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Case Laws
Showing 141 to 160 of 385 Records
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1991 (1) TMI 262
Classification ... ... ... ... ..... case of Collector of Central Excise, Pune v. M/s. Khosla Metal Brass (P) Ltd. (Order No. 72/89-B1, dated 13-6-1989) is misplaced as in that order, the technical definition of ldquo wrought rdquo was not brought to the notice of the Bench. 10. Further, the demand for duty in E/2989/87B1 cannot be sustained as the show cause notice dated 29-4-1986 demanding duty for the period from 1-8-1984 to 31-1-1986 has been issued by the Assistant Collector, who was not competent to issue the notice invoking the extended period of limitation subsequent to 27-11-1985 when Section 11A was amended, so as to confer such jurisdiction upon the Collector of Central Excise. The demand is also barred by limitation as the allegation of suppression has not been established by the Department. 11. In the light of the above discussion, we set aside the impugned order in E/A/2989/87B1 and allow the appeal. We uphold the order of Collector in E/A/3357/87B1 and E/A/2424/87B1 and dismiss these two appeals.
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1991 (1) TMI 261
... ...
... ... ..... rice was as stated by the appellants but subsequent to the importation the price decreased further. 7. We also note that neither of the authorities held that there was any remittance of foreign exchange abroad or that any relationship existed between the supplier and the importer. Above all we took note of Shri Mehta rsquo s submission that by the same vessel another importation took place (Gujarat State Export Corporation to whom both varieties of polystyrene were sold at US 990 PMT). We further note that the importation by Deluxe Sales Corporation which also took place on the same date was, according to the invoice, at US 1030 for general purpose polystyrene and US 1050 for high impact variety. Keeping these circumstances in mind we hold that the value should have been accepted as declared in terms of Section 14(1)(A) read with Rule 4 of the Valuation Rules. We hold accordingly and direct that the declaration value at US 1050 be accepted. We allow the appeal in these terms.
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1991 (1) TMI 260
Classification ... ... ... ... ..... case the goods were polymers. We do not see how this makes for any difference. As discussed in the Bhor Industries Ltd. case (supra), the product did not conform to the definition of polymerisation products as set out in Chapter Note 2(c) to Chapter 39 of the Schedule. The present product may be a polymer in the sense it is a product of polymerisation as understood in the chemical sense (as also revealed by the test report ldquo a polymeric organic compound rdquo ) but the question is does it conform to the definition of polymerisation products for the purpose of Heading 39.01/06 as set out in Chapter Note 2(c) to Chapter 39 ? The Revenue has not shown that it does and it is the Revenue rsquo s onus to do so. 5. In the light of the aforesaid discussion, we do not see any reason to take a different view in this case. We hold that the goods in the present case were classifiable under Heading 38.01/19(6) and, accordingly, uphold the impugned order and dismiss the present appeal.
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1991 (1) TMI 259
Appeal - Condonation of delay of 108 days ... ... ... ... ..... in default is the Government. It is no doubt true that whether it is a Government or a private party, the provisions of law applicable are the same, unless the statute itself makes any distinction. But it cannot also be gainsaid that the same consideration that will be shown by courts to a private party when he claims the protection of S. 5 of the Limitation Act should also be available to the State. 5. In view of the above discussion, we are of the view that there was negligence on the part of the appellants, and the appellant was not prevented by sufficient cause for the late filing of the appeal. We do not find it a fit case to exercise our discretion in terms of provision of sub-section (5) of Section 129A of the Customs Act, 1962. Accordingly, we reject the appellants rsquo application for condonation of delay. Since, we have rejected the application for condonation of delay, the appeal is also dismissed being hit by limitation without going into the merits of the same.
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1991 (1) TMI 258
Appeal - Condonation of delay ... ... ... ... ..... he certified copy of the order dated 28-8-1990 passed in Writ Petition No. 141 of 1990. Instead they waited and allowed the period of ten days given by the Court to file the appeal to expire by their own conduct and negligence and applied for the copy of the Order passed in W.P. No. 141 of 1990 only on 11-9-1990 which was supplied on 12-9-1990. In the teeth of these admitted facts we hold that the appeal was not filed within 10 days from the date of the order dated 28-8-1990 passed by the Court. Consequently the appeal cannot be treated as being filed within 10 days from the date of the Order passed by the Hon rsquo ble High Court. 9. No other point was argued or pressed at the time of hearing of the application for condonation of delay or in the written submissions. 10. In the result the application for condonation of delay is rejected. Consequently the appeal is also dismissed as time-barred. The stay application and cross-objection shall also stand disposed of accordingly.
