item plywood for tea chests is also a pointer in this regard. Plywood is not package by itself but a packaging material to make tea-chests. Because of its specific exclusion it stands excluded from the scope of Modvat benefit available to packaging material. There is no such exclusion affecting tin plates. Their uses are similar. Both are used to make packages or containers for packaging excisable goods. Since tin plates/tin sheets are used for making metal containers in which vegetable product is packed they are packaging materials, which are eligible inputs which are used in relation to the manufacture of vegetable products. Hence, we see no reason to interfere with the finding of the Collector (Appeals). The appeal succeeds and is allowed accordingly. 10. Operative part of this order was already pronounced in the Court on 7-2-1990.
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1990 (3) TMI 171 - SUPREME COURT
Whether English courts would be likely to entertain the instant suit if instituted in England in terms of the bills of lading so that the first respondent is not likely to be without a remedy?
Held that:- In the instant case we find from Exts. P1 to P3 that the following has been prominently printed just below the signature `For the Master and Owners’ in the bills of lading. SEE CONDITIONS OF CARRIAGE AND OTHER CONDITIONS ON REVERSE. It can not therefore be said that the shipper, whose knowledge will be attributed to the first respondent did not know of the conditions of carriage printed on the reverse there being no other conditions printed elsewhere in the bills of lading. There is nothing to show that the charterparty was by way of demise. Pacta dant legem contractui - the stipulations of parties constitute the law of the contract. Agreements give the law to the contract. Clause 4 having been a stipulation in the contract evidenced by the bills of lading the parties could not resile therefrom. It is not clear whether the English Carriage of Goods by Sea Act, 1924 or the Indian Carriage of Goods Act, 1925 was applied by the High Court. The Articles and the Rules referred to are to be found in the Schedule to the Indian Act, the Rules whereunder were not applicable to the facts of the case. The dispute could not have been decided partly according to municipal law and partly according to English law. The English law was not proved before the court according to law.
The result is that this appeal must succeed. We accordingly allow this appeal, set aside the impugned judgments and remand the case to the trial court for disposal according to law after giving opportunity to the parties to amend their pleadings and adduce additional evidence, if they are so advised, in light of the observations made hereinabove.
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1990 (3) TMI 170 - CEGAT, NEW DELHI
Condonation of delay ... ... ... ... ..... that would be treated as sufficient cause, and after it is treated as sufficient cause the question may then arise whether discretion should be exercised in favour of the party or not. The judgment of the Supreme Court in the case of Union of India v. Tata Yodogawa Limited was followed by the Tribunal in the case of Collector of Central Excise v. F. G.P. Limited reported in 1988 (38) E.L.T. 712 (Tribunal). 6. In view of the above discussion, we hold that the appellant was not prevented by sufficient cause in the late filing of the appeal and we are of the view that it is not a fit case where the Tribunal should exercise its discretion in condoning the delay in terms of provisions of sub-section (5) of Section 35B of the Central Excises and Salt Act, 1944. The application for condonation of delay is rejected. 7. Since we have rejected the application for condonation of delay, the appeal is also dismissed being hit by limitation and we are not going into the merits of the same.
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1990 (3) TMI 169 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... existing valve to be replaced by 8 Hopkinsons make valve. The Tariff Heading 84.61 refers to many types of valves, namely isolating valves, non-return valves, safety valves, pressure reducing valves etc. etc. and these carry a rate of duty of 40 and of other valves not elsewhere specified carry a rate of 60 . Inasmuch as the valves imported by the appellants as per description of the Bill of Entry and the Invoice is Hopkinsons Parallel Slide Valve, it cannot be said to be covered by Chapter Heading 84.61(2). The case law cited by the learned Advocate that the burden to prove the classification is on the department does not alter the situation here as the department in coming to the conclusion that Chapter Heading 84.61(2) as not applicable was able to come to that conclusion as no other description of the valve imported had been given, other than slide valve which is not covered under the Heading Isolating valve. As such, therefore, the appeal has no merits and is dismissed.
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1990 (3) TMI 168 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... d been cleared by the Customs under OGL. From a perusal of the Bills of Entry enclosed with the appeal we find that the full description of the goods imported under earlier consignments has not been given. It also appears that no sample was sent to an Expert as has been done in this case and opinion taken from the Expert. It is, therefore, not possible to rely upon the earlier pieces of evidence submitted by the appellants. Therefore, the citations given by the learned Advocate in support of the established practice are not relevant in the instant case because the established practice for such goods has not been proved by the appellants. 11. We also observe from the impugned order that the Adjudicating authority had already taken a lenient view by not imposing any penalty on the appellants and only imposed a fine of 25 of the value of the goods imported. In these circumstances, we do not see any reason to interfere with the impugned order. The appeal is accordingly dismissed.
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1990 (3) TMI 167 - CEGAT, NEW DELHI
Manufacture ... ... ... ... ..... ecording and re-recording and it is not the intention of the legislature in levying duty each time when single tape is re-recorded. 12. In the case of PrabhatAssociates and Others v. Collector of Central Excise, Bangalore, though the appeals were rejected by the majority on a number of issues, we feel this particular issue, viz., lsquo Recording of sound on duty paid magnetic or cassette tapes is a manufacture or not rsquo has not been considered in the order delivered by the majority, but this issue was conclusively considered by the Judicial Member in his dissenting order and we fully concur with his findings and reasons for the reasons stated above. 13. In the view we have taken, we hold that appellant is not liable to pay any duty or fine for not having manufactured the excisable goods in Item 59 of the Schedule and recording sound on duty paid magnetic cassette tapes is not manufacture. 14. In the result we set aside the impugned order and accordingly, appeal is allowed.
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1990 (3) TMI 166 - CEGAT, NEW DELHI
Value of clearances ... ... ... ... ..... ances, order of Collector (Appeals) setting aside the penalty and confiscation of the goods appears to us reasonable especially in the light of the Supreme Court decision in the case of Padmini Products v. Collector of Central Excise -1989 (43) E.L.T. 195 in which it was held that mere failure or negligence on the part of the manufacturer to take out a licence where there was scope for doubt whether licence was required or not would not attract penal provisions. 13. We further hold that the seizure of the goods within the factory is not legal and valid in the absence of proof of clandestine removal and we find support for this view in the judgment reported in the case of Southern Steel Ltd. Hyderabad v. Union of India -1979 (4) E.L.T. (J-402). 14. The department rsquo s appeal is disposed of in the above terms. 15. The cross objection is misconceived as the respondents are not aggrieved by any part of Collector (Appeals) rsquo s order, and it is, therefore, dismissed as such.
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