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Case Laws
Showing 121 to 140 of 276 Records
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1992 (7) TMI 176
Demand - Show Cause Notice ... ... ... ... ..... ot confirmed the demand on a ground which was not in the show Cause Notice. Hence, we reject the contention. 9. As regards the only contention by the appellants in their present appeal that the Collector (Appeals) erred in reducing the amount of penalty and redemption fine, we find that in the facts and circumstances of the case, his discretion in reducing the amount of personal penalty and redemption fine, does not call for any interference by this Tribunal. In his impugned Order, he has reduced the redemption fine and personal penalty observing that since the respondents were engaged in this activity for about two months only till the time the Central Excise Officers visited their factory premises and there were other similar units and the position was not totally clear, the imposition of personal penalty of Rs. 25,000/- and a redemption fine of Rs. 5,000/- was not justified. 10. In the light of the foregoing discussion, we reject the appeal as well as the Cross-objections.
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1992 (7) TMI 175
... ...
... ... ..... ence of a contemporary import at higher price. Therefore, the appellants are not precluded from challenging the assessable value. We may also refer to judgment of Supreme Court in Dunlop India Ltd. and Others v. Union of India and Others reported in AIR 1977 Supreme Court 597 1983 (13) E.L.T. 1566 (S.C.) wherein it was held - ldquo There is no estoppel in law against a party in taxation matter. If a party, in order to clear the goods for customs, has given the classification in accordance with the wishes of the authorities or even under some misapprehension, and if the law allows it a right to ask for refund on .proper appraisement and which is actually applied for the party cannot be estopped from making such application and ask for such refund. rdquo 8. In view of the above, we are of the view that the appellants are not precluded from challenging the valuation made in the Order of the Collector. 9. We, accordingly, allow the appeal and set aside the order of the Collector.
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1992 (7) TMI 174
Appeal - Grant of early hearing ... ... ... ... ..... ring is likely to cause closure of the unit which may cause both financial revenue loss and also loss to the appellants. The determination of correct classification and recurring effect has been considered as a just ground for grant of early hearing. The appellants have also shown that due to smuggled goods being in the market, their goods being priced higher due to duty is facing difficulty in sale resulting in total fall in production. This hardship can be surmounted if early hearing is granted and decision rendered early. There is force in this argument. After all, we have to take a pragmatic view, in the interest of justice and if the early decision is likely to benefit both the sides and also save revenue loss, then the prayer for early hearing could be granted, more so when there is a question of correct classification of goods having recurring effect. In the result, the application is allowed. The Registry may list the case for hearing during the month of October, 1991
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1992 (7) TMI 173
Recovery of Government dues - Personal Ledger Account ... ... ... ... ..... ch importance. The two cases cited before us leave no doubt in our mind that the raising of the debit in the account in the manner it was done when the stay application was pending before the Tribunal, was totally arbitrary and uncalled for. We also observe that a copy of Order No. 20/92-C, dated 3-2-1992 was given dasti to the learned SDR and another copy was also sent to the respondent-Collector by post on 19-3-92. We think that in these circumstances the Collector as well as the learned Departmental Representative were fully aware of the developments in the matter. In the absence of any response from the authorities we direct that the respondents shall reverse the debit made in the RG-23A Part II Account on 31-3-1992 and credit the same with the amount debited. The respondent is directed to report compliance on or before 5th August 1992. The matter would come up on that day. 7. The operative part of the order was pronounced in the Court after the hearing on 20th July 1992.
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1992 (7) TMI 172
... ...
... ... ..... . Hence this appeal. 2. We have heard Shri A.K. Ghose, Regional Manager for the appellants and Shri M.N. Dhar, learned DR for the Revenue and carefully considered their submissions. 3. The Tribunal in a series of decisions has held that floppy disk drives transcribe data on to data media. In the case of EM Electronics Pvt. Ltd. Bangalore v. Collector of Customs, Madras - Order No. 421/87-B2 dated 23-3-1987, the Tribunal has held that floppy disk drives were entitled to the benefit of Notification 237/83 dated 18-8-1983. This order of the Tribunal was followed in the case of lnfosys Consultants v. Collector of Customs, Bangalore reported in 1987 (29) E.L.T. 642 (Tri.) 1987 (11) ECR 689. Sl. No. 2 of Notification covers goods identical to those described against Sl. No. 2 of 237/83. We, therefore, hold that the imported goods are eligible to the benefit of Notification 40/82 at Sl. No. 2 thereof. 4. The appeals are allowed with consequential relief if any due to the appellants.
