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Case Laws
Showing 141 to 160 of 316 Records
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1991 (7) TMI 190 - CEGAT, NEW DELHI
Valuation - Related persons ... ... ... ... ..... ly be passed by the manufacturers to the customers. Reliance has been placed by him on the judgment of Delhi High Court in the case of Modi Rubber India Ltd. v. UOI 1978 (2) E.L.T. 127 as well as on Bombay High Court rsquo s judgment in the case of Apollo Tyres Ltd. v. UOI 1980 (6) E.L.T. 228 . 4.1 We need not dwell on this issue any longer because of amendment of Section 4(4)(d)(ii) by insertion of an explanation thereto w.e.f. 1-10-1975 by Clause 47 of the Evidence Act, 1982. The judgments of Delhi High Court and of Bombay High Court were rendered before this amendment was made and given retrospective effect from 1-10-1975. Effect of the said amendment is that it is only the effective duty payable by an assessee which is to be deducted from the total price charged by an assessee but this issue is only of academic interest in view of our findings on the first two issues earlier and therefore, does not affect the result of the appeal. 5. Appeal disposed of in the above terms.
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1991 (7) TMI 189 - CEGAT, NEW DELHI
Valuation - Related persons ... ... ... ... ..... ly be passed by the manufacturers to the customers. Reliance has been placed by him on the judgment of Delhi High Court in the case of Modi Rubber India Ltd. v. UOI 1978 (2) E.L.T. 127 as well as on Bombay High Court rsquo s judgment in the case of Apollo Tyres Ltd. v. UOI 1980 (6) E.L.T. 228 . 4.1 We need not dwell on this issue any longer because of amendment of Section 4(4)(d)(ii) by insertion of an explanation thereto w.e.f. 1-10-1975 by Clause 47 of the Evidence Act, 1982. The judgments of Delhi High Court and of Bombay High Court were rendered before this amendment was made and given retrospective effect from 1-10-1975. Effect of the said amendment is that it is only the effective duty payable by an assessee which is to be deducted from the total price charged by an assessee but this issue is only of academic interest in view of our findings on the first two issues earlier and therefore, does not affect the result of the appeal. 5. Appeal disposed of in the above terms.
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1991 (7) TMI 188 - CEGAT, NEW DELHI
Classificatiom ... ... ... ... ..... at Excise authorities could not take a different view without any valid reasons. Shri M.K. Sohal, learned JDR, has referred to the description given in the invoice as stapling machine. Heading 84.32 is a generic entry, whereas Heading 84.51/55(1) is a specific entry. The design and the specifications of the imported machines clearly show that it cannot be used for book binding. It is a settled law that in classification matters a heading which is more specific should be resorted to. The judgment cited by Shri Jain in the case of J.K. Synthetics v. Union of India reported in 1981 ECR 333-D does not help him. 8. Alternatively the appellant had pleaded for assessment under Heading 82.05 BTN. Resorting to BTN has only persuasive value and in the present matter, we do not find any reason for resorting to BTN. 9. In the result we hold that the goods fall under Heading No. 84.51/55(1). Accordingly, we confirm the findings of the Collector of Customs (Appeals) and dismiss the appeal.
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1991 (7) TMI 187 - CEGAT, NEW DELHI
... ...
... ... ..... t is construed strictly either because of legislative intention or on economic justification of inequitable burden or progressive approach of fiscal provisions intended to augment state revenue. But once exception or exemption becomes applicable no rule of principle requires it to be construed strictly rdquo . 2. In other words, the Supreme Court laid down in the same judgment, ldquo Do not extend or widen the ambit at the stage of applicability. But once that hurdle is crossed construe it liberally rdquo . In this view of the matter, it will be in the interests of justice and reasonable to hold in the facts of the present case that a liberal interpretation of the notification is called for, and to hold that the non-production of the Essentiality Certificate at the time of clearance as stipulated in the notification need not be fatal to the claim for exemption under that notification, on the facts and in the circumstances of the present case. The appeal is accordingly allowed
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1991 (7) TMI 186 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... change in the classification to say that where the change in the stand on the part of the Excise authorities was not due to discovery of new facts or any change in tariff entry or decision of any Court or any such similar reason, but was the result of only a change in the opinion of the Excise authorities the change in classification even if permissible would be effective only from the date of show cause notice. The Tribunal held that when clearances were made on approval of classification list, the demand can be effective only from the date of the notice and not for any anterior period. 5. In this view of the matter the demand for the period prior to the date of issue of the show cause notice is not maintainable. Therefore, the demand is set aside as being barred by limitation. 6. In the result we uphold the classification of the goods under TI 14E as ordered. However, we set aside the demand for duty on the ground of limitation. The appeal is disposed of in the above terms.
