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Case Laws
Showing 121 to 140 of 359 Records
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1991 (3) TMI 251 - CEGAT, NEW DELHI
Import of - Woollen rags/Synthetic rags ... ... ... ... ..... ng authority should not leave out what is bad and adverse to the department in a document and adopt only something which is in favour of the department in the same document. If something has to be discarded from an acceptable document, it must be done so with cogent reasons and on the basis of some other evidence. We, therefore, feel that the Collector rsquo s action in enhancing the value of the goods is not on any sustainable basis. Accordingly, we do not find any reason to hold that there has been under declaration of value of goods in the instant consignment which was originally declared by the appellants to be at Rs. 4,84,540. 4.6 Having regard to the aforesaid value of goods we reduce the fine in lieu of confiscation from Rs. 10,00,000/- to Rs. 5,00,000/- (Rupees five lakhs only.) 4.7 As regards the penalty of Rs. 1,00,000/- imposed on the appellants, we reduce it from Rs. 1,00,000/- to Rs. 50,000/- (Rupees fifty thousand only). 5. Appeal disposed of in the above terms.
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1991 (3) TMI 250 - CEGAT, NEW DELHI-LB
Gold Control Appeal
... ... ... ... ..... the General Clauses Act, 1897, saves accrued rights unless they are taken away by the repealing statute. Section 297 does not take away any of the rights either expressly or by implication. 43. After taking into consideration, the judgments cited by the learned Advocates and the legal position discussed by us we are of the view that in view of the repeal of the Gold Control Act, 1968 without saving clause this Tribunal still has got the jurisdiction to hear the pending matters. We are of the view that Gold Control Act is a perpetual Act and was not a temporary legislation and the pending proceedings are saved by Section 6 of the General Clauses Act. Accordingly, we agree with the view of the Member (Judicial), Shri G.A. Brahma Deva. FINAL ORDER 44. In accordance with the majority opinion it is held that the jurisdiction to hear appeals arising out of the Gold (Control) Act, 1968 continues to lie with this Tribunal even after the repeal of the said Act without a saving clause.
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1991 (3) TMI 249 - CEGAT, NEW DELHI
Appeal - Condonation of delay ... ... ... ... ..... pellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of three months, allow it to be presented within a further period of three months. A simple perusal of the same shows that the appeal has to be filed within three months and it gives a further period of three months for condonation of delay. Of course, the discretion for condonation of delay has to be exercised judiciously. The statute does not empower the Collector to condone the delay beyond three months. In the matters before us, the appeals before the Collector were filed after six months from the date of receipt of the impugned order. Accordingly, we do not find any merit in the appellants rsquo contention. We hold that the Collector had no discretion to exercise power to condone delay beyond three months after the expiry of limitation for the filing of the appeals. 5. In view of the above discussion, the above captioned two stay applications as well as appeals are dismissed.
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1991 (3) TMI 248 - CEGAT, NEW DELHI
Captive consumption of yarn - Dutiability ... ... ... ... ..... Court judgment in M/s. Ujagar Prints etc. etc. case has settled the point at issue before us. Calcutta High Court judgment relied on by the learned Advocate does not, therefore, help the appellants rsquo cases in any way. The Supreme Court judgment cited by the learned Advocate, viz., AIR 1960 SC 1022 (Para 5), is also not on the point at issue before us. Moreover, as already observed by us, the later judgment of the Supreme Court in Ujagar Prints case has settled the dispute in question. Smt. Zutshi for the Revenue cited this Tribunal rsquo s decision reported in 1987 (28) E.L.T. 126 (Tribunal) -1987 (9) ETR, 296 in the case of Hastings Mill Ltd. v. Collector of Central Excise, Calcutta. In this case, the Tribunal held inter alia that the cess under the Jute Manufactures Cess Rules, 1976 would be payable on the goods removed for captive consumption. 17. In view of the foregoing discussions, there are no merits in the appeals before us and accordingly the same are dismissed.
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1991 (3) TMI 247 - CEGAT, NEW DELHI
Valuation - Cost of durable and returnable containers ... ... ... ... ..... ike raw materials for the excisable goods namely, aerated waters rdquo . The glass bottles are merely a medium for supply of aerated waters. The glass bottles have to be necessarily adopted as a medium of supply of aerated waters because the aerated water is saturated for gaseous material namely, carbon dioxide. It also cannot be disputed that glass bottles arc durable and returnable container. Just as gases have to be supplied in the cylinders similarly aerated water has to be supplied in glass bottles. Accordingly, all the post-delivery expenses at S. Nos. (i) to (v) in para 4 above are to be deducted from the destination prices charged by the appellant from its customers. The quantification of deduction has to be done on actual expenses incurred by the appellant and as shown in his accounts under each of the aforesaid heads. This will have to be determined by the Assistant Collector after scrutiny of the accounts of the appellant. 9. Appeals disposed of in the above terms.
