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Case Laws
Showing 81 to 100 of 276 Records
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1992 (7) TMI 217
MODVAT credit - Gate pass - Improper endorsement ... ... ... ... ..... re remediable defects. On a query by this Bench Shri Willingdon Christian undertakes to get the defects rectified and also produce the requisite certificates from the suppliers about the fact of non-availment of Modvat Credit by them. In the circumstances, we hold that this technical requirement cannot come in the way in availment of the substantive benefit of Modvat Credit. Hence we set aside the order and remand the case back to the Assistant Collector before whom the appellants should produce the Gate Passes after rectifying the defects pointed out by the Department. The Assistant Collector may thereupon decide the issue so long as he is satisfied that the inputs have been received in the factory and utilised in the manufacture, Modvat Credit cannot be denied only on these technical observations. 6. Appeal is allowed by way of remand. 7. Since the appeal itself is disposed of, the stay application does not survive for consideration. The same is also treated as disposed of.
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1992 (7) TMI 216
Manufacture ... ... ... ... ..... o s reliance on the judgment in Collector of Central Excise v. M/s. Dodsal Pvt. Ltd. does not appear to be relevant as in that judgment transmission towers were held to be not excisable goods since they were erected at the site. The other finding in the judgment to the effect that processes of straightening, cutting, bending, punching and galvanising iron and steel angles etc. do not constitute manufacture does not help the appellants as the processes they undertake as recorded by the Assistant Collector (and not disproved) go much farther than these processes (emphasis supplied). In addition, this order has been distinguished in para 9 of the later Pratap Steel Order. 8. In the light of the above discussion, we hold that the processes carried out by the appellants do not constitute manufacture so as to fall within the ambit of Section 2(f) C.E.S.A., 1944. We therefore set aside the impugned order and allow the appeals with consequential relief, if any, due to the appellants.
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1992 (7) TMI 215
Appellate Order ... ... ... ... ..... have gone in appeal against the aforesaid Tribunal rsquo s order but no stay order from the competent court, has been given to the applicants, m the circumstances, we are of the view that the Tribunal rsquo s order is still in force. We are pained to know that Tribunal rsquo s orders are not being implemented by the Collector for a long time. This gives just an instance of the negligence on the part of the Collr. of Customs, Bombay. Having regard to the time that has already elapsed and on the silence of the Collector in implementing the aforesaid order of the Tribunal despite the misc. application having been served in May, 1992, we direct the Collector to implement the Tribunal rsquo s Order within next 15 days or otherwise appear personally as to why he cannot implement the Tribunal rsquo s Order. A copy of this order be sent by name to the Collector of Customs, Bombay and a copy of the same be given lsquo DASH rsquo to the applicants. Case to come up on 11th August, 1992.
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1992 (7) TMI 214
Adjudication ... ... ... ... ..... ion was not made available before the adjudicating authorities. Hence it was pleaded that the order of the Collector is not sustainable. 3. After hearing both sides, the indisputable question is that the clarifications contained in DGTD dated 5-3-1992 and 24-3-1992 were not before the adjudicating authority at the time of passing the impugned order. 4. Since both sides have no objection to the matter being remanded for consideration, we set aside the order and remand the case back to the Collector for de novo consideration taking into account the clarifications received by the appellants in the DGTD rsquo s letters dated 5-3-1992 and 24-3-1992 and that after hearing, pass orders according to law. The appellants may produce the copy of the clarifications received from the DGTD before the adjudicating authorities for enabling him for considering the matter. The appeal is allowed by way of remand. Stay application may be treated as disposed, in view of the above order of remand.
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1992 (7) TMI 213
Set off of duty ... ... ... ... ..... e ultimate production of goods that, but for that process, manufacture or processing of goods would be commercially inexpedient, articles required in that process, would fall within the expression lsquo in the manufacture of goods rsquo ...... rdquo 8. On a consideration of the matter, we are persuaded to the view that the Tribunal was right in its conclusion that Sodium Sulphate was used in the manufacture of paper as lsquo Raw material rsquo within the meaning of the Notification No. 105/82-CE dated 28-1-1982. 5. On the ratio of the decision quoted above it has to be held that Oxalic Acid which acts as a catalyst in the manufacture of Phenol Formaldehyde Resin but does not form a part of the final product was eligible for the set off of duty in terms of Notification No. 201/79 dated 4-6-1979. We, therefore, do not find any merit in the department rsquo s appeal. 6. For the reasons outlined above the appeal is rejected and the cross objection is also disposed of accordingly.
