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Case Laws
Showing 61 to 80 of 240 Records
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1992 (11) TMI 198 - CEGAT, NEW DELHI
Demand - Limitation ... ... ... ... ..... part of first clearances of 7.5 lakhs and the Company has to pay the duty demanded. (Emphasis supplied) 4. When the matter went up in appeal Collector (Appeals) held the view that the demand having been issued on 11-4-1984 for clearances during the months of July 83 and August 83, it was time barred under Section 11A. It is on this point that the Department has come up in appeal to us. 5. Smt. Ananya Ray, the learned Senior Departmental Representative submitted that the eligibility to exemption from duty under Notification 83/83-C.E., dated 1-3-1983 being for the financial year beginning from 1st April, 1983, the occasion for determining whether a manufacturer had exceeded the prescribed exemption limit of Rs. 7.5 lakhs would arise only after the financial year had ended on 31st March, 1984. The demand issued within 11 days could not be held to be time barred. We agree with this contention and set aside the impugned order. Consequently the appeal of the Collector is allowed.
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1992 (11) TMI 197 - CEGAT, CALCUTTA
Confiscation and Penalty ... ... ... ... ..... n view of the fact that on the date of joint inspection the consultant for the appellants was present. The benefit was also extended to the appellants with respect to the recorded cassettes and the Citizen Quartz clocks. Hence this submission of the learned Consultant, Shri P.K. Sengupta cannot be accepted. The appellants failed to discharge the onus which was cast on them, in terms of Section 123 of the Customs Act, 1962, to prove that these are not smuggled goods. In that view of the matter, the confiscation of the goods is in accordance with law. Since the appellants were concerned with the carrying of these smuggled goods in the train they were liable to be penalised under Section 112 of the Customs Act, 1962. In the facts and circumstances of the case, the imposition of penalty also is justified. However, we reduce the penalties imposed on these appellants to a sum of Rs. 7,500.00 (Rupees seven thousand five hundred) only each. But for this modification the appeals fail.
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1992 (11) TMI 196 - CEGAT, BOMBAY
Stay/Dispensation of prior deposit ... ... ... ... ..... 4. After hearing both the sides, we find that the observation of the Collector (Appeals) that Notification No. 119/89 and 142/89 seek to rectify the mistake committed in Notification 113/89 is not prima facie tenable, because they do not have any relevance to the addition or deletion of Item 4005. We also find that the intention behind amending Notification 113/89 is clearly spelt out in Bombay Collectorate Trade Notice. It is clear that even as per the Department rsquo s understanding, such compounded rubber is eligible for exemption from 31-3-1989. Hence, prima facie consideration is in favour of the applicants. In this prima facie view, we direct the applicants to furnish a personal bond covering the duty amount within a period of four weeks from the date of receipt of this order and reporting compliance within five weeks, failing which their appeals are liable to be dismissed. On furnishing the personal bond, there shall be stay and waiver of recovery of the duty amount.
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1992 (11) TMI 195 - CEGAT, MADRAS
MODVAT Credit ... ... ... ... ..... t exempt from payment of duty and only for the specific contingency of supply of the goods to the 100 EOU, the appellants are not called upon to pay duty. We observe that the MODVAT Scheme is applicable to a manufacturing unit to mitigate the impact of cascading effect of duty in respect of individual product manufactured in a particular unit. In case a particular manufacturer is clearing the goods without payment of duty, be for any reason, the question of allowing the unit the benefit of MODVAT Credit would not arise. The ratio of the ruling cited by the appellants is distinguish- able as in that case the finished product was being cleared on payment of duty. The only point made was that since the input credit was more than the duty payable on the finished product, the MODVAT Credit earned could be utilised for payment of duty on the products manufactured in the factory. In view of above, we hold that there is no force in the appellants rsquo plea and we dismiss the appeal.
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1992 (11) TMI 194 - CEGAT, MADRAS
MODVAT Credit ... ... ... ... ..... milar process of cutting and welding should be permitted . 6. The ratio of the ruling of the East Regional Bench, Calcutta in a similar case in regard to this reads as under ldquo Accordingly the two gases - Oxygen and Dissolved Acetylene gas in question would definitely be eligible to be considered as used in the manufacture of steel castings. The only inputs which are not eligible for the credit, facility under Rule 57A are those described in the Explanation Clause thereunder. Hence, there is no hesitation to hold that oxygen gas and dissolved acetylene gas being not machines, machinery, etc., are actually entitled to be considered as inputs used in the manufacture of not only steel castings, the immediate target for their use but also for the ultimate product namely Bogies and Couplers rdquo . 7. Following the ratio of above decisions we hold that the appellants are eligible for the benefit of MODVAT Credit in respect of Oxygen and Acetylene gases and we order accordingly.
