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Case Laws
Showing 141 to 160 of 354 Records
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1991 (2) TMI 231 - CEGAT, NEW DELHI
Remission of duty ... ... ... ... ..... authorities at the time of clearance as evident from the letter dated 19-2-1986 as well as endorsement on the bill of entry. 19. Even otherwise the benefit could be claimed even subsequently provided the loss was brought to the notice of the authorities and noted before or at the time of clearance and there was no bar to filing a subsequent claim for refund. 20. Furthermore, the department has not been able to show any provision of the Customs Act which bars such benefits during the extended period of bonding. Thus whichever way we look at the matter the appellant was evidently entitled to the benefit which might be found due and the learned Assistant Collector and the learned Collector (Appeals) have erred in denying the same. However, since the claim has not been examined on merits I pass the following orders. 21. The impugned orders are set aside and the matter is remanded to the Assistant Collector for considering the claim on merits and allow it to the extent found due.
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1991 (2) TMI 230 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... as expeditiously as possible, as may be necessary on the claim of the importers. 10. In the matters before us, separate invoices were there for both the machines and separate bills of entry were filed and both the machines cannot independently function for the manufacture of printed circuit board. Following our earlier decision, we are of the view that the Collector of Customs (Appeals) was not right in importing the concept of manufacture and production in terms of provisions of Section 2(f) of the Central Excises and Salt Act, 1944. The Collector Customs (Appeals) had examined the samples at various stages of manufacture. We do not have the benefit of the same. Accordingly, we set aside the impugned order and remand the matters to the Collector of Customs (Appeals) to decide the same without importing the concept of manufacture and production in terms of Section 2(f) of the Central Excises and Salt Act, 1944. 11. In the result, both the appeals are allowed by way of remand.
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1991 (2) TMI 229 - CEGAT, BOMBAY
Appellate Order - Non-implementation ... ... ... ... ..... n of the Tribunal, they could have, within this period moved the Special Bench and got the early hearing fixed. Even the appellant importers are interested in early hearing of their appeal. The Department has not chosen to do this. If there had been any misapprehension in their mind about the correctness of our order, they could have moved the application well in time and need not have waited for over 45 days, making the appellants to run from pillar to post for getting their goods cleared as per the interim order passed by this Bench, in accordance with law. 9. While dismissing the Collector rsquo s Misc. Application, we direct that the interim order No. 517/90, dated 13-11-1990 be given effect to by the Department forthwith. If the order is not so implemented, the authorities concerned would be exposed to appropriate proceeding under the law apart from facing the possible risk of payment of damages to the importers on account of demurrages on account of delay on their part.
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1991 (2) TMI 228 - CEGAT, NEW DELHI
... ...
... ... ..... tor (Appeals), impugned before us, deserves to be set aside. This is so because the Department has not placed before us any instances where the discounts even if deserved, according to what the Company says, were not granted to any particular party. It could be that only four people qualified for all the discounts. Besides, the Department did not make any inquiries with the dealers to show that these discounts claimed by the Company were not being actually granted. In their letter dated 15-9-1987, reply to Show Cause Notice, the respondents mentioned the various discounts granted by them. Therefore, it is not as if they are making a claim for the first time. There is nothing in the appeal or in the arguments advanced before us to justify setting aside the impugned order. We, therefore, uphold the impugned order in so far as the issues raised by Revenue are concerned. 23. As a result, we allow the appeals by remand filed by the Company and dismiss the appeals filed by Revenue.
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1991 (2) TMI 227 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... tion to recording a measuring curve, the TA 3000 system is provided with numerous built-in evaluation algorithms which can be used for the automatic calculation of analytical results. This capability allows thermal analysis to be applied in a wide range for routine analyses. A printer/plotter can be used for printing out the analytical result and also for plotting curves, derivative curves and other analogue information. From the above information, it is seen that the Thermal Analysis System is a complete unit and reference to Section XVI Note 4 is relevant and classification under Heading 9027.80 is in order. The Section 19 of Customs Act referred to by the learned JDR is for determining the duty where articles consisting of different rates of duty are imported and since it has been decided that this is a complete article, the Section is not applicable. The order of the Collector of Customs (Appeals) is in order and is upheld. 6. The appeal filed by the Revenue is dismissed.