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1992 (7) TMI 212
... ...
... ... ..... ll the essential documents in which the information about the inquiry which is contained have been supplied to the appellant and the learned Consultant did not put forth any specific arguments having a bearing on penal proceedings against the appellants in respect of the information contained in the documents supplied. 7. We, in view of the above, hold that there is enough evidence on record to establish beyond a reasonable doubt that it was the appellant who effected the importation of the car. We, therefore, hold that the lower authority rsquo s order holding the appellant liable to penalty under Section 112(b)(i) of the Customs Act, 1962 is maintainable in law. However, inasmuch as the car has been absolutely confiscated and also in the facts and circumstances of the case we hold that the ends of justice will be served if the penalty levied is reduced to Rs. 50,000 (Rs. Fifty thousand) and order accordingly. But for the above modification, the appeal is otherwise rejected.
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1992 (7) TMI 211
MODVAT credit ... ... ... ... ..... rsquo s plea has to be accepted, then to get the MODVAT credit in respect of the inputs which had been received earlier this purpose will be defeated. Looking at another way, to get the MODVAT credit all that the assessee would have to do is to take out the goods which were already lying in stock from the factory and bring them back inside later under the cover of the same gate passes and the requirement of law of bringing in the goods during the currency of the amended Rule 57H provision would become fulfilled, and .............. after filing the declaration as required under Rule 57G. An interpretation which would lend itself to such mechanism to be resorted to by the assessee would serve nobody rsquo s purpose. In view of this I hold that the appellant rsquo s plea has to be allowed for the reason that the amended Rule 57H would be applicable as the goods can be taken to be lying in stock before the filing of the declaration and, therefore, covered by the amended Rule 57H.
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1992 (7) TMI 210
MODVAT Credit - Goods ... ... ... ... ..... pass procedure when the original gate pass is in the name of another consignee. This would show that production of original gate pass is not the sine qua non for taking Modvat credit and there can be a situation where evidence other than this can also be accepted. In the present case there is no evidence of issue of any subsidiary gate pass. The evidence shows that the goods were consigned to another consignee and were partly diverted to the Respondents and the original consignment was covered by a gate pass. The learned lower authority has accepted the original gate pass as evidence of payment of duty without any other supporting evidence without putting the Department on notice and without any verificationtion. This in view of what we have stated above was not a proper thing to do. We, therefore, set aside the order of the lower appellate authority and remand the matter to the original authority for de novo consideration of the issue in the light of our above observations.
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1992 (7) TMI 209
Confiscation - Security amount ... ... ... ... ..... security deposit under Rule 192 in the event of any breach of the Rules committed either by the appellants themselves, or their agents or any other person employed by them. However, both the above- referred actions were not taken by the Additional Collector even though he was empowered to do the same in terms of Rule 196 of the C.E. Rules, 1944. But under Rule 196, the confiscation can only be of the excisable goods i.e. the Jute Batching Oil. But what is found in the five tankers is not Jute Batching Oil and since that quantity of J.B.O. was not duly accounted for, the duty was already demanded in this case. In that view of the matter, we hold that the appropriation of the Security Deposit in question is not in accordance with law. We set aside that portion of the order passed by the Additional Collector. Accordingly, the appeal is allowed partly with respect to the demand of duty to this extent only. But for this modification, the appeal fails and it is ordered accordingly.
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1992 (7) TMI 208
Appeal by department - Authorisation by department ... ... ... ... ..... cause notice was issued on the RT 12 assessments which should have been finalised which they have already assessed immediately after the classification was approved on 1-1-1988 for the past period when the mistake was noticed on 16-3-1988. This gives us the impression that the RT 12 returns had already been assessed notwithstanding the non-approval of the classification list based on what had been claimed by the respondents. We are constrained to observe that the authorities have not come on record with the full facts nor they took note of the same while filing appeal before the Collector (Appeals) nor when the Assistant Collector chose to raise the demand in pursuance of the show cause notice dated 16-3-1988 referred to supra. The authorities are advised to take note of all the statutory documents and returns before taking up the matter for review or for raising any demand. With these observations we dismiss the appeal of the Revenue for the reasons set out in Para 5 supra.
