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Case Laws
Showing 101 to 120 of 385 Records
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1991 (1) TMI 302
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... ... ..... out jurisdiction and beyond the powers of the Supdt. is void ab initio and cannot be enforced. 8. When the demand raised by the Supdt. being void ab initio, the memorandum of the Assistant Collector adjusting the said recovery against the refund ordered, is also not sustainable. 9. The decision of the South Regional Bench of the Tribunal, Beehive Foundry Engineering Works v. CCE - 1986 (23) E.L.T. 496 (Tri.) 1986 (7) ETR. 141, referred to by the Ld. Advocate for the appellants, though not directly on the point at issue here, also taken the same view. 10. When the appeal has to be allowed on this count, it does not appear necessary to deal with other issue as to whether demand on the grounds raised in the letter of the Supdt. is legally sustainable. 11. Under the circumstances, the appeal is allowed. It is clarified that the order shall not operate as a bar in the Department demanding the subject amount, by following proper course if, and, as, may be permissible under the law.
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1991 (1) TMI 301
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... ... ..... e is a duty cast on him either to reject his request or direct him to file the refund claim before the competent authority. The protracted silence by the assessing officer on their request for giving credit could not be held against the assessee for the purpose of treating the claim as time barred. In this view of the matter, we hold that though the letter addressed to the Supdt. is for giving credit in the RT-12 Return in terms of Rule 173(1) of the Central Excise Rules, in view of, the silence or inaction on the part of the assessing officer, the subsequent refund claim filed before the Assistant Collector is to be construed as the one originating from this letter. In this view of the matter, we hold that the plea of time bar cannot be raised in this case. We therefore set aside the orders of the authorities below and remand the case back to the Assistant Collector for considering the appellants rsquo claim for refund on merits and to pass orders in accordance with the law.
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1991 (1) TMI 300
MODVAT Credit ... ... ... ... ..... e and scrap of Iron and Steel) in the open market to take MODVAT credit at the minimum rate prescribed without production of documents evidencing payment of duty. Further, this issue was dealt with in detail in the case of Collector of Central Excise, Chandigarh v. M/s. Mittal Metal Industries and Others, as per Order Nos. A/538 to 542/90-NRB dated 20-12-1990 1991 (54) E.L.T. 290 (Tri.) wherein it was held that the goods purchased in the open market are deemed to be duty paid and onus of proof lies on the Department to prove that the goods were not duty paid. In the present case also the Department has not produced any evidence to prove that inputs are non-duty paid. Under these circumstances, following earlier decisions of this Tribunal on this issue, we hold that the appellants are entitled to take deemed Modvat credit as per letter dated 7-4-1986. 7. In the view we have taken, we set aside the impugned order and accordingly, the appeal is allowed with consequential relief.
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1991 (1) TMI 299
Refund - Limitation ... ... ... ... ..... f Section 11B in the case of goods returned for being remade, refined, reconditioned or subjected to any other processes, the date of entry into the factory for the purpose is the relevant date and if from this relevant date, the refund claim has been filed within six months, the claim has to be entertained without the time limit being raised against the assessee. In this case, the refund claims have been filed within the period of six months from the date of entry of the goods. When this substantial provision is complied with and also when we observe that the goods have been taken for re-processing within six months stipulated under sub-rule (3) and also the accounts maintained thereof, we see no justification in rejecting the claim on the ground of late submission of the extracts of the accounts. We, therefore, set aside the orders and remand the case back to the Assistant Collector for consideration of the refund claims on merits, expeditiously, in accordance with the law.
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1991 (1) TMI 298
Modvat Credit ... ... ... ... ..... ppellate Collector of Customs v. M/s. Chloride India Ltd. 4. We have carefully considered the pleas advanced on both sides. We find substantial force in the plea of the appellants. Reliance placed on Madhya Pradesh High Court rsquo s decision is well-placed. It holds as follows - ldquo (10)...As regards clause (iv)(a) of sub-rule (3), this provision no doubt directs that the waste material shall be removed on payment of duty, but it presupposes that the waste material is not exempt from duty. The clause means that the waste material shall be removed on payment of duty, if any, payable thereon..... rdquo 4.1. Rule 57F(4)(a) is pari-materia. Rule 56A (3)(iv)(a). Madhya Pradesh High Court rsquo s ruling is applicable to the facts and circumstances of this case. West Regional Bench judgment mentioned supra is not so categorical. Following respectfully, the ruling of the High Court of Madhya Pradesh, we allow the appeal. 5. Operative part of the order pronounced in the open Court.
