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Showing 61 to 80 of 197 Records
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1990 (5) TMI 150
Appeal by Department - Limitation ... ... ... ... ..... e date of the decision or order or the date of communication of such decision or order. Therefore, this judgment is not relevant to the question before us in the instant matter. 8. In the light of the foregoing discussion, we hold that Board rsquo s order was made after the expiry of one year from the date of the order of the adjudicating authority. It did not, therefore, conform to the requirement of sub-section (3) of Section 35E of the Act. The instant appeal filed by the Collector in pursuance of the Board rsquo s direction, is, therefore, incompetent and is not maintainable. Accordingly, we dismiss the same. 9. In view of the dismissal of the appeal on the preliminary issue of its maintainability, the cross-objection does not survive for consideration. It is also accordingly dismissed. 10. The order of dismissal of the appeal and the cross-objection was pronounced in the Court on 28-5-1990 on the conclusion of the hearing. This detailed order gives the reasons therefore.
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1990 (5) TMI 149
Appeal - Evidence ... ... ... ... ..... ces and accordingly decided the appeal. Since the order of the Collector (Appeals) in upholding the order of the Assistant Collector which was under a different set of circumstances which did not prevail when the appeal was under consideration, in the interest of justice, he ought to have given a proper finding on the facts under the revised circumstances. His order with reference to the goods that were covered by a home consumption Bills of entry and which were subsequently replaced by ldquo Into Bond bills of entry rdquo was out of context. Therefore, we hold that the order of the Collector (Appeals) was incorrect and he should re-examine the appeal in the context of the changed circumstances. The appeal is, therefore, remanded back to the Collector (Appeals) to take into consideration the circumstances prevailing after the decision of the Asstt. Collector, and issue a reasoned order after fulfilling the principles of natural justice. The appeal is allowed by way of remand.
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1990 (5) TMI 148
Dutiability - Marketability ... ... ... ... ..... rein it was observed that test of marketability should be satisfied even in respect of transient item which is captively consumed in the manufacture of other finished product and in particular it held that marketability is an essential ingredient in order to be dutiable under the Schedule to the Central Excise Tariff Act. Simply because certain articles fall within the Schedule it would not be dutiable under the Excise Law if the said article is not ldquo goods rdquo known to the market. It has also been held that though actual sale is not necessary, the evidence must be produced by the Department that the goods in fact are capable of being marketed. The Department has not adduced any such evidence in this case. Under these circumstances, following the ratio of the decision of the Apex Court, we have no other alternative except to hold that the goods in question are not liable to excise duty. 6A. In the view we have taken, we set aside the impugned order and allow the appeal.
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1990 (5) TMI 147
Refund - Limitation ... ... ... ... ..... rsquo s order is correct. From a reading of Section 4(4)(d)(ii), which reads as under - ldquo does not include the amount of the duty of excise, sales-tax and other taxes, if any, payable on such goods and, subject to such rules as may be made, the trade discount (such discount not being refundable on any account whatsoever) allowed in accordance with the normal practice of the wholesale trade at the time of removal in respect of such goods sold or contracted for sale . This Section speaks of the exclusion of the duties paid, but in the case under reference, the duty paid has been recovered from the customers and, therefore, a refund that is given has to be reckoned for purpose of determining the value of the goods . Extending this ratio, the appeal on this issue fails and is rejected. 8. In effect, therefore, the three appeals filed by the appellants in Appeals E/1506/86-B.1- (partly), E/1508/86-B.1 and E/1509/86-B.1 are allowed and their Appeal in E/1507/86-B.1 is rejected.
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1990 (5) TMI 146
... ... ... ... ..... vigilant about his rights must explain every day rsquo s delay. In other words, he will have to prove that he was diligent and will have to explain day to day delay from the last day of limitation. See B.B. Ghoshal v. Shew Kamal Singh, AIR 1984 Cal. 122 Union of India v. Vishnu Agencies, AIR 1985 Cal. 150 and that the plea of wrong advice said to have been given by a Counsel should not be an attempt to save limitation in an underhand way or a device to cover an ulterior purpose. See State of Assam v. Naresh Chandra, AIR 1983 Gau. 24. 14. In view of the above we hold that the appellant was not diligent and it failed to prove sufficient cause for delay in filing the appeal. 15. Before we part it may be stated that we have kept in mind the ratio of the case law cited at the Bar while passing this order. 16. In the result the application for condonation of delay is rejected. Consequently the appeal is also rejected as time-barred without hearing the parties on merits of the case.
