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Showing 121 to 140 of 316 Records
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1991 (7) TMI 210 - CEGAT, NEW DELHI
Refund - Limitation ... ... ... ... ..... as been stated, ldquo On scrutiny of the refund claim filed by the assessee it appeared to be partly time-barred ...... rdquo Secondly, even according to the authorities cited by the respondents to say that it is not open to the statutory authorities to deny refund on grounds of unjust enrichment, it has been emphasised that the authorities are bound by the provisions of Sec. 11B. And limitation being an integral part of it, then it has to be spelt out. It is this aspect of the Collector (Appeals) order that has been raised in appeal before us. The Department has not contested the Order-in-Appeal on the aspect of unjust enrichment. Therefore, it is only just and proper that the order of the Collector (Appeals) be modified to say that the respondents will be eligible for refund subject to limitation of six months period from the relevant date under Section 11B of Central Excises and Salt Act, 1944 i.e., the date of payment of duty. The appeal is disposed of in the above terms.
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1991 (7) TMI 209 - CEGAT, MADRAS
MODVAT credit ... ... ... ... ..... the question of grant of MODVAT Credit has to be considered in the context of the Scheme as set out in the Rules. The Scheme basically envisages the relief to avoid cascading effect of the duty paid on the inputs specified under Rule 57A and duty paid on inputs is sought to be allowed as credit to subserve this purpose. The words lsquo nil rate of duty rsquo used in the Rule 57G(2) have to be read in the context of the totality of the Scheme. Wherever therefore, the goods are recognised to have not suffered any duty, no benefit of MODVAT Credit can be allowed. In view of this, as also the decision in the case of Rapsri Engineering Industries, reported in 1989 (43) E.L.T. 577 referred to supra and the view held by us in the case of UMS Radio v. C.C.E. -1991 (52) E.L.T. 579, we are of the view that benefit of MODVAT Credit as claimed cannot be allowed. However, inasmuch as West Regional Bench has ruled differently, the matter is therefore referred to Larger Bench for decision.
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1991 (7) TMI 208 - CEGAT, MADRAS
Demand - Clandestine removal ... ... ... ... ..... therefore, the learned lower authority rsquo s order absolving the respondents of the charge of clandestine removal cannot be interfered with. In regard to 1500 cassettes, the same were seized from the respondents rsquo factory and the same were not entered in the RG 1 register. The learned Consultant for respondents has stated that they were awaiting the entry in the RG 1 register. There is no evidence contra in this regard. The learned JDR was specifically asked whether he could state as to when these cassettes were produced and how long these were lying in the respondents rsquo factory remaining un-entered in the RG 1 register, he has no information in this regard. The learned Consultant for the respondents pleaded that these were the production of the same day and were to be entered at the end of the day after packing etc. We, therefore, hold that the benefit of doubt has to be given in regard to this. In the above view of the matter, we dismiss the appeal of the Revenue.
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1991 (7) TMI 207 - CEGAT, MADRAS
MODVAT Credit ... ... ... ... ..... e observe that the Respondents have pleaded before the original authority that the roving enquiry made with the vendors did not prove anything against the Respondents in regard to the eligibility of the waste and scrap to the benefit of MODVAT credit and pleaded that the onus was on the Department to show that the scrap was non-duty paid. We observe that in the case of Andhra Steel Corporation Ltd. in Appeal No. E/1/89 above, we have held that it was for the Department to show that the inputs obtained were non-duty paid. It is observed that no verification as to the nature of the scraps used was done by the authorities and the evidence by way of statements collected is general in nature and there is no specific finding that any lot of scrap used by the Respondents could be taken to be non-duty paid. In view of what we have held in the case of Andhra Steel Corporation Ltd. above, we hold that there is no merit in the plea of the appellant-Collector and the appeal is dismissed.
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1991 (7) TMI 206 - CEGAT, CALCUTTA
Licensing - Dutiability ... ... ... ... ..... e free to act in accordance with the Act and the Rules if the situation so demands. 46. In the light of the above discussion, I agree with the view expressed by the Hon rsquo ble Member (J) and grant the prayer (subject to such conditions as the regular Bench may deem fit to impose in the facts and circumstances of the case). 47. The case is returned to the East Regional Bench for passing appropriate order. ORDER 48. In view of the majority opinion the stay sought by the Petitioner during the pendency of the appeal is hereby granted and this is without any prejudice to the Department to make any further enquiry in this behalf and to issue show cause notice to the Petitioner in this behalf. The Department rsquo s right of conducting necessary enquiries and to take necessary actions in accordance with law, are kept intact. The Petitioner shall keep a proper account of production and clearance and the officers may inspect the records and visit the premises if and when necessary.
