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Case Laws
Showing 61 to 80 of 214 Records
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1991 (6) TMI 160
Refund of export duty ... ... ... ... ..... on in this case is 12- 12-1986, but the date on which the goods were re-imported to the country is 9-2-1988 which is the date on which the goods reached India. The contention of the appellant that the foreign buyer re-shipped the goods from Poland on 24-11-1987 and, therefore, this is the relevant date cannot be accepted by me. The relevant date would be the date on which the goods are re-imported to India, which is 9-2-1988, and it is not the date on which the foreign party in Poland had re-shipped the same. In such circumstances, the second condition is not satisfied in this case, the reason being that the goods are re-imported after the period of one year from the date of exportation. This reasonings given by the lower authorities are in accordance with law and, therefore, no grounds are made out to interfere with the order passed by the learned Collector of Customs and Central Excise (Appeals), which is impugned in this appeal. 10. In the result, this appeal is dismissed.
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1991 (6) TMI 159
Confiscation and penalty ... ... ... ... ..... efusing to impose penalty, when there is a technical or venial breach of the provisions of the Act or where the breach flows from a bona fide belief that the offender is not liable to act in the matter prescribed by the statute. rdquo Following the ratio of the Supreme Court and also having regard to the peculiar facts and circumstances of the case and also keeping in mind that the breach committed by the appellant is venial in nature and technical in character, I am inclined to think that the interests of justice would be met if the fine is reduced to Rs. 3,000/- (Rs. Three thousand) and the penalty to Rs. 500/- (Rs. Five hundred) and I order accordingly. At this stage the learned counsel submitted that the entire fine and penalty in terms of the impugned order have been paid and if that be the case the appellant would be entitled to the consequential refund of the excess amount paid in terms of this order. Except for the above modification the appeal is otherwise dismissed.
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1991 (6) TMI 158
Modvat Credit ... ... ... ... ..... the basic objection of the rdquo Department, which was negatived by the Special Bench. The said finding of the Special Bench has been upheld by the Supreme Court. We also observe that the Department rsquo s appeal before Supreme Court was also on this ground that Titanium anode is more durable and is a plant item. Hence, even apart from our independent consideration of the technical issues on merits, this position as input has been upheld by the Supreme Court directly in the case of Titanium anodes by rejecting the Department rsquo s appeal on the above ground. This ratio is also equally available for graphite electrodes performing the same function. 8. Thus viewed from all the angles, however, deligently attractively, the arguments were presented by Shri Mondal, we could not persuade ourselves to deviate from the stand, we had taken earlier in 1989 (41) E.L.T. 424 in the case of Gujarat Alkalies and Chemicals Ltd. 9. Hence, all the four appeals from the revenue are dismisse
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1991 (6) TMI 157
... ...
... ... ..... the provisions of policy, is debatable. Consideration of a claim of bona fide also includes consideration of exercise of due care and diligence. When a non-OGL item is sought to be imported under cover of list attestation procedure, it cannot be permitted by Customs authorities. This is also evident from the para 219(7) itself, as has been discussed above. 10. Thus, we are to uphold the confiscation of control panel and pendant (electronic sub-unit) valued about Rs. 3.66 lakhs. While fixing the amount towards redemption fine, we also take note of the fact that it has been imported for a phased manufacturing programme and such an import in the initial stages would have been permitted under a licence, if applied for. In this view of the matter, we extend the leniency to the extent called for. We uphold redemption fine to the extent of Rs. 40,000/- (Rupees Forty thousand only) on this item and accordingly order consequential relief. 11. Appeal is disposed of in the above terms.
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1991 (6) TMI 156
One application Filed maintainable with respect to one of the two appeals ... ... ... ... ..... in 164-ITR-600 wherein at 604 pp. their Lordships held as follows ldquo Even assuming for the sake of argument that one consolidated reference application was not maintainable in respect of these nine cases, it ought to have been treated as proper and valid in accordance with the prescribed form at least for one assessment year because there was no bar in treating the said reference application for a particular assessment year and deciding the same on merits, especially when a common question of law arose in all these cases between the same parties. Therefore, even on this ground, the impugned order cannot be sustained in law. rdquo It is, thus, clear that this Reference Application is filed in respect of the Order in Appeal No. C-95/86. 9. In the result, we hold that the Reference Application is maintainable only with respect to the disposal of the Appeal No. C-95/86 and therefore, we proceed to hear the same and a date of hearing is fixed for hearing the same on 20-9-1991.
