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Showing 81 to 100 of 227 Records
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1991 (10) TMI 162
Appeal not readjudicable after remanding it not permissible ... ... ... ... ..... illary powers. We are of the view that for imparting justice, the Tribunal can always exercise inherent and ancillary powers in suitable cases. Rules 40 and 41 of the CEGAT (Procedure) Rules, 1982 also authorise the Tribunal to exercise control over the departmental authorities in certain matters and issue orders and directions in suitable circumstances. The learned Advocate Shri Habbu has cited a decision of the Calcutta High Court in the case of Scientific Instruments Co. Ltd. v. Collector of Customs and another reported in 1980 (6) E.L.T. 89 (Cal.). The facts and circumstances of that case are different and do not fit in the facts and circumstances of the present matter. 4. Keeping in view the totality of the facts and circumstances of the case, we are of the view that it is not a fit case where we should exercise our powers for issuing directions under Rules 40 and 41 of the CEGAT (Procedure) Rules, 1982. The miscellaneous application filed by the applicants is dismissed.
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1991 (10) TMI 161
Classification ... ... ... ... ..... pter 32.08 reads ldquo solutions as defined in Note 3 of this Chapter rdquo means that if solution are having volatile organic solvent exceeding 53 of the weight of the solution, it is included in the Chapter Heading 32.08. 12. Shri P.C. Anand, learned CA submitted that the department had not taken the chemical test. This submission appears to be incorrect as the learned Assistant Collector has clearly noted that the chemical test confirmed the product being sold in the form of non-aqueous solution and the weight of the solution is only 42 . The appellants are not disputing the percentage being less than 53 and in fact this appeal is filed on the doubt entertained by them that as the weight is less than 53 they would not be covered by chapter heading 32.08 and the products could be non-excisable. The learned Collector has rightly rejected their pleas and we confirm these findings. 13. There is no merit in the appeal and it is liable to be dismissed. It is ordered accordingly.
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1991 (10) TMI 160
MODVAT Credit ... ... ... ... ..... giving benefit of this facility. In view of this we hold that by sending the inputs directly to the job worker rsquo s premises notwithstanding the issue of Notification 351/86 at a later date, the appellant cannot be straightaway disqualified for the benefit of MODVAT credit. What is required in the spirit of MODVAT credit scheme is that so long as the appellants are able to establish the identity of the inputs received at the job worker rsquo s premises and the intermediate goods arising therefrom and received from the job worker rsquo s premises, the benefit of MODVAT credit should be allowed in respect of those inputs. I agree with my learned brother that the matter has to be remanded to the original authority for reconsideration after due verification regarding the use of inputs in the manufacture of intermediate products which have been manufactured and sent to the appellant rsquo s factory for disposal of waste etc. as per rule, in the light of the above observations.
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1991 (10) TMI 159
... ... ... ... ..... the statute bars the excercise of judicial discretion either in awarding punishment or in releasing an offender on probation in lieu of sentencing him forthwith. The words of Section 4(1) of the Probation of Offenders Act are wise and would evidently include offences under the Customs Act and the Gold (Control) Rules rdquo , to meet the ends of justice we further reduce the Redemption Fine to Rs. 50,000/- (Fifty Thousand only). In the result, the appeal is partly allowed, and thus the appellant is entitled to relief of Rs.50,000/- of penalty and Rs. 50,000/-on account of Redemption Fine and the Valuation aspect is rejected. During the course of arguments, Shri Ramanathan has conceded that he is not claiming the benefit under Section 25(2) of the ad hoc exemption order as the appellant does not satisfy the condition of that order. Accordingly, we are not passing any order on this. Accordingly, the Revenue authorities are directed to give consequential relief to the appellant.
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1991 (10) TMI 158
... ... ... ... ..... the quantum of penalty for contravention under each Act on each of the appellant as otherwise in a case if the appellate authority were to set aside the penalty under one enactment it would not be possible to decide the quantum and make the apportionment. Shri Sankaram also submitted that on merits there is absolutely no evidence against the appellants to impute any knowledge about the contents of the packets in question and penalty is levied merely on the basis of suspicion without any foundation on evidence. I am not expressing any opinion on the merits of the issue as I am setting aside the impugned order on grounds of technical infirmity set out above and it is open to the appellants to raise such contentions as are open to them under law as well as on facts before the adjudicating authority during re-adjudication. The impugned order is, therefore, set aside and the appeals are remitted to the adjudicating authority for re-adjudication of the issue in accordance with law.