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1991 (7) TMI 185 - CEGAT, MADRAS
Merits of the case - Meaning ... ... ... ... ..... onfines of law and grant relief by by-passing-the bar of limitation. We, therefore, uphold the impugned order appealed against and dismiss the appeals. It is open to the appellants to seek such remedies as are open to them under law. 5. Per V.P. Gulati, Member (T) . ndash I observe that the appellants had gone before the Writ Court seeking relief without any order from the authorities in regard to the refund that has been claimed. There is no specific plea before the Hon rsquo ble High Court that the Departmental authorities should consider their claim in relaxation of the limitation as prescribed under the law. In the absence of that, the authorities have rightly construed the direction of the Court for consideration of the issue on merits i.e., in terms of law under which the relief could be given. The limitation in the statute is part of substantive law and cannot be considered as a technical issue. In view of this the learned lower authority rsquo s order is maintainable.
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1991 (7) TMI 184 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... squarely covered by the provisions of Note I to Chapter 25 which reads thus ldquo Except where the context otherwise requires, this chapter is to be taken to apply only to goods which are in the crude state or which have been washed (even with chemical substances eliminating the impurities without changing the structure of the product), crushed, ground powdered, levigated, sifted, screened, concentrated by floatation, magnetic separation or other mechanical or physical process (not including crystallisation) but not calcined or subjected to any further process other than a process specially mentioned in respect of the goods described in Note 3. rdquo 8. In these circumstances and in the light of the ratio of the Supreme Court decision (supra), the findings of the lower authorities that the product imported is correctly classifiable under Heading 25.01/32(3) of Customs Tariff Act 1975 and also their finding that it will not fall under Chapter 26, is well-founded and is upheld.
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1991 (7) TMI 183 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... nes where color and/or clarity, but not liquid flow, are the primary concerns. OPW Modular Visi-Flo flow indicators are easy to install, practically maintenance-free and, above all, easy to read whenever you need to know what rsquo s happening in your fluid lines. It is, therefore, evident that the disputed goods were specially designed devices or instruments meant for indicating the flow, clarity and colour of liquids flowing through the pipes in chemical and other industrial plants and not ordinary pipe fittings to serve only as connecting pieces in piping systems. 8. In view of the above discussion we are of the view that the imported lsquo Sight Flow Indicators rsquo were specifically covered under Heading 90.24(1) of the C.T.A., 75 and their classification under Heading 74.07/08 of the C.T.A., 75 by the lower authorities was erroneous. 9. We, therefore, set aside the order passed by the Collector (Appeals) and allow the appeal with consequential relief to the appellants.
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1991 (7) TMI 182 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... he product brought into existence by the machine. This does not mean that a new commodity has been brought into existence having a different name, character and use. In the absence of any evidence from either side, we are unable to give any categorical finding whether the machine under consideration is meant for production of a commodity. We, therefore, remand the matter to the original authority to decide the matter on the aforesaid limited question whether the product brought into existence by the machine is a commodity having a different name, character and use or it is merely a machine which processes chemicals and minerals. Reliance on some citations placed by the learned advocate for the respondent is of no help because in those cases it had been held that the machine under consideration produced a commodity known to the market as such. 5. Thus the appeal is allowed by remand on the aforesaid limited question for determining whether it falls under T.H. 84.59 (2) or not.
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1991 (7) TMI 181 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... ured by the appellants for mounting on trailers would be classifiable under Heading 87.07 of the Central Excise Tariff and after conversion of such tanks and duty paid running gear, landing gear and mounting plate into tanker-trailer/semi-trailer, the product would be assessable to duty under Heading 8716.00 of the Central Excise Tariff read with the relevant Notifications permitting adjustment of duty paid on the inputs against the duty that may be payable on the final product. (ii) The order confirming the demand for Rs. 3,58,303.20 in respect of goods cleared between 1-4-1987 and 23-12-1987 is set aside as barred by limitation. (iii) Order holding the tanker No. 57 as liable to confiscation is confirmed. However, having regard to the overall facts and circumstances, the redemption fine is reduced to Rs. 5,000/- (Rupees five thousand only) and the penalty is reduced to Rs. 2,500/- (Rupees two thousand and five hundred only). 18. The appeal is disposed of in the above terms.
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1991 (7) TMI 180 - CEGAT, MADRAS
... ...
