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Case Laws
Showing 81 to 100 of 240 Records
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1993 (1) TMI 179
Penalty - Shortages in stock admitted ... ... ... ... ..... d to be missing or not found, there is a statutory obligation on the part of the assessee to explain the discrepancy properly. If no satisfactory explanation is forthcoming, it has to be construed that the goods have been disposed of in a manner otherwise than that prescribed in the rules. Hence I confirm the duty demand on the admitted shortage, which is not reconciled, which works out to Rs. 1458.24. 6. emsp As regards the excess noticed, it is observed that this excess was found deposited in the store room and the possibility of non-recording the deposit made in the bond store room cannot be ruled out. In the circumstances, I would deem it proper to caution the appellants to be more careful in future and remit the redemption fine. In view of the fact that discrepancy is mainly on account of accounting errors over a period of time and not on account of any mala fide intention, I would remit the penalty, but warn them to be careful in day to day accountal of excisable goods.
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1993 (1) TMI 178
Demand - Limitation ... ... ... ... ..... . Accordingly, after subjecting the returned duty paid goods to the aforesaid process, they were cleared at Nil duty gate-passes, which was also approved by finalisation of the RT 12 returns. The question whether these processes would amount to manufacture and Rule 173H will be available in such a contingency or not was the issue, which ought to have been considered by the Department when they received the D-3 declaration in the first instance and or at least when those reprocessed goods were cleared on Nil duty GPs. When the process are clearly known to the Department, which in the subsequent opinion of the Department was held to be manufacture, the appellants cannot be blamed that the material facts have been suppressed away from the Deptt. Since the show cause notice was issued only on 22-9-1988 and the allegation of suppression of any material facts is not sustainable the notice is time-barred. In view of the aforesaid position, I allow the appeal and set aside the order.
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1993 (1) TMI 177
Return/re-entry of duty-paid goods ... ... ... ... ..... the returned goods are taken for process, it should be intimated to the Department. Hence, there cannot be any suppression of this fact, when the law does not provide for this. 4. emsp After hearing both the sides, though I may not be able to agree that Rule 173H permits payment of differential duty in such a contingency, I am in full agreement with the ld. consultant that there is no requirement of processing the goods separately and intimation regarding taking of the goods for reprocessing, is not required to be given, even as per the Rule. The Gate Passes clearly indicate that the goods are removed as duty paid goods paying differential duty. Hence, if the Department had any objection to the aforesaid clearance under those Gate Passes, demands should have been raised within the period of six months. The extended period is not available in the facts and circumstances of the case. I, therefore, allow the appeal and set aside the order on the ground of time bar of the demand.
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1993 (1) TMI 176
Import of non-OGL capital goods against transferred REP licence ... ... ... ... ..... le against transferred REP licences. Since these licences are transferred ones, the flexibility provisions are not available. As regards the additional licence, referred to by the Ld. Advocate, it is a licence specifically endorsed for the import of Currency Counting Machine. Hence no conclusion can be drawn as to whether it is a non-OGL Capital Goods or otherwise. The admitted position is that this item has been assessed as an office machine and there is no dispute on this. In view of this the objections taken by the authorities are sustainable. However, I see considerable force in the contention of the Ld. Advocate that imposition of penalty and high redemption fine are not called for, because they appear to be under the belief that the items can be imported against exim scrips as a non-OGL Capital Goods. I would therefore deem it proper to set aside the penalty. I also reduce the redemption fine to Rs. 20,000/- (Rupees Twenty thousand only). Consequential relief to follow.
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1993 (1) TMI 175
Redemption fine - Quantum ... ... ... ... ..... nd also keeping in mind that no reason has been given in the impugned order for the quantum of fine, we are inclined to think, in the interests of justice, and in the facts and circumstances of this case, the impugned order has to be set aside and the matter remanded to the adjudicating authority for reconsideration of the issue with reference to the quantum of fine and also the plea of the learned SDR with reference to leviability of penalty on the Indian Bank. We therefore, set aside the impugned order and remand the matter. In view of this order of remand, the penalty levied on the other respondents, viz. Shri Jugraj and Shri Devichand would also stand set aside and their appeals also are remanded to the adjudicating authority to consider their liability and also the quantum of penalty leviable on them, in the facts and circumstances of the case and in the light of the plea urged by the learned S.D.R and in accordance with law. The appeals stand allowed by remand as above.