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1991 (10) TMI 157
Reference to High Court ... ... ... ... ..... tiated by the Addl. Collector on the basis of a fresh show cause notice covering the same period on the same set of facts and circumstances. In my view, when there is a statutory remedy available under the Central Excises Act, for getting any illegal order passed by the Asst. Collector reversed by the competent authority, without resorting to this course of action, fresh proceedings on the same ground could not be initiated by another authority. The illegality can be on many grounds one ground can be on account of lack of jurisdiction. Hence, if the Asst. Collector has acted beyond his jurisdiction that order is to be construed as an illegal order and Sec. 35E(2) dearly stands attracted and this provision cannot be set at naught by ignoring the order already passed by the Asst. Collector as a nullity and initiating fresh proceedings. This legal provision being clear from the Act itself, no point of law arises requiring reference to the Hon rsquo ble High Court. Hence I agree.
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1991 (10) TMI 156
Adjudication Proceedings ... ... ... ... ..... . 6. On the merits, the demand is based on the appellants rsquo failure to co-relate transport receipt with duty paying documents. The specific allegations are made in the show cause notice, and the department has adduced the evidence as discussed in details in the order-in-original, to indicate that no co-relation existed between GP-1, and invoice as also TR. The appellants seems to have not adduced any evidence in rebuttal thereof. Even at the stage of hearing of the appeal, no additional evidence, by way of rebuttal, is adduced. The plea that part of the consignment removed under one GP-1, was on account of non-acceptance by the consignee, diverted to the third party, therefore, remains unsubstantiated. Facts within the special knowledge of the party have to be proved by the party alleging the same, and they having failed to do so, no interference with the finding of the adjudicating authority is called for. 7. In the result, the appeal has no merits and hence is rejected.
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1991 (10) TMI 155
Reference to High Court ... ... ... ... ..... on at issue, and based on appreciation of evidence and reading the documents, where the Bench has given a finding of fact that the authorisation in question did not extend beyond obtaining clearance, the issues as formulated, could not be construed to have arisen out of the order. The proposition pleaded may have answers both in affirmative and negative, but each one will depend on the facts and circumstances and when a particular set of facts have weighed with this Bench to hold in a way, provisions of Section 130(1) of the Customs Act, cannot be invoked. It is important to note here, that, the department has not contended that the Tribunal has committed any error on factual aspects. If it was so alleged, the department could have moved a rectification application, but that is not done. 16. For the reasons as stated above, there appears no ground on which reference to the High Court, vide Section 130(1) of the Customs Act is called for. The application is therefore rejected.
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1991 (10) TMI 154
Rectification of mistake ... ... ... ... ..... oncerned for the limited purpose of deciding their request for grant of the benefit that may be available to them under Notification No. 175/86 dated 1-3-1986. As, however, the applicants also filed Reference Applications for referring certain questions of law arising from the orders dated 18th January, 1991 and as the same has been allowed and reference to the Honourable High Court of Calcutta is being made, the department may take suitable steps while granting reliefs to them in terms of the small scale exemption Notification. Shri Bagaria clarified in this connection that the benefit of deemed credit will be more than the benefit of small scale exemption and if at a later stage it is held that they are admissible for deemed credit facility, then the said benefit may be allowed to them by taking into account the duty benefit availed of by them under Notification 175/86 and only the differential amount paid to them. 5. The two Rectification Applications are allowed as above.
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1991 (10) TMI 153
MODVAT Credit ... ... ... ... ..... ted the claim on the ground that the said claim having not been put forward by the assessee before the I.T.O. or the A.A.C., it could not be raised in second appeal. The Tribunal held that the directors rsquo report accompanied by balance-sheet and profit and loss account and other statements were filed by the assessee before the I.T.O. and practically all the details for allowing a claim under Section 80.1(1) of the Act were on record and hence it was open to the Tribunal to allow such a claim. On a reference Held, that the Tribunal was correct in allowing the claim of the assessee as there was material on record for allowing the same. Applying this decision, the Tribunal had held that the respondents therein had rightly taken the plea of limitation before them. We respectfully follow the same decisions. 14. For the foregoing reasons, we do not find any reason to interfere with the impugned Order-in-Appeal passed by the Collector (Appeals). We, therefore, dismiss the-appeal.