... ... ..... Gate passes in respect of the said goods, filing of monthly returns in respect of the goods manufactured, and Rule 56A which deals with proforma credit in respect of the inputs received for the manufacture of finished goods as also the provisions regarding Modvat credit. All these go to show that the Rules in this Chapter deal with the goods which are manufactured by a particular manufacturer. Restriction in this context under Rule 51A could be said to be only with reference to the goods which have been manufactured by the particular manufacturer and which have been cleared from the factory on payment of duty. We cannot, therefore, by reading the rule conclude that there is a ban on the receipt of goods other than those manufactured in the factory. In this view of the matter I hold, therefore, that the appellants rsquo plea has to be allowed and the learned lower appellate authority rsquo s order is, therefore, set aside with consequential relief. The appeal is thus allowed.
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1991 (7) TMI 179 - CEGAT, BOMBAY
Imports - Welding electrodes ... ... ... ... ..... mport is of welding electrodes meant for actual use, their claim for clearance under OGL cannot be dismissed. lsquo Welding Electrodes rsquo is also equally a specific item and the goods imported are also described as welding electrodes and has been imported by an actual user. In the circumstances, the order of confiscation is required to be set aside. In any case, Shri Shah, Advocate indicated that they are not interested in clearing the goods for home consumption. They have already sought permission for re-export because the chemical composition of the rods does not meet their requirements. This request is also required to be allowed, subject to the availability of the goods at this juncture. 6. In the result, I set aside the order of the authority below and allow the appellants to re-export the goods within a period of 60 days from the date of communication of this order, failing which the goods will be treated as abandoned and disposed of by the department as per the law.
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1991 (7) TMI 178 - CEGAT, NEW DELHI
Goods in CKD condition when not dutiable ... ... ... ... ..... lso noted that the Department had full knowledge of the facts about manufacture of all the goods manufactured by the respondent when the declaration was filed by the respondent. The respondent did not include the value of the product other than those falling under Tariff Item 14E manufactured by the respondent and this was in the knowledge, according to the Tribunal, of the authorities. These findings of the Tribunal have not been challenged before us or before the Tribunal itself as being based on no evidence. rdquo 11. In view of the facts outlined above, on the ratio of the decision quoted above, we hold that there was no conscious or deliberate withhold of information by the appellants in regard to the test charges recovered by them with the intention of evading duty. We, therefore, hold that the extended period of beyond six months was not available to the Department for raising demands in this case. 12. In the result we set aside the impugned order and allow the appeal.
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1991 (7) TMI 177 - CEGAT, NEW DELHI
... ...
... ... ..... however, does not rest here. The learned advocate, Shri Ravindra Narain for the appellants, has contended that if this view of S. No. 14 is taken, then S. Nos. 12 and 13 would become redundant. In our view this contention has no merit. S. Nos. 12 and 13 are special types of milk products which have been specially carved out as dutiable categories. These milk products, namely skimmed milk powder and condensed milk or condensed skimmed milk do not contain any other ingredient (except the sweetening agent in the case of condensed milk or skimmed milk). On the other hand, milk food mentioned at S.No. 14 may contain any other ingredient. Another important condition occurring in S.No. 14 in relation to milk foods is that it would be capable of being used as beverage by simply mixing with, or boiling in milk or water. Accordingly, we are of the view that lsquo Complan rsquo falls under S. No. 14 of the Schedule to Notification No. 17/70 dated 1-3-1970. Hence the appeal is rejected.
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1991 (7) TMI 176 - CEGAT, NEW DELHI
No question of law survives for reference to High Court ... ... ... ... ..... of India and Ors. dated 19-11-1990 in which the order is communicated as follows - ldquo SLP(C) Nos. 14605-14606/90 The Special Leave Petitions are dismissed. WRIT PETITION (C) No. 501/90 The writ petition is dismissed. I.A. NO. 2 in WP (C) No. 585/88 Since the special leave petitions filed on behalf of the department have been dismissed today, there is no need for issuing any directions in the I.A. There is no reason to believe that the authorities of the Customs Department will not comply with the order of the Tribunal within a reasonable period. The I.A. is dismissed. Sd/- (Harish Kr. Juneja) Court Master Sd/- (Vinod Kumar) Court Master. From the above it is clear that the highest judicial forum in the land has gone into the merits of the order of the Tribunal against which the present reference applications have been filed and has dismissed the SLP filed by the department. In such a situation, nothing survives of the reference applications which are accordingly dismissed.
