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Case Laws
Showing 121 to 140 of 385 Records
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1991 (1) TMI 282
Testing of - Samples ... ... ... ... ..... day is wrong it does not necessarily follow for all the subsequent periods till next sample was drawn, the count of the yarn would not be as declared by the appellants. Before raising the demand for subsequent period the authorities must bring on record the evidence subsequent to that period that the appellants had produced yarn of a count greater than what was declared. The authorities should have done investigation with reference to the records in the factory as also by collecting evidence in regard to the sales and also from the person incharge of production in the factory. Unless any positive evidence in this regard is brought on record the demand for periods subsequent to the drawal of samples cannot be held to be maintainable. We, therefore, hold that the demand made has to be restricted to lots which were found in stock on a particular day and the yarn produced on that day. With the above observation, we partially allow the appellants rsquo appeals in the above terms.
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1991 (1) TMI 281
Refrigerating and air-conditioning appliances ... ... ... ... ..... ed 24-4-1982, exempts all parts of refrigerating, air-conditioning appliances and machinery, other than the parts mentioned therein, of which compressor is one of the excluded category. Being a part of the refrigerating appliances and not part of a compressor, it will be liable for the exemption. 10. Having decided the main points which have been raised by the appellants, in their favour, the legal points on the aspect of application under Section 35E(2) for the recovery of refund, and the scope of Section 35E(2) vis-a-vis, Section 11A, lose their significance and become interest of academic importance. There is no gain saying the fact that the decisions reported in 1988 (37) E.L.T. 222 (Tri.), Collector of Central Excise v. Universal Radiations Ltd., the decision of the Tribunal in Orissa Cement v. Collector, Order No. 1508 to 1514/90, dated 14-9-1990, relied upon by the appellants, go against the department. 11. In the result, the appeals filed by the appellant are allowed.
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1991 (1) TMI 280
Confiscation and penalty ... ... ... ... ..... EEC book. Therefore, we are of the view that the goods imported are not against the description given in the advance licence for the goods or against the description given in the DEEC book. The discrepancy pointed out by the department, even if it be taken on its face .value is of a very minor character and of a technical nature. The goods are substantially of the same description as were allowed to be imported to be used in the manufacture of goods to be exported. 4.1 Keeping the aforesaid facts and circumstances in view, we hold that there was no justification for confiscating the goods and demanding duty as if they are goods other than what the appellants were allowed to import and to use for manufacture of export goods. We, therefore, set aside the order and allow the appeal with consequential relief, if any, to the appellants. 4.2 In view of our findings above, it is not necessary to go into the other plea of the appellants regarding the demand of duty being time-barred.
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1991 (1) TMI 279
Manufacturer ... ... ... ... ..... n view of the facts of the matter. (ii) Appeal No. 497/84-A This appeal is against the impugned order which dismissed the matter on limitation u/s 35(I) of the Central Excises and Salt Act. No arguments were advanced at all. On perusing the Collector rsquo s order and in the absence of any arguments by the appellants, we dismiss the appeal. (iii) Appeals Nos 95 and 96/84-A, 686/85-A, 483/86-A, 245/87-A, 246/87-A, 482/86-A, 470/86-A, 273/87-A, 274/87-A, 284/87-A, 352/88A, 279/87-A, 687/85-A. These appeals are allowed to the extent that the margin of profit to be added is limited to 2 . They are otherwise rejected. 13. Miscellaneous applications Nos 1037/90-A, 1040/90-A, 1038/90-A, 1034/90-A, 1028/90-A, 1029/90-A, 1039/90-A, 1036/90-A, 1033/90-A, 1026/90-A, 1030/90-A, 1035/90-A, 1027/90-A for seeking the admission of the Paper Book were granted. Cross-objections Nos. E/134/87-A, 138/87-A, 136/87-A, 139/87-A, 137/87-A, 135/87-A are not maintainable under law. They are dismissed.