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1992 (11) TMI 193 - CEGAT, NEW DELHI
Reference to High Court - Delay in filing the appeal not condoned ... ... ... ... ..... case decided by the Tribunal. It may be that the case could be decided on a preliminary issue. That does not mean the order, is any the less, an order in relation to the case. 7. In view of the above discussion, we do not accept the contention of Shri Rakesh Bhatia that Section 35G would be attracted. No reference to the High Court would lie since the order in this case relates to the value of the goods for the purposes of assessment. This application is therefore dismissed. 5. Further it has to be observed that an appeal lies to the Supreme Court under Section 35L of the Act from orders passed by the Appellate Tribunal, relating among other things, to the determination of any question having a relation to the rate of duty of excise or to the value of the goods for purposes of assessment. In this connection, the ruling rendered in the case of Union Carbide India Ltd. v. Collector of Customs (supra) may be seen. 6. In view of the above, the Reference applications are rejected.
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1992 (11) TMI 192 - CEGAT, NEW DELHI
Penalty and confiscation of goods clandestinely removed without payment of duty ... ... ... ... ..... rsquo s (paragraph 1.3 of the impugned order). Therefore, we see no infirmity in the finding that these fabrics form part of the total quantity of 10189.15 mts. clandestinely removed by Syntex Processors without accountal in statutory records and without issue of gate-passes and without duty payment. We see no force in the contention of the learned Counsel that duty liability on the seized fabrics lies upon the processors, namely the manufacturers as duty liability on seized goods not covered by valid duty paying documents, lies upon the person from whom they are seized and who redeem them from confiscation. Redemption fine and penalty are also validly imposed. Accordingly we reject the plea of the appellants. However, having regard to the fact that the goods have been redeemed on payment of duty and redemption fine, we are inclined to hold that the penalty requires to be reduced and we reduce the penalty to Rs. 3500/- and subject to this modification the appeal is rejected.
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1992 (11) TMI 191 - CEGAT, NEW DELHI
MODVAT credit ... ... ... ... ..... manufactured by the appellants contained duty paid inputs on which MODVAT Credit was taken and no batch of steel ingots was made exclusively out of non-duty paid scrap in terms of Notification 55/86 or imported scrap. This being the position every batch of steel ingots has utilised the inputs on which MODVAT Credit has been taken and therefore, duty payable on each such ingot can be paid out of the MODVAT Credit taken on inputs utilised in the steel ingots either wholly or partly as a manufacturer may desire. This is actually what has been done by the appellant herein. There is no contravention of Rule 57F(3), as alleged. 12.1 The department rsquo s allegation would have had some force if it had also been alleged that any batch of steel ingots was made exclusively out of inputs on which MODVAT Credit has not been taken but there is no such allegation. Accordingly, I hold that the impugned order is not at all sustainable and it is accordingly quashed and the appeal is allowed.
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1992 (11) TMI 190 - CEGAT, MADRAS
... ...
... ... ..... the conditions set out in the notification. The non-filing of the declaration itself cannot be a fatal infirmity as the declaration merely required an assertion from the appellant that the clearance would not exceed a particular limit. Since the assessee was functioning under the Central Excise control and was filing returns for goods manufactured and cleared from time to time, the proper course would have been that the learned authority should have either called for the evidence from the appellants themselves or should have remanded the matter to the original authority for verifying the factual information in regard to the satisfaction of parameters set out in the notification. Not having done that we hold that the order of the learned appellate authority is not a proper one and we therefore set aside the impugned order. I agree with my learned brother that the matter should be remanded to the lower authority for de novo consideration in the light of the above observations.
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1992 (11) TMI 189 - CEGAT, MADRAS
... ...
... ... ..... nd determination by the Collector (Appeals), the department can recover such duties, is to enlarge the powers of the department in a way that sets Section 11A at naught. It defeats the right process laid out in the Act rdquo . Following the above decision, if any recovery of refund has to be allowed, it should be within six months, be it under Section 35E or under Section 11A. Admittedly, in the present case, the application under which the order of the AC was sought to be reviewed was served on the appellants within six months from the date of refund. In the present case, therefore, the proceedings for recovery cannot be taken to be hit by limitation. There is no plea before us that the refund sanctioned as it is, was not hit by limitation as urged by the Revenue. In view of above, therefore, we hold that there is no merit in the appellants rsquo plea that the demand was hit by limitation and we uphold the order of the learned lower appellate authority and reject the appeal.
