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Case Laws
Showing 81 to 100 of 200 Records
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1992 (4) TMI 139 - CEGAT, NEW DELHI
... ...
... ... ..... t. In case the appellants rsquo plea is allowed, then the Revenue would be put to serious hardship in as much as, the appellants rsquo plea is likely to be considered at a different stage without the basic facts having been taken into consideration. 15. However, in this particular case, a peculiar circumstance has arisen in as much as that the appellants rsquo plea pertaining to this excisability was considered by the learned Collector (Appeals) in other connected appeals and their contention was allowed. As the President has noted that it is only in this particular appeal, they had not taken such a plea before us in appeal Memo although they raised it before the Collector (Appeals). In view of this peculiar circumstance, I agree with the reasoning given by the learned President to allow the appellants to raise this ground. However, I make it clear that the Revenue may take such defences as are available in law to contest this ground at the time of hearing of the main appeal.
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1992 (4) TMI 138 - CEGAT, CALCUTTA
Modvat credit ... ... ... ... ..... made clear in my foregoing analysis........ ......special excise duty, the authority for levy of which is different from the basic excise duty is not specifically covered in the relevant provisions, namely Rule 57B and Notification 175/86 for the purpose of grant of higher notional credit. As already discussed earlier, the higher notional credit is available only if the duty is exempted partially under a notification which specifically provides for such higher notional credit. The exemption Notification 175/86 is such a notification but by its specific wording it extends only to basic duty. The said notification does not at all refer to special duty and hence only the basic excise duty will qualify for higher notional credit. Modvat credit of special excise duty will be equal to the actual amount of special excise duty paid. 5. Following the same reasoning, I find that the impugned order-in-Appeal is correct in law. Hence, I dismiss the appeal and uphold the Order-in-Appeal.
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1992 (4) TMI 137 - CEGAT, NEW DELHI
Factory - Number of workers ... ... ... ... ..... an Engineer was employed by the Company at his Head Office and if he sometimes visits the factory premises for supervision, he cannot be treated as worker as supervision work is nothing to do with the manufacturing process. His supervision is a work of administrative nature and not having direct relationship with the manufacturing process. It is difficult to conceive the contention of the appellants rsquo counsel that Engineer being a technical person was entrusted with the duty of enforcing in the attendance of labourers and his supervisions is nothing to do with the manufacturing activity. Since he was supervising manufacturing activity and giving specific instructions as per specification standard and quality of the products being manufactured in the factory premises, we are of the view that he comes under the definition of worker as per Section 2(1) of the Factories Act. 6. In the view we have taken, we uphold the impugned order and, accordingly, the appeal is dismissed.
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1992 (4) TMI 136 - CEGAT, NEW DELHI
Appellate Tribunal - Jurisdiction of Special Benches ... ... ... ... ..... gibility to exemption notification is a question relating to or in relation to the determination of rate of duty. Therefore, even where the question relates only to interpretation of a notification and where no question relating to classification is involved such matters will fall within the jurisdiction of the Special Bench dealing with classification and it will not be appropriate for the matter even if there is also an issue of valuation involved to be dealt with by lsquo A rsquo Bench which is concerned only with valuation matters. 7. Therefore, in the light of the President rsquo s Order dated 15-9-1986 (supra), there will be no infirmity legally in this appeal, which involves interpretation of exemption Notification 70/89-Cus., dated 1-3-1989, along with a question of determination of assessable value under Section 14 of the Customs Act, 1962 of the imported bearing components (cups), being dealt with in Special Bench lsquo B rsquo concerned with classification matters.
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1992 (4) TMI 135 - BOMBAY HIGH COURT
Import Policy - REP licences ... ... ... ... ..... ong pepper. It was submitted that nothing is available in the petition to show that this item falls under para 138(1). All these matters need scrutiny by the concerned authorities. It was also pointed out that in any event a transferee cannot claim a higher or better entitlement than the original licensee himself. We find force in this submission. We, therefore, direct the petitioners to apply to the concerned authorities with requisite informations and details for necessary endorsement/clearance or permission. This should be done within one month from today. The authorities concerned shall scrutinise the claim of each petitioners carefully in the light of this judgment and the relevant provisions of the Import Policy concerned and give its decision thereon by passing reasoned order within two months therefrom. 26. In the result, these writ petitions are allowed to the extent indicated above. 27. In view of the facts and circumstances of the case we make no order as to costs.