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1992 (7) TMI 206
Cess - Additional customs duty ... ... ... ... ..... not produced any notification exempting the levy of CV duty under the provisions of the Customs Act, 1962. The Bench has gone into great detail in order of Collector of Customs v. Birla Jute Industries on this very issue and have categorically held that levy of CV duty under Section 3(1) of the Customs Tariff Act, 1975 is leviable at the rate of 0.05 being equivalent to the cess levied under Section 5A of Textile Committee Act, 1963 and as per the cited notification (supra). The respondents are contending that cess is exempted on textile manufactured out of handloom and therefore the CV Duty should also not be levied under the Customs Tariff Act. In this case, the demand is not under the Textile Committee Act but under the Customs Tariff Act. Therefore, there being no independent notification exempting the levy of CV duty. The claim of the Department is sustainable and applying the ratio of the above cited impugned order, we set aside the impugned order and allow the appeal.
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1992 (7) TMI 205
Notification - Date of effect ... ... ... ... ..... (51) E.L.T. 119, the Department has admitted the fact of putting on sale the notification in question on 13-10-1986 and also on the basis of said admission and ratio of this case has already allowed on appeal of M/s. Khattar Enterprises v. Collector of Customs, Calcutta as per Order No. 513/91-D. Now, it is well settled that the date of putting on sale is the date on which the new notification comes in force as held in Jagjit Singh v. State of Rajasthan - AIR 1968 Raj. 24 and Salem Co-operative Sugar Mills Ltd. v. CCE - reported in 1987 (30) E.L.T. 599. Both these rulings have been taken note of in the appellant rsquo s own case reported in 1991 (51) E.L.T. 119, in respect of the notification in question. Therefore, applying the ratio of these cases, the appellants are entitled to succeed and their refund claim is admissible and the excess duty paid in respect of the Bill of Entry in question has to be refunded. The Deptt. shall expeditiously refund the same. Appeal allowed.
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1992 (7) TMI 204
Classification ... ... ... ... ..... r which displays the signals is fitted on the front panel of the instrument. From this, it is clear that the panel meter is the display device and not the phototubes. Please see the enclosed lsquo Instruction Manual rsquo - pages 1,2,3, and 7. 5.1 In the aforesaid function of the goods in question the learned Sr. Executive has urged that these would not at all fall under S. No. (iv) of Col. (4) of the Table to the said Notification 172/77-Cus., dated 8-8-1977. 6. We have considered the pleas advanced from both sides. We are inclined to agree with the respondents learned Representative. The goods in question cannot be treated as display devices. According to the finding of the original authority, which has been adopted by the appellant-Collector, the display device, do not fall within the expected category of goods under S. No. (iv) of Col. (4) against S. No. 8 thereof in the Table to the Notification. Hence, we do not find any merit in the appeal. Accordingly, it is rejected.
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1992 (7) TMI 203
Show cause notice issued and proceedings commenced ... ... ... ... ..... and the purchaser was M/s. Ideal Cosmetics Corporation, both of which are owned by Topiwala Trust. In these circumstances, the plea of the appellants that the price charged by the manufacturers should form the basis of assessment, has rightly been rejected by the adjudicating authority and we uphold that order. In these circumstances, the plea that the appellants acted on bona fide belief is also not acceptable. Since the goods were removed without payment of duty and the appellants had suppressed material facts from the authorities, it is a clear case of contravention of Rule 173Q(1). We do not think that this case would be covered by the ratio of the Supreme Court judgment in Hindustan Steel rsquo s case (supra). However, taking all facts into consideration, we are of the view that the penalty of Rs. 10,000/- would meet the ends of justice. We accordingly reduce the penalty from Rs. 50,000/- to Rs. 10,000/-. Subject to this modification, the appeal is, otherwise, rejected.
