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Case Laws
Showing 81 to 100 of 286 Records
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1991 (9) TMI 222
Refund claim ... ... ... ... ..... and cleared on ex-bond Bs/E are also to be deemed to have been cleared on provisional assessment basis. It is not the case of the Department that provisional assessments were finalised at Kandla even before transfer of goods under bond from Kandla to Baroda. The admitted position is that provisional assessments were finalised at Kandla in May, 1980, while duty on ex-bond Bs/E has been paid at Baroda much before that date. In other words, when duty payments were made at Baroda ex-bond, provisional assessment was not finalised and was in operation. Hence, we hold that refund claims are not hit by limitation of time because the claims have been filed within six months from the date of final assessment in one case and in two cases the claims have been filed even before the date of final assessment. 6. In the result, we allow the appeals but remand the cases back to the Asstt. Collector for considering the claims on merits and grant relief, if the claims are admissible on merits.
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1991 (9) TMI 221
... ...
... ... ..... duty of excise payable by an assessee which is liable to be deducted from the cum-duty price realised by an assessee from its customers. In that view, the duty payable by the appellant after taking into consideration the effect of Notification 198/76 only will have to be abated from the cum-duty price for arriving at the assessable value in terms of Section 4 of the Act. The judgment of Delhi High Court in the case of Modi Rubber Limited is no longer a valid law, in view of the change in legal position made by Act 14 of 1982 mentioned supra. Reliance placed by the learned Sr. D.R. on the citations mentioned above is correct. The latest judgment of Bombay High Court relied upon by the learned Sr. D.R. in the case of TELCO mentioned supra is a very exhaustive judgment dealing, with the entire case laws as it was before the amendment of section 4 and that judgment was rendered after the amendment of Section 4. Following respectfully the aforesaid decision, we dismiss the appeal.
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1991 (9) TMI 220
Valuation - Secondary packing ... ... ... ... ..... Section 4 of the Act. It is by now well settled 1985 (22) E.L.T. 159 (Trib.) Oswal Agro Mill Ltd., that whatever deductions are admissible from the gross sale price under Section 4 of the Act have also to be allowed under exemption Notification No. 120/75-C.E. while determining the assessable value of the goods. We also find that both the lower authorities have also held that the cost of wooden box was not includible in the assessable value. We agree with the conclusion of the lower authorities. rdquo 5. Since the electric water heaters in question were being supplied to the dealers in the local wholesale market in polythene packing and the additional dealwood packing was provided only for ensuring the safety of the goods during long distance transportation on the ratio of the Tribunal rsquo s decision quoted above it has to be held that the cost of the secondary dealwood packing was not includible in the assessable value of the goods 6. Accordingly, the appeal is dismissed.
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1991 (9) TMI 219
Seizure - Clearance without payment of duty ... ... ... ... ..... opinion has been taken on record. Apart from this, the respondents have a good case when they assert that the goods are cleared as scrap under the physical supervision of the Central Excise Officers themselves. We observe that there is no allegation either in the show-cause notice or in the original authority rsquo s order that the Range Officers in any way colluded or connived with the first respondent in giving clearance to the goods. The respondents are again on firm ground when they say that if there was any provision for cutting or hammering the goods the department ought to have carried out themselves without allowing the clearance. We notice at this stage that no copy of such an instruction has been brought on record by the department in its appeal memo nor during the course of hearing. To our mind the entire seizure was unwarranted in the facts and circumstances of this case. Accordingly, we have no hesitation in dismissing the appeals. They are dismissed accordingly.
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1991 (9) TMI 218
Classification ... ... ... ... ..... bserved that High Pressure Connectors meant for lubricating purposes were classifiable under Item 52 as lsquo nuts rsquo and not under Item 68 as integral parts of diesel engine pipes. If the principles dealt with in these decisions are applied to foundation bolts, it would appear that the goods are performing the function of fastening the machinery of material handling equipment to the foundation and they are known by the name of lsquo foundation bolts rsquo . The fact that they are used captively and not sold is also not material in view of the decision in the Plasmac Machine case (supra). The ratio of the Supreme Court decision in the Calcutta Steel Industries case as well as in Bhor Industries case (supra) that it is for the Department to prove that the goods are excisable and pass the common parlance test had been fully discharged by the authorities. In these circumstances, the respondents herein do not have a case and the Department rsquo s appeal is therefore, allowed.