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1991 (2) TMI 226 - CEGAT, NEW DELHI
Dutiability - Excisable Goods ... ... ... ... ..... 987. This, therefore, cannot be stated to be in continuation of the earlier one, but would tantamount to revising the classification and the demand for duty has now to be limited to a period of six months from 31-8-1989 and has to be revised accordingly. The demand raised in the show cause notice, dated 22-6-1987 for classification of the frames under Heading 8307.00 has also to be restricted to a period of six months from the date of the show cause notice and upto the period of six months from the date of the second show cause notice, as the second show cause notice was not in supersession of the earlier one and the first show cause notice was still in force. Therefore, the demands have to be revised accordingly. As for the fine and penalty, since it has been held that no suppression can be alleged, confiscation is not liable and consequently, fine and penalty are set aside. 8. The appeal is disposed of accordingly with consequential reliefs, wherever admissible, as ordered.
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1991 (2) TMI 225 - CEGAT, NEW DELHI
Valuation - Post-manufacturing expenses ... ... ... ... ..... dge in first few lines of paragraph 9 of the judgment. 15. Therefore, we are of the view that the consistent view of the Supreme Court beginning with Bombay Tyres International and ending with Ponds India Ltd. is the degree of secondary packing which is necessary for putting the excisable article in the condition in which it is generally sold in the wholesale market at the factory gate is the degree of packing whose cost can be included. 16. We, therefore, direct the Asstt. Collector to make an inquiry to find out whether the secondary packing is necessary for putting the excisable article in the condition in which it is generally sold in the wholesale market at the factory gate and if so. include the same. 17. As regards the other post-manufacturing expenses the Asstt. Collector is directed to consider the same in the light of the judgment of the Supreme Court in Bombay Tyres International. 18. We accordingly allow all the appeals and remand the same to the Asstt. Collector.
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1991 (2) TMI 224 - CEGAT, NEW DELHI
Manufacture ... ... ... ... ..... rcially a distinct commodity in the market and has merely relied on discription of process and chemical terminology which by itself is not sufficient. 30. In so far as the question of time bar is concerned the appellants have shown that they had been declaring lime fine in their classification list filed from time to time as such no mis-declaration or suppression of facts was involved. The learned SDR has also not denied that the assertion that the Department was even otherwise aware of the existence of sinter plant and the use of lime fine therein. 31. In any eventuality since the appellants have succeeded on merits in showing that no process of manufacture was involved in crushing limestone into lime fine and lime fine was not an excisable product, therefore they were not required to pay any duty and had committed no offence. Hence, the question of time bar loses its significance. In view of the above discussion the appeal is accepted as already announced in the open court.
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1991 (2) TMI 223 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... s not discuss the eligibility of the product for exemption under Notification 55/75, I am not able to persuade myself to agree to an order of remand. I am of the opinion that, in view of the above two conflicting decisions, the proper course to follow is to place the matter for consideration by a Larger Bench to resolve the classification issue. I would, therefore, propose that the matter be placed before the President for constitution of a Larger Bench. 78. Order per GA. Brahma Deva, Member (J) . - In view of two conflicting decisions on this issue, I too feel that this matter has to be placed before Larger Bench, to resolve the issue of classification on the product in question. Accordingly, I agree with the learned Judicial Member. 79. Order per S.K. Bhatnagar, Member (T) . In view of the majority opinion the matter is referred to the Hon rsquo ble President for constituting a Larger Bench to resolve the classification issue and the eligibility of the product to exemption.
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1991 (2) TMI 222 - CEGAT, NEW DELHI
Demand - Limitation ... ... ... ... ..... Civil Procedure. But whether it is a person or not. Section 3(42) of the General Clauses Act makes it abundantly clear that the partnership firm would be a person distinct from the petitioner. Technically in law, partnership is not a legal entity or a juristic person, yet there are occasions, both in law and in practice, when a firm has been treated as having a distinct personality from those of the partners. Thus, partnership firm is a person or an entity having an independent and distinct existence liable for its acts. However, since we have already taken the view that in the facts and circumstances of this case, mutuality of interest between the respondent and Babul Agencies has not been established by the Department, we do not consider it necessary to go into the citations above. 11. In the light of the above discussion, we uphold the impugned order and dismiss the appeal. 12. As a result, the Appeal No. E/334/90-A is dismissed and Cross Objection No. 161/90-A is allowed.
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1991 (2) TMI 221 - CEGAT, NEW DELHI
... ...