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1992 (7) TMI 171
Seized goods - Return of seized goods after quashing of confiscation ... ... ... ... ..... No. 47, Calcutta-700001 and payable at Calcutta, as requested by the learned Advocate, Shri S.K. Bagaria along with Shri P. Banerjee, Advocate for the applicant, during the course of their arguments. This shall be done within a period of two months from the date of receipt of this order. We may observe that the above-said balance amount over and above the auction amount of Rs. 88,500.00, was required to be paid by the Department in view of the fact that in spite of receipt of the order passed by this Tribunal on 27-11-1990, the Departmental Authorities had auctioned the goods without reference to the said order of this Tribunal. In that process, the Government Revenue is also lost. However, these are matters which are to be looked into by the higher authorities. 9. The Registry is directed to ensure immediate transmission of the copies of this Order to all concerned. A copy of this order may also be sent to the Member (Customs), Central Board of Excise and Customs, New Delhi.
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1992 (7) TMI 170
Appeal - Limitation ... ... ... ... ..... n regard to the Stay Petition as also the Appeal from the Registry on or before 31-7-1992 for the purpose of presentation of the same before the proper forum. The Stay Petition as well as the Appeal is disposed of in the light of the above said order. 12. Assent per K. Sankararaman, Member (T) . - I agree . I would also like to observe that a question similar to the applicability of Section 14(2) in regard to the exclusion of time spent in proceedings before other authorities for computing the time-limit for filing appeals before the proper authorities whether Section 14 applies to proceedings before Tribunals came up for decision before the Honourable Supreme Court in Commissioner of Sales Tax, Uttar Pradesh, Lucknow v. Parson Tools and Plants, Kanpur, reported in 35-STC-413 1970-1 Supreme Court Journal-24 1975-Tax Law Reporter 1529. The observations therein may be taken note of by the Collector of Central Excise (Appeals) after the appeal is filed before him in this matter.
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1992 (7) TMI 169
Export - Duty Exemption Scheme ... ... ... ... ..... does not arise. 9. Shri K.K. Bhatia, learned Jt. CDR made out another plea that the appellants are not entitled to seek duty drawback as per Section 74 of the Customs Act. In this regard, we have to state that the question before us is not pertaining to drawback allowance on export of duty paid goods but only a question of availability of benefit of the notification and therefore, it is not necessary for us to go into this question, as has been raised by the learned Jt. CDR. The various rulings relied by the advocate are pertaining to the liberal interpretation to be given to the notification. On this point, there cannot be two opinions but in this case, the question of liberal interpretation does not arise when the appellants do not come within the ambit of the notification at all. The learned Collector has rightly rejected the plea of the appellants and we uphold the order by dismissing the appeal. (P.K. KAPOOR) MEMBER (T) (G.P. AGARWAL) MEMBER (J) (S.L. PEERAN) MEMBER (J)
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1992 (7) TMI 168
Classification ... ... ... ... ..... an independent unit by itself. The controlling circuit of the two units only is common. Uster Card Control lsquo L rsquo controls long term variations in the sliver counts and the lsquo M rsquo Controller takes care of medium term variations in the sliver counts. The two instruments form one complete system. Therefore accessories of Card Clothing Machine and have been designed for use solely with such machines and therefore these are more appropriately classifiable under sub-heading (1) of Heading No. 84.38 which covers inter alia ldquo parts and accessories suitable for use solely or principally with the machines of the present Heading or with machines falling within Heading No. 8436 or 84.37... Card Clothing Machines fall under Heading No. 84.36 which covers inter alia ldquo machines of a kind used for processing natural or man-made textile fibres rdquo . 6. In the light of the above discussion, we set aside the impugned order and allow the appeal with consequential relief.
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1992 (7) TMI 167
Confiscation ... ... ... ... ..... ases where is a technical or venial breach of the provisions of the Act or where the breach flows from a bona fide belief that the offender is not liable to act in the manner prescribed by the statute. rsquo 9. In the instant case, as observed by us earlier, the appellants had placed the order for the offending goods in the bona fide belief that the balance available in their Import and Export Pass Book was adequate. Hence, we hold that imposition of penalty under Section 112 of the Customs Act, 1962 on the Appellants was not warranted. 10. In view of the above discussion the impugned order confiscating the goods only under Section 111(d) of the Customs Act, 1962 is upheld. However, having regard to the facts and circumstances of the case, we reduce the redemption fine to Rs. 2,50,000/-(Rupees two lakhs fifty thousands only). We also set aside the order imposing the penalty of Rs. 1,00,000/-(Rupees one lakh) on the appellants. 11. The appeal is disposed of in the above terms.