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1991 (1) TMI 257
Classification ... ... ... ... ..... vailing practice elsewhere in the country appears to have influenced the appellants. Therefore, I hold that the ratio of the Supreme Court rsquo s judgment in Collector of Central Excise v. M/s. Chemphar Drugs and Liniments 1989 (40) E.L.T. 276 (S.C.) is attracted by the facts of this matter. This being a dispute of classification and there being no proof of any clandestine removal. I order that the demand should be limited to a period of six months prior to the issue of show cause notice. 13. For the same reasons I hold that confiscation and penalty are not justified. 14. I agree with the views expressed by Shri I.J. Rao, Member (T). Order per I.J. Rao, Member (T) . - In accordance with the majority view, we order that the goods should be classified under T.I. 26AA(iv) prior to 1-8-1983, under Tariff Item 25(15) between 1-8-1983 and 1-3-1986 and in the subsequent period under Heading 7305. We further order that the demand for duty should be limited to a period of six months.
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1991 (1) TMI 256
Import Policy ... ... ... ... ..... that the default of another authority has no consequence as far as the action of the Reserve Bank is concerned. In our judgment, the respondents, who have complied with the requirements of exports in the year 1977-78 are entitled to grant of blanket permit for foreign exchange as provided by Paragraph 179 of the Policy for the period AM 1978-79. In our judgment, the decision of the learned Single Judge and the decision of Mr. Justice Daud do not suffer from any infirmity and the appeal is devoid of any merit. 5. Accordingly, appeal fails and is dismissed with costs. The appellants are directed to issue the blanket permit under I.T.C. Scheme for the year 1978-79 and in accordance with the terms of Paragraph 179 read with Appendix 28 of the Import-Export Policy for the period AM 78-79 within a period of two weeks from to-day. The appellants shall issue the blanket permit in accordance with the terms and conditions in operation at the relevant time, that is in the year 1978-79.
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1991 (1) TMI 255
... ...
... ... ..... eing the sludge which is formed. But with sodium hypochlorite there is no sludge. It is clear from these and other passages in the book that the expression lsquo Bleach Liquor rsquo is understood in textile processing industry to mean not only calcium hypochlorite but also sodium hypochlorite in dilute solution. This aspect has been discussed at length in the order of the Collector (Appeals). In this view of the matter, we are of the opinion that the findings of the Collector (Appeals) that the notification in question was applicable to Bleach Liquor consisting of sodium hypochlorite also was correct and we uphold the same. The appeals are dismissed. 3. The respondents having got relief at the hands of the Collector (Appeals) had no cause to file the so-called cross objections and their prayer is also that the appeals filed by the Collector of Central Excise may be dismissed and the impugned orders upheld. The so-called cross objections are not maintainable and are dismissed.
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1991 (1) TMI 254
Classification ... ... ... ... ..... e factor of 2.5 has to be applied to the results of tests has been recognised by the Board in consultation with the Chief Chemist of the Central Revenues Control Laboratory. Applying the tolerance factor, the composition of the subject fabrics will work out to - Wool 1.3 Viscose 48.7 2.5 51.2 This is the correct way of applying the tolerance factor. 5. Apart from the above, there is no reason on record as to why the demand notice was not issued within the normal limitation of 6 months. (The goods were cleared on 26-3-1981 and the notice of demand on 24-3-1982). When the Board itself has considered that there is a possibility of error in the results arrived on test of mixed fabrics, there should be some tangible evidence, to be adduced by the Department, that the assessee rsquo s declaration of the composition was a deliberate mis-declaration with intent to evade a higher incidence of duty. No such evidence is on record. 6. We uphold the impugned order and dismiss this appeal.
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1991 (1) TMI 253
Demand - Adjudication ... ... ... ... ..... sanctioned by law. At the relevant time, the Collector had no power to review or revise the Assistant Collector rsquo s order. He could only direct the Assistant Collector in terms of Section 35E of the Act, to apply to the Collector (Appeals) for determination of the points specified by the Collector. This was the course sanctioned by law and had not been followed. The amended Section 11A of the Act did not authorise the Collector to re-open, suo motu or otherwise, orders or decisions made or taken by officers subordinate to him. 5. The learned DR could not, understandably enough, reply satisfactorily to the questions put to him by the Bench on the jurisdiction of the Collector to re-open the proceedings dropped by the Assistant Collector and review the Assistant Collector rsquo s order. 6. We set aside the impugned order and allow the appeal. 7. On 27-12-1990 we had pronounced our order allowing the appeal, on the conclusion of the hearing. This order sets out our reasons.