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1992 (11) TMI 188 - CEGAT, MADRAS
Demand - Duty paid at a lower rate although benefit of Modvat credit availed of by party ... ... ... ... ..... nged as in April 1986 itself as the Respondents opted out of Modvat on 15-4-1986. The demand for differential duty, he pleaded, has been raised for April 1986 and the Respondents would be able to convince the authorities with facts and figures and also with reference to the rules that no demand could be made on account of their opting out of the Modvat Scheme in respect of the clearances made before opting out of the Modvat Scheme. I observe that the learned lower authority has not gone into the merits of the case, as pointed out by the learned Counsel for the Respondents and has not gone into the facts as pleaded by the appellant. I, therefore, agree with my learned Brother that the matter is required to be remanded to the original authority for the limited purpose of finding as to whether the Respondents will be entitled to the lower rate in terms of the Notification for the reasons that they opted out of the Modvat Scheme on 15-4-1986. The appeal is thus allowed by remand.
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1992 (11) TMI 187 - CEGAT, MADRAS
MODVAT Credit ... ... ... ... ..... he goods which are used in relation to the manufacture of finished product till the stage when they are rendered fit for marketing have to be treated as inputs used in or in relation to the manufacture of finished product. rdquo We also take note of the recent Division Bench ruling of the Madras High Court in the case of Ponds India Ltd. referred to supra. Taking all these factors into consideration we hold that the appellant would be entitled to take MODVAT credit and the benefit of Rule 57F(2) in respect of the inputs in question and in this view the impugned order is set aside and the appeals are allowed. 6. Assent per V.P. Gulati, Member (T) . -I agree that the appellant would be entitled to MODVAT credit and also facility under Rule 57F(2) for the reason set out in my observation in the Tribunal rsquo s Order S/210/92, dated 7-4-1992 passed while disposing of the stay application. This observation is reproduced in para 5 of the order recorded by my learned brother above.
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1992 (11) TMI 186 - CEGAT, NEW DELHI
Countervailing duty - Additional Customs duty ... ... ... ... ..... ual to the excise duty for the time being leviable on a like article if produced or manufactured in India. In other words, we have to forget that the goods are imported, imagine that the importer had manufactured the goods in India and determine the amount of excise duty that he would have been called upon to pay in that event. Thus, if the person using the goods is entitled to the remission, the importer will be entitled to say that the CVD should only be the amount of concessional duty and, if he has paid more, will be entitled to ask for a refund. In our opinion, the Tribunal was in error in holding that the assessees could not get a refund because the procedure of Chapter X of the rules is inapplicable to importers as such. (Emphasis supplied) 7. Thus, following ratio of the said decision we uphold the impugned order-in-appeal passed by the Collector (Appeals) and reject the present appeal filed by the Revenue with consequential relief to the Respondents according to law.
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1992 (11) TMI 185 - CEGAT, NEW DELHI
Import Policy - Consumer goods ... ... ... ... ..... r goods of Canadian origin, we are therefore, inclined to agree with the appellants that the violation if any, in this regard was purely technical. 12. In view of the above discussion, we set aside the Additional Collector rsquo s order enhancing the assessable value of the goods and confiscating them under Section 111(m) of the Customs Act, 1962, on the grounds of misdeclaration of value. However, we uphold the impugned order insofar as it relates to the confiscation of sub-assemblies consisting of cooling coils with attached expansion valves under Section 111(m) and Section 111(d) of the Customs Act, 1962 on account of misdeclaration of the description and the Import Licence held by the appellants not being valid for these goods. 13. Having regard to these facts and circumstances we reduce the redemption fine from Rs. 2,00,000/- to Rs. 50,000/- (Rupees Fifty Thousand only) and. set aside the personal penalty imposed on the importer. The appeal is, therefore, partly allowed.
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1992 (11) TMI 184 - CEGAT, NEW DELHI
Rate of duty ... ... ... ... ..... ntioned as 31st July, 1981 the rate of import duty and tariff valuation shall be that in force on 31st July, 1981. In fact, on similar facts and circumstances in the case of Jain Shudh Vanaspati (supra), wherein a vessel that temporarily leaves for another port without unloading the goods after entering the territorial waters of India, the Bombay High Court had taken the different view. The Hon rsquo ble Supreme Court had taken note of the decision of the Bombay High Court while deciding the issue and held that Section 15 of the Customs Act is not ultra vires, as it lays down a procedure and following that procedure cannot be termed arbitrary. Following the ratio of the aforesaid decision of the Supreme Court, the contention of the appellants that the rate of import duty will be that ruling on 24-2-1982 cannot be sustained and, accordingly, the Department was right in rejecting the refund claim. 8. In the view, we have taken, the appeal filed by the party is hereby dismissed.
