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Showing 81 to 100 of 290 Records
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1990 (3) TMI 225
Reference Application - Limitation ... ... ... ... ..... oned. It cannot be said that there was any negligence or want of bona fides on the part of the applicant, and accordingly we hereby condone the delay of two days in filing the abovementioned Reference Applications viz. R.A. No. 11/88 and R.A. No. 12/88. 54. As a result, Miscellaneous Application No. 214/88 along with Miscellaneous Application No. 44/89 filed in Reference Application No. 11/88 and Miscellaneous Application No. 215/88 along with Miscellaneous Application No. 43/89 filed in Reference Application No. 12/88 stand disposed of in terms of the above order. 55. We hereby direct the Registry to post the Stay Petitions viz. S.P. No. 327/88 and S.P. No. 328/88 filed by the applicant Collector praying, inter alia, stay of the Tribunal rsquo s order No. 203/Cal/88/203 dated 28-3-1988, for hearing on 19th July, 1990. 56. Registry may send copies of this order to the respective parties, their learned Counsels, and also to the learned Departmental Representatives immediately.
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1990 (3) TMI 224
Confiscation of currency ... ... ... ... ..... of Rs. 56,920.00 seized from the appellant, Shri S.M. Badiyani is the amount concerned with the sale of the cotton yarns in question which were illegally exported to Bangladesh. So also there is no evidence to show that the appellants are involved in the export of such cotton yarns to Bangladesh, and at best the facts relied on by the learned Adjudicating Authority may amount to suspicion against the appellants. In such circumstances, the appellants are entitled for the benefit of doubt. In the result, the Appeal No. C-65/88 is allowed. The penalty imposed on the appellant is hereby set aside. The amount of Rs. 56,920.00 (Rupees fifty-six thousand nine hundred twenty) only seized from the possession of Shri S.M. Badiyani is ordered to be returned to him. The penalty of Rs. 5,000.00 on each of the other appellants in Appeal Nos. C-66/88 and C-140/88 is also set aside and accordingly, these two appeals are also allowed. The appellants are entitled for the consequential reliefs.
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1990 (3) TMI 223
Confiscation - Onus of proof ... ... ... ... ..... fect that Raxaul being a border town of Nepal does not have any justified need for storing the M.S. Scraps at a large scale. This is a statement made in the Adjudication Order and I am unable to understand as to on what basis such statements are made. There is no basis available in the record or shown by the learned J.D.R. to justify this statement. Even assuming that there is no adequate local consumption of M.S. Scraps at Raxaul, that by itself is not sufficient to hold that these M.S. Scraps are smuggled in nature. At best what can be said is that there is some suspicion about these M.S. Scraps and that suspicion is not sufficient to hold that the Department has discharged burden proving the smuggled nature of the goods. In view of the reasoning, I am of the opinion that the appellant is entitled for the benefit of doubt and I, accordingly, extend the benefit of doubt to the appellant. The appeal is, thus, allowed and the appellant is entitled for the consequential relief.
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1990 (3) TMI 222
Classification ... ... ... ... ..... Wool Waste rsquo as such was defined in the Tariff Act nor was any evidence to show trade understanding of the expression lsquo Wool Waste rsquo . On the other hand the expression lsquo Wool Waste rsquo was discussed in detail in the case of Swastic Woollens. Furthermore it is on the record that the appellant has made specific offer to get the goods mutilated according to the satisfaction of the Custom Authorities to make them confirm about the nature of goods. This plea was rejected by the Department. Since the Department has failed to prove the goods as such, as discussed above, following the ratio of the decisions cited supra, we hold that goods are classifiable as claimed by the appellant and in view of our finding the charge of misdeclaration and under- valuation are not tenable. 9. In the result we set aside the impugned order by allowing this appeal and order that goods shall be released to the appellants after mutilation to the satisfaction of the Customs authorities.
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1990 (3) TMI 221
Import - Woollen Rags ... ... ... ... ..... rted in 1988 (35) E.L.T. 718 (Tribunal) in the case of Kakkar and Co. and others v. Collector of Customs, New Delhi. In that case also, the Tribunal held that in the absence of any identifiable test of ldquo complete mutilation rdquo laid down in the policy for the guidance of the importers and the enforcement agencies the benefit has to be given to the importers. The Tribunal in that case held that the finding of the Adjudicating Authority on the basis of the factual examination report that the synthetic rags cut into two to three pieces are not ldquo completely pre-mutilated , is not sustainable. This decision of the Tribunal was upheld by the Hon rsquo ble Supreme Court of India on 26-4-1989 in Civil Appeal No. 12523-26 of 1988 (Collector of Customs, Delhi). In such circumstances, the imposition of penalty is not justifiable in this case. The appeal is allowed. The imposition of penalty of Rs.1,00,000.00 (Rupees one lakh only) imposed on the appellants is hereby set aside.