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1992 (7) TMI 166
Exemption - Remission of duty for special industrial purposes ... ... ... ... ..... the disposal of the goods. The gratuity achieves completion only by the use of the goods, and use is beyond the manufacturer rsquo s power. The receiver of the gratuity, in fact, is not the manufacturer but the buyer, because the manufacturer sells the goods, less the duty which, even when it reaches him from the buyer, is re-routed to the exchequer. Since it is the buyer rsquo s use that consummates and concludes the exemption process, it is in the fitness of things that he should also be the one who must ultimately answer for the duty. It is further seen that in the case of Madras Radiators and Pressings Ltd. (supra) on the same Notification and in similar circumstances the Tribunal has held that duty cannot be demanded from the manufacturer from whom the concessional rated material has been obtained by the users. In view of the settled position as above, there is no reason to interfere with the order passed by the Collector (Appeals) and the appeal is accordingly rejected.
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1992 (7) TMI 165
S.S.I. exemption ... ... ... ... ..... e Department has not established their case with satisfactory evidence that appellants M/s. Saraswati Engineering Works and M/s. Suvidha Products have never been engaged in the manufacture of complete Gharghanti and, therefore, the Collector rsquo s order denying exemption to all the three units individually under Notification No. 105/80-C.E and 77/83 is not sustainable and consequently the demand for duty and penalty on the appellants is bad in law and is set aside. As regards the claim for assessment of the Gharghanti under Item 33C of Central Excise Tariff as domestic Electric Appliances, it is seen that there is no finding at all by the Collector and no detailed argument had been put forth before us on this point also and in view of the finding already arrived at on the validity of the demand as above, no separate findings are given on these submissions relating to classification under 33C of erstwhile Central Excise Tariff. The appeals are disposed of in the above terms.
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1992 (7) TMI 164
Polyester chips imported ... ... ... ... ..... as covered by the entry reading as lsquo Polyester resins rsquo against Serial No.1 (iv) of the table annexed to the Notification . In our view lsquo Polyester Chips rsquo of textile grade are a particular variety of Polyester resin and the amendment of Notification No. 36/83-Cus., dated 1-3-1983 by Notification No..219/83-Cus., dated 2-8-1983 to delete the entry against Serial No. 3 in the table annexed to the Notification and also exclude the item of lsquo Polyester Chips rsquo from the scope of the entry against Serial No. 3 of the table annexed to the Notification only resulted in the withdrawal of the larger concession that was available on this particular variety of lsquo Synthetic resins rsquo against Serial No. 3 and the ruling out of the possibility of such resins being cleared against Serial No. 4 of table annexed to the notification. 8. In view of the above discussion we set aside the impugned order and allow the appeal with consequential relief to the appellants.
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1992 (7) TMI 163
Rectification of Mistake ... ... ... ... ..... mistake apparent from the record and it has no power to review its own orders. It, therefore, follows that while considering an application for rectification under Section 35C(2) no fresh material, additional evidence or new argument can be accepted nor can a party be permitted to argue his case afresh at the rectification stage. Hence, it is not necessary for us to deal with Shri Gujral rsquo s contentions that the goods having were assessed in accordance with an established practice, change in classification could be only prospective. 6. In view of the foregoing we order that para 17(ii) of the order shall be rectified to read as follows - ldquo The order confirming the demand for the period beyond the period of 6 months from the date of the show cause notice is set aside as barred by limitation. However, short levy if any in terms of this order shall be recoverable in respect of goods cleared within the normal period of 6 months of the date of the show cause notice. rdquo
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1992 (7) TMI 162
... ...
... ... ..... the finding of the Collector as to the under-valuation since he has referred to various quotations, we are considering those quotations to find out whether in fact there is an under-valuation. At the outset, we may point out that this Tribunal is taking a view that quotations cannot be acted upon as they are not relevant evidence in the absence of an actual import in pursuance of the quotations. We have been holding time and again that quotations are in the nature of offer and there is scope for negotiations to fix a final price for the import of goods. Therefore, these quotations are irrelevant. The Collector referred to a quotation dated 10-10-1991 issued by M/s. P.D. Tolia and Co. in which the price of goods of Chinese origin is indicated as US 62 Kg. He also referred to various other quotations which in our view are not relevant for the purpose of determining the assessable value. 13. In the light of the above, we allow the appeal and set aside the Order of the Collector.