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1992 (11) TMI 183 - CEGAT, CALCUTTA
MODVAT Credit ... ... ... ... ..... of these decisions are as follows - (1) 1990 (47) E.L.T. 376 - Collector of Central Excise v. Hindustan Development Corporation - E.R.B. (2) 1991 (56) E.L.T. 790 - Collector of Central Excise v. Avery India Limited - E.R.B. (3) 1992 (60) E.L.T. 635 - Andaman Timber Products v. Collector of Central Excise - E.R.B. (4) 1992 (57) E.L.T. 572 - Straw Products Ltd. v. Collector of Central Excise - E.R.B. (5) 1992 (61) E.L.T. 489 - Collector of Central Excise v. Emami Paper Mills - E.R-B. (6) 1992 (60) E.L.T. 509 - Steriware (P) Ltd. v. Collector of Central Excise - .N.R.B. (7) 1992 (62) E.L.T. 129 - Allied Electronics and Magnetics Ltd. v. Collector of Central Excise -N.R.B. (8) 1990 (48) E.L.T. 552 - Mukand Iron and Steel Works Ltd. v. Collector of Central Excise - W.R.B. (9) 1990 (48) E.L.T. 283 - Cominco Binani Zinc Ltd. v. Collector of Central Excise - S.R.B. 5. In view of this clear position on merits, I allow the Appeal. Order announced in the Court at the end of the hearing.
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1992 (11) TMI 182 - CEGAT, NEW DELHI
Manufacturer - Manufactured by or on behalf of ... ... ... ... ..... nit at Hyderabad which is geographically away from the factory of M/s. Glenmark at Bombay. There is separate staff, machinery and the inputs are separately imported and also purchased. The mere fact of common registered office, use of telephone and godown is not sufficient to go against the appellant (See Spring Fresh Drinks case, Shree Packaging Corporation case and Shakti Udyog case (supra)). 17. The other aspects of the learned Collector rsquo s finding on the price or maximum retail price being declared by the appellant is also not of such a consequence to confirm the demand. The learned Collector has only drawn presumption on this aspect. The demands are also time barred as well. These were within the knowledge of the department. The appellants having furnished the agreement and other details at the time of approval of the classification list on various dates, is not disputed by the department. In the result, the appellants succeed in this appeal and the same is allowed.
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1992 (11) TMI 181 - BEFORE THE COLLECTOR OF CENTRAL EXCISE AND CUSTOMS
... ...
... ... ..... nal action should have been mentioned in the order by the Assistant Collector. In view of the discussion in the preceding paras, I hold that there is no case for taking penal action on the appellants. 10. The Order-in-Original passed by the Assistant Collector is set aside, and the appeal is allowed. CORRIGENDUM At page 359 of Case Law in 1993 (64) E.L.T. 359 (Tribunal) against the existing head note, please read the following - ldquo Dutiability - Utilisation of concrete poles in the factory for testing purposes not utilisation of poles for which these are generally used - Rules 9 and 49 of Central Excise Rules, 1944. - Admittedly, the testing is essential for making the goods marketable. In the absence of testing, the goods cannot be sold and, therefore, they cannot be removed. In the instant case, using the poles for the purpose of testing so as to make them marketable cannot be said utilisation within the factory. Therefore, the poles are not liable to duty. para 5 rdquo
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1992 (11) TMI 180 - CEGAT, NEW DELHI
Appeal - Limitation ... ... ... ... ..... of appeal was received from Hqrs. office on 3-1-1992. 7. Appeal was sent to Delhi on 6-1-1992 which was filed in CEGAT on 7-1-1992. A perusal of the same shows that the delay has occurred partly due to inter- departmental communications and partly due to misplacement of papers. Hon rsquo ble Supreme Court in the case of Ramlal and Others v. Rewa Coalfields Ltd. reported in AIR 1962 S.C. 361 has held that after the expiry of the date, appellant has to explain each and every day rsquo s delay. Judgment in the case of Collector, Land Acquisition, Anantnag v. Mst. Katiji (supra) cited by the learned JDR does not help. Accordingly, we are of the view that the appellant was not prevented by sufficient cause in the late filing of the appeal. The application for the condonation of delay is rejected. Since we have rejected the COD application, stay petition as well as the main appeal are also dismissed. As the appeal is hit by limitation, we are not going into the merits of the same.
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1992 (11) TMI 179 - CEGAT, NEW DELHI
... ...
... ... ..... her grievance of the learned advocate against the lower appellate authority rsquo s order is that discount of 30 given by the lower authorities is arbitrary. In view of the reasons given by the learned Technical Member, I do not think that this quantum of discount can be termed lsquo arbitrary rsquo . I also find from a copy of telex from Mr. B. Redwan of Honeywell (Annexure 12 to the appeal) in the case of M/s. Muchhala Consultants (P) Ltd. that quantity discount ranging from 5 to 30 depending upon bulk buying to their authorised wholesale dealers has been indicated in the said telex. The lower authorities have given the maximum quantity discount of 30 available on such products as given by M/s. Honeywell even in case of bulk buying. 28. Accordingly, I agree with the learned Technical Member (P.C.Jain) Member (T) 3-11-1992 FINAL ORDER 29. In view of the majority decision, the appeal is dismissed. New Delhi Dated 24-11-1992 (P.K. Kapoor) Member (T) (Harish Chander) President
........
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