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Case Laws
Showing 101 to 120 of 354 Records
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1991 (2) TMI 272 - BEFORE THE COLLECTOR OF CUSTOMS AND CENTRAL EXCISE
Copper scrap and aluminium scrap ... ... ... ... ..... ng the course of manufacture by the appellants are exempted from payment of C. Ex. duty under Notification Nos. 182/84-C.E. and 172/84-C.E. both dated 1-8-1984. The Asstt. Collector in the impugned order has mis-interpreted the issue by bringing Modvat issue without considering the exemption granted to the scraps under the above said Notifications. The benefits available to the appellants under the Notifications in force must be given. The said Notifications have been amended by Notification No. 79/86-C.E., dated 10-2-1986 and further amended by Notification No. 246/87-C.E., dated 2-11-1987. The duty on Aluminium Scrap and Copper Scrap not required to be paid prior to 2-11-1987 has been paid by the appellants under mistake. Therefore, the appellants are eligible for the refund of duty paid prior to six months from the date of filing the refund claim under the provisions of Section 11B of C. Ex. and Salt Act, 1944 if otherwise admissible. The appeal is disposed of accordingly.
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1991 (2) TMI 271 - CEGAT, NEW DELHI
Appellate Tribunal’s powers ... ... ... ... ..... or the assessee should have filed an application for refund before the Assistant Collector of Central Excise within the limitation laid down in Section 11-B of the Central Excises and Salt Act. This conclusion was reached in view of the provisions of sub-section (3) of Section 11-B providing that where as a result of any order passed in appeal or revision under this Act refund of any duty of excise becomes due to any person, the Assistant Collector of Central Excise may refund the amount to such person without his having to make any claim in that behalf. The context being entirely different, this decision has no relevance to the instant case. It goes without saying that had the Tribunal allowed the appeal filed by the present appellant and granted the relief directing the lower authorities to pay consequential refund, then, the appellant was not required to file an application for getting refund. 8. In the light of the foregoing discussion, we dismiss the present application.
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1991 (2) TMI 270 - CEGAT, NEW DELHI
Aspiration Set - Life saving equipment ... ... ... ... ..... lector had written to the Dean of K.E.M. Hospital on 30-8-1990 to enquire whether the imported set is a Suction Catheter and in response to that query the Dean of K.E.M. Hospital has specifically stated that Follicle Aspiration Set is a Suction Catheter used in Invitro Fertilisation/Embryo Transfer (IVF/ET) procedure. 7. During the hearing a certificate dated 26-2-1991 from the Joint Director of Health Services, Directorate of Health Services, Maharashtra was placed before certifying that Follicle Aspiration Set of M/s. Swemed Lab, Sweden is a Suction Catheter. We have taken on record this Certificate in the interests of justice and the learned SDR does not object to this document being brought on record at this stage. 8. In the light of the above discussions we hold that Follicle Aspiration Set imported by the respondents is a Suction Catheter covered by Sl. No. 32 of Part B of the Schedule to Notification No. 208/81-Cus. We uphold the impugned order and dismiss this appeal.
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1991 (2) TMI 269 - CEGAT, NEW DELHI
Modvat Credit Scheme ... ... ... ... ..... m out of duty-paid raw materials. In the aforesaid order the Tribunal held that the said rule by itself was not an authority for charging duty but permitted charging of duty if the waste was otherwise dutiable according to the Tariff and any relevant exemption notification. It was held that waste of plastic arising in the course of manufacture of polyethylene film out of duty-paid raw materials, covered by Chapter 39 of the Tariff Schedule, would not be chargeable to duty. While Shri J.M. Patel, Counsel for the appellant, relied on this order, Shri Jayaraman, SDR, reiterates the Department rsquo s contention as discussed in the Tribunal rsquo s order as well as in the orders of the lower authorities even while agreeing that the ratio of the decided case would apply to the facts and circumstances of the present case. 2. Having considered the submissions, we see no reason to deviate from the previous decision. Accordingly, the impugned order is set aside and the appeal allowed.