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1990 (3) TMI 220
Import - Visual examination adequate ... ... ... ... ..... inclined to think that the goods imported cannot be said to be covered by the licence. I, therefore, confirm the finding of the adjudicating authority and hold that the goods were not covered by the licence. 7. At this stage, Shri Arokiaswamy, the learned Consultant made a fervent plea for substantial reduction in the quantum of fine urging that the goods are meant for actual use and not for sale and the difference being too technical in regard to the goods imported, imposition of fine is not at all warranted in the facts and circumstances of the case. Though I find some force in the plea of the learned Consultant, I am not able to accede to his contention that the appellant must be left with an admonition. In the peculiar facts and circumstances of the case, while confirming the finding of the adjudicating authority, I modify the quantum of fine from Rs. 21,000/- to Rs. 10,000/- (Rupees ten thousand only). Except for the above modification, the appeal is otherwise rejected.
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1990 (3) TMI 219
S.S.I. Exemption - Value of clearances ... ... ... ... ..... nive Officers carried out check on the records of the appellant. So, for that purpose longer period of limitation was properly invoked by the Department. So notice cannot be termed as time-barred as far as that purpose is concerned. 11. In view of above discussion we pass following final order - (i) The appeal is partly allowed and the impugned order, as far as demanding payment of duty based on clearances by lsquo Impha rsquo laboratory on behalf of the appellant is concerned, is set aside. (ii) As far as demand of duty based upon addition of amounts of excise duty collected by the appellant from lsquo Dicks rsquo and lsquo M.K. rsquo to the clearances of the appellant is concerned, the appeal is rejected and to that extent the impugned order, is confirmed. (iii) Cross objections also stand disposed of. (iv) The matter will go back to the Assistant Collector for recalculating duty on basis of above findings, after providing appellant an opportunity of hearing/representation.
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1990 (3) TMI 218
Export - Packing materials ... ... ... ... ..... marhatty Co. Ltd.), Order No. 377/86-D dated 5-6-1986 and Collector of Central Excise v. M/s. Bally Jute Co. Ltd., - Order No. 652/88-D dated 27-10-1988 reported in 1989 (44) E.L.T. 570 (Tri.) 6. We have considered the submissions and find that the issue raised by the department in this appeal as reiterated by the learned JDR as above stands fully answered by the judgment of this Tribunal rendered in the case of Collector of Central Excise, Calcutta v. Kanoria Jute Mills, supra. In that case dealing with a situation arising under Rule 13 of the Central Excise Rules, which is the case here also, it was held that no duty was payable on the jute pack sheets as well as the jute manufactures for export in such Packsheets. The Collector (Appeals) has also relied upon the same judgment of the Tribunal. 7. In view of the above following the ratio of the judgment of the Kanoria Jute Mills rsquo supra, we reject the contention raised by the learned JDR and consequently the appeal also.
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1990 (3) TMI 217
Manufacturer ... ... ... ... ..... only a dummy unit and not an independent unit. On the contrary, the respondents have contended that they manufacture on their own employing their own plant and machinery, technical know-how, labour etc. They have also contended that they have no agreement or tie-up with M/s. Bata India Ltd. binding themselves to any conditions. I also agree with them that the Supreme Court rsquo s decision in the case of Sree Agency is not applicable to them. As per the Supreme Court rsquo s latest judgment in the case of Ujagar Prints, the respondents has to be treated as manufacturers. Further, I observe that the time limit of six months stipulated under Section 11A has already expired and the statutory provisions of the said section cannot be circumvented by taking recourse to review under Section 35E of the Act. The application which is not only lacking in merit but also infructuous, is rejected. The impugned order of the Assistant Collector is upheld as correct both on facts and in law.
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1990 (3) TMI 216
Classification ... ... ... ... ..... r the Customs Tariff, the goods would be eligible for exemption from additional duty of customs in terms of Notification No. 120/81, provided they are classifiable under Item No. 68 of the Excise Tariff Schedule which is one of the requirements in the notification. 11. For a proper determination of the correct classification of the goods, it is, therefore, necessary to know whether the heat exchanger/absorber mats are made of hardened rubber or unhardened vulcanised rubber. Since the appellants say that they are regular importers of these goods, it would only be appropriate that this issue is settled once for all. However, we do not have any material on record to determine this question which is one of the fact. In the circumstance, we set aside the impugned order and remand the matter to the Collector (Appeals) for de nova determination in the light of the observations contained in this order and after giving due opportunity to both sides to put forth their respective cases.