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1991 (6) TMI 155
Import Control ... ... ... ... ..... the imports for stock and sale, when the Delhi High Court, though expressing a prima facie view has held that the sale can also be to a foreign buyer, the propriety requires that the same ought not be discarded, though there may exist some reservations in relation thereto. Here, however, the case is on a different footing. To reiterate, here the import of O.G.L. item is coupled with availment of benefit of total exemption from duty, intended to be so given in the public interest, and the appellants having availed of such exemption benefit, and having cleared the goods for home consumption by filing the Bill of Entry in that regards, have committed themselves to receive and retain the goods for stock and sale within India, and as such their export to a foreign country has to be held as not permissible ldquo Sale rdquo in this context has to be taken as sale in India. 20. In the result, I concur with Brother R. Jayaraman, as regards the conclusion drawn and dismiss the appeal.
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1991 (6) TMI 154
Loss or destruction of goods ... ... ... ... ..... ency. Therefore, the Govt. feel that it would not be correct to demand duty when it is quite evident from the whole context that the party did not act in mala fide manner and did not remove the goods without payment of duty in clandestine manner. rdquo The same principles apply to the facts of this case, since molasses is an item, the storage, disposal and transport of which is controlled by the State Excise authorities and also the appellant could not dispose of the molasses in time because of the constraints. It is also not shown that the report made by the State Authority that the molasses were destroyed and drained out were in any way false report. In such circumstances, the appellants should be given the benefit of doubt. Accordingly, the demand of duty on this count and the imposition of penalty under 173Q are not in accordance with law, and we set aside the same. 16. In the result, all the above appeals are allowed, and the appellants are allowed consequential reliefs.
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1991 (6) TMI 153
... ...
... ... ..... relates to one machine with accessories. Therefore, it is not substantially in the same quantity. Thirdly, the appellants being regular importers and M/s. Mash Leather being a consumer, both the importers cannot be treated at the same commercial level. In view of the above, the criteria laid down in Rule 5 is not satisfied on the facts and circumstances of this case. Therefore, the Collector is not justified in enhancing the assessable value. Since no other evidence is brought on record to doubt the correctness of the transaction value, there is no other alternative except to accept the transaction value. 7. As regards the misdeclaration of country of origin, it has been categorically stated by the appellants that by mistake they have mentioned the country of origin as Hongkong and they have corrected the same on pointing out. Therefore, the question of misdeclaration does not arise. In view of the foregoing, the appeal is allowed and the order of the Collector is set aside.
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1991 (6) TMI 152
... ...
... ... ..... ulab Impex cannot be considered as an authority for this case where the provisions of Policy are totally different. Hence we uphold the finding of the Collector that the goods have been imported without a valid import licence and as such they are liable to confiscation under Section 111(d) of the Customs Act. 4.2 Having regard to our findings on the valuation of the goods and non-liability to confiscation under Section 111(m) of the Customs Act, there is a case for reduction in the redemption fine of Rs. 7,25,000/- imposed by the Collector. Having regard to the overall facts and circumstances of the case, we reduce the redemption fine to Rs. 3,00,000/- (Rupees three lakhs only). We are further of the view that having regard to the totality of the facts and circumstances, there is sufficient reason for substantially reducing the amount of penalty and we accordingly do it and reduce it to Rs. 25,000/- (Rupees twenty five thousand only). 5. Appeal disposed of in the above terms.
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1991 (6) TMI 151
... ...
... ... ..... e depots. Nowhere in the show cause notice, it is indicated that the factory gate price is not genuine and therefore, it cannot be relied upon for the pur pose of determining the assessable value in respect of depot sales. They proceeded on the assumption that the depot sales cannot be determined on the basis of the ex-factory price. Once there is no doubt in the minds of the Department as to the existence and genuineness of the ex-factory price, there is no need for remanding the matter to the Collector for redetermining the assessable value. We, therefore, see no reason for remanding the matter. We may point out that in the earlier paragraphs, we have said that the reasoning of the Collector that the assessable value of the scooters in the State of Andhra Pradesh is low based on a reasoning opposed to Section 4 of the Act. Therefore, there is no justification in remanding the matter to the Collector. Accordingly, we allow the appeal and set aside the order of the Collector.