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1990 (5) TMI 145
Classification ... ... ... ... ..... m the foregoing material on record, it is apparent that the product under consideration is silicone in primary form. It is immaterial whether the product is used as a drug, so long it is a silicone in primary form, it is classifiable under Item 15A(1) as held by the Larger Bench of the Tribunal in the case of Hico Products (supra). We have no reason to differ from these findings. Accordingly, we allow the appeal and set aside the impugned order and restore the order-in-original. 27. Before parting with this matter, we consider it necessary to mention the learned advocate Shri Ganesh rsquo s argument to keep the decision of the Tribunal in abeyance till the decision of the Supreme Court in their appeal before that court in their own case. On a query from the Bench whether the Supreme Court has stayed the Tribunal rsquo s order, Sh. Ganesh replied in the negative. Accordingly, we are not impressed by his plea of keeping this matter in abeyance. Hence, the decision as aforesaid.
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1990 (5) TMI 144
Re-assessment ... ... ... ... ..... though the Department was guided by what the appellants have stated in their letter dated 19-12-1984. The Customs authorities have independently applied their mind while determining the classification of various items under the Customs Tariff and also the corresponding classification for countervailing duty. All these materials is before the Central Excise authorities in black and white and there is no scope for being misled by the appellants. The Central Excise authorities with their eyes wide open assessed the goods on the basis of the classification made by the Customs authorities and allowed the proforma credit. Therefore, there is no material to establish suppression or mis-declaration and consequently the show cause notice is barred by limitation. We accordingly, allow the appeal and set aside the order of the Collector. 18. In the light of the view which we are taking it is not necessary to consider the other arguments advanced by both Shri Sreedharan and Shri Asthana.
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1990 (5) TMI 143
Pilferage - Refund claim ... ... ... ... ..... int or focus the time of pilferage so as to bring it within the mischief of Section 13 of the Act. The rulings of CEGAT referred to by the learned Consultant have no application to the facts of this case and are not applicable as the CEGAT in the case of B.R.T. Ltd. cited supra has only gone into the applicability of Section 23(1) of the Act particularly as to whether the expression ldquo lost or destroyed rdquo in Section 23 of the Act is used in the generic and comprehensive sense including loss due to theft or pilferage. The ruling in Sharma Metal Rolling Mills case cited supra only deals about the acceptability of private Survey report in the context of that case. Therefore, on consideration of the entire evidence on record, we are of the view that the refund claim is not brought within the mischief of Section 13 of the Act and, therefore, has been rightly rejected by the authorities below. In this view we uphold the impugned order appealed against and dismiss the appeal.
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1990 (5) TMI 142
Reference to High Court - Proforma Credit and MODVAT Credit ... ... ... ... ..... , we would deem it proper to refer the following questions of law for determination by the Hon rsquo ble High Court - (i) Whether on a true and proper interpretation of sub-rule (9) of Rule 56A of the Central Excise Rules, as it stood prior to amendment dated 15-4-1987, the benefit of proforma credit under Rule 56A can be denied to the applicants merely because the manufacturer has availed of MODVAT benefit for totally different materials, which are covered by the MODVAT scheme under Rule 57A of the Central Excise Rules ? (ii) Whether Rule 56A can be interpreted in such a manner that the manufacturer does not avail of the MODVAT benefit in respect of the same inputs covered by Rule 57A especially when the said sub-rule (9) of Rule 56A talks of availment of credit of duty paid on inputs under Rule 57A. (iii) Whether the amendment to sub-rule (9) of Rule 56A by Notification No. 117/87 dated 15-4-1987 can be construed to be a clarificatory nature and is retroactive in operation.
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1990 (5) TMI 141
Exemption from duty ... ... ... ... ..... 1931, only from the mid-night of 27/28-2-1982. The exemption notification is dated 28-2-1982. Therefore, there is no question of the said notification having any effect prior to the mid-night of27/28th February. The clearances in the present case, with which we are concerned here, were effected from 17 Hours to 24 Hours of 27th February, 1982. Therefore, the exemption was not applicable to the said clearances. 23. The reference is answered accordingly. 24. The file may now be placed before the Special Bench lsquo C rsquo for disposal of the appeals in accordance with law. 25. In view of the majority decision, M/s. Associated Cement Company Ltd. are not entitled to the benefit of the Central Excise Notification No. 42/82 between 17 Hours and 24 Hours on 27th February, 1982. Therefore, the exemption was not applicable to the said clearances. 26. In the result the appeal filed by the Department is allowed and the appeal filed by M/s. Associated Cement Company Ltd. is dismissed.