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1990 (3) TMI 215
Synthetic Organic Dyestuffs ... ... ... ... ..... herein in December, 1981. In the present cases, the demand show cause notices were issued in April, 1984. Nothing should have prevented the Department from issuing notice in 1981 itself or even in 1982. Having failed to do so, the Department cannot now invoke the limitation of five years for demanding duty. In the circumstances, we hold that the duty demanded from the respondents is not sustainable as the demands are time-barred under Section 11A of the Central Excises and Salt Act. 9. The question of valuation of the S.O. Dyestuff has been raised before us. The entire product of S.O. Dyes has been used by the respondents captively. The price of pigment paste cannot be applied to determine the assessable value of S.O. Dyes falling under Tariff Item 14D in these cases. The value should be determined in accordance with the provisions of the Central Excise Valuation Rules read with Section 4 of the Central Excises and Salt Act. 10. The appeals are disposed of in the above terms.
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1990 (3) TMI 214
Search and Seizure ... ... ... ... ..... t under Section 108 of the Customs Act do not require sanction of the High Court. Secondly Mr. Pradhan deposes that he is a Gazetted Officer. Mr. Pradhan further deposes that the Ministry of Finance has created a cell known as Narcotic Control Bureau and in the year 1987 the cell commenced work in Bombay. The Director of DRI and the Cell were working together. Mr. Kakkar who was Assistant Director of Directorate of Revenue Intelligence was In charge of the Cell. From this testimony of Mr. Pradhan there is little doubt that Mr. Pradhan was authorised to record statement under Section 108 of the Customs Act. Even assuming that Mr. Pradhan was not authorised and the statements cannot be relied upon, still, the fact that heroin was found in possession of the two accused on search of room No. 203 is sufficient to sustain the order of conviction and sentence. In our judgment, there is no merit whatsoever in both the appeals. 8. Accordingly, both the appeals are summarily dismissed.
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1990 (3) TMI 213
MODVAT Credit ... ... ... ... ..... cation order. I, therefore, allow the appeal and set aside the Order-in-Appeal passed by the Collector (Appeals) and restore the Assistant Collector rsquo s order subject to the restriction that while working out the demand for the amount of credit availed of wrongly the demand can be confirmed for a period of only six months prior to the serving of the notice for duty short levied. This time limit of six months will be applicable even prior to the amendment of Rule 57-1 with effect from 6-10-1988 since the elements of suppression, wilful statement or fraud were not involved nor were they alleged. When credit not due is availed of and is later on disallowed, the duty which becomes due has to be made good for which Section 11A comes into play. The Assistant Collector should work out the amount of demand arising from wrong availment of credit to a period of six months from the serving of the demand, as per the provisions of Section 11A of the Central Excises and Salt Act, 1944.
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1990 (3) TMI 212
... ... ... ... ..... gh Court came to the knowledge of the Tribunal. To this Shri Upadhyay stated that in view of the decision of the Madras High Court, he leaves it to the Bench. 3. We have heard both the sides and have gone through the facts and circumstances of the case. It is not disputed that the Tribunal had come into existence on 11th October, 1982 and the Central Govt. had ceased to be a revisionary authority with effect from 11th October, 1982. Both the appellants had filed the revision applications after the formation of the Tribunal to the Central Govt. 4. In view of the decision of the Madras High Court and earlier decisions of the Tribunal, we order the Registry to return the appeals papers to the appellants for filing the same before a proper forum. The appellants are at liberty to file the appeals before the proper forum in accordance with law duly supported with applications for condonation of delay, if the appellants so choose. For statistical purposes, the appeals are dismissed.