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1991 (1) TMI 278
MODVAT Credit ... ... ... ... ..... nance, repair work - Not used in or in relation to manufacture . Not eligible 34. Bolts and nuts 83 General repairs - Not used in or in relation to manufacturing process but for general maintenance. Not eligible 35. Parts of diesel and semi-diesel machineries 84 These are required for transporting limestone and laterite and other raw material as well as various other jobs - Not used in or in relation to manufacture. Not eligible 36 Taps, locks, valves, etc. 84 General maintenance - Appliance not included in eligible inputs. Not eligible 37. Machinery spare parts 84 General repairs and maintenance - Not used in or in relation to manufacture. Not eligible 38. Roller and Ball bearing 84 do- -do- 39. Spares for eletric equipements 85 Repair of electrical equipment like sub stations, motor OCBS, etc. -do- 40. Spares for lomomotive 85 Loco repair - Not used in or in relation to manufacture. Not eligible 41. Parts/ Accessories of motor vehicles 87 Maintenance of motor vehicles -do-
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1991 (1) TMI 277
Modvat credit ... ... ... ... ..... y does not make them duty-paid goods for the purpose of granting modvat credit. Modvat credit facility is for utilising the duty-paid on the inputs for payment of duty payable on the outputs arising therefrom. If nil duty has been paid on the inputs, by virtue of the exemption notification, then it is that nil duty that will qualify for modvat credit. That will place the appellants in the same position that has been determined by the lower authorities by disallowing them the credit, availed by them. 12. The question, of course, is incidental to the issue in the present case since, as we have examined earlier, the goods captively produced in a factory for subsequent manufacture therein are specifically outside the scope of the deemed credit orders contemplated under the second proviso to Rule-57G(2) and this should set the matter at rest as far as these appeals are concerned. We, therefore, see no reason to interfere with the impugned order and accordingly dismiss the appeals.
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1991 (1) TMI 276
Rectification of Mistake ... ... ... ... ..... not lead to making an offence unless deliberately done. Moreover, it is not necessary that all the case laws cited should be recorded and taken note. The case laws cited having similar decisions, having been taken note of, there is no denial of justice of another identical case, is not taken note of. 22. From the above analysis of each of the points raised, it is seen that the applicants have not raised any question of law. To say the least, the applicants have misquoted some of the facts which have been pointed out in the relevant paras. The applicants have found the order of the Tribunal not conducive to their taste and felt aggrieved, in which case the Tribunal cannot review its own orders and or is not the forum now to redress their grievances. The miscellaneous reference application, therefore, having no merits nor containing matters involving questions of law, this Tribunal is of the view that it is not a fit case for making a reference and is consequentially rejected.
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1991 (1) TMI 275
... ...
... ... ..... ted to the details of the letter of credit, if necessary. 9. Learned Counsel also draws notice to the Sampling/Humidity Determination Clause in the contract, all of which clearly establish that consideration was given for average moisture content. 10. The final invoice dated 8th February, 1977 also specifies net dry weight of 2252.945 M.T. (after deduction of moisture content of 97.055 M.T. from the total weight of 2350.000 M.T.) The lower appellate authority has grossly erred in his observation that in the contract no consideration was given for average moisture content. Even the provisional invoice mentions the price of US 71 per dry metric ton. From the above documents, it is clear that the actual dry weight of the material delivered to the appellants was only 2252.945 metric tonnes and not 2350 M. T. as held by the Customs authorities. 11. In the light of the above discussion, we set aside the impugned order dated 17-12-1982 and allow the appeal with consequential relief.
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1991 (1) TMI 274
Import Licence ... ... ... ... ..... out within a short period. In our judgment, the submission is correct and the appellants must carry out the endorsement of revalidation and OGL endorsement within a period of three months from today. 10. Accordingly, while the appeal is being dismissed, the operative portion in Clause (b)(ii) of the order passed by the Single Judge is modified in the following terms - ldquo (ii) endorse the said licence to be valid for import of OGL items under Paragraph 185 (excluding sub-para 7 thereof) of the April-March 1982-83 Import-Export Policy and which items are also permissible for import under OGL list in accordance with the policy in operation at the time of the import rdquo . The appellants are directed to revalidate the imprest licence and make requisite endorsement in respect of OGL items in accordance with sub-para 5 of Paragraph 185 of Import-Export Policy for the year 1982-83 within a period of three months from today. The appellants shall pay the costs of the respondents.
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1991 (1) TMI 273
Confiscation of smuggled goods ... ... ... ... ..... muggling activity. Such conclusions are too far-fetched and cannot be legally tenable. The Collector has not assigned any reason for rejecting the affidavits filed by nine persons who had deposited the money with the appellant. Therefore, the learned Collector rsquo s finding in this regard, without examining these nine persons as witnesses and without having any rebuttal evidence is not sustainable in law. In view of the case laws noted by us the seizure of Indian currency in this case is not valid in law and the same has to be returned to the appellant. 12. In view of the finding given by us, the impugned order including imposition of penalty on the appellant, is hereby set aside. The Revenue is directed to return the seized Indian currency within one month of the receipt of this order. There have been no claimants to the seized goods and the same has also not been seized from the appellant rsquo s premises. Therefore, we are not passing any order in respect of these goods.