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1991 (1) TMI 297
Penalty - Import of 325 VCRs in disassembled condition ... ... ... ... ..... nd cartons do not fall within the category of ldquo spares rdquo . We have therefore no hesitation in concluding that the subject import cannot be styled as import of ldquo electronic spares rdquo but is of all parts and assemblies of VCR and intended to be imported as such in SKD condition. 19. As regards personal penalties also, facts are duly discussed by Brother Jayaraman, and they need no repetition. Considering, however, the way in which the relevant documents, which ought to be in custody of one party are found from the other, and also the other evidence in regard to the placing of the order, there hardly remains any iota of doubt that there was complicity amongst all the parties for the subject import, and the effort now made to throw the entire blame on the other one, is a futile attempt to save themselves. I, therefore, concur with Brother Jayaraman in that regard also. 20. I, therefore, agree with the order proposed by Brother Jayaraman, and also order accordingly.
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1991 (1) TMI 296
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... ... ..... this item was assembled within their factory premises. The learned counsel has however pleaded that such assembling did not amount to manufacture. In this connection we observe that since the appellants have virtually changed their stand now, and the facts which are now being pleaded were not squarely placed before the Collector and in the absence thereof he had based his order on inferences and circumstances only, hence the matter is required to be remanded to the Collector for re-examining the matter in the light of this admission. 31. In view of the above discussion we modify the order of the Collector as follows - 1. The confiscation of goods (and consequentially) the redemption fine is set aside. 2. The demand of duty is quashed. 3. The penalty is reduced from Rs. 25,000/- (Rupees Twenty five thousand only) to Rs. 20,000/- (Rupees Twenty thousand only) and 4. The matter in so far as it relates to tape-recorder is remanded for de novo consideration in accordance with law.
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1991 (1) TMI 295
Demand - Limitation ... ... ... ... ..... he procedure of invoice value assessment which was not admissible to them after giving a declaration which was not factually truthful and their non-disclosure of the fact of receipt of excess payments from their customers bring the case squarely within the scope of the proviso to Section 11A of the Central Excises and Salt Act for the application of the extended period beyond six months. The Collector has correctly applied the same and confirmed the demand. His decision is correct in law except in so far as the demand for the period beyond five years in his adjudication order dealt with in Appeal No. E-22/87-Cal. The impugned orders which are otherwise in order are upheld. The appeals are accordingly dismissed except to the extent indicated above in respect to Appeal No. E-22/87-Cal, where the demand beyond five years is set aside. 10. For the foregoing reasons, we see no reason to interfere with the impugned orders passed by the Collector. We accordingly dismiss the appeals.
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1991 (1) TMI 294
Provisional assessment an integrated process ... ... ... ... ..... tion B(e) under Section 11B of the Central Excises and Salt Act. The argument raised by the learned departmental representative based on the wording of B 13 bond for provisional assessment and the bond amount based on only the valuation aspect is not acceptable for compartmentalising the integrated process of provisional assessment. There can be cases where provisional assessments are resorted to both on the question of classification and valuation. In such an event the wording of the bond is no constraint to cover the situation. It is the assessment as a whole which is provisional and not the contributing factors like classification and valuation. 6. In the circumstances, we accept the plea of the appellants and hold that the Collector (Appeals) erred in holding that the refund claims of the appellants were time barred and accordingly quashing the Assistant Collector rsquo s orders. We set aside the impugned order in appeal and restore the Assistant Collector rsquo s orders.
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1991 (1) TMI 293
Confiscation and Penalty ... ... ... ... ..... egard to non-notified goods valued at Rs. 10,162/- and referred to above. So far as the rest of the goods which are notified and valued at Rs. 1,300/- is concerned, I hold that they are liable for confiscation for violation of Chapter IVA of the Customs Act, 1962 and having regard to the value, the quantity, the nature of goods namely, shaving cream, nail polish, spray, lipstick, perfume, shampoo, air refresher etc., I direct the release of the same on payment of a fine of Rs. 5,000/- (Rs. five thousand). The appellant shall be entitled to redeem the same provided the goods are available. The appellant should exercise the above option within two months from the date of receipt of this order. The appellant is entitled to redeem the goods without payment of duty since they are covered by valid baggage receipts. In the facts and circumstances of the case I reduce the penalty to Rs. 1,000/- (Rs. one thousand). Except for the above modifications, the appeal is otherwise dismissed.