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1991 (1) TMI 252
Demand - Limitation ... ... ... ... ..... f evidence to establish financial flow back among the firms, not adjusted in their account. In these circumstances, on the facts and in the circumstances of the case and in the light of the case law referred to supra, it has to be held that the various circumstances which have been held against the appellants by the Department have been plausibly explained by the appellants. The Misc. applications are for seeking additional grounds relating to the determination of value under Sec. 4(4)(d)(ii) of the Central Excises and Salt Act which does not fall for consideration now in view of the findings as above and the applications are accordingly disposed of. The demand for duty by clubbing the clearances of all these firms is not maintainable in law and accordingly it is set aside. As a consequence, there will be no justification for imposing penalty on the firms and the appellants, Sami Khatib and Sohel Khatib which is also accordingly set aside. The appeals are, therefore, allowed.
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1991 (1) TMI 251
Classification ... ... ... ... ..... xemption only to exercise books. Subsequently, this notification was amended by Notification No. 24/87-C.E., dated 1-3-1987 by replacing Sl. No. 6 of the Notification which related to exercise books by substituting the entry which is exactly the same as in Notification No. 28/89 - C.E., (NT) dated 12-6-1989 issued under Section 11C. It will thus appear that after products like registers, account books etc., were exempt from duly with effect from 1-3-1987, it came to light that there was a general practice not to levy duty on these articles in the past and therefore, a Notification had to be issued under Section 11C to regularise the practice and treat the goods as exempt from duty. 13. It is clear from the above that registers, account books etc., were regarded by the department itself as classifiable under Chapter 48, and they have later been specifically incorporated under Heading 48.20 in the Tariff. We also accept this clarification. The appeal is disposed of accordingly.
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1991 (1) TMI 250
Appeal - Stay of pre-deposit of duty ... ... ... ... ..... he counsel for the petitioner that the expression lsquo undue hardship rsquo occurring in the proviso to Section 35F of the Central Excises and Salt Act, 1944, would include consideration, inter alia, of the aspect of liquidity possessed by the assessee. We are not inclined to take the view that the impugned order gives any indication that aspect has been completely ignored as was contended by counsel. With these observations, the special leave petition is dismissed. 4. In view of the above discussion, we are of the view that the application for early hearing should be considered only after the finalisation of the stay order passed by the Hon rsquo ble Delhi High Court on 22nd February, 1991, as it will be improper for us to express our views, as the matter is sub judice before the Hon rsquo ble Delhi High Court. 5. The matter to be listed for mention on 28th February, 1991. Both the sides to place a copy of the order likely to be passed by the Hon rsquo ble Delhi High Court.
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1991 (1) TMI 249
... ...
... ... ..... Co. was not the agent of M/s. Parle Modern Bakeries whose brand name was used by the Poona Bottling Co. 35. The learned counsel placed reliance on the order of this Tribunal in Sagar Corporation v. CCE to which one of us is a party Ms. S.V. Maruthi, Member (J) . The facts of Sugar are. distinguishable from the facts of this case. The issue in the said case was whether the clearance from the appellants could be clubbed with the clearance of the supplier of the raw materials. In that context it was held that the clearances of the appellants cannot be clubbed. 36. We are not referring to the other decisions relied upon by the learned counsel, and also by Shri Asthana as we are of the view that they are not necessary. 37. We, therefore, hold that the appellant is an agent of M/s. BIL under the agreement and he being the assessee liable to pay duty on the price at which BIL sells the goods in the open market. We, therefore, see no merit in the appeal, and is accordingly dismissed.
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1991 (1) TMI 248
... ...
... ... ..... acceptable evidence. 9. We also take note of the two judgments cited by the learned Advocate to plead that mis-declaration of value should be conclusively proved by the Customs. The ratio of these two judgments applies to the facts of this matter. There is no evidence in the hands of the Customs to show that there was any illegal remittance of foreign exchange. We are aware that proving such remittances is not easy. We also note the submission that it is a monopoly item. But we cannot ignore the pleas made by the appellants and there is no material before us to justify a finding that the price at which the appellants imported the goods is not a fairly negotiated price. There is nothing to indicate that others could not have imported the goods at the said prices, all other circumstances being equal. 10. For these reasons we hold that there is no evidence to justify the impugned order. We, therefore, set it aside and direct that consequential relief be given to the appellants.