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1991 (2) TMI 268 - CEGAT, NEW DELHI
Proforma Credit ... ... ... ... ..... -compliance of any of the provisions of the rule 56A. Earlier two decisions of the Tribunal strengthen the view taken by the Department on this issue. On identical issue the Tribunal in the case of M/s. Avery India Ltd., Calcutta v. The Collector of Customs, Calcutta 1983 ECR-1404 (CEGAT, CALCUTTA) and in the case of M/s. Tata Oil Mills Limited, Calicut v. Collector of Customs and Central Excise, Cochin 1983 ECR 1553-D (CEGAT Madras) , dismissed the appeals on the ground that there was no convincing reason for non-compliance. Further the Tribunal has observed in the case of M/s. Tata Oil Mills Ltd., (Supra) that ldquo While we appreciate the difficulty faced by the appellant, it does not absolve the appellant from the requirement to apply for the concession as envisaged in Rule 56A read with Notification No. 33/63 in time. The appeal should, therefore, fail, and accordingly we dismiss it. rdquo Following the ratio of these two decisions, this appeal is liable to be dismissed.
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1991 (2) TMI 267 - CEGAT, NEW DELHI
Appellate order ... ... ... ... ..... of the Tribunal dated 1st October, 1985, in M.T.A. No. 382 of 1985. Punjab and Haryana High Court had also the occasion to deal with similar situation in the case of Ram Singh Jaspal Singh v. State of Haryana and another reported in (1990) 79 STC 292. 5. In view of the above discussion, we are of the view that in the absence of any stay order passed by the Supreme Court, there is no justification for the withholding of the refund. We order the respondent Collector viz. Collector of Customs, Madras and Collector of Customs, Coimbatore to implement the common order passed by the Tribunal on or before 21st March, 1991 and send report of the compliance to the Tribunal on or before 28th March, 1991 and in case the order is not implemented, both the Collectors mentioned above should personally appear before the Bench on 4th April, 1991. 6. It is further directed that copies of this order should be sent to the respondents by name. The matter is listed for mention on 4th April, 1991.
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1991 (2) TMI 266 - CEGAT, MADRAS
Appeal - Condonation of delay ... ... ... ... ..... r taking note of the above, condoned delay in filing the appeal. The Special Bench A of the CEGAT in the case Coastal Papers Ltd. v. Collector of Central Excise, Guntur, reported in 1986 (26) E.L.T. 143 also held the similar view after taking note of the judgment in the case of J.M. Bansali and Others v. State of Madras and Coimbatore Murugan Mills referred to supra. I, therefore, hold that inasmuch as there is nothing on record to show that the appellants have filed a Writ petition in the Hon rsquo ble High Court non- bona fide the appellants rsquo plea that they bona fide pursued the writ remedy has to be accepted. In that view of the matter following the ratio of the decision of the Tribunal cited supra which in turn have followed the judgment in the case of J.M. Bansali and Others and Coimbatore Murugan Mills, I hold that the appellants have shown sufficient cause for the delay in filing the appeal beyond the period of limitation of three months and the delay is condoned.
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1991 (2) TMI 265 - CEGAT, NEW DELHI
Condonation of delay ... ... ... ... ..... he delay and the application is therefore rejected and so is the Special Leave Petition. rdquo To meet the ends of justice on the last date of hearing we had granted adjournment. Today the position is the same. There is negligence on the part of the appellant. The appellant has not taken care even in filing application for condonation of delay. Accordingly, we are of the view that the facts of the case do not justify the grant of adjournment. The prayer of the applicant for grant of adjournment is rejected. 4. Now, we proceed to take up the appeal. We have also pointed out that there is a delay of one month and 11 days. There is no application for condonation of delay. In the absence of application for condonation of delay, the discretion for condoning the delay in terms of provisions of sub-section (5) of Section 35B of the Central Excises and Salt Act, 1944 cannot be exercised. The appeal is dismissed being hit by limitation and we are not going into the merits of the same.
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1991 (2) TMI 264 - CEGAT, CALCUTTA
Proforma Credit ... ... ... ... ..... the main product, their subsequent application for permission to utilise the credit in RG-23 account for payment of duty on the waste products can be said to serve the purpose of such an application for the purpose of Rule 56A(3) (vi) (a). This is what was not accepted by the Assistant Collector and subsequently in appeal by the Collector (Appeals). This is not correct in law and we accordingly set aside the order and allow the appeal. 9. Before parting with the matter we would like to observe that even if the department had disallowed the credit being utilised for the payment of duty on the waste product and instead debited the said amount of duty from the P.L.A., the equivalent amount in RG-23A should then be available for being utilised for payment of duty on the Seamless Pipes and Tubes. The appellants should have no grievance of double taxation on the same material, as contended by them before the Collector (Appeals) which is referred to in the impugned order-in-appeal.