... ... ..... it notes though of a later date, corroborate the payment or discharge of the liability incurred by the appellants towards the cost of transportation. A reliance on the Supreme Court rsquo s judgment in the case of Kedar Nath Jute Mfg. Co. Ltd. mentioned supra makes the position clear beyond the doubt even though the case relates to the Income Tax Act. There is, therefore, no doubt that deduction under this heading is also permissble to the appellants. 5. In view of the above findings on the merits of the case clearances of the appellants would not exceed the stipulated limit of Rs. 15 lakhs in the financial years 1982-83, 1983-84 and 1984-85. Accordingly, they would be entitled to the benefit of Notification No. 142/82, dated 22-4-1982. Once the appeals are allowed on merits, it is not necessary for us to go in detail into the question whether the demands are barred by time or any other question. Hence, both the appeals are allowed with consequential relief to the appellants.
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1991 (2) TMI 220 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... with law. As regards the point raised on limitation, it has been already held that the item krinklglass prior to 1-3-1986 will be assessable under Item 68 CET. The charge of suppression against the appellants, does not seem to be well-founded as is evident from the appellants rsquo correspondence with the Department dated 19-8-1985 wherein they have given a reply regarding their product and the fact also remains that the samples had been drawn twice in April, 1984 and February, 1985. The Department is unable to rebut the further claim of the appellants that even the samples have been drawn in 1974 itself were described as modified acrylic sheet because the Department is unable to trace out the file. In the circumstances, the charge of suppression cannot be held to be established and the demand for duty, if any, will be effective from 19-8-1985. For the same reason, the penalty on the appellants is not sustainable and is set aside. The appeal is disposed of in the above terms.
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1991 (2) TMI 219 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... g guidance from the Explanatory Notes to CCCN, these are classifiable as bolts and nuts under Tariff Item 52 which is specific to such goods. The fact that hub-bolts and nuts are only available with automobile-part dealers and not with hardware merchants is not very relevant as all such parts as are required for assembly of a machine would only be kept by machinery dealers but that would not make all such parts as parts of that machine. rdquo 7. From these decisions, as also those cited by the learned Advocate, it is apparent that the Item 52 covers such type of fasteners whose function is only fastening, but if such fasteners do perform the functions other than fastening and have been specially designed for the purpose, they will go under the residuary Item 68, CET. 8. The limitation aspect raised by the appellant, has no relevance now as the appeal has been allowed, although the order of the Collector on this aspect is maintainable. 9. The appeal consequentially is allowed.
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1991 (2) TMI 218 - SUPREME COURT
Validity of sub-para (10) of para 218 of the Import & Export Policy for the period April 1988 to March 1991 questioned - Held that:- In the Import & Export Policy 1988-91 there has been relaxation to a limited extent in respect of imports by Export Houses who are granted Additional licences under the said Policy on the basis of their exports during that period 1987-88 and subsequent periods. Since the basis for the grant of Additional licences which are entitled to this relaxation is different from the basis on which Additional licences were granted to the petitioners, the petitioners cannot claim the benefit of the same relaxation and assail the validity of sub-para (10) of para 218 of the Import & Export Policy 1988-91. Thus it must be held that the petitioners have failed to make out a case for interference by this Court under Article 32 of the Constitution.
Since the matter has been pending in this Court and the Additional licences issued to the petitioners have expired in the meanwhile we consider it appropriate that the period of validity of the said licences should be extended so that the petitioners can avail the same and are able to import the goods which can be so imported under the prevailing Import Policy. Appeal dismissed.
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1991 (2) TMI 217 - CEGAT, SB, NEW DELHI
Rate of duty - Adjudication - Demand - Limitation ... ... ... ... ..... has, in my opinion, no application whatsoever to the present case for the reason that Rule 196 figures under Chapter X of the Central Excise Rules and not under Chapter VII which deals with warehousing of goods under the Central Excise Law. The purpose of citing this decision by the learned Departmental Representative was to show that for raising a demand under Section 72 of the Customs Act, the limitation imposed by Section 28 is not relevant. In the present instance, the demand for duty has been raised, as we have seen earlier, within six months from the date of payment of duty and as such the question posed by the Departmental Representative is academic and need not be answered. 31. In the light of the foregoing discussion, we are of the view that the goods in the present case attracted duty at the rate in force on the date of their actual removal from the warehouse. In this view of the matter the appeal succeeds and is allowed with consequential relief to the appellants.
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1991 (2) TMI 216 - ITAT PUNE
... ...