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1990 (5) TMI 140
... ... ... ... ..... s against injury or damage rather than to enable it being placed on the market. Indeed, in Godfrey Philips, this was a factual position that had been accepted by the departmental authorities earlier for a period of a little over six years which they later wanted to go back upon. Can the same be said of the goods and the packing with which we are concerned here is a question to be decided on the facts, as the Appellate Controller did and not as a proposition of law settled by, or the automatic consequence of the decision in the Godfrey Philips case, as seems to have been done by the Tribunal and as is being argued for the respondents. I would, therefore, agree that the matter should be remanded to be reconsidered in the light of our observations. 7. In view of these observations, we set aside the impugned order and remand the matter to the Assistant Collector having jurisdiction to readjudicate the same in view of our above observations. The appeal is allowed by way of remand.
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1990 (5) TMI 139
MODVAT credit - Admissibility of cut tyres and tubes ... ... ... ... ..... e 57D (1) or not. The matter has been examined. It is clarified that as cut tyres and tubes are not definitely usable as such and are disposed of as waste and scrap it would be appropriately classifiable under Heading 40.04 as mentioned in Note 6 of Chapter 40 of the Schedule to the Central Excise Tariff, 1985. Also it is held that since such cut tyres and cut tubes are nothing but waste and scrap, the credit of duty paid on inputs would not be denied or varied on the ground that part of the inputs is contained in such waste/scrap by virtue of Rule 57D(1) of the Central Excise Rules, 1944. This may be brought to the notice of all constituent members of your Trade association . 7. Therefore, on consideration of the above materials, we hold that the impugned order appealed against is sustainable in law and accordingly we dismiss the appeal filed by the Department. 8. The Cross objection filed is only by way of comments and the same is therefore dismissed as misconceived in law.
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1990 (5) TMI 138
... ... ... ... ..... f a wrong Section would not vitiate either the show cause notice or the consequential order of adjudication. In the present case the whole fact lies in a very short compass. The appellant brought a foreign T.V. Camera as an item of baggage and admittedly parted the same for some consideration to the Race Club which is the substance of the charge attracting the penal provision under 112 of the Act for violation of Section 111(o) of the Act. I, therefore, find no merits in the case and confirm the findings of the adjudicating authority in the impugned order. At this stage Shri Chander Kumar pleaded for reduction in the quantum of penalty urging that the appellant being the Secretary of the Race Club was under a bona fide impression that he could part with the camera which would be of some utility to the Club. Taking these circumstances into consideration I reduce the penalty to Rs. 1,000/- (Rs. one thousand). Except for the above modification, the appeal is otherwise dismissed.
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1990 (5) TMI 137
MODVAT credit ... ... ... ... ..... , it will be entirely wrong to deny the benefit of Modvat credit in respect of such duty payments. The specific provisions of Rule 57E, after its amendment from 1-3-1987 does not go against the substantive provisions of Rule 57A which is the basic authority for the Modvat Scheme. The amended provisions of Rule 57E are not by way of expanding the scope of Rule 57A. They are in the nature of a clarification only and the benefit in question would be available right from 1-3-1986 when the Modvat Scheme was introduced. rdquo We, therefore, hold that in the facts and circumstances of the case, the appellants would be entitled to take Modvat credit for the amount in question, since indisputably the input has suffered additional duty for the like sum. We would like to make it clear that under the Modvat Scheme there is no specific provision for granting refund of the amount to the appellant in cash. In this view of the matter the impugned order is set aside and the appeal is allowed.
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1990 (5) TMI 136
... ... ... ... ..... t to sit over the wisdom of the Director of Industry. 6. As regards the contention of the learned counsel for the appellants that the subject goods were sort of plastic boxes themselves, I do not find any evidence on record to substantiate the said contention and therefore agreeing with the learned SDR reject the contention of the learned counsel for the appellants. 7. In view of the above I hold that the adjudication order holding the import illegal cannot be assailed. However, taking into consideration the fact that the appellants did get their certificate amended subsequent to the date of actual landing of the goods in the Country, I feel that in the facts and circumstances of the case the redemption fine of Rs. 30,000/- is on excessive side. Thus, taking all the facts and circumstances into consideration I reduce the redemption fine from Rs. 30,000/- to Rs. 15.000/- (Rupees fifteen thousand only). 8. Except with the aforesaid modification the appeal is otherwise rejected.