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1992 (4) TMI 134 - CEGAT, NEW DELHI-LB
Valves - Globe valves and gauge valves
... ... ... ... ..... into account the earlier judgment of the Tribunal in the case of Sirpur Paper Mills wherein the Bench observed that ldquo the ordinary meaning of a valve is a device that regulates the flow or passage or allows it in one direction only. The certificate of manufacturers classifying these valves as isolating type of valves has to be given due weight. The Department is laying stress on the fact that isolating valves are described as hand-operated but they have not been able to positively exclude these valves from sub-item (2) of 84.61 ............. At the same time, there is insufficient justification for denying classification of these isolating valves. 12. In view of the evidence available on record we are of the view that the imported valves are isolating valves as they perform the function of isolating equipment from the flow of the fluid in the system. We, therefore, set aside the impugned orders and allow the appeals with consequential relief, if any due to the appellants.
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1992 (4) TMI 133 - CEGAT, MADRAS
Refund - Limitation ... ... ... ... ..... ..... The respondents have immediately paid the duly in respect of the goods for which in fact no demand should have been made. But the fact remains that duty payment has been made and that the respondents have preferred a claim for the refund of the same does not mean that the amount paid has been provisional. The only section under which the refund can be claimed under the Central Excises and Salt Act, 1944, as in the case of this type of the respondents, is under Section 11B and the original authority has followed this and held that the refund claim was barred by limitation. The learned lower appellate authority has misdirected himself while invoking the provisions of Rule 156B(2). The same is not applicable to the facts of this case. The fact that the respondents have written letters to the authorities about we are is housing certificate cannot be taken to be a protest in the eye of law. In this view of the matter the impugned order is set aside and the appeal is allowed.
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1992 (4) TMI 132 - CEGAT, CALCUTTA
Modvat - Deemed credit ... ... ... ... ..... and nothing is mentioned about zinc scrap. No doubt they had agitated this point also before the Assistant Collector which point had not been allowed by that authority. As they had not raised this point either before the Collector (Appeals) nor in the written memorandum, this point cannot be permitted to be raised at the hearing stage, without a formal application as required under Rule 10 of the CEGAT (Procedure) Rules, 1982. No such application has been made and we are not inclined to grant them permission. On merits, we had held in the case of Ma Torn Rope Works v. Collector of Central Excise -1991 (54) E.L.T. 360 that where the inputs in question are received from a factory and the same are covered by an exemption Notification, granting them full exemption, the goods are hit by the expression clearly recognisable as being non-duty paid or charged to nil rate of duty and the benefit of deemed credit would not be available. 10. The appeal is disposed of on the above terms.
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1992 (4) TMI 131 - CEGAT, CALCUTTA
Natural Justice - Show cause notice ... ... ... ... ..... 990 the appellant had already informed the Adjudicating Officer that he did not receive the show cause notice. Still, without issuance of the show cause notice, the matter was heard by the said Officer. Therefore, there was no effective opportunity given to the appellant to rebut the allegations made in the show cause notice. That being the case, we are of the opinion that the principles of natural justice are violated. Accordingly, we set aside the impugned order as far as this appellant is concerned and remand the matter to the learned Adjudicating Authority with a direction to serve a copy of the show cause notice to the appellant and then to grant him time to file a reply in this behalf and thereafter, issue a personal hearing notice to the appellant and then to dispose of the matter in the light of the arguments which may be advanced by him before the Adjudicating Authority. We make it clear that the impugned order is set aside only as far as this appellant is concerned.
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1992 (4) TMI 130 - CEGAT, NEW DELHI
Warehoused goods - Budget day clearances ... ... ... ... ..... led and the required formalities for clearance and de-bonding are completed. The Court held that if the assesee had fulfilled all its legal obligation, i.e. present of Bill of Entry for home consumption, it is obligation on the Revenue authorities to pass orders immediately for clearance of the goods. Therefore, in that case the Court held that the authorities should have released the goods on 28-1-1988 when the Bill of Entry was presented on which date there was no duty payable on the goods. In this case the Bill of Entry had been filed on 28-2-1986 and duty has already been paid on that date, therefore, ratio of Supreme Court decision as regards the actual removal is applicable. In the light of the ratio of the above-said decision of the Supreme Court and Bombay High Court as applicable to the facts of the present case, there is a lot of force in the submissions made by the appellants which are accepted, and the appeal is allowed with consequential relief to the appellants.