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1993 (1) TMI 174
Demand - Limitation ... ... ... ... ..... filing the D-3 declaration. Even the Gate Pass, which was produced is reported to be in the name of another party as is evident from the respondents rsquo contention. In any case, the only ground raised in the appeal from the revenue is that when the Gate Pass and subsidiary Gate Pass are not produced, it amounts to suppression and extended period is applicable. Though, none represented the respondents, after hearing Shri Tandon, I am to reject the appeal from the Revenue for the following reasons. 2 emsp When there is no dispute that the inputs have been received under D-3 declaration and the officer was verified the declaration, it cannot be said that any material fact has been suppressed. Moreover, the availment of credit and utilisation thereof without gate pass are also reflected in the RT 12 returns. Hence, the extended time limit will not be available. I, therefore, see no reason to interfere with the order of the Collector (Appeals). The appeal is therefore, rejected.
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1993 (1) TMI 173
Castings - Machine parts ... ... ... ... ..... all times full knowledge about the activities of the appellants. Under these circumstances, on the ratio of the judgment of the Hon rsquo ble Supreme Court in the case of Collector of Central Excise v. Chemphar Drugs and Liniments reported in 1989 (40) E.L.T. 276 we hold that there was no wilful mis-statement or supression of facts by the appellants and the order invoking the extended period of limitation under Section 11A of the Central Excises and Salt Act, 1944 is not sustainable and the period of limitation available to the department was only six months. 15. In light of the discussion we hold that (i) The disputed goods were not eligible for the concession in terms of Notification No. 223/88, dated 23-6-1988. (ii) In view of the facts and circumstances of the case it was not permissible for the Department to invoke the extended period of limitation in terms of proviso to Section 11A of the Central Excises and Salt Act, 1944. 16. The appeal, is, therefore, partly allowed.
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1993 (1) TMI 172
Modvat Credit - Wrong or excess availment ... ... ... ... ..... he circumstances, I set aside the impugned order in its totality including the direction for the verification of the correctness of the entry in the Invoice-cum-Challan, together with the observation that no recovery action could follow, on the basis of the endorsement in the RT-12 return. 6. Before parting with the matter, I would like to observe that the facility given to Public Sector Corporations like SAIL to issue certificates regarding duty paid or rate of duty applied, with a view to enabling manufacturers to avail Modvat Credit without production of Gate Passes may be reviewed by the Central Board of Excise and Customs so that the Invoices/Certificates issued by such Government Undertakings reflect the correct picture regarding the quantum and rate of duty applied on the materials supplied by them to the manufacturers and not show enhanced rates effective from a later date for supplies of goods which had been cleared earlier applying lower rates in force at that time.
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1993 (1) TMI 171
Classification ... ... ... ... ..... der Rule SPA with effect from 17-9-1990. If they were not to be considered as eligible for Modvat benefit, there was no need to specifically keep them out by issue of a Notification. The finding of Collector (Appeals) that Modvat credit cannot be denied in respect of duty paid on HDPE bags/sacks for the period before 17-9-1990 when the Notification in question was issued, cannot be faulted. We see no merit in the Department rsquo s appeal. We accordingly dismiss the same. 9. The respondents have filed what they have termed as cross-objection against the appeal. The relief claimed therein is that the order-in-appeal be upheld and the Department rsquo s appeal dismissed. As the impugned order-in-appeal was totally in their favour and no greater relief than what was granted to them therein has been sought now in the cross-objection, the same is not a cross-objection in the real sense of the term. As we have dismissed the appeal the cross-objection gets automatically disposed of.