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1991 (1) TMI 292
Import and Export - Public Notice ... ... ... ... ..... st of the Ld. D.R. more than six times and he is not able to produce any proof in regard to publication of the same in the Gazette on or before the relevant date of import of the goods in question. On the other hand, the appellant is able to produce a communication dated 3rd March 1989 from the Department of Publications, Govt. of India which reads as under, - ldquo With reference to your letter No. nil dated 22-2-1989 regarding the date of availability of the Gazette of India Extraordinary Part I Section I sub-section - dated 29-11-1988 Issue No. 256,I write to inform you that the abovementioned Gazette was made available for public sale on 7-12-1988 as per records of this Department. rdquo I, therefore, following the ratio of the rulings of the High Courts cited supra and the Supreme Court, hold that the import cannot be held to be in contravention of law. In the above peculiar circumstances and in the light of the above, I set aside the impugned order and allow the appeal.
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1991 (1) TMI 291
Refund - Return of damaged duty paid goods for reprocessing etc. ... ... ... ... ..... e particularly Clause (3) of Rule 173L, it indicates that the product rsquo s identity has to be maintained till the time it goes for recondition or reprocessing and not at all the subsequent stages. Even otherwise, the point has been settled by the East Regional Bench in the decision referred to above. Further the claim for refund has to be adjudged on the full quantity of the lots received back and it is not open for the department to reduce the same to the reconditioned quantity only as has been held by this Bench of the Tribunal in Sarabhai Chemicals v. CCE - reported in 1986 (25) E.L.T. 62. 8. From all these positions, it becomes clear that the authorities below are not justified in rejecting the appellants rsquo claim for refund. The orders passed by the authorities below therefore cannot be sustained. The appeal under the circumstances is allowed. The department is directed to calculate the admissible claim for refund and grant the appropriate refund to the appellants.
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1991 (1) TMI 290
Refund - Protest ... ... ... ... ..... of the Gate Pass I was not endorsed or that the endorsement was not made in invoice. Rule 233B lays down the procedure to be followed in cases the duty is paid under protest and among other requirements, insists upon making certain endorsement. Here, it is found that though all the other requirements have been complied with and the Department has not alleged that the breach of any other condition, the only breach appears to be of not affixing of the stamp on some of the documents. When substantially the provisions of Rule 233B have been complied with, such a lapse of minor nature being insignificant, has to be condoned. I, therefore, hold that the authorities below were not justified in rejecting the claims of refund, which according to them were otherwise tenable, on this minor technicality. I, therefore, set aside all the 3 orders and direct the Department to consider the refund claim for rejected portion of the same, for which the present appeals are filed, as per the law.
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1991 (1) TMI 289
Paper - Unbleached varieties of paper ... ... ... ... ..... for determining the bagasse content and to grant the relief as per the terms of. the Notification. Point 3. In the event of the appellants not satisfying to the bagasse content then the Department shall consider the claim for set off as urged by them in terms of Notification No. 62/82-C.E., dated 28-2-1982 as amended by Notification No. 48/83-C.E., dated 1-3-1983 and also Notification No. 46/83-C.E., dated 1-3-1983. Point 4. The demand of duty may not survive if the appellants were .to satisfy the terms of Notification No. 142/81 as amended or on the reconsideration of the other Notification in question. In case of the appellants not satisfying any of the terms of the Notifications in question, then part of the demand for duty beyond 6 months would be time-barred, as proviso to Section 11A having not been invoked and also the classification list having been approved finally as could be noted from records placed before us Point 5. The appeal is disposed of on the above terms.
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1991 (1) TMI 288
Appeal - Department not entitled to go beyond the scope of show cause notice ... ... ... ... ..... visional assessment it cannot be said to be hit by limitation in terms of Rule 11 as it stood on the date of finalisation of the provisional assessment. On the date of finalisation of the provisional assessment the old Rule 11 which was operative from 6-8-1977 to 16-11-1980 was in force. Under the explanation to that rule it is clearly stated that where any duty is paid provisionally under that rule on the basis of the value or the rate of duty, the period of six months shall be computed from the date on which the duty is adjusted after final determination of the value or the rate of duty as the case may be. In that view of the matter since the application was filed much prior to 5-3-1980 from which date the period of six months shall be computed, we are of opinion that the application is in time. 7. In such circumstances, we find no reasons to interfere with the impugned order passed by the learned Collector of Central Excise (Appeals). Accordingly, this appeal is dismissed.