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1991 (9) TMI 217
Proforma Credit - Special Excise duty ... ... ... ... ..... is no legal authority provided for in the notification under Rule 56A, which refers only to basic duty, additional excise duty and additional duty of customs. All these duties referred to in Rule 56A are of permanent nature, which have been taken cognisance of in the Rule 56A itself. Special excise duty is levied on year to year basis through Finance Act every year and hence the requisite authority is required to be looked into the relevant provisions of the Finance Act read with the Notifications issued relating to exemption of special excise duty. We find that Notification No. 131/85 dated 24-5-1988 issued in regard to special excise duty makes it clear that wherever input exemption is provided for in respect of basic duty, similar benefit is also available for special excise duty. In view of this legal authority available, Rule 56A which provides for input relief for basic duty is also available for special excise duty. Hence we allow the appeal with consequential relief.
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1991 (9) TMI 216
Drawback - Garments exported wholly made of Rayon with plastic sequins embroidered thereon ... ... ... ... ..... la). rdquo use of the word ldquo all sorts rdquo indicate that all types of garments (embroided garments including) if they are wholly or mainly woven up fabrics, are covered thereunder, and there is no dispute that Rayon fabrics are included, and the only requirement is that the garment ought to be wholly or mainly of woven fabrics. Here, as indicated above, the entire garment is of Rayon, with plastic sequins embroided thereon, and the basic structure of Rayon garment remains unchanged. 11. No decision has been cited to show that contrary view exists or that the point involved has been conclusively determined. 12. Under the circumstances, the subject items fall within the ambit of Entry Sl. No. 27, of the Appendix to the Drawback Rules, 1971, and would be eligible to drawback, vide sub-serial No. 2707. 13. The order of the authority below is therefore set aside and the Department is directed to pay the appropriate Drawback as is permissible. Consequential reliefs to follow.
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1991 (9) TMI 215
Adjudication ... ... ... ... ..... appeal deserves to be dismissed. 4. We have carefully considered the pleas advanced on both sides. We are of the view that query memos are quite frequently issued by the Department in their day-to-day work to the importers and their clearing agents. After receipt of explanation, if any, of the importers, if the Department is still not satisfied, the detailed show cause notices are issued by the Department. We fail to understand as to why the same procedure has not been followed in this case. We are, therefore, of the view that the impugned order is correct in law and on facts. Accordingly we dismiss the appeal. 5. We also direct the Assistant Collector to whom the proceedings were remanded by the lower appellate authority in the impugned order, that the matter should be decided within three months of receipt of this order since the imports were made in January 1989 and the respondents rsquo learned Advocate has stated that they are incurring huge demurrage in the Port Trust.
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1991 (9) TMI 214
MODVAT Credit ... ... ... ... ..... Hon rsquo ble Tribunal in the case of M/s. Anil Starch Products Ltd., reported at 1990 (49) E.L.T. 525 wherein it was held that in case of by-products carrying NIL rate of duty, Rule 57D has to be applied and the duty credit taken on the inputs used in the by-product cannot be varied or reduced. It is only in the case of final products which are chargeable to NIL rate of duty that the duty credit cannot be extended by virtue of Rule 57C. The main issue, therefore, to be decided is whether the product in question is a final product or a by-product/waste. In so far as the present case is concerned, the plastic waste doesn rsquo t constitute final product and therefore, Rule 57C is not applicable in this case. In view of the clear provisions of Rule 57D the Modvat credit cannot be denied on the ground that the part of the duty paid inputs are contained in the plastic waste. 4. The appeal is therefore, admitted and the order passed by the Assistant Collector is hereby set aside.
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1991 (9) TMI 213
MODVAT credit ... ... ... ... ..... ackaging materials would signify that they are not same as package, but irrespective of this question, the issue is comprehensively in favour of the respondents. Likewise, there is no merit in the contention that the fact that in the blasting operations, these slurry explosives along with the packets/lay flat tubings get burnt up, does not alter the position that these tubes/lay flat tubings remain in the nature of containers/packing materials. These points have been adequately covered in the Order-in-Appeal passed by the Collector (Appeals), which we should say, is a very well reasoned one, taking note of the actual process of manufacture and the legal provisions relating to the availment of modvat credit. 8. For the foregoing reasons, we see no merit in the appeals which we accordingly dismiss. In the process, the Cross Objection filed by the respondents, which is only in the nature of containing their comments on the contentions raised in the appeal, also gets disposed of.