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1991 (10) TMI 152
MODVAT Credit ... ... ... ... ..... bject inputs on merits, we find sufficient force in the alternate plea also of the respondents that the demand for disallowing the MODVAT credit utilised by them on the ground that it had been wrongly availed by them is hit by time bar. The learned Counsel relied upon our decision in Collector of Central Excise v. TELCO, reported in 1990 (28) E.C.R. 522. Questions on the applicability of time bar for such demands and the retrospective application of the amendment to Rule 57-1 carried out on 6th Oct., 1988 even prior to the said amendment had been answered in the affirmative by the Hon rsquo ble Karnataka High Court in Tungbhadra Industries v. Collector of Central Excise, Bangalore, reported in 1991 (31) E.C.C. 140. Going by the same, we find that the demand in this case was hit by time bar. Hence the appeal of the department fails on time bar also. Hence, both on merits and on time bar the respondents have established their case. The appeal accordingly fails and is dismissed.
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1991 (10) TMI 151
Smuggled goods - Burden of proof ... ... ... ... ..... t for sale. It does not accord with probability that the respondent would have purchased the goods in September 1984 and would keep it even till March 1986 without effecting any sale. The mere production of the bill would not establish the licit acquisition in the facts and circumstances of the case. The ratio of the ruling relied upon by the learned counsel for the respondent in the case of Kanyalal v. Collector of Customs, Bangalore reported in 1987 (27) E.L.T 326 (Tribunal), is clearly distinguishable from the facts of the case because in that case a definite finding in appreciation of evidence has been entered that the goods had not been proved to be of foreign origin which is not the case in the present appeal. In the facts and circumstances of the case and having regard to the non-notified nature of 30 car cassette records referred to above, I reduce the penalty to Rs. 5,000/- (Rupees five thousand). Except for the above modifications, the appeal is otherwise dismissed.
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1991 (10) TMI 150
... ... ... ... ..... ed in Appendix 2, Part - B, Sl. No. 135 and therefore, the import of the same under OGL is expressly excluded. The plea of the learned Consultant that Appendix 6, List 8, would permit the import of printed circuit boards cannot be countenanced, since Appendix 6, List 8, deals with raw materials, components, consumables and tolls and not about spares (emphasis applied). Therefore, a harmonious construction of the various entries set out above would clearly bear out that the spares in question are not permissible for import under OGL. The ruling of the Calcutta Bench relied upon by the learned Consultant has no application to the facts and circumstances of this case. In this view of the matter I sustain the findings of the authorities below and hold that the import is in contravention of law. The quantum of fine has already been reduced very considerably by the lower appellate authority and would not call for further reduction at my hands. In the result the appeal is dismissed.
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1991 (10) TMI 149
MODVAT Credit ... ... ... ... ..... ctor had observed in his order that they neither appeared for the hearing on the appointed day nor did they send any intimation that they were unable to come. The boot is on the other foot. 6. The appellants are also entitled to succeed on their third plea that the demand seeking to recover the modvat credit alleged to have been wrongly availed by them was hit by time bar, as the notice had been issued beyond six months and there was no allegation of suppression or wilful misstatement. There is no finding in the order on this contention. 7. Thus the appeal succeeds on all counts. We allow it accordingly and set aside the impugned order which is everything a proper order should not be, non-speaking and passed ex parte on the one hand and totally unsustainable on merits being inconsistent with the department rsquo s own stand in the matter which by a strange coincidence had been notified under the signature of the learned Additional Collector himself who passed it on the other.
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1991 (10) TMI 148
... ... ... ... ..... or consultative jurisdiction while the appeals are pending before the Tribunal, therefore, nothing should be implied as detracting from the jurisdiction of the Tribunal. Power to grant stay is incidental and ancillary to the appellate jurisdiction. 5. Shri S.K. Sharma, learned J.D.R. appearing for the Revenue, stated that since he has opposed the reference application, he leaves this matter to the discretion of the Bench to decide on this issue. 6. On considering the facts and circumstances of the case and in view of the conferred jurisdiction even during the pendency of reference matter as observed by the Hon rsquo ble Supreme Court and following the ratio of the earlier decision, we are inclined to grant stay. 7. Accordingly, the stay issued by this Tribunal in E/Stay/656/88-NRB in Appeal No. E/2864/87-NRB as per Stay Order No. S/121/88-NRB dated 2-9-1988 is extended and continued to be in force till the pending disposal of the reference matter in Appeal No. E/2864/87-NRB.