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1991 (1) TMI 272
MODVAT Credit ... ... ... ... ..... n partly relied upon by the South Regional Bench in the Wipro case discussed at length. For the foregoing reasons, we are satisfied that the appellants do not have a case on merits. We, accordingly, reject the appeal and sustain the orders of the lower authorities. 10. Before parting with this case we would like to recall the observation made by the South Regional Bench in the Wipro case that the Government may have, by oversight, omitted to provide for cancellation or taking back of the credit in such cases. The statutory provisions continue to be what they were when the said observations were made. Though we have held a contrary view for the reasons discussed on the taking back of the utilised credit, the Government may have a fresh look in the matter either for making a clarificatory amendment of the provisions or to issue suitable executive instructions in lieu of the present apparently blanket ones which dispense with strict correlation between inputs and final products.
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1991 (1) TMI 271
Demand - Limitation ... ... ... ... ..... Central Excise, Bombay v. Bright Brothers (Order No. 1093/90-C dated 4-10-1990) wherein we have held that duty paid under a particular tariff heading cannot be adjusted towards duty payable under a different tariff heading for which proper assessment proceedings sanctioned by law had not been initiated by the Department. This finding has been arrived at, upon consideration of the Delhi High Court rsquo s judgment in Bharat Commerce and Industries Ltd. v. Union of India 1979 (4) E.L.T. (J527) , the Punjab High Court rsquo s judgment in Hazarimal Kuthiala v. I.T.O. Special Circle, Ambala Cantt. (AIR 1957 Punjab) and the Tribunal rsquo s Order in Indian Plywood Mfg. Co. Ltd. v. Collector of Central Excise, Bangalore 1985 (22) E.L.T. 144 . We, therefore, set aside the Collector rsquo s order on this point. 10. In the result, E/4151 and 4152/89-C are allowed. E/4153 to 4161/89-C are remanded to the Assistant Collector for de novo adjudication in the terms set out in para 9 above.
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1991 (1) TMI 270
Additional evidence ... ... ... ... ..... e out to interfere with the orders in question. 21. However, we observe that the appellant had undergone a great agony and he has got a handicapped child and he had already passed through tremendous hardship during all these periods. The disciplinary authority had also punished him sufficiently by ordering that the appellant rsquo s pay should be reduced at the lowest stage of pay for the Examiners. He will not be entitled to draw any increment of pay till he retires from the Government service. He will not be entitled to any promotion till his date of retirement. He will not be entitled to any further emoluments or benefits than what was paid to him during the period of suspension. We feel that these punishments are quite heavy on the appellant and when he is having a handicapped child and taking into consideration the overall aspects of this case, we reduce the penalty imposed on the appellant to a sum of Rs. 1000/- instead of Rs. 5,000/-. The appeal is otherwise dismissed.
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1991 (1) TMI 269
MODVAT Credit ... ... ... ... ..... heir case for deemed modvat credit in respect of galvanised wire received by them from the manufacturers thereof as no duty is paid on the said product which is their input. The fact that duty had been paid on ingots is a distant factor and the benefit of such duty payment does not percolate down to stranded wires which is a few stages removed therefrom. The benefit of duty paid ingots has been availed at intermediate stages like wire rods and galvanised wires. If the appellants want modvat credit to be availed for discharging the duty liability on their own product namely, stranded wire, they should get duty paid inputs viz, galvanised wires. As held by us, if the said inputs had been cleared availing of exemption from duty they should exempt modvat scheme from their operations. 14. The appeals are dismissed in so far as the disallowed amounts of Modvat credit are concerned. However, the penalties imposed on them are set aside. They will be entitled to consequential reliefs.
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1991 (1) TMI 268
Demand - Limitation ... ... ... ... ..... plates and sheets and pump sets parts and drill stand parts in value of plant and machinery. On this calculation, the value of investment exceeds Rs. 10 lakhs and therefore, the appellants are not eligible for the benefit of exemption under Notification 176/77 or Notification 89/79. 10. The imposition of penalty of Rs. 2,000/- is also warranted in view of the violation of Rule 173Q. The appellants have manufactured excisable goods without obtaining a central excise licence, without filing the classification list and price list and removed the goods without proper gate pass and without payment of duty. 11. In the light of the above discussion, we hold that - (a) demand is not barred by limitation (b) Rule 9(2) of the Central Excise Rules is applicable to this case and (c) the appellants are not eligible for the benefit of Notification 176/77 as the value of investment on plant and machinery installed in the industrial unit exceeds Rs. 10 lakhs. 12. The appeal stands dismissed.