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1992 (4) TMI 129 - CEGAT, CALCUTTA
Accounts - Maintenance of ... ... ... ... ..... ws that Tea Packer bearing No. 606 was removed. Another Gate Pass dated 26-11-1988 shows that Tea Packer bearing No. 607 was removed. In view of the above Gate Passes, we give the benefit of doubt to the appellants in this regard and accordingly, set aside the demand of duty on this count to the extent of Rs. 4,827.90. 10. As regards Point No. (iii) it can be said that in view of the fact that the appellants had removed one Road Roller (4 to 5 tons) which was valued at Rs. 1,94,000.00, payment of Central Excise Duty of Rs. 30,555.00, they are liable to be penalised under Rule 173Q of the Central Excise Rules, 1944. In the circumstances narrated above, we reduce the penalty to a sum of Rs. 10,000.00 (Rupees ten thousand only) from Rs. 50,000.00 imposed on the appellants. Accordingly, the demand of duty on the road roller to the extent of Rs. 30,555.00 is confirmed and the penalty imposed on the appellants is reduced to a sum of Rs. 10,000.00. The appeal is thus partly allowed.
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1992 (4) TMI 128 - CEGAT, MADRAS
Appeal - Condonation of delay ... ... ... ... ..... al certificate shows that the applicant was undergoing treatment for Right sided Hemiparesis from 10th April, 1990 involving the facial muscles also and the applicant was under treatment up to 16th July, 1990. Dr. V.R. Issac is an Assistant Surgeon vide Regd. No. 16294 (A.M.A.), Govt. Rajaji Hospital, Madurai - 625002. The genuineness of the certificate, as already mentioned above, has not been doubted. In view of the observations I am of the view that the applicant was prevented by sufficient cause in the late submission of the appeal. I agree with the conclusion of Shri S. Kalyanam, Member (Judicial), and order that the delay of 87 days in the filing of the appeal should be condoned. Sd/- (HARISH CHANDER) VICE PRESIDENT 13-3-1992 11. This order may be sent for publication. Sd/- (HARISH CHANDER) 13-3-1992 FINAL ORDER 12. In the light of the majority view, the application for condonation of the delay (No. 406/90) is allowed. Sd/- (V.P. Gulati) Member Sd/- (S. Kalyanam) Member
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1992 (4) TMI 127 - CEGAT, NEW DELHI
Felt Sleeves imported as component parts ... ... ... ... ..... of Notification No. 224/85-Cus., dated 9-7-1985 is unequivocal. It says that the goods specified in the Table attached to the Notification are exempt only when these are imported for use in the Leather Industry. Merely because the Sammying Machines are used in the Leather Industry and therefore the subject goods imported for the manufacture of such machines should be entitled for exemption under the said Notification is a far-fetched arguments. A benefit which is not directly available to the subject goods cannot be extended indirectly. It is settled law that when in a fiscal provision, if benefit of exemption is to be considered, this should be strictly construed. When the language of the Notification in question is clear it has to be interpreted strictly. Its benefit cannot be given by any circuitous process of interpretation. Hence we reject the contention of the learned Counsel. 8. In the light of the aforesaid discussion we reject the appeals being devoid of any merits.
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1992 (4) TMI 126 - CEGAT, NEW DELHI
Reference to High Court ... ... ... ... ..... itutionality of the said Notification dated 9-9-1987. 6. We observe that the Tribunal has taken note of the plea that the endorsement on RT-12 returns is not sufficient notice for the purpose of levy. The Tribunal has also held that in the peculiar facts of this case, the demand is sustainable as a consequence of the vacation of the Stay Order by the High Court. 7. We are, therefore, of the opinion that question No. 1 which alone remains to be referred is a question of law involving interpretation of Section 11A(1) and, we, therefore, propose to refer this question to the Hon rsquo ble High Court. 8. In view of the foregoing the following question of law arises for reference ldquo Whether the Department is justified in collecting duty without following the procedure under Section 11A(1) of the Act viz. by issue of a notice and by passing a speaking order. 9. The cross reference filed by the Department is dismissed in view of the fact that the reference application is allowed.
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1992 (4) TMI 125 - CEGAT, NEW DELHI
Appeal - Restoration of ... ... ... ... ..... , the Tribunal does not determine any issue or dispute and so there is no question of reviewing the earlier decision. Moreover, such order of dismissal is not a final order. Rule 20 provides for dismissal of the appeal for non-appearance of the appellant on the date of hearing. It is also true that the proviso to the said Rule specifically provides for restoration of the appeal which has been dismissed for default of the appellant. The mere absence of such a provision regarding the situation when an appeal comes to be dismissed for non-deposit of the penalty amount or duty demanded cannot be construed on the basis to mean that the Tribunal has no power to restore the appeal, which was dismissed for non-deposit of the penalty amount or duty demanded. rdquo In the matter before us, the appellants have not paid the penalty amounts and as such the question of restoration does not arise at this stage. With these observations, the application for restoration of appeal is dismissed.