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1991 (3) TMI 246 - BEFORE THE COLLECTOR OF CUSTOMS AND CENTRAL EXCISE
Classification of goods ... ... ... ... ..... onsequently the impugned order which is not only illegal and improper but is also without jurisdiction is quashed and appeal in principle allowed. 16. However, before I part with this order, I feel constrained to place on record my disapproval of the Lower Authority rsquo s action in virtually pronouncing his judgment over the decision given by the superior authority and for acting contrary to specific direction contained in such appellate decision which was binding on them under the law. In doing so he has, disregarding judicial propriety and discipline, arrogated to himself the powers that vest in CEGAT and competent courts alone thus undermining the appellate institution created under the statute. It is sincerely hoped that such a conduct would not be cited as a precedence and in future subordinate authorities under the Act would not feel unrestrained in flouting the quasi-judicial order of superior Appellate Authority in a manner the Lower Authority has done in this case.
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1991 (3) TMI 245 - BEFORE THE COLLECTOR OF CENTRAL EXCISE (APPEALS),
... ...
... ... ..... any duty which the (Collector) may discover, during the appeal proceeding before him, has been short levied or erroneously refunded, unless a notice of demand to pay is issued to that person within the time limit of 11A. The time limit of Section 11A runs on a tight schedule its starting point to its finishing post is rigidly, controlled. It must set out from the rdquo relevant date - no other date is permissible, whether it runs for six months or for five years. The time limit ldquo specified in Section 11A rdquo is not six months it is ldquo six months from the relevant date rsquo . 9. A reading of the above will make it very clear that unless a show cause notice is issued within six months from the relevant date by the Asstt. Collector as provided for under Section 11A of CESA, 1944, erroneously refunded duty cannot be got back. Section 35E(.2) will not be of any assistance in such cases. 10. In view of the above, the application filed by the Asstt. Collector is rejected.
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1991 (3) TMI 244 - CEGAT, NEW DELHI
Rectification of Mistake ... ... ... ... ..... him by the Third Member, the case should go back to the original Tribunal because the Third Member has not been given any right to decide the appeal. The Tribunal, when finally disposing of the appeal may, no doubt, allow other points to be raised before it, if they consider it proper. The Third Member, however, can only answer the point or points that were referred to him for decision and on which there was a difference of opinion. After the difference of opinion the orders till date passed by the Tribunal are not final orders and the mistakes, if any, cannot be rectified in terms of provisions under sub-section (2) of Section 129B of the Customs Act, 1962. 4. emsp In view of this discussion, we are of the view that since the orders passed by the Tribunal so far are not final order disposing of the appeal, there is no question of making any rectification in the orders passed by us. Accordingly, the application for rectification of mistakes filed by the Revenue is dismissed.
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1991 (3) TMI 243 - CEGAT, NEW DELHI
Adjudication ... ... ... ... ..... by set aside and the appeal allowed. This order passed by the Tribunal was challenged before the Supreme Court and Hon rsquo ble Supreme Court in Civil Appeal No. 2113 of 1988 vide order dated 16-9-1989 had held as per the judgments re-produced above. The facts of the present matter are similar. In view of the above discussions, we are of the view that the Revenue authorities were not justified in issuing fresh Show Cause Notices without taking proper permission from the Orissa High Court and the judgment of the Hon rsquo ble Supreme Court in the case of Collector of Central Excise and Customs v. Indian Metals and Ferro Alloys Ltd. in Civil Appeal No. 2113/88, dated 16-9-1988 is binding on us especially when the matter pertains to the same parties. Accordingly, we set aside the impugned order demanding a duty of Rs. 10,01,160.12 and imposing a penalty of Rs. 1 lakh. Revenue authorities are directed give consequential effect to this order. In the result, the appeal is allowed.
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1991 (3) TMI 242 - CEGAT, NEW DELHI
... ...
... ... ..... m the findings as extracted above, it is clear that, the respondents were found guilty on the ground that they mis-declared the goods with intent to evade payment of duty of Rs. 8,03,198/-. This finding has not been challenged before us by filing any appeal or cross objection by the respondent. From the record and the findings as extracted above, it is clear that the instant case is a case of deliberate attempt to evade payment of duty, as aforesaid. As regards the acquittal of the respondents, it is suffice to say that here the charges stand proved as no appeal or cross objection challenging the impugned order has been filed by the respondents. Thus, taking all the facts and circumstances of the case we are of the view that the imposition of penalty of Rs. 10,000/- only is not adequate. It does not commensurate with the gravity of the offence. Accordingly, we enhance it to Rs. 25,000/- (rupees twenty five thousand only). 7. In the result, the appeal is allowed, as aforesaid.