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1991 (9) TMI 212
Refund claim ... ... ... ... ..... xclude the relevant date and start the period of limitation of six months from the following day. The point raised in the appeal before us that the date of computation can never be by excluding 29-2-1988, has got no legal basis. Similarly, nothing much turns on the argument that since the Act specifically provides the relevant date which in the present case is the date of payment of duty, i.e. date of debit in the P.L.A., the Limitation Act cannot be made applicable. The fact that the relevant date has been defined in the Central Excises and Salt Act does not affect a general principle as to how to compute the period of limitation. The provisions of the Limitation Act and the General Clauses Act are to be applied for interpreting certain general situations like the period of limitation prescribed under any act. In view of the above circumstances, the decision of the Collector of Central Excise (Appeals) cannot be faulted. We, therefore, uphold the same and dismiss the appeal.
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1991 (9) TMI 211
Confiscation of currency ... ... ... ... ..... duced as to have a distinguished name, character of goods waste and scrap is in the nature of rubbish and has no distinguishing name, character or use, therefore, Court held that no duty can be levied on such waste/scrap rdquo . the following sentence may be read as under - ldquo Court observed that goods produced has to have a distinct name, character or use and further held that waste and scrap is in the nature of rubbish and has no distinctive name, character or use, therefore, Court held that no duty can be levied on such waste/scrap rdquo Page 143 Para 5 In the last line of para 5, one word ldquo not rdquo is to be added before the last word ldquo excisable rdquo . Page 143 Para 6 In the second line of para 6, after the word ldquo hence rdquo and before the word ldquo excisable rdquo , one word ldquo not rdquo be added and the line be read as ldquo hence not excisable rdquo . Sd/- (K.S.VENKATARAMANI) Member (Technical) Sd/- (S.L. PEERAN) Member (Judicial) Dated 1-11-1991
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1991 (9) TMI 210
Classification ... ... ... ... ..... context the Chemical Examiner rsquo s comment that the goods is other than brass ash remains unsubstantiated. The goods imported being in the form of powdery material also does not answer to the form of waste and scrap such as crop ends, fillings and turnings. The Department while contending in the appeal memorandum that the powdery form would be covered by the expression lsquo metal goods definitely not usable as such rsquo had not elaborated it so that it can be examined in the light of examples of such goods which are definitely not usable as such given in the HSN Heading 7204 reproduced above. In such circumstances, the reliance placed by the Collector (Appeals) on Section Note 6(a) of Section XV Central Excise Tariff Act and his finding that the goods imported as brass ash will not fall for classification under Chapter 74 has a lot of force. In this view of the matter, there is no need to interfere with the order passed by the Collector (Appeals). The appeal is rejected.
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1991 (9) TMI 209
Classification ... ... ... ... ..... 9.16/17 of the Customs Tariff Act, 1975 as ldquo textile fabrics of a kind commonly used in machinery rdquo on the reasoning that they could not be deemed as lsquo woven textile fabrics rsquo in terms of Rule 4(a)(iv) of Chapter 59 of the Customs Tariff Act, 1975. In our view, the finding of the Collector (Appeals) was erroneous since on a plain reading of the words ldquo woven textile fabrics whether or not felted rdquo in Rule 4(a)(iv) of Chapter 59 of the Tariff, it follows that the expression lsquo textile fabrics rsquo in Heading 59.16/17, Customs Tariff Act, 1975, would include even fabrics such as felts which are not necessarily woven in the conventional manner using both warp and weft. For these reasons the ldquo Press Felts rdquo in question which were admittedly for use in paper making machines has to be held as classifiable under Heading 59.16/17 of the Customs Tariff Act, 1975. 6. In view of the foregoing, the impugned order is set aside and the appeal is allowed.
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1991 (9) TMI 208
MODVAT Credit ... ... ... ... ..... arances of the same under the said sub-rule. The appellant rsquo s plea in regard to the findings of the Collector (Appeals) that as in the case of aluminium scrap covered by Board rsquo s clarification, the removal of copper scrap without payment of duty should be allowed, is not acceptable in the present case. The instruction issued by the Board by giving a liberal interpretation to the provisions of Rule 57F(4)(b) can be considered as the instruction by the Government of India for the purpose of duty free clearances and can be taken to be applicable only to removal of Aluminium Scrap. Admittedly no such instructions have been issued under Rule 57F(4)(b) by the Central Government or the Board in regard to the removal of Copper scrap under the Modvat Scheme. We, therefore, hold that the order of the learned Collector (Appeals) is not maintainable in law and set aside the same and uphold the duty demand as ordered by the learned original authority in his order dated 2-1-1989.