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1993 (1) TMI 170
Modvat credit ... ... ... ... ..... use of the ribbon cartridge in the printer is similar to the use of the ribbon in the typewriter. The only inference that can be drawn based on the judgment of the Hon rsquo ble Supreme Court cited supra is that the manufacture of the printer is complete without the ribbon being fitted onto it. The appellant rsquo s plea is that they are marketing the printers with the ribbon fitted in the same. It is not the case of the appellant that the printer cannot be marketed without the fitment of the ribbons. As it is all that is required is, as explained to us during the hearing, that the ribbon cartridge is placed in position in the slot provided for the same and the printer then would be ready for the print-out on the paper. The position is similar to that in the case of typewriter as mentioned above. Keeping in view of the above I agree with my learned brother that the order of the learned Collector has to be upheld and the appeal is to be dismissed. Sd/- ( V. P. Gulati) Member
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1993 (1) TMI 169
Exemption to SSI units ... ... ... ... ..... the Notification, the reference is to a person not eligible for the grant of exemption under the Notification. The question of deciding eligibility of a person for the benefit of an exemption Notification will arise only if he is liable to duty. Here the petitioners rsquo customers purchase soaps with their names marked thereon for being kept in their aircrafts or terminal buildings or the hotel rooms for use by their customers. No sale is involved. No manufacturing activity is indulged in by them. They are only customers and users as far as the subject goods are concerned. Not being manufacturers, regular or deemed, they do not need an exemption Notification which is irrelevant as far as they are concerned. Hence, we feel even para 7 has no application in a case of this type. 4. In line with our previous decision SP-532/A-697 CAL/91 dated 30-10-1991, we grant the stay prayed for. Registry to transfer the appeal to CEGAT, New Delhi for disposal by the concerned Special Bench.
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1993 (1) TMI 168
Import - OGL ... ... ... ... ..... nufacture of generating sets falling under Tariff Heading 85.02. An alternator is a part of generating set inasmuch as it is admitted to be a sub-assembly by the adjudicating authority itself. A sub-assembly is also a part of the whole assembly. For example, a piston assembly is a part of internal combustion engine in a motor vehicle although a piston assembly is a sub-assembly of the engine. An engine is a part of motor vehicle. With the alternator, prime mover and other control and panel parts will have to be manufactured and assembled by the appellants. On the plain language of Notification 155/86, the benefit cannot be denied to the appellants. The meaning attempted to be given by the learned SDR to the effect that parts referred to in the said Notification 155/86 must necessarily fall under Tariff Heading 85.03, is not borne out by the language of the said notification. 5. In view of the aforesaid discussion, appeal is allowed with consequential relief to the appellants.
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1993 (1) TMI 167
Adjudication ... ... ... ... ..... unal cannot interfere with the above-said findings of the learned Adjudicating Authority holding that the goods imported by the appellants fall under Serial No. 174 of Appx. 2, Part-B of 1990-93 Policy. 8. However, it was contended by the learned Advocate, Shri Chatterjee that the value of the goods admittedly is Rs. 1,44,390.50 and the penalty of Rs. 1,45,000.00 imposed on the appellants is excessive. We have considered this submission. Now it is an admitted fact that the Adjudicating Authority accepted the valuation of the property as Rs. 1,44,390.50. In such circumstances, we are of opinion that the penalty should be reduced in this case. Accordingly, we reduce the same to a sum of Rs. 50,000.00 (Rupees fifty thousand) only. But for this modification, the appeal fails. 9. In the light of the above-said order, the Cross Objection No. 103/91 filed by the Department which is only in the nature of justifying the orders passed by the Adjudicating Authority, is also disposed of.
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1993 (1) TMI 166
Valuation of goods captively consumed ... ... ... ... ..... rrant to refer to Rule 6 which covers situations of retail sales 6(a) , captive consumption of whole production 6(b) and sale through related persons only. 11. In view of what is discussed above, I am of the opinion that the contract price in small lots would not be a proper basis for determination of assessable value because it is applicable to particular customer under agreed conditions, more so when general prices applicable to other wholesale buyers who are all industrial consumers (SAIL, Raipur Alloys etc. and not dealers) are available and has already been approved by the department. The case laws cited by the Assistant Collector vide 1991 (52) E.L.T. 142 (T) and 1987 (27) E.L.T. 272 (T) have also emphasised this point only. The Assistant Collector however has fallen into error in interpreting the same and so the order has to be set aside. Under the circumstances the impugned order is not maintainable in law. ORDER 12. For the aforementioned reasons, I allow the appeal.