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1990 (5) TMI 135
... ... ... ... ..... of Section 14 (a) is that the sale has to be in the course of international trade. Unless the legal nexus is established, it cannot be taken that the price set out in these publications alone would correspond to the price in the course of international trade . Therefore, the Tribunal rsquo s view is, since the department had not provided any proof of other contemporary imports, the adoption of prices quoted in the publications was not in order, there was no reason to discard the invoice prices. While in the present case, since comparable prices for the contemporary goods was available, adoption of invoice value which was found low was not found correct and the statutory provisions of Section 14(a) was correctly applied. Therefore, the ratio of the Tribunal rsquo s decision cited by the learned advocate does not help him, but on the other hand, it is in alignment with the views presently held by this Bench. The appeal has therefore no merits and it is, accordingly, dismissed.
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1990 (5) TMI 134
... ... ... ... ..... maintenance of statistical data and has no serious repercussions on the import policy in general. The NEFED has already registered contracts though after the shipment but before the goods have reached Indian port. Under the circumstances breach of the provisions of policy are more of technical nature rather than of economical nature. Therefore, though technical breach has been said to have been committed, making the goods liable for confiscation while imposing the redemption fine rational approach ought to have been adopted. Considering this aspect it appears that imposition of the redemption fine in both the matters as indicated above is on the higher side and requires to be reduced. 8. Taking all the aspects into consideration, I hold that the redemption fine may be reduced from Rs. 8700/- in Appeal No. 243/85 to Rs. 3,000/- and from Rs. 11500/- in Appeal No. 244/85 to Rs. 5000/- 9. With this modification, the appeals are otherwise rejected. Consequential relief to follow.
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1990 (5) TMI 133
S.S.I. exemption - Value of clearances ... ... ... ... ..... umption that where in the case of any one product the limit set for that product is exceeded, duty is payable on the other goods, where the limit not yet been reached. rdquo From the above discussion of the scope of the Notification clause (a), and the departmental clarification referred to above, it is evident that the claim of the appellants herein that no duty was payable by them in the facto of the present case is sustainable, and in such a view of the matter, the impugned order is not maintainable, and is accordingly set aside. The appeal is, therefore, allowed. The same view has also been taken and adopted by the learned single Member of this Tribunal in Purushotham Goculdas Plywood Company case (supra). Following the ratio of the aforesaid rulings of this Tribunal, we hold that the appellant would be entitled to take credit in respect of the goods in question and in this view of the matter we set aside the impugned order and allow the appeals with consequential relief.
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1990 (5) TMI 132
Refund -Limitation ... ... ... ... ..... administratively. The plea of the learned counsel that the appellant rsquo s letter dated 20-1-1986, which is not available before us, should be treated to be a letter of protest is also not acceptable, as by no stretch of imagination a plea for exemption can be construed to be a letter of protest within the meaning of Section 27(1) of the Act and apart from it the Assistant Collector of Customs is not the authority competent to grant exemption of duty under the Act and the Assistant Collector by his letter dated 24-2-1986 had replied to the appellant that the appellant could contact the Government of India for the subject matter. The Tribunal being a creature of statute is bound by the provisions of the Act and cannot grant the relief of refund in a situation where the claim is admittedly filed after the expiry of the period of limitation under Section 27(1) of the Act. In this view of the matter we do not find any merits in the appeal and the same is accordingly dismissed.
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1990 (5) TMI 131
Exemption - Wire netting scrap ... ... ... ... ..... goods with the endorsement ldquo Under Protest rdquo . Since the clearance of wire netting scraps before 1-4-1982 had been pursuant to the approved classification list in which no duty have been held to be leviable on such wire netting scrap, the demand of duty on such clearances upto 31-3-1982 would not be in order, though on the clearances subsequent to that day they should have paid duty in terms of the classification list filed by them with effect from 1-4-1982. Levy of duty on clearances of wire netting scrap effected after the said date would have been in tune with the classification list filed by them but in view of our decision that the said product does not attract classification under Item 68 and duty thereunder, the levy for this period also has got to be set aside. As a result, the appeal succeeds in its entirety. Thus we set aside both the impugned orders and allow the appeals. The appellants would be entitled to the consequential benefits. We order accordingly.
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