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1991 (9) TMI 207
Import - Goods imported being components of a Plant ... ... ... ... ..... eness of the certificate issued by the Engineers but on the other hand he relied upon for the purpose of valuation. Further, he has chosen the estimated current value of the goods as against the value of the goods 10 years ago in spite of the fact that the goods were sufficiently old, damaged and in second-hand condition and similar goods were not manufactured at the time of importation. Further in case of second-hand goods the depreciation allowance is permissible on the initial cost value of the machinery but not on the estimated or on market value of the goods. Apart from this certificate no other independent evidence was brought on record to show that price of the similar goods was more than the price shown in the invoice value. Under these circumstances, there is no justification in enhancing the value and, accordingly, the Department fails on this issue. 10. In the result, we set aside the impugned order and, accordingly, the appeal is allowed with consequential relief.
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1991 (9) TMI 206
Confiscation of currency
... ... ... ... ..... ale must be by a person having knowledge or reason to believe that the goods were of smuggled origin. (iv) the seller and purchaser and the quantity of gold must be established by the Customs authorities. 6. In this case, however, none of the requisites of Section 121 have been fulfilled - no sale has been established, identity of the buyer and seller has not been established. As a consequence, the currency cannot be considered to represent the sale proceeds of the contraband goods and, therefore, no violation of Section 121 has been made out. Since the charge under Section 121 of the Customs Act has not been proved against the appellant the currency notes cannot be retained by the Department and have to be returned to the appellant. Imposition of penalty is also not legal and proper in the absence of proof of violation of any provisions of the Customs Act. 7. In the light of the above discussions we set aside the impugned order and allow the appeal with consequential relief.
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1991 (9) TMI 205
Appellants charged with clandestine manufacture of goods ... ... ... ... ..... ence of opinion in arriving at the conclusion and in view of the majority opinion whether would it not amount to a shifting of burden from Department to the party, is a question of law which requires to be referred to the High Court for the opinion. Further whether Tribunal would have come to the same conclusion in the absence of plaint presented by the applicants is also a point to be considered. Therefore, question No. 4 being a question of law arises out of the order of the Tribunal and requires to be referred. Since we feel the question No. 4 is to be reformulated, we refer the following reformulated question to the Hon rsquo ble High Court for its considered opinion - ldquo Whether the Tribunal is justified in the facts and circumstances of the case in arriving at the conclusion that goods were clandestinely manufactured by the appellants on the basis of stock verification by Bank officials or/and on the basis of pleadings filed before the Court in the Civil proceedings?
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1991 (9) TMI 204
Import - Printing machine imported packed in second-hand container ... ... ... ... ..... ts and Exports (Control) Act, 1947. Rule 3 of Imports (Control) Order, 1955 refers to Schedule 1. In the Heading 73.20 of Schedule I of Import (Control) Order, 1955, containers are shown. The said heading reads as follows - ldquo Casks, drums, cans, boxes and similar containers of sheet or plate iron or steel of a description commonly used for the conveyance or packing of goods rdquo . 10. Therefore, it is very clear that containers also require licence and if the same are imported without proper licence, then they become prohibited goods within the definition of lsquo Prohibited goods rsquo under the Customs Act, 1962 and under the Imports and Exports (Control) Act, 1947. The authorities are entitled to proceed under the relevant provisions of law for such contraventions. The contention raised by the appellants that the containers being packing materials do not require any licence, has to be rejected. The order passed by the lower authorities is sustainable and it is upheld.
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1991 (9) TMI 203
Refund - Payment of duty under protest ... ... ... ... ..... nta Kumar Agarwalla and Another, reported in I.T.R. 1983 Vol. 140 Page-418 relied on by the Tribunal in Collector of Central Excise, Patna v. Telco Ltd. -1991 (32) ECR 167 pp 170 para-10 , the Hon rsquo ble Gauhati High Court has held that the Tribunal has only to refer a question of law which calls for investigation, examination, debate or when it is a dubious problem. It was also held that if a point of law decided by the Tribunal is positive, definite and sure, there is no obligation to refer such a matter as it cannot be termed as a question of law. It is not that every point of law raised is required to be referred to the High Court. It was further held that when answer to the question is simple, obvious and self-evident, it cannot be termed as a question of law and the Tribunal is not bound to refer such a question. 9. Applying the same ratio, I am satisfied that this is not a fit case for reference to the High Court. In this circumstances, the application is dismissed.
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