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1993 (1) TMI 165
Classification ... ... ... ... ..... on was not as per Section notes or Chapter notes and hence these rulings are not relevant in this case. Further as pointed out by the learned CDR, the question in Rakesh Enterprises pertained to a different notification which granted benefit to drugs, medicines and drug intermediate not elsewhere specified. The notification in the present case clearly laid down that it has to be classified under Chapter 28, 29 or 30 to the Schedule of the Central Excise Tariff Act, 1985. The case of Tata Exports Ltd. (supra) is also on identical issue and the Bombay High Court had held that the Dextrose Anhydrous is a drug intermediate. The terms of the Notification No. 104/82-C.E., dated 28-2-1982 in that case were different than the one in hand. Likewise the case of Atul Products is also clearly distinguishable as the item in question was Nephthalene and the same is not applicable to the facts of the case. In view of our findings, there is no merit in the appeals and the same are dismissed.
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1993 (1) TMI 164
Valuation - Related person ... ... ... ... ..... fore us or before the Tribunal, itself as being based on no evidence. 9. In that view of the matter and in view of the requirements of Section 11A of the Act, the claim had to be limited for a period of six months as the Tribunal did. We are, therefore, of the opinion that the Tribunal was right in its conclusion. The appeal, therefore, fails and is accordingly dismissed. 17. On the ratio of the decision of the Supreme Court quoted above the answer to the second point has to be in the affirmative and the demand issued on 10-5-1984 after a lapse of more than 6 months in respect of the goods cleared by the appellants during the period 1978-79 to 1983-84 (upto 19-8-1983) has to be deemed as barred by limitation. 18. In view of the finding that the demand confirmed by the impugned order was time-barred it is not necessary for us to examine the other issues arising out of the impugned order. 19. In view of the above discussion, we set aside the impugned order and allow the appeal.
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1993 (1) TMI 163
Rectification of mistake ... ... ... ... ..... l to grant the adjournment on 17-12-1990, the remedy lay elsewhere. They are not entitled to have their alleged grievance redressed by way of an application for rectification under sub-section (2) of Section 129B, ibid. 33. In the light of the foregoing discussions I answer the questions referred to me as follows - (1) present application for ROM is not maintainable in the facts and circumstances of the case. (2) The application for ROM is not to be allowed. Alternative question No. 2 Neither these was any failure of principles of natural justice nor there is any mistake apparent from the record justifying the recall of the order. (3) Dismissal has not resulted in failure of principle of natural justice. Alternative question No. 3 There was no denial of principle of natural justice in refusing to grant adjournment. Dismissal of the appeal as time-barred was proper. 34. In view of the majority order, the ROM application filed by the appellants is dismissed as not maintainable.
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1993 (1) TMI 162
... ...
... ... ..... he transactions between the appellants and their distributors, who in terms of the agreements were required to purchase 2000 pairs of Tie Rod Ends per month and undertake certain measures for promoting the sale of goods were not on principal to principal basis, on the ratio of the various judgments extracted above, we hold that the additional 10 discount extended by the appellants to the distributors was on legitimate commercial consideration and was, therefore, admissible. 10. We are inclined to agree with the appellants that the decision of the Bombay High Court in the case of Godrej Boyce Mfg. Co. Pvt. Ltd. (supra) is not relevant to the fact of this case since the main question that arose for consideration in that case was whether the secondary packing in which the refrigerators were supplied to wholesale dealers outside Bombay would form a part of the assessable value of the goods. 11. In view of the above discussion, we set aside the impugned order and allow the appeal.
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1993 (1) TMI 161
Set off - Unutilised credit ... ... ... ... ..... equally applicable in the present case. There was no other disentitling circumstance for permitting them to utilise the credit from their RG 23 account after retransfer of the disputed amount thereto for clearances of cement effected till