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1992 (7) TMI 202
S.S.I. Exemption - Modvat Credit ... ... ... ... ..... e subsequent period. 3. Heard Shri Subramanian, the learned DR. 4. The issue set out above has been clarified by the Board in the aforesaid letter as under ldquo The matter has been examined by the Board. Since inputs brought by the assessee for taking Modvat Credit have been purchased and not actually manufactured by the assessee, the same when cleared as such on payment of duty cannot be regarded as goods manufactured by the assessee. It has therefore been decided that the value of such inputs cleared as such under Rule 57F(1)(ii) should not be included in the aggregate value of clearances under the Small Scale Exemption Notification. rdquo Since this clarification of the Board was not before the adjudicating authority when the impugned order was passed, we think it proper to remand the matter by setting aside the impugned order for consideration of the issue in the light of the Board rsquo s clarification extracted above and in accordance with law and we order accordingly.
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1992 (7) TMI 201
Reference to High Court - Splints and veneers manufactured by assessee not included in declaration regarding excisable goods manufactured by them.
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1992 (7) TMI 200
Stay/Dispensation of pre-deposit ... ... ... ... ..... he course of arguments the learned advocate has made a prayer for remanding the matter for fresh examination by the Collector (Appeals) in accordance with law and to this request of the learned advocate, the learned SDR has no objection. Accordingly, for the reasons given in the earlier paragraphs, we are of the view that this is a fit case where the matter is to be remanded to the Collector (Appeals). Accordingly, we set aside the impugned order and remand the matter to the Collector (Appeals), Hyderabad. We further order that the Collector (Appeals) shall grant an opportunity of personal hearing and shall observe principles of natural justice. Since the matter is very old, we shall appreciate if the Collector (Appeals) decides the matter within 3 months from the date of receipt of this order, after examining the matter afresh keeping in view our above observations. For statistical purposes, the Miscellaneous application is allowed and the appeal is allowed by way of remand.
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1992 (7) TMI 199
Strictures against Department ... ... ... ... ..... se. It was expected of the learned Jt. CDR to act immediately on receipt of the copy of the said application given by Smt. Ray, learned SDR, who is working in the same office under the control of CDR and JCDR. However, a week rsquo s time is given to the learned Jt. CDR, as he requested to obtain the comments from the Collector. It may be mentioned that to obtain the report from the Collector, the learned Jt. CDR requested four weeks rsquo time ignoring the importance of the matter. We, in the interest of justice, have granted one week rsquo s time to obtain the report, taking into account that all means of communication like STD, Telegram, Telex facilities are available to the Department and while functioning in a quasi-judicial manner, impression should not be given to the public that their such grievances remain pending for a long time. 2. To come up on 20th July 1992. A copy of this order sheet may be collected by both sides during the course of the day from the Registry.
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1992 (7) TMI 198
Yarn - Countervailing Duty ... ... ... ... ..... the manufacture of the fabrics is yarn, the duty should be charged on the yarn alone, and not on the fibre which lost its existence in the manufacture of yarn. Here, entry in Column-2 and the wordings of the Rules. In case of fabrics having fibre only, if the view of the original side for charging duty on fibre and yarn both is taken, then obviously duty on yarn cannot be charged. Besides that, the Notification No. 357/76-Cus. clearly says that duty should be charged on - ldquo Fabrics containing more than 10 per cent by weight of synthetic fibre or yarn. rdquo So, both the spirit of the notifications and its consistent interpretation suggest duty should be charged either on fibre or yarn to the extent materials have been used in the fabric. Since in the subject fabrics only yarn has been used, duty should be charged on that only. 2. The ratio of the decision is applicable to the facts of the present case, and applying it, we set aside the impugned order and allow the appeal.
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1992 (7) TMI 197
Modvat Credit ... ... ... ... ..... t of the discussion with him, they submitted the revised declaration. Hence the Officer, with whom they had discussed, has to scrutinise and forward the declaration to the Asstt. Collector. In this view of the matter, we would deem it proper to construe the filing of the declaration before the Supdt. as filing the declaration with the Representative of the Asstt. Collector, with whom the appellants were directed to have discussion on their earlier declaration. Hence viewed from this angle, they can be construed to have complied with the statutory requirement. Since there is no dispute that the revised declaration covers the inputs and the benefit is available from the date of filing the declaration namely 20-2-1989, the demands covered by Appeal Nos. 624/91 and 625/91 are not sustainable. Hence, we allow these two appeals with directions to restore the credit, if already reversed. 7. In the result, Appeal Nos. 624/91 and 625/91 are allowed while Appeal No. 626/91 is rejected.
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