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1991 (6) TMI 150
Classification ... ... ... ... ..... of handicrafts and as such were exempt. If there was scope for such a belief or opinion, then failure either to take out a licence or to pay duty on that belief, when there was no contrary evidence that the producer or the manufacturer knew that these were excisable or required to be licensed, would not attract the penal provisions of Section 11A of the Act. rdquo 9A. We, therefore, hold that this was a case of mere failure or negligence on the part of the appellants, and the extended period of limitation under Section 11A was inapplicable, and short levy, if any, in respect of the clearances within the normal period of 6 months could alone be recovered from the appellants. For the same reasons we hold that there were no grounds for imposition of penalty and the same has to be set aside. 10. In view of the foregoing we set aside the order appealed against. The appeal is allowed by remand to the Assistant Collector for recovering the short levy, if any, in terms of this order.
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1991 (6) TMI 149
Value of clearances ... ... ... ... ..... ppellants were carrying out the manufacturing activity under their own supervision and control and out of their own raw material by hiring shiftwise or otherwise the factory premises and equipment of M/s. Natco Fine Pharmaceuticals Pvt. Ltd. Hence, on the ratio of the decisions quoted above, we hold that the value of the goods manufactured by M/s. Natco Fine Pharmaceuticals Pvt. Ltd. out of raw materials supplied by the appellants as a loan licensee could not be added to the value of the goods cleared by the appellants from their own factory for determining their total clearances during the year 1985-86 for the purpose of Notification No. 85/85. Since the value of the goods cleared from the appellants factory during the year 1985-86 did not exceed the limit of Rs. 75 lacs, we hold that the appellants were entitled to the exemption under Notification No. 85/85. 9. The order of the Collector (Appeals) is, therefore, set aside and the appeal is allowed with consequential relief.
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1991 (6) TMI 148
... ...
... ... ..... el has arrived at the values Indicated in the show cause notice. The show cause notice though referred to a summary of the Expert Panel Report, no reference has been made to the basis on which the Experts valued the goods. A bald reference to the values in the show cause notice does not give any effective opportunity to the appellants to rebut or challenge the same. It is like giving the value mentioned in the invoice without giving the particulars of the invoice. In the absence of particulars of invoice, the party affected cannot make an effective representation. Therefore, we are of the view that the failure to supply a copy of the Report resulted in violation of principles of natural justice. We, therefore, set aside the order of the Addl. Collector and remand the same for redetermining the assessable value after furnishing a copy of the Expert Panel Report and after giving the appellants a reasonable opportunity of being heard. 15A. The appeal is, thus, allowed by remand.
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1991 (6) TMI 147
Classification ... ... ... ... ..... ecisions of the Tribunal in Priyadarshini Mills case and Vardhan Syntex case (supra). The Department rsquo s stand that staple fibre can be extracted from the waste does not any longer hold good as it has been held by the Tribunal that there is clear distinction between waste and fibre. 15. Further in the test report dated 14-2-1987 (page 85 of the paper book) the description of the samples as being in the form of lumps of different coloured fibres and heterogeneous mass with cut ends in varying short lengths. Also clearly shows tliat what was used for blending with cellulosic yarn was ldquo synthetic waste rdquo and not ldquo fibre rdquo . 16. Following the ratio of the judgments in Priyadarshini Spinning Mills and Vardhan Syntex (supra) we hold that the yarn manufactured by the appellants is classifiable under TI 18III(i) of the Schedule to the erstwhile Central Excise Tariff. 17. In the result we set aside the impugned order and allow the appeal with con sequential relief.
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1991 (6) TMI 146
Limitation - Issue of Show Cause Notice one year after the receipt of test report ... ... ... ... ..... eading of this cannot be taken as the one as alleging act of suppression for invoking the extended period. Positive allegation in that regard has to be made. Even otherwise, the Department was suspected the mis-declaration as early as in January, 1981 and that the suspicion, was confirmed in the month of August, 1981. But the Department appears to have taken no action till 28-8-1982 and thereto they have not demanded the duty for the period during which the sample was drawn but for the period much subsequent thereto. The period for which the demand was raised was, after the test report was received by them and that there was no justifiable ground for them to wait for about one year for issuing the show cause notice. 5. In my view, the approach of the Collector (Appeals) is just and proper and no interference is called for. There is no allegation of suppression made in the show cause notice. The appeal, under this circumstances, is rejected. Consequential relief has to follow.