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1991 (2) TMI 263 - CEGAT, NEW DELHI
Modvat Credit - Credit for transitional period ... ... ... ... ..... agree with him that in view of the conditions mentioned therein, the appellant/assessee would himself require some time to ascertain and compile the facts and make an appropriate application. I therefore hold that there was no warrant for the Assistant Collector to reject their request on the ground that the application was filed after 31 March 1986. In fact the learned Assistant Collector has erred in presuming that such an application was required to be filed before 31 March 1986 as there is no provision to that effect. I note that the application was admittedly filed on 10 June 1986 i.e. within the reasonable period after 31 March 1986. In the circumstances the learned Collector (Appeals) had also erred in confirming the Assistant Collector rsquo s order. I therefore set aside the impugned order and accept the request of both the sides to remand the matter to the Assistant Collector with the direction that he should examine the matter on merits and pass appropriate orders.
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1991 (2) TMI 262 - CEGAT, NEW DELHI
Rectification of mistake ... ... ... ... ..... bunal itself has taken notice of the gazette notification posting an officer in the case of Syed Hameed v. Collector of Customs reported in 1989 (44) E.L.T. 24 and cited by the learned counsel. 21. We also observe that the learned counsel has rightly relied on this Tribunal rsquo s order in the case of National Textiles Corporation v. Collector of Central Excise, Bombay, reported in 1985 (32) E.L.T. 783. 22. In view of this position, it is not necessary for us to enter into further details at this stage and we hold that evidently an error apparent was involved in not specifically mentioning and discussing the issue raised with reference to the documents particularly the gazette notification filed by the learned counsel and referred by him during the course of hearing. 23. In view of the above facts and circumstances we accept the application and order re-opening of the matter with a view to correct the error apparent and pass an appropriate order after hearing both the sides.
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1991 (2) TMI 261 - CEGAT, NEW DELHI
Rectification of mistake ... ... ... ... ..... not the Calcutta High Court judgment, that was appropriate to the facts of the present case. In the light of this judgment, the view taken by the Tribunal in the impugned order-was a mistake. In this connection, we note that the Supreme Court has held in the case of SAL Narayana Row v. Model Mills, Nagpur 1967 (64) ITR 67 that the Income Tax Appellate Tribunal is competent to rectify its order based upon a subsequent decision of the High Court. 9. As a result, in view of the judgment of the Hon rsquo ble Andhra Pradesh High Court in the case of International Packing Industry (supra), we hold that the item in dispute falls for classification under T.I. 22A (and not under T.I. 68) and is entitled to the benefit of Notification 53/65 dated 20-3-1965 which grants exemption to laminated jute bags from so much of the duty leviable thereon as is in excess of the duty payable on the processed jute manufactures used in their manufacture. 10. The ROM application is accordingly allowed.
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1991 (2) TMI 260 - CEGAT, NEW DELHI
Strictures against Department for taking things in a most careless and casual manner ... ... ... ... ..... knowledge and what he verifies upon information received and believed to be true. (3) The verification shall be signed by the person making it and shall state the date on which and the place at which it was signed . Order 11 Rules 9 and 13 are also reproduced below - ldquo Rule 9. Form of affidavit in answer - An affidavit in answer to interrogatories shall be in Form No. 3 in Appendix C, with such variations as circumstances may require. Rule 13. Affidavit of documents - The affidavit to be made by a party against whom such order as is mentioned in the last preceding rule has been made, shall specify which (if any) of the documents therein, mentioned he objects to produce and it shall be in Form No. 5 in Appendix C, with such variations as circumstances may require. In view of the above discussion, we hold that the so called affidavit which is in fact in the nature of a verified statement cannot be treated as an affidavit. The Stay applications being defective are dismissed.
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1991 (2) TMI 259 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... e materials or substances contained in mixed or composite goods or to part only of the items in a set put up for retail sale, those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods. (b) Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to (a), shall be classified as if they consisted of the material or component which classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable. (c) When goods cannot be classified by reference to (a) or (b), they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration. 6. We set aside the impugned order and allow the appeal with consequential relief to the appellants.
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1991 (2) TMI 258 - CEGAT, MADRAS
Modvat - Demand ... ... ... ... ..... removed for home consumption and Rule 49 would come into play. The appellants have cited the case law reported in 1989 (39) E.L.T. 689 in support of their plea. He has pleaded that till the testing was completed the appellants rsquo product could not be considered as marketable and hence the product could not be considered as excisable. 6. We observe that in the facts of the case referred to supra, the Tribunal took note of the fact that in terms of the contract, before the goods are delivered, testing was one of the requirements and for that reason, without testing the goods, the goods were held to be as not marketable. In the case of the appellants rsquo goods there is no plea of this nature in regard to sale of the goods and therefore, we hold that the ratio of the decision cited supra will not be applicable to the facts of this case. In view of above, we hold that the duty demanded is maintainable in law. The impugned order is therefore upheld and the appeal is rejected.