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1992 (7) TMI 161
... ...
... ... ..... ed in the earlier paragraphs the benefit under Modvat is given to avail the credit of duty paid on the inputs while paying duty on the final product. It has and it cannot have any effect on the assessable value which is to be determined in accordance with Section 4 of the Act. Further, the assessable value is to be determined in accordance with the provisions of the Act, and the Modvat Credit is provided by the rules and the rules cannot have any overriding effect on the provisions of the Act. 6. In the respondents case the wholesale price as declared was ascertainable and if was also approved by the Department. Further there was no allegation that the appellants and their customer were related persons. Under these circumstances we are inclined to agree with the Collector (Appeals) that there was no justification whatsoever to include the Modvat Credit availed by the respondents in the assessable value of the final product. 7. In view of the foregoing, the appeal is rejected.
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1992 (7) TMI 160
Stay - Demand and Recovery ... ... ... ... ..... e find that the only issue giving room for short levy is the availment of MODVAT Credit alleged to have been irregularly taken, which was utilized towards the clearance of the final product, resulting in short levy on the final product. Hence when the MODVAT Credit alleged to have been taken irregularly has been reversed, the question of demanding duty again to the same extent alleging short levy and confirming the demand does not arise. Only where there is no balance in the MODVAT account, there is a requirement of making good the short levy by deposit in the PLA. In this prima facie view of the matter, we grant and stay and waiver of recovery of the duty amount and also direct the Departmental authorities to lift the detention alleged to have been made for recovery of the duty amount. 5. The plant and machinery ordered confiscation should not be disposed of by the Department and the normal process of manufacture should not be interfered with till the disposal of the appeal.
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1992 (7) TMI 159
Reference to High Court - Non-inclusion of inputs in declaration ... ... ... ... ..... s in question they did not stand to gain anything but on the contrary, made their position vulnerable. But this vulnerability can be only to the extent of a demand for the normal period of six months. If every such case of incomplete declaration is made out to be a case of suppression and the longer period applied, the normal period of six months will have very little application and every such case will straightaway attract the longer period. If what is alleged to have been suppressed had not so been suppressed but declared, the respondents would not have been denied the benefit but got it without any let or hindrance. In the circumstances, their failure cannot be taken as a case of suppression at all to invoke the longer period. 8. In view of this clear position, no question of law arises for reference to the Honourable High Court. Accordingly, I dismiss the application. 9. The decision to dismiss the application was pronounced in the open Court at the close of the hearing.
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1992 (7) TMI 158
Exemption to S.S.I. Units - Trade Mark ... ... ... ... ..... acturing these specified goods (Gas Stoves) under the trade name lsquo Hotline rsquo even after assignment. According to para 7 of the notification if a manufacturer affixes the brand/trade name of another person with reference to specified goods is not entitled to claim exemption in respect of specified goods. In other words if the brand name or trade name is of his own the benefit of exemption cannot be denied. Trade name of another person refers to Trade name belonging to another. ldquo Of rdquo , as meaning belonging to as per the dictionary meaning as given in the Stroud rsquo s Judicial Dictionary. Since ownership is the criteria to determine the eligibility of exemption with reference to Para 7 of the Notification and in view of the fact that trade mark belongs to appellants M/s. Opus India, we do not find any justification to deny the benefit of exemption under Notification No. 175/86. In the view we have taken, all these appeals are allowed with consequential relief.
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1992 (7) TMI 157
Tobacco sold by assessee though known as jarda, is only unmanufactured tobacco ... ... ... ... ..... so be used for chewing only. Further in this case it is found that this is a confirmation of decision of the Collector (Appeals) which was cited and relied upon by the appellants before the adjudicating authority. The Additional Collector has also in his order not shown by evidence that the tobacco at the hands of the appellants has been treated with additional ingredients. The Trade Notice 139/81 of the Pune Collectorate has given a list of ingredients for the manufacture of chewing tobacco products for the purpose of accountal in RG-12 Register. In the absence of such evidence the conclusion regarding calssification of the tobacco under Item 411(5) Central Excise Tariff cannot be sustained specially in the light of the Tribunal rsquo s decision in the case of M/s. Jaikisan Tobacco Co., Pune (supra). In the result, it is found that there is a lot of substance in the contention put forth by the appellants herein. The impugned order is accordingly set aside and appeal allowed.
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