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1991 (6) TMI 145
Imports - Advance licence under the DEEC Scheme ... ... ... ... ..... cause of import of goods of greater width could not have been affected, although Collector (Appeals) has recorded a different finding in his order. Keeping all these aspects in view and the fact that the duty exemption scheme is intended to.promote exports, we consider that it would be appropriate to set aside the impugned order and remand the case to the Deputy Collector of Customs for examination of the claim of the appellant so far as fulfilment of the export obligation is concerned. He is directed to see whether the excess quantity imported as a result of the higher width has been properly accounted for and to restrict the demand for duty on such excess, if any, which has not been fully utilised in the export of the finished goods. The appellant will, for this purpose, submit such information as may be required to examine their claim and the Deputy Collector will give a notice to the appellants and hear them before passing the order. Thus, the appeal is allowed by remand.
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1991 (6) TMI 144
Confiscation and penalty ... ... ... ... ..... at the show cause notice was not specific. But the narration in the show cause notice perused as a whole clearly brings out the liability of the appellants as importer of the goods for penalty under Sec. 112 and the appellants, while replying to the notice had not found any difficulty in furnishing their defence in respect of proposal for imposing penalty under Sec. 112. Therefore, this argument is untenable. However, as regards the quantum of penalty, it is felt that since the fine in lieu of confiscation levied in this case already stands at about 100 of the assessable value, and as already noted supra, there exist some mitigating factors, some relief in the matter of personal penalty appears to be called for, and accordingly the personal penalty is reduced from Rs. 2 lakhs to Rs. 1 lakh (Rupees one lakh only). The impugned order of the Additional Collector is modified only to the extent indicated above. It is, otherwise upheld. The appeal is disposed of in the above terms.
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1991 (6) TMI 143
Valuation - Cost of durable and returnable packing ... ... ... ... ..... entioned above. Therefore, I do not feel that there is any vagueness in the arrangement or agreement between the appellants and their customers. Reliance placed by the learned advocate for the appellants on para 14 of the Parry rsquo s case is very apt. Yet another plea of the learned SDR was that the tin container was the primary packing of the goods and primary packing in any case, according to him, was chargeable to duty. The question of durability and returnability for primary packing should not normally arise because the goods, namely, Vegetable Product in this case could not be delivered without being packed in the tin containers. This plea is not tenable in view of the definition of lsquo value rsquo in Section 4(4)(d)(i) which specifically excludes the cost of packing which is of a durable nature and is returnable by the buyer to the assessee. This exclusion clause does not make a distinction whether the durable and returnable packing is primary or other than primary.
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1991 (6) TMI 142
Classification ... ... ... ... ..... be treated as a part of electric lamp or whether it should be classified as an article of Nickel. The contention of the respondent in these appeals has been upheld by the Tribunal that the lead-in-wire is required to undergo certain processes before it can perform the function of a filament wire. It appears to us that the more ap propriate classification is that it is an article of Nickel. It further appears that this view has been accepted by the judgments of certain other High Court and the Department, except on a short point, has accepted the said finding. Having regard to the aforesaid, we are of opinion that the view taken by the Tribunal should not be interfered in these appeals. The appeals are, accordingly, dismissed. No costs. 5. In view of the above discussion, we stick to our earlier view which has been affirmed by the Hon rsquo ble Supreme Court. 6. In the result, the appeals are allowed. Revenue authorities are directed to give consequential effect to this order.
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1991 (6) TMI 141
Exemption notification ... ... ... ... ..... Collector (Appeals) after inspecting of the relevant sketch map has recorded the finding that the dry-dock was surrounded by various sections of the workshop like welding, fabricating, carpentry, foundry, blacksmithy, tin-smithy etc. and these sections of the workshop including the dry-dock were surrounded by a single compound wall with one entrance from the road side. Under these circumstances, on the ratio the decisions quoted above, we are of the view that the entire complex consisting the various sections of the workshop and the dry-dock constituted the factory premises and various excisable goods falling under Tariff Item 68 manufactured after subjecting the raw materials to various processes in different sections of the workshop, when used in the dry-dock were eligible for exemption under Notification No. 118/75-C.E. 8. In view of the foregoing, we see no reason to interfere with the order passed by the Collector of Customs (Appeals). Accordingly, we reject the appeal.
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