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1991 (7) TMI 205 - CEGAT, NEW DELHI
Quasi - judicial Order ... ... ... ... ..... which the gazette containing the Notifications is made available to the public. It would mean that it will not depend on the date on which a particular importer got to know of it. In this case, the goods have been assessed to duty in February, 1990 and even according to the appellants, the Notifications 1/90 and 2/90 had been published in the Excise Law Times on 1-2-1990. Therefore, it can be said on evidence that the Bill of Entry is assessed to duty at the higher rate at the time when the Notification had become available to the public. Moreover, the question is essentially one of applying the provisions of Sec. 15 of the Customs Act to the Bill of Entry filed for home consumption and it is on record that the Bill of Entry filed for home consumption was noted on 5-1-1990 when the increased rates have been notified. Therefore, in such a view of the matter, there is no reason to interfere with the order passed by the Additional Collector. The appeal is, accordingly, rejected.
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1991 (7) TMI 204 - CEGAT, NEW DELHI
Stay/Dispensation of pre-deposit of duty ... ... ... ... ..... d advocate submitted that Dass Hitachi is in a poor financial condition to make any payment. However, in view of the strong prima facie case in his favour, he does not press for the financial condition very strongly. 3. Opposing the stay application, learned JDR Shri S.K. Sharma for the Revenue urges that allegation of contravention of Rule 57F has been made in the show cause notice in para (xi) and therefore, it cannot be said, as has been urged, that no penalty can be imposed under Rule 57F(2) read with Rule 173Q. He, however, reiterates the findings of the adjudicating authority of the impugned order. 4. We have considered the pleas advanced on both sides. We find force in the plea of the learned advocate for the applicants that there is no evasion of duty involved in these cases. At best it is a contravention of procedure under Rule 57F under the MODVAT scheme. Therefore, having regard to the facts and circumstances of the case we allow the stay petitions unconditionally.
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1991 (7) TMI 203 - BOMBAY HIGH COURT
Meaning of - Plants ... ... ... ... ..... are struck down as ultra vires the powers conferred on the Central Government under Section 3(1) of the Destructive Insects and Pests Act, 1914. The Respondents are directed to refrain from levying and collection inspection fees at the rate of Rs. 40/- per m. tonne or at any other rate on the consignments of Pulses and timber logs imported by the petitioners under the Plants, Fruits and Seeds (Regulation of Import into India) Order, 1989 In Writ Petition No. 1810 of 1990 the respondents are directed to refund to the petitioners a sum of Rs. 31,840/- paid as inspection fees as set out in Exhibit lsquo A rsquo thereto as also any subsequent inspection fees paid by the petitioners after verification of the records in that connection. In Writ Petition No. 30 of 1990 as also in Writ Petition No. 1483 of 1991 the Bank guarantee and the bond given by the petitioners to stand discharged. At the request of the respondents operation of this order is stayed for a period of eight weeks.
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1991 (7) TMI 202 - CEGAT, CALCUTTA
Evidence - Confessional statement ... ... ... ... ..... r Section 111(o) of the Customs Act, 1962. Even the Adjudication Order does not indicate that the appellants were asked to explain as to why it should not be confiscated under Section 111(o) of the Customs Act, 1962. But in the Adjudication Order the learned Collector merely stated that even though the mortgage is believed the same is liable for confiscation under Section 111(o) of the Customs Act, 1962. There is nothing to show that the appellants were given an opportunity to deny this charge. Therefore, the confiscation of the VCR also cannot be upheld. So also, the confiscation of the ball-point pens and perfume also cannot be upheld as there is nothing to show that they were illicitly imported into the country. Accordingly, these appeals are allowed. The imposition of penalty of Rs. 50,000.00 each imposed on these appellants are set aside. The confiscation of the VCR, ball-point pens and perfume is also set aside. The appellants are entitled for the consequential reliefs.
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1991 (7) TMI 201 - CEGAT, CALCUTTA
Confiscation and fine ... ... ... ... ..... It is, therefore, not clear that as to how the learned Collector has imposed the penalty under Rule 9(2) read with Rule 32(2) of the Central Excise Rules, 1944 or under Rule 151 read with Rule 226 of Central Excise Rules, 1944. But while dealing with second charge we had already come to the conclusion that the appellants contravened Rule 52A. This contravention was also mentioned in the show cause notice. Even in the Appeal Memo filed by the appellants at page-150 of the paper-book they admitted as follows ldquo There were technical irregularities as per Rule 52A but there could not be any evasion of revenue within the mischief of Rule 9(2) of the said Rules. rdquo It is thus clear that the appellants had contravened Rule 52A as per their own admission and as per the discussion made by us while dealing with the Charge No. 2 of the case. In the result, the appeal is allowed except for the imposition of penalty of Rs. 1,000/- (One thousand only) under Rule 52A, which is upheld.