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1991 (10) TMI 147
Classification ... ... ... ... ..... that Central Excise Tariff Heading 23.02 corresponds to HSN Heading 23.09 and that Heading 23.09 of HSN includes animal feed supplements which are devised to compensate deficiency of proteins, minerals and vitamins and to ensure balanced animal diet. The Board noted that these products are not fit for human consumption and opined that they are correctly classifiable under Heading 23.02 as preparations of kind used in animal feeding. Following it, the Collectorate had clarified this to the Trade in its Trade Note dated 12-12- 1989 referred to above. Board rsquo s letter has followed the HSN Heading 23.09 which corresponds to Heading 23.02 of CETA, 1985 and it is now well recognised that the CETA, 1985 is broadly patterned on HSN and hence the HSN heading and Explanatory Notes provide a useful guide in determining issues of classification. 3. Respectfully following the ratio of the above decision, we set aside the impugned orders and allow the appeals with consequential relief.
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1991 (10) TMI 146
Stay/Predeposit of duty ... ... ... ... ..... t an unreported decision of the North Regional Bench of the Tribunal in Collector of Central Excise, Chandigarh v. M/s. Leader Engineering Works, Jalandhar (Order No. A 436 to A 445/91-NRB dated 12-8-1991) wherein it had been, inter alia, held that chemicals used for production of sand cores and sand moulds which are then utilised in the production of final product would be eligible for modvat benefit. 9. As there are decisions both for and against the admissibility of modvat credit on chemicals/resins used for production of sand moulds used in the manufacture of castings, the ones in favour being later and rendered after taking note of the contrary view in Mysore Kirloskar case and in view of the Supreme Court decision on the scope of the expression used in the manufacture of, we feel the applicants appear to have a prima facie case. Stay is granted subject to the applicants executing a personal bond for the disputed amount. 10. The appeal is posted for hearing on 25-2-1992.
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1991 (10) TMI 145
Classifiction ... ... ... ... ..... .90) during the period before 10-2-1987 and under sub-heading 3506.00 on and from 10-2-1987. The composition of the products in dispute in this appeal is more akin to the composition of the product in the ELGI Polytex case. Here also the rubber content is admittedly only 10 to 15 and sulphur, zinc oxide and fillers and also some of ingredients. Caulk is not an ingredient at all while in the Sealtite Industries case, caulk content was 27.5 . The Chemical Examiner rsquo s report which is the basis for classification determined by the Department would not in our view form a sufficient or satisfactory basijs for classification of the goods under Heading 40.05. The products are more appropriately classifiable on the basis of their composition under Heading 35.06. 7. In the result we set aside the order of the lower authorities and direct that all 7 products manufactured by the appellants shall be classified under Heading 35.06, with consequential relief, if.any, to the appellants.
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1991 (10) TMI 144
Remission of duty on lost goods ... ... ... ... ..... ed the appeal, the submissions of both sides and perused the case records. There is no doubt that after receipt of the final Non-Delivery Certificate dated 20/21 December, 1990, it was established that the goods on which duty has been paid by the appellants were not available in the cargo terminal and the police have finally closed the matter. This would therefore, be a case of remission of duty on goods lost before clearance for home consumption and would be squarely covered by Section 23 of the Act. We do not see the logic of the observations of the learned Collector (Appeals) that the goods have been lost temporarily since there is no final report for loss of the goods. The question of temporary loss would have arisen if the goods had subsequently been found. Such is not the case in the present appeal. The case law cited by the learned Counsels also fully supports their contention. In this view of the matter, we allow the appeal with consequential relief to the appellants.
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1991 (10) TMI 143
Confiscation - Notified goods ... ... ... ... ..... duty under the Baggage Rules, 1978 nor under T.R. Rules, 1978 nor under other provisions. Therefore, the learned Collector has rightly distinguished the case law cited by the learned Counsel and I uphold the same. 14. The rulings noted by the learned Counsel is clearly distinguishable and not applicable to the facts and circumstances of this case. However, taking all the facts and circumstances of the case, I am of the view that instead of absolute confiscation, option for redemption on payment of fine can be granted. In the case of Balwinder Kaur v. Collector of Customs as reported in 1990 (45) E.L.T. 617(Tri.) the Tribunal had granted the release of VCR on payment of fine although on different sets of facts and circumstances. I, therefore, order for redemption of Akai VCP on payment of fine of Rs. 10,000/- (Rupees Ten thousands only) and video camera on payment of fine of Rs. 8,000/- (Rupees Eight thousands only) and also subject to the payment of duty. Ordered accordingly.
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