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1991 (1) TMI 287
Manufacturer ... ... ... ... ..... Rule 174 cannot be faulted with. The order of the Collector does not suffer from any infirmity and the petitions must fail. 9. Similarly, the cases of H. Guru Instrument P. Ltd., Calcutta v. CCE, Calcutta 1987 (27) E.L.T. 269 relied upon by the Appellant-Collector in his appeal-Memo, has also been decided on the peculiar facts of that case and the ratio of that decision cannot be applied to the facts and circumstances of this case. So is the case with the decision of the Supreme Court referred to by Appellant-Collector, namely (1) M/s. Bajrang Gopilal v. M.N. Balkundri and Others -1986 (25) E.L.T. 609 (SC), (2) Shree Agency v. S.K. Bhattacharjee and Others - 1977 (1) E.L.T. J 168. 10. Accordingly, we hold that the respondents cannot be held as hired labour for M/s. Bombay Dyeing and Manufacturing Company. The Respondents are manufacturers in their own right and are entitled to the benefit of Notification No. 175/86, dated 1-3-1986 (as amended). Hence the appeals are rejected.
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1991 (1) TMI 286
Order passed in violation of principles of natural justice a nullity ... ... ... ... ..... ugh had they done so, the appeal could have been allowed by remanding the matter back to the Assistant Collector for passing a regular adjudication order after granting personal hearing to them. In fact they did not file an appeal even after getting the Superintendent rsquo s letter dated 10-6-1988 informing them that there was no scope to review the case at the level of the Assistant Collector and they could (if they wanted) approach the appellate authority for necessary orders but again wrote to the Assistant Collector that the order dated 6-10-1986 could not be considered as an appealable order. But their failure to appeal even at that stage is saved by the fact that the order was a legal nullity and did not constitute an appealable order. In the circumstances, I allow the appeal setting aside the impugned order and remand the matter back to the jurisdictional Assistant Collector for de novo determination of the issue after complying with the principles of natural justice.
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1991 (1) TMI 285
Warehoused goods ... ... ... ... ..... been extracted in para 5 of the order proposed by Member (Judicial). This interest is nothing but a payment for delayed payment of duty because of extension of normal period of warehousing. The Department has correctly and very justifiably charged interest on the amount of duty in respect of the period which is beyond the original warehousing period of one year. There is no illegality involved in the same, nor this amounts to retrospective effect of the amendment to Section 61(2) of the Customs Act. As is clear in the present case, the interest has been charged after the amended Section came into force and that too for the extended period over the period of one year. In the circumstances, I uphold the Order-in-Original of the Assistant Collector and set aside the impugned order-in-Appeal passed by the Collector of Customs (Appeals). Accordingly, the appeal of the Revenue is allowed by me. Per IJ. Rao . - In accordance with the orders passed by majority, we dismiss the appeal.
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1991 (1) TMI 284
Return of duty paid goods for remaking ... ... ... ... ..... the findings only with regard to the provisions of Rule 173H. It appears that the authorities below have not given the complete consideration all the relevant provisions enabling the party to claim refund. Restricting the findings to the one provision, namely Rule 173H does not appear to be correct and the authorities below ought to have examined the refund claim from all perspective. When that is not done, the orders of the authorities below cannot be sustained and has to be set aside. The orders of the authorities below are therefore set aside and the matter is remanded back to the Assistant Collector for examination of the refund claim from all possible perspective after giving due hearing to the appellants in this regards and also permitting the appellants to lead any further evidence, if they so desire. As the claim is of the year 1985, the A.C. shall give priority to this matter and decide the issue preferably within three months from the date of receipt of this order.
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1991 (1) TMI 283
Stay - Dispensation of pre-deposit ... ... ... ... ..... n our prima facie view, covers fabrics in running length, whether they be bed-sheets or towels or dhoties, which are specified therein. Once duty has been paid on these fabrics, subjecting the same item to duty again, in our prima facie view, does not appeal. In this view of the matter, the applicants seems to be having a case in their favour. Without expressing any opinion on the merits of classification, we have to take note of the other plea that even if it is construed to be excisable, they are entitled to get the proforma credit, which has not been extended. This benefit is a substantive one. Having regard to all these factors, we direct the applicants to furnish a personal bond to the Collector covering the duty amounts, undertaking not to dispose of their machinery and assets till the disposal of the appeals. On furnishing the personal bonds as mentioned above, there shall be stay and waiver of recovery of the duty and penalty amounts, till the disposal of the appeals.
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