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1991 (7) TMI 200 - CEGAT, BOMBAY
... ... ... ... ..... ow cause notice. In our view, the Asstt. Collector should have gone into the merits without pleading lack of jurisdiction. While, we are not disputing the department rsquo s claim that a void order is required to be voided by a competent authority, we are allowing the appeal only on the question that the amount short levied or non-levied in this case has to be demanded by following the procedure prescribed under Section 11A, which is the statutory requirement. When admittedly, such an order under Section 11A has not been passed, we hold that the demand is not enforceable. Even under Section 11 of the Central Excise Act, it can be resorted to for recovery of sums payable under the provisions of the Act or the Rules. The quantum of duty not paid is to be determined as per the provisions of the Act or the Rules. We find that in this case such determination has not been done either under Section 11A nor under Rule 173-I, after issue of a proper notice. Hence, we allow the appeal.
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1991 (7) TMI 199 - CEGAT, MADRAS
Demand - Limitation ... ... ... ... ..... ne of the official records the door No. 68DI as such exists and this was purely the appellant rsquo s own creation. The lease deed entered is also prima facie, not acceptable, since the premises indicating the door no. was not in existence and no demarcation in regard to the factory premises is shown in the lease deed as such. In view of the above we hold that the appellants had suppressed the information from the Department for the relevant Central Excise purposes and the lower authority was right in invoking the longer period. The ratio of the discussion cited earlier apply to the facts of this case. We, therefore, confirm the duty demanded in terms of the impugned order. We, however, observe that the appellants are a small scale unit and the duty evaded is of the order of Rs. 47,534.10. In the facts and circumstances of the case, we therefore hold that the ends of justice would be served if the penalty is reduced to Rs. 10,000/- (Rs. ten thousand) and we order accordingly.
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1991 (7) TMI 198 - CEGAT, CALCUTTA
... ... ... ... ..... s that cannot take the place of proof. Accordingly, as per the Point No. (3) we hold that the confiscation of Indian Currency of Rs. 71,000.00 is not in accordance with law and we hereby set aside the same. 17. In view of the above findings on point Nos. (1) to (3) we are of the opinion that the imposition of penalty of Rs. 20,000.00 each on the appellants, Shri Sajjan Kumar Poddar and Shri Suresh Kumar Poddar under Section 112 of the Customs Act, 1962 is not justifiable and accordingly, we set aside the same. In the result, the above-captioned appeals are allowed and the confiscation of the two pieces of wrist watches at Item No. 4 of the Search List and the diamonds at Item Nos. 23 to 29 and the confiscation of the Indian Currency amounting to Rs. 71,000.00 are hereby set aside. The imposition of penalty of Rs. 20,000.00 each on the appellants, Shri Sajjan Kumar Poddar and Shri Suresh Kumar Poddar is also set aside. The appellants are entitled for the consequential reliefs.
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1991 (7) TMI 197 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... tube and pipe fittings which have been polished or coated, or which have been shaped or worked, such as bent, coiled, threaded drilled, waisted, cone-shaped or finned. rdquo By virtue of the above Note, the otherwise residuary Heading 75.04/06 turns into a specific one for nickel tubes. When nickel tubes which have been worked upon fall under this heading, there is all the more justification for plain nickel tubes to fall under this heading. We agree with the learned representative of the department that Heading 75.04/06 read with Chapter 75, Note 2 is specific for nickel tubes, both worked and unworked. The appellants rsquo reliance on exclusion Note 1(f) to Section XV is misplaced because this note excludes only machinery, mechanical appliances and electrical goods from the scope of Section XV (in which Chapter 75 falls) and straight length nickel tubes are none of these. 10. In view of the above discussion, we uphold the order of the lower authority and reject the appeal.
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1991 (7) TMI 196 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... ed JDR rsquo s reliance on the Explanatory Notes of CCCN in his arguments, it is sufficient to say that the learned Collector (Appeals) for coming to a finding against the appellants did not rely on the same. Even otherwise at best these notes have persuasive value and in the view we have taken above about these plates, we do not see how these could help the respondent. The ratio of aforesaid observation applies with full force to the facts and circumstances of these cases. 5.1 Therefore, having regard to the preponderant opinion of the Tribunal rsquo s judgments as well as to the general principle of interpreting the Entries in the Tariff, we are of the view that the goods under consideration are classifiable under T.H. 84.34 and not under T.H. 90.10. The plate processor is meant only for preparing the printing plates used in printing machine. T.H. 84.34 would, therefore, be more specific for goods under consideration than T.H. 90.10. 6. Accordingly, the appeals are allowed.