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1991 (2) TMI 257 - CEGAT, MADRAS
MODVAT Credit ... ... ... ... ..... stribution of electricity or any other form of power rdquo In view of the wide amplitude of the words, lsquo in or in relation rsquo to the manufacture of specified finished product under Rule 57A, it can be said in the light of the judgment of the Hon rsquo ble Supreme Court that Aluminium sheets are used in relation to the manufacture of the goods which are specified products covered by the Notification issued under Rule 57A of the Central Excise Rules. This Tribunal in the case of Graphite Anodes has also held that MODVAT Credit is admissible for the same as inputs. 8. In view of our decision cited supra and taking into consideration the use of these goods as set out in the grounds of appeal, we find no reason to depart from our earlier decision. Therefore, the learned lower authority rsquo s order in allowing the benefit of MODVAT Credit in respect of items in the facts and circumstances of the case, is maintainable in law. The appeal of the Revenue is therefore rejected.
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1991 (2) TMI 256 - CEGAT, NEW DELHI
Rectification of mistake ... ... ... ... ..... he matter on that basis. Therefore, this cannot be said to be a case of review in the strict sense of the term. Consequently, we are of the opinion that the Tribunal was right in refusing to make a reference to this Court as urged on behalf of the Revenue because no question of law as such is involved, the Tribunal admittedly having the jurisdiction to rectify its own mistakes. In the result, we see no merit in this petition which is dismissed with no order as to costs and we decline to call upon the Tribunal to make a reference to this Court as urged on behalf of the Revenue. Accordingly, we are of the view that it is a mistake apparent on record. In view of our above observations, we recall our earlier order No. 53/90-B1 dated 30th April, 1990 and direct the Registry to issue fresh notices of hearing listing the application for condonation of delay before the regular Bench as constituted on that day. 4. In the result, the application for rectification of mistake is allowed.
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1991 (2) TMI 255 - CEGAT, CALCUTTA
Reference to High Court ... ... ... ... ..... unds unless the party who may be affected thereby has had sufficient opportunity of being heard on such grounds. In the present case, as stated above, the point of limitation had been agitated by the respondents in their first appeal which was before the Collector (Appeals). The present proceedings before this Bench are by way of continuation of the earlier proceedings and accordingly the grounds taken by the respective sides in the earlier proceedings continue to be in force. The time-limit factor becomes relevant only when the case failed on merits for the respondents. The applicability of time-limit was decided by the Tribunal after considering the arguments of the learned Senior Departmental Representative against its applicability to proceedings for recovery of Modvat credit wrongly taken and availed of. The procedural requirements had been followed. For these reasons the application for reference of the points proposed, to the Hon rsquo ble Patna High Court is rejected.
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1991 (2) TMI 254 - CEGAT, NEW DELHI
Stay/Dispensation of pre-deposit ... ... ... ... ..... the goods without payment of duty on executing of the bond, and yet admittedly they had not honoured the bond and not submitted the licences so far. In the circumstances the prima facie case is in favour of the department and not the appellant and as the goods have already been cleared without payment of duty the balance of convenience is also in favour of the department and not the appellant and a risk to revenue is seriously involved as the appellants have not honoured the bond so far. 10. In the circumstances, we see no justification for staying the operation of the order or waiving the pre-deposit of the amount in question. 11. The stay application is accordingly rejected. 12. The main appeal is posted for mention for reporting compliance with Section 129E on 26 February, 1991. The appellant is required to comply with Section 129E immediately and report compliance before 26 February, 1991 failing which the appeal will be liable to be dismissed without any further notice.
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1991 (2) TMI 253 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... 98, the goods would be deemed, for the present purpose, to fall under Heading No. 98.06. If this be so, the question of proviso (iii) of Notification No. 69/87 excluding the present goods from the scope of the notification, does not arise. 6. Notification No. 69/87 prescribes a concessional rate of basic customs duty at 45 ad valorem and accords full exemption from the whole of the additional duty of customs on parts falling under Heading No. 98.06, of the goods specified in the table to the notification. Heading No. 84.33 which covers printing machine figures in the table against Serial No. 13. By virtue of Statutory Note (1) to Chapter 98 and by virtue of their special design for use in offset printing machinery, the subject goods would fall under Heading No. 98.06. Therefore, they would be eligible for the benefit of Notification No. 69/87. 7. In this view of the matter, the impugned order is set aside and the appeal is allowed with consequential relief to the appellants.
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