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1992 (4) TMI 124 - CEGAT, BOMBAY
MODVAT Credit ... ... ... ... ..... 4 (17) E.L.T. 331 (Trib.), it was held that recourse can be had to the provisions of the law as prevailing at the time of initiation of proceedings. Though this judgment is in the context of time limit, for initiation of proceedings, it sets out the principle that recource is to be had to the provisions as available at the time of claim of benefit. This view is also supported by the various case laws discussed in the book referred to by the Ld. Advoate. 9. In view of the above, we hold that Rule 57E is available to the facts of this case. We would not however like to express our opinion on the eligibility of cash refund, since it is to be considered only after exhausting the alternatives, specified in Rule 57E and the claim is otherwise admissible under the law. 10. With these observations, we remand the case back to the Assistant Collector for considering the issue de novo and pass orders on their refund claim in accordance with law. Appeal is disposed of in the above terms.
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1992 (4) TMI 123 - CEGAT, NEW DELHI
Adjudication - Jurisdiction ... ... ... ... ..... l Excise Rules, 1944 was read by the Supreme Court lsquo ought to have been paid rsquo . It was held that to attract Rule 10 (for recovery of short-levy) it was not necessary that some amount of duty should have been assessed and that the said amount should have also been actually paid. Rule 10 would apply even to cases where there had been a nil assessment. In the present case it is admitted to the department that the goods for which demands have been made now were duly assessed extending to them the benefit of Notification No. 13/81-Cus. If the benefit of the said notification was not available, as is the contention of the department the time limit of six months would count from the said date i.e. the date of assessment when the duty would have been paid on such goods but for the assessment by the department. Thus, in whatsoever manner one looks at the provisions of Section 28 of the Customs Act, there is no doubt that the demand of duty is time barred. I order accordingly.
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1992 (4) TMI 122 - CEGAT, NEW DELHI
Miniature Angle Beam Probe ... ... ... ... ..... or consists of a Probe which incorporates a crystal which acts as a source for generation of ultrasonic waves. The Probe is placed in contact with the surface to be tested and the ultrasonic waves generated by the source in the Probe after being reflected by the surface to be tested are conveyed by cables to a detector such as Cathode ray tube for analysis and observation. Since the Probe in question consists essentially of a source which generates ultrasonic waves, we are of the view that the appellants rsquo contention that the disputed Probe did not contain any electronic components such as thermionic valves or transistors or similar semi-conductors devices or light emitting diodes or electronic micro circuits has to be accepted. For these reasons, it is to be held that the disputed Probe was eligible for the concession in terms of Notification No. 69/87, dated 1-3-1987. 5. In view of the above discussions, the appeal is allowed with consequential relief to the appellants.
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1992 (4) TMI 121 - CEGAT, NEW DELHI
... ...
... ... ..... stant Collector of Customs that Impregnated Filter Paper is used for the purpose of filteration media whereas the Indicator Paper is used for testing purposes. In the light of this discussion, it is clear that pH Indicator cannot be equated with ldquo Impregnated Filter Paper rdquo . Merely because the imported Whatman Filter Paper is used as Base Paper in the manufacture of pH Indicator and this required pregnation, it cannot be equated with ldquo Impregnated Filter Paper rdquo , which is quite distinct from pH Indicator Papers. 8. In view of the aforesaid discussion the contention of the appellants that the pH Indicator Paper manufactured from the imported Base Filter Paper should be equated/considered as lsquo Impregnated Filter Paper rsquo for the purpose of the said Notification No. 218/80-Cus. cannot be accepted in the face of the unambiguous term i.e. Impregnated Filter Paper used in the Notification. 9. In the result, the appeal is dismissed being devoid of any merit.
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1992 (4) TMI 120 - CEGAT, NEW DELHI
Refund - Limitation ... ... ... ... ..... time. The learned DR objects to this plea being raised as the issue of payment under protest was never the subject matter of proceedings before either of the authorities below. We agree. The alleged payment of duty under protest is a matter of factual verification of RT 12 returns etc., which cannot be permitted to be carried out at this stage. Therefore, we proceeded to decide this issue on the basis of the available material. The claim for Rs. 7404.67 for the period from 29-12-1977 to 30-6-1978 has been rejected as being hit by time bar. We note that the relevant rule in force during this period was Rule 11 which came into force on 6-8-1977 providing for a period of limitation of six months from the date of payment of duty. Therefore, the claim filed on 28-12-1978 for the period upto 28-6-1978 is time barred and the refund claim would be admissible only for 29th and 30th June 1978. 9. In the result the appeals are disposed of in the terms set out in paragraphs 6, 7, and 8.
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