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1991 (7) TMI 195 - CEGAT, NEW DELHI
Lamps - Optic Fibre Lamps, parts thereof ... ... ... ... ..... y them for manufacturing Optical Fibre Lamps. Under these circumstances we hold that the goods in question are more specifically covered by sub-heading 9405.99 as parts of lsquo other electric lamps rsquo falling under sub-heading 9405.40. 14. The imported goods being held by us to be parts of Optic Fibre Lamps, the question whether they would be covered by OGL in terms Appendix 6(1) of AM- 1988-91 Import Policy, will have to be decided with reference to the SSI Registration Certificate held by the appellant. 15. In view of the above discussion we order the classification of the goods under sub-heading 9405.99 as parts of other electric lamps, falling under sub-heading 9405.40 and direct that the question whether the goods are covered by OGL may be decided by the Asstt. Collector with reference to the SSI Registration Certificate held by the appellant. 16. In the result, the Additional Collector order is set aside and the appeal is decided by way of remand in the above terms.
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1991 (7) TMI 194 - CEGAT, NEW DELHI
Confiscation and penalty ... ... ... ... ..... hat since at the relevant time the appellants failed to obtain the licence under the Central Excises and Salt Act, 1944, the Order of confiscation and penalty was rightly passed. 10. We have considered the submissions. From the facts and the circumstances of the case, we find that at the relevant time the question of the excisability of the subject goods was not free from doubt. Under these circumstances, we give the benefit of doubt to the respondents in all the four appeals which relate to the confiscation and imposition of various penalties and set aside the confiscation and penalty in all the four cases and consequently reject all the four appeals filed by the appellants. 11. In the result, Appeal Nos. E/462/85-D and E/894/85-D which relate to the classification of subject goods are allowed whereas Appeal Nos. E/895 896/85-D 897/85-D and 898/85-D which relate to the confiscation and imposition of penalties are rejected with consequential relief to the respondents, if any.
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1991 (7) TMI 193 - CEGAT, NEW DELHI
Stay/Pre-deposit of duty ... ... ... ... ..... rsquo ble Supreme Court in the case of CITv. Kulu Valley Transport Co. (P) Ltd. reported in AIR 1970 S.C. 1734 had held that where two sub-sections are so connected with each other, one sub-section has to be read as a proviso to the other section. Para No. 19 from the said judgment is reproduced below - In view of these observations, we are of the view that while adjudicating the matter, the adjudicating authority should have looked into the overall provisions of the notification and should have examined the eligibility of the benefit of Notification No. 175/86-C.E., dated 1st March, 1986. 6. In view of the above observations, we are of the view that there was denial of principles of natural justice. We set aside the impugned order and remand the matter to the Collector of Central Excise having jurisdiction. We further direct that while readjudicating the matter, he will observe principles of natural justice and shall grant an opportunity of personal hearing to the appellant.
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1991 (7) TMI 192 - CEGAT, NEW DELHI
Appeal unaccompanied by assessment order ... ... ... ... ..... f the decisions of the Bombay High Court in the case of Glaxo Laboratories v. A. V. Venkateswaran reported in AIR 1959 Bombay 372 and Privy Council in the case of Secretary of State v. Mask and Co. reported in AIR 1940 Privy Council 105, we are of the view that the appeal was maintainable against the order of assessment under Section 17 of the Customs Act, 1962. Since the Collector (Appeals) has not applied his mind for decision on merits, we are of the view that the matter should be remanded to the Collector of Customs (Appeals), Bombay. Accordingly, we set aside the impugned order and remand the matter to the Collector of Customs (Appeals), Bombay. While deciding the matter, the Collector of Customs (Appeals), Bombay shall observe principles of natural justice and shall grant an opportunity of hearing. Since the matter is very old, we shall appreciate if the Collector of Customs (Appeals), Bombay decides the appeal within three months from the date of receipt of this order.
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1991 (7) TMI 191 - CEGAT, MADRAS
Adjudication - Natural justice ... ... ... ... ..... rly when reliance is sought to be placed against the appellant on a statement recorded from the said Balakrishnan. It is no doubt true that the appellant would not be entitled to insist on his right of cross-examination if the person is dead or cannot be found or has become incapable of giving evidence or whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case would appear to the Court unreasonable. In the present case there are no materials to indicate as to whether the Department could not procure the witness under any of the aforesaid circumstances. Mere return of the letters unserved would not lead to such a conclusion. I, therefore, in the interest of justice set aside the impugned order and remit the matter to the original authority for re-consideration of the issue after making efforts again to procure the said witness for cross-examination if possible and then decide the issue as per law. Ordered accordingly.
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