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1991 (3) TMI 241 - CEGAT, NEW DELHI
Date for determination of rate of duty ... ... ... ... ..... Haldia either at Haldia or at Calcutta with the same number of copies as is being already done. The Assistant Collector posted at Haldia will accept such guarantee when submitted at Haldia and will ensure that a copy of the same is forwarded to the Preventive Officer in charge of the vessel as well as to the Central Excise Officer in charge of the bonded tanks under unified control procedure . 8. emsp Public Notice 238 dated 7-7-1988 provided for presentation for kattcha bill of entry to the Haldia Customs House. All these public notices set out various procedures to be followed by importers of crude oil in bulk and they cannot prevail over the statutory provisions contained in Section 15 of the Customs Act, 1962. The bill of entry having been presented in respect of both vessels on 5-12-1986 this would be the relevant date in terms of Section 15 and, therefore, the appellants are liable to pay the enhanced rate of duty. 9. We uphold the impugned order and dismiss the appeal.
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1991 (3) TMI 240 - CEGAT, MADRAS
Refund - Limitation ... ... ... ... ..... e submissions made before us and admittedly for the period 11-5-1982 to 17-8-1982, with which we are concerned in the present appeal, there was neither a classification list nor a refund claim. The further fact remains that the payment had also not been made by the appellant under protest nor any refund application filed to save the bar of limitation. The ratio of the rulings relied by the ld. DR would apply on all fours to the issue to be decided in this case. Following the ratio of the rulings cited supra and in the peculiar facts and circumstances of this case we hold that the refund claim of the appellant is barred by limitation and in this view of the matter the appeal is dismissed. At this stage the ld. counsel pleaded that inasmuch as the duty was paid without the authority of law, relief may be granted. We are afraid we cannot accede to the plea of the learned counsel since the Tribunal being a creature of Statute cannot go beyond the confines of law and grant relief.
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1991 (3) TMI 239 - CEGAT, MADRAS
Refund - Collector (Appeals) confirming dutiability of waste and scrap of rubber ... ... ... ... ..... nly the Collector is the officer who is having co-ordinating jurisdiction as Collector (Appeals) and he is the highest officer in the hierarchy who can take up the matter for adjudication. The Board has not retained powers with itself for deciding the refund matters. Obviously in the scheme of the Act no officer, where an order has been passed by the Collector (Appeals), can take up the matter for refund in terms of Section 11B as pleaded by the appellant. The various provisions of the Act have to be construed in the total scheme of the Act. It is seen that relief in regard to the assessments has been provided for under different sections of the Act and Section 11B is one such section and this section has to be operated within the scheme of the Act and where an order of a higher authority like Collector (Appeals) has acquired finality, Section 11B is not available. In the above view of the matter, as held by learned Brother Member (Judicial), the appellant rsquo s plea fails.
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1991 (3) TMI 238 - CEGAT, MADRAS
No question of law arises for reference ... ... ... ... ..... aded that the Department had obtained the opinion of the Ministry of Law in another case on the same issue and they had also advised accordingly. 4. The learned Advocate for the respondent, Shri Ratna Ashokan pleaded that the Tribunal in the impugned order had only followed the ratios of the earlier decisions and the said decisions were valid law and, therefore, in that view of the matter no question of law could be said to arise out of the order of the Tribunal. 5. I observe that the learned Single Member deciding the case under reference has followed the earlier decisions of the Tribunal. There is no plea from the Revenue that these decisions of the Tribunal have been reversed or any reference has been allowed on a plea by the Revenue in respect of anyone of these decisions. I observe that inasmuch as the Tribunal has followed the earlier decisions of the Tribunal, which are still good law, no question of law would arises. The Reference Application is, therefore, dismissed.
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1991 (3) TMI 237 - CEGAT, NEW DELHI
Strictures against the Assistant Collector ... ... ... ... ..... rector (Emergency) rsquo s certificate regarding reverse osmosis unit has been accepted by the Collector. 33. The Collector has observed in his order that while the certificate of Dr. Varma of DGHS is clear and unambiguous, the appellants have not been able to furnish definite evidence to show that water treatment plants and water softening unit are essential accessories/parts of Haemodialysers. We have shown how, on the facts and in the circumstances of the case, Dr. Varma rsquo s certificate lose its evidentiary value. The appellants, on their part, have placed adequate evidence on record to show that the subject equipments are accessories for Haemodialysers. 34. In the light of the foregoing discussion, we set aside the impugned order and allow the appeal with consequential relief to the appellants. 35. A copy of this order should be endorsed to the Chairman C.B.E.C., for such action as may be deemed appropriate regarding the Assistant Collector rsquo s role in the affair.