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1991 (1) TMI 247
Removal of goods ... ... ... ... ..... lly perused the orders written by the learned brothers Shri Brahma Deva and Shri Jain. I have also gone through the records of the case placed before me and have carefully considered the arguments of the learned advocate and the learned Departmental Representative. From the records placed before me, I observe that the stock was physically verified and the report was signed by the appellants and the officials of the State Bank of India. The duty demanded has been calculated on the difference found in the RG-1 balance and stock found on physical verification by the Bank officials in the premises of the appellants and the stock verification report is duly certified and authenticated by the appellants and the bank officials. In the circumstances, it cannot be said that the charges are not based on adequate evidence. I, therefore, fully agree with the analysis made by the learned Technical Member Shri P.C. Jain. Agreeing with him I uphold the impugned order and dismiss the appeal.
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1991 (1) TMI 246
Classification ... ... ... ... ..... ating materials. emphasis supplied 6. We do not agree with the plea of the learned consultant in his rejoinder to the learned SDR that the goods imported are akin to straining cloth referred to at S.No. (iii) in clause (a) of the aforesaid Note 4 to Chapter 59. The imported goods cannot be treated as straining cloth of a kind commonly used in oil presses and the like. In fact, one of the special treatments known as Liquid Repellant Finish given to the fabric makes it unsuitable for oil presses and the like. We are, therefore, of the view that Tariff Heading 59.16/17 is not the proper classification for the imported goods in view of Note 4(a) to Chapter 59. It is a well-settled proposition that in determining the classification of the goods under the Tariff, Chapter Notes form an integral part of the Tariff and they have to be duly taken into account. Therefore, the classification made by the department under Tariff Heading 59.01/15 is correct. 7. Hence the appeal is rejected.
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1991 (1) TMI 245
Classification ... ... ... ... ..... oklets are basically printed material of an educational nature and cannot be described as stationery because some blank space is provided therein for answers. The description of the booklets is tallied with the specific description under Tariff Entry 49.01. Entry 48.01/21 is of general nature and not applicable to articles elsewhere specified. We concur with the arguments advanced by the appellants rsquo counsel that specific description should be preferred to the heading providing a general description. Further the view taken by the Tribunal in the case of Mitutronics v. Collector of Customs (supra) that ldquo books could even be in the form of sheets or literary texts, each sheet having a continuous link with other are recognised as lsquo books rsquo classifiable under Chapter 49, rdquo strengthens our view. Accordingly, we hold that goods in question would squarely fall under Heading 49.01 as printed books. 8. In the result, the appeal is allowed with consequential relief.
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1991 (1) TMI 244
Whether the confirmation of detention order upon accepting the report of the Advisory Board renders itself invalid solely on the ground that the representation of the detenu was not considered and the subsequent consideration of the representation would not cure that invalidity?
Held that:- The confirmation of the order of detention is not conclusive as against the detenu. It can be revoked suo motu under Section 11 or upon a representation of the detenu. It seems to us therefore, that so long as the representation is independently considered by the Government and if there is no delay in considering the representation, the fact that it is considered after the confirmation of detention makes little difference on the validity of the detention or confirmation of the detention. The confirmation cannot be invalidated solely on the ground that the representation is considered subsequent to confirmation of the detention. Nor it could be presumed that such consideration is not an independent consideration.
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1991 (1) TMI 243
Whether the restrictions placed on the powers of the Court to grant bail in certain offences under the amended Section 37 of the NDPS Act are not applicable to the High Court?
Held that:- The powers of the High Court to grant bail under Section 439 are subject to the limitations contained in the amended Section 37 of the NDPS Act and the restrictions placed on the powers of the Court under the said Section are applicable to the High Court also in the matter of granting bail. The point of law is ordered accordingly.
The two accused respondents in these two appeals have been on bail pursuant to the order of the High Court, for a long time. The learned counsel appearing for the Narcotics Control Bureau, the appellants herein, is also not pressing cancellation of the bail. Therefore, we are not remitting the matters to the High Court for fresh consideration. Pending the proceedings, they would continue to be on bail. Subject to the above clarification of law, the appeals are disposed of.
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