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1990 (3) TMI 211
Classification ... ... ... ... ..... oncerned, we find that the drawing pertaining to this specifies size and material (asbestos woven) 7. There can be no doubt that it acts as an insulator so as to merit classification under Heading 85.18/27(1). In the case of Bharat Heavy Electricals Ltd., Bombay v. C.C. Bombay 1985 (19) E.L.T. 584 , a larger Bench of this Tribunal had occasion to deal with the classification of synthetic resin bonded paper cylinders of definite specifications and classified them under Heading 85.18/27(1) as insulating fittings for electrical equipment. In the case of Emco Transformers Ltd., Bombay v. CC Bombay 1986 (24) E.L.T. 84 , the Tribunal classified transformer board strips under Heading 85.18/27(1) since their main function was insulation. 8. In the light of the above discussion, we hold that all 3 items are classifiable under Heading 85.18/27(1) of the Customs Tariff Act, 1975. 9. As a result, C/A 2117/85-D is dismissed and Cross objection 683/85-D is allowed with consequential relief
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1990 (3) TMI 210
Exemption to machine based on specific use or function ... ... ... ... ..... was held by the Tribunal that merely because a machine can perform other functions, the benefit of the exemption cannot be denied. The Collector (Appeals) in his order had observed that the machine imported by the respondents carries out a small range of Brinell test and the same cannot be considered as a standard test as the machine is not designed to cover the full range of hardness testing under the Brinell rsquo s method which goes up to 3000 kgs. The machine imported by the respondents is capable of testing up to 250 kgs. The machine is basically devised to carry out the Vickers hardness test of steels and metals. The judgments cited by the learned JDR do not help the appellant in any way. The machines imported by the respondents are in conformity with the description given at serial No. 7 of the Notification No. 49/78-Cus dated 1st March, 1978. 9. Keeping in view the earlier judgments of the Tribunal, we do not find any merit in these appeals. The appeals are dismissed.
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1990 (3) TMI 209
Return or Re-entry of duty paid goods ... ... ... ... ..... position, paper covered copper strips are different from fibre glass copper strips. Therefore she supported the Assistant Collector rsquo s order submitting that the impugned order should be vacated. 5. We have considered the submissions of Smt. Zutshi and perused the impugned order. The words ldquo goods of the same class rdquo did not mean ldquo the same goods rdquo . Here, as recorded by the Collector (Appeals), the goods received and goods cleared both fall under the same Tariff Item. So, it appears that even without liberal construction, the two kinds of copper strips should be considered as ldquo goods of the same class rdquo . Even the Collector in his grounds of appeal agrees that goods belonging to the same Tariff Item may be considered as belonging to the same class but he makes one exception in respect of glass falling under Tariff Item 68 as is a broad one. We do not agree with such a distinction. 6. For these reasons we find no merit in the appeal and dismiss it.
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1990 (3) TMI 208
Classification ... ... ... ... ..... al, Revenue had contended that the prices of the goods therein were 40 lower than for new goods but led no evidence. In the result, the Tribunal held that it had not been established that the goods were lsquo disposal rsquo goods. 26. In the instant case, the Department has not established that the goods are lsquo disposal rsquo goods. All circumstances point to the strong probability of supply of goods not conforming to the order. It is not the Revenue rsquo s case that the goods are not new or that they are used. No doubt, they were found to be wet, contaminated etc. But that would not necessarily mean that they were lsquo disposal rsquo goods. 27. In the result, we hold that the charge that the goods were ldquo disposal rdquo goods, not covered by the import licence, has not been established. 28. In the above view of the matter, the order of the Collector cannot be sustained. It is accordingly set aside and the appeal is allowed with consequential relief to the appellants.
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1990 (3) TMI 207
Attempt to smuggle goods ... ... ... ... ..... s and evidence which were not made available to the appellants as discussed by me earlier while discussing point No (ii). In such circumstances, the principles of natural justice are violated and the findings of the learned Adjudicating Authority are vitiated and the order is not sustainable in law. 19. Hence, I am of opinion that the impuged order is liable to be set aside. Accordingly, I set aside the impugned order passed by the learned Additional Collector of Customs and Central Excise, Shillong dated 25th January, 1984 and remand the case back to him for de novo adjudication with a direction to supply all the materials on which he proposes to rely, including several statements of the persons which were relied on in the order, and then to dispose of the case in accordance with law by observing the principles of natural justice and in the light of the observations made in this order. The three appeals are allowed, accordingly, only as far as these appellants are concerned.
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1990 (3) TMI 206
MODVAT Credit ... ... ... ... ..... the amount adjusted in the account current that would be readjusted again when the hydrogenated minor oil is subsequently used in the manufacture of the declared final product (vegetable product). The question of disallowing the credit and adjustment in the account current and cash recovery would assume importance only if the hydrogenated minor oil is diverted for any non-declared use. In the present case there is evidence that the minor oils were used for the same purpose in the subsequent month of September lsquo 87 though in a meagre quantity. If the trend had continued and the inputs were put to the declared use, there cannot be any question of disallowing the credit taken and utilised. In the circumstances, we find that the appeal discloses no reasons for setting aside the Order-in-Appeal. The respondents will be entitled to the relief rsquo s admissible to them in terms of the Order-in-Appeal passed in their favour by the Collector of Central Excise (Appeals), Calcutta.
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