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1991 (3) TMI 236 - CEGAT, NEW DELHI
Appeal - Condonation of delay ... ... ... ... ..... the part of the appellant and appellant was not prevented by sufficient cause for late filing of the appeals. We do not find it a fit case to exercise our discretion in condoning the delay in the terms of provisions of sub-section (5) of Section 129A of the Customs Act, 1962. Accordingly, the above captioned 3 applications for condonation of delay for rejected. We are in full agreement with earlier view of the Tribunal as discussed above. Keeping in view the totality of the facts and circumstances of the case, we are of the view that these are .not fit cases where the Tribunal should exercise its discretion in terms of provisions of sub-section (5) of Section 129A of the Customs Act, 1962. Accordingly, the above captioned 12 applications for condonation of delay are rejected. 4. Since we have rejected the applications for condonation of delay in the above captioned 12 appeals, the appeals are dismissed being hit by limitation and we are not going into the merits of the same.
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1991 (3) TMI 235 - CEGAT, NEW DELHI
Glyoxal (40 %) used as a tanning agent in leather industry ... ... ... ... ..... ld have provided for execution of a bond obliging the importer to produce proof of actual use as is the case in many other notifications. We therefore do not agree with the Revenue rsquo s contention that the benefit of exemption would not be available to the appellants since they are not engaged in leather industry but are only stockists for sale. 17. The licences produced by the appellants for clearance of the goods were not considered valid by the Additional Collector on the ground that the shopping list attached with the licences covered synthetic organic tanning agent and not Glyoxal. We have already noted how the evidence on record shows that Glyoxal 40 is used as a tanning agent in leather industry. The Additional Collector rsquo s stand that the licences were not valid on the ground stated by him is therefore not supportable. 18. In the light of the foregoing discussion, we set aside the impugned order and allow the appeal with consequential relief to the appellants.
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1991 (3) TMI 234 - CEGAT, NEW DELHI
Non-cellulose lacquers ... ... ... ... ..... quers have been grouped under sub-item III under the head Cellulose Lacquers. This sub-item has been divided into two groups - (i) Nitrocellulose lacquers and nitrocellulose ancillaries and (ii) Cellulose lacquers, not otherwise specified. The main heading of Item 14 specifies cellulose lacquers distinctly and differently from paints. Therefore, it is ( reasonable and safe to assume that, for the purpose of the tariff also, lacquers have been treated as goods distinct and different from paints. However, Item 14 covers only Cellulose Lacquers and does not cover non-cellulose lacquers. Since lacquers are distinct and different from paints, it is not appropriate to classify them as paints, not otherwise specified. The proper classification would be under Item 68 which covers all goods not specifically described elsewhere in the Tariff Schedule. 14. In the above view of the matter, we set aside the impugned order and allowed the appeal with consequential relief to the appellants.
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1991 (3) TMI 233 - CEGAT, NEW DELHI
Set-off of duty ... ... ... ... ..... available even though in the process of manufacture of plastic laminated sheets starting from the aforesaid chemicals, treated fabrics and treated paper emerged as intermediate stage products. We may also note the pronouncement of the Supreme Court, though with reference to another notification, that use of a specified raw material for the manufacture of a specified finished product need not be direct but could be through an intermediate stage when that stage is inevitable in the manufacturing process see Tata Oil Mills Co. Ltd v. Collector of Central Excise 1989 (2) SCALE 313 . There is no dispute in the instant case that Melamine was used in the manufacture of M.F. resin which, in turn, was used in the manufacture of paints and varnishes. 10. In the light of the above discussion, we hold that the appellants rsquo claim for the benefit of Notification No. 201/79 is well founded. We set aside the impugned order and allow the appeal with consequential relief to the appellants.
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1991 (3) TMI 232 - CEGAT, MADRAS
... ...
... ... ..... the hardship and the inequity of having to prefer a claim or application for refund with respect to the earlier purchases and removals of steel furniture are more imaginary than real, in case of dealers regularly buying and clearing throughout the year. And, as for exceptional case of heavy concentration of clearance and removal in the early part of the year, with a rule of the type here involved, there is no reason why an application for refund should not be made each time clearance is made, upto the limit of Rs. 50,000/- leaving the authorities to reject the same, if the ceiling of Rs. 2 lakhs for obtaining refund had been exceeded. rdquo 5. Following the ratio of the decisions above, we hold that in terms of Section 11B of the Central Excises and Salt Act, 1944, the limitation has to be reckoned from the date of payment of duty and not from the end of the financial year. In view of the above, we, therefore, hold that the appeal is not maintainable and we dismiss the same.
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