... ... ..... justify the claim but that does not mean that the said Explanation I is applicable, and that the assessee had concealed the facts. The said Explanation is only intended to cover all cases of explanation regarding the statement of facts or non disclosure of material facts. In such case it is the ITO s satisfaction which is decisive and the assessee could not be heard to say that he had given some explanation. In other words the purpose is to fill up the gap between the absence of explanation or an explanation given by the assessee on the one hand and the fact of concealment on the other. Ir relieves the ITO of that additional burden to fill that gap. Its purpose therefore is not to penalise assessee for concealment although all the material facts have been disclosed. Such an interpretation cannot be made because such cannot be the policy of law and also because it would be a contradiction in terms. That being so, penalty in this case cannot be levied. 5. The appeal is allowed
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1991 (2) TMI 215 - ITAT PUNE
... ...
... ... ..... by the assessee before the authorities and the quantitative particulars and clarifications submitted before the CIT(A) as seen from annexure A and B to his order, we are satisfied that the assessee has not concealed any particulars of income or there was no discrepancy in stock found at the time of survey when the whole years, transaction is taken into account or the transactions for the period from 1st Sept., 1982 to 8th Sept., 1982 is taken into account. The discrepancy in shenga of 5 quintals and 58 kgs of oil cake are minimal or in significant when compared to the total volume of in put and output and is not material so as to justify the separate addition or penalty therefor in respect of oil cake. The Survey Officer himself has stated that the quantity of oil cake was 3,600 kgs. approximately which shows that it was not the actual figure. Accordingly, we uphold the order of the CIT(A) and reject the ground taken by the Revenue. 10. In the result, the appeal is dismissed.
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1991 (2) TMI 210 - ITAT MADRAS-D
... ...
... ... ..... he immediately preceding year. The WTO had actually taken appreciation into account. There was, thus, an application of mind and a proper exercise of judicial discretion. All that the Commissioner wants is that a subsequent opinion of the Valuation Officer for a subsequent assessment year should be taken as the basis and the value on the earlier valuation dates should be worked backwards. We do not think that the provisions s. 25(2) in an way authorise the Commissioner to substitute his idea of working backwards in the place of a proper determination of the value by working forwards from the value given for the immediately preceding year. We are satisfied that the valuation determined by the WTO was in a proper and judicious exercise of the discretion vested in the WTO and could not be in any way interfered with under s. 25(2) as it was neither erroneous nor was prejudicial to the interest of the Revenue. Hence the orders under s. 25(2) are cancelled. The appeals are allowed.
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1991 (2) TMI 208 - ITAT MADRAS-B
... ...
... ... ..... e assessee to raise these grounds, as they directly flow from the order of the CIT. The ld. Deptl. Representative reiterated that these payments can only be treated as ad hoc in the absence of a statement of advance tax. However, the Madras High Court in CIT vs. T.T Investments and Traders Pvt Ltd., has held that any payment made prior to the commencement of the assessment year would constitute advance tax. It is also seen from a copy of the assessment order for the asst. yr. 1982-83 that the Assessing Officer has treated this payment as advance tax. In the circumstances, it would not be permissible in law to treat these payments as ad hoc payments. Hence, such directions given by the CIT are set aside. 11. As the assessee succeeds on merits, the learned counsel for the assessee did not press the grounds raised regarding the illegality of the CIT s order based upon the concept of merger . 12. In the result, the appeals are allowed, and the Assessing Officer s orders restored.
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1991 (2) TMI 205 - ITAT MADRAS-B
Deduction In Respect ... ... ... ... ..... um of Rs. 3,49,519 as deduction. The Revenue is aggrieved over this. 17. The Departmental Representative contended that the matter is to be held against the assessee in view of the decisions in the cases of CIT v. South Arcot District Cooperative Supply and Marketing Society Ltd. 1981 127 ITR 467 (Mad.) and Jiwajirao Sugar Co. Ltd. v. CIT 1989 176 ITR 182/ 1988 40 Taxman 434 (MP). On the other hand, the assessee s counsel-filed a copy of the Tribunal s order dated 24-10-1990 in the assessee s own case for the assessment year 1982-83 in ITA No. 1540/Mds/87 in support of his contention that the amount of Rs. 3,49,519 was rightly directed to be deducted by the CIT(A). 18. We have considered the rival submissions. The matter is already concluded in favour of the assessee by our order dated 24-10-1990 in the assessee s own case for the assessment year 1982-83. Following the said order, we uphold the direction of the CIT(A) in this regard. 19. In the result, the appeal is dismissed
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