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1991 (7) TMI 175 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... (P) Ltd. are distinguishable cannot be accepted. It is no doubt true that in the order No. 59 and 60/91-C, the dispute before the Tribunal is whether Phenyle is a medicament falling under Heading No. 3003.20 of the CET 1985 or a disinfectant falling under Heading No. 3801.90. This Tribunal following the earlier order held that Phenyle is a lsquo disinfectant rsquo . Shri Aggarwal did not bring to our notice any cogent and convincing reasons to differ with the said order. 10. Even accepting the argument of Shri Aggarwal that Insecticides is a genus and phenyle is a species of insecticides, we may point out that the tariff heading categorically refers to genus as well as species separately and the genus is classified under Heading 3808.10 and the species under sub-heading 3808.90 i.e. under others. In view of the specific tariff sub-heading, we cannot accept the argument of Shri J.S. Aggarwal. 11. In view of the foregoing, the appeals are dismissed and the demand is confirmed.
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1991 (7) TMI 173 - CEGAT, NEW DELHI
Exemption Notification ... ... ... ... ..... ification. It is also observed that, before the Tribunal, submissions have been made indicating that the appellants after purification of the impure carbon dioxide cleared it for sales to aerated water company as could be seen from Order No. 20/1988 dated 28-1-1988 on the State Application of the appellants, herein. Therefore, it does not appear that the appellants have clearly substantiated their eligibility for Notification 40/85 with satisfactory evidence. As regards the plea that the appellants should be allowed the benefit of Rule 56B during the impugned period, it is seen that the Collector of Central Excise, Guntur has in his order dated 5-1-1988 already ordered restoration of 56B facility right from 19-12-1981 if the conditions therefor are satisfied and the appellants will be within their right to seek its implementation as per law. In such a view of the matter, there is no need to interfere with the order passed by the lower authorities, which is, therefore, upheld.
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1991 (7) TMI 172 - BOMBAY HIGH COURT
Imports - Special Imprest and advance licence ... ... ... ... ..... ly to pay off the loans taken from the Nationalised Banks. The learned Counsel urged that the Customs duty has been paid and even if there is any amount still left outstanding, the petitioners are willing to pay the same. None of the submissions impressed us because it is not the assertion of the petitioners about their bona fide conduct but the satisfaction of the Chief Controller of Imports and Exports which is relevant to ascertain whether the exercise of powers under Clause 8-B was justified. On the strength of material disclosed in the return, we refuse to exercise our discretion under Article 226 of the Constitution of India and disturb the order. Clause 8-B provides that abeyance order can remain in operation only for duration of six months and we are not inclined to disturb the said order, when prima facie we are satisfied that the conduct of the petitioners is not aboveboard. 5. Accordingly, petition is summarily dismissed and all the ad-interim orders stand vacated.
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1991 (7) TMI 171 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... reclassified accordingly. In respect of strap, however, the claim of the appellant is that this strap will be fitted on the ascentric oil pump. The Collector (Appeals) observed that the bronze strip being alloy of copper it should have been classified under Item 74.09/10 of the CTA. The appellants could not get any relief because the rate of duty under this head is the same as under 84.06 CTA. We agree with the finding of the Collector (Appeals) and do not find any justification in classifying this item under 84.10(2) CTA. Keeping in view the decision of the Tribunal, we hold that the goods imported are oil pressure reducing valves and merit classification under Heading 84.61(2) of the CTA Accordingly, we do not find any merit in the Revenue rsquo s appeals. The above captioned three appeals are dismissed. The cross objection filed by the respondents is in support of the Order-in-Appeal and no further relief has been claimed, and as such, the same is dismissed as infructuous.
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1991 (7) TMI 170 - ITAT PUNE
... ...
... ... ..... with the decision of the Madhya Pradesh High Court in the case of Giridharilal Nannelal vs. CIT (1984) 38 CTR (MP) 258 (FB) (1984) 147 ITR 529 (MP) (FB), where it was held that the income earned by the firm before change was to be clubbed after such change. Therefore, the income of the two periods cannot be clubbed together as is done by the ITO although the assessment order may be one. This stands to reason also. Sec. 187(1) refers only to assessment and if the income of the two periods is clubbed together the persons who were partners in the firm before or after the reconstitution may be taxed at different rates then they would be but for the reconstitution. The purpose of the section is to safeguard the it of Revenue by making the assessment on the firm as existing at the time of assessment and not to lead any inequity. Although the assessment may be made in one order, the income of the two periods cannot be clubbed together. 9. In the result the appeal is partly allowed.
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