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1991 (1) TMI 267
Refund - Duty paid under protest ... ... ... ... ..... agreed to refund the excess duty under the settlement it is not now open to the department to go back is difficult to accept as there cannot be an estopple against the law and in cases where the refunds are barred by limitation, it is open to the department to raise the bar of limitation, although in the present case the claims for refund are not barred by limitation. 14. Further, the original show cause notice was issued by the Asstt. Collector on the ground that there is excess payment of refund and no other ground is invoked. The Collector in the review show cause notice proposes to review the order of the Asstt. Collector on the ground that there were no refund claims, and therefore, the refund claims are hit by limitation. Admittedly the Collector proposed review of Asstt. Collector rsquo s order on a new ground which is not permissible. For these reasons I hold that the order of the Collector is liable to be set aside and is accordingly set aside. The appeal is allowed.
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1991 (1) TMI 266
Classification ... ... ... ... ..... venue has not placed any evidence that the assessee rsquo s concern is a dummy concern. The various rulings are in favour of the assessee. The Counsel placed before us the following rulings - 1. Poona Bottling Co. Ltd. and Another v. Union of India and Others 1981 (8) E.L.T. 389 (Delhi) 2. Lucas Indian Service Ltd., Madras v. Collector of Central Excise, Madras 1984 (16) E.L.T. 415 (Tri.) 3. Tekno Engineers and Packers, Calcutta v. Collector of Central Excise, Calcutta 1991 (51) E.L.T. 557 (Tri.) 1990 (16) ETR 635 4. Goa Bottling Co. (P.) Ltd. and Others v. Union of India and Others 1987 (28) E.L.T. 215 (Bombay) We have gone through these rulings and are convinced that there is no evidence that the assessee rsquo s concern is a camoflauge of M/s. Asian Paints. Therefore, the Collector rsquo s order in so far as granting the exemption under the said exemption notification is concerned, is a valid one. Therefore, the Revenue rsquo s appeal is without merits and it is dismissed.
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1991 (1) TMI 265
Value of clearances ... ... ... ... ..... clearances of tooth powder were to be excluded from the computation of aggregate value of clearances of all excisable goods in the lsquo preceding financial year rsquo i.e. 1984-85, the resultant aggregate value had exceeded Rs. 20 lakhs. The learned DR rsquo s contention that the lower authorities had construed the expression ldquo notification.... for the time being in force rdquo in Explanation II to Notification No. 140/83 to mean a notification in force at the time of interpretation of the notification has no substance. The explanation in relation to the preceding financial year can only mean a notification which was in force during that year. In this view of the matter, the appellants were entitled to the benefit of Notification No. 140/83 in the financial year 1985-86 and the department was not entitled to the duty demand by the lower authorities on an erroneous view of the matter. 7. In the result, both appeals are allowed with consequential relief to the appellants.
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1991 (1) TMI 264
Classification ... ... ... ... ..... 38 is attracted by virtue of Note (h) which covers - ldquo Insecticides, rodenticides, fungicides, herbicides, anti-sprouting products and plant-growth regulators, disinfectants and similar products. rdquo Heading 3801.20 is a specific entry for insecticides, fungicides, herbicides, rodenticides and pesticides. The residuary entry 3801.90 would cover disinfectants of all kinds - there is no exclusion of disinfectants having prophylactic use from the scope of this entry. Added to this, the notes to Chapter 30 do not specifically include entries of Chapter 38, and therefore, we cannot accept the argument that, because only preparations of Chapter 33, even if they have therapeutic or prophylactic properties, have been excluded from the purview of Chapter 30 under Note 1(d), preparations of Chapter 38 are deemed to be included. 6. In the light of the above discussion, we see no reason to interfere with the impugned order and we confirm the same. The appeals are hereby dismissed.
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1991 (1) TMI 263
Classification ... ... ... ... ..... precision machining and other processing at the Railways rsquo workshops was completed and the appellant is not liable to pay any duty on these goods as under Item No. 68 of the said Central Excise Tariff. rdquo ldquo 6. We may make it clear that what we have said in the foregoing paragraphs is applicable to all the goods with which we are concerned save and except wheels, tyres and axles manufactured by the appellant and supplied as composite units. In respect of these composite units, it is beyond dispute, and it is conceded by the appellant, that it is liable to pay duty on the same under Tariff Item No. 26AA(ia) as well as under Tariff Item No. 28. The only contention in this connection is as regards the question of limitation to which we shall presently come. rdquo 5. In view of the above discussion, the appeals filed by the assessee are allowed and the appeal filed by the Revenue is dismissed. Revenue authorities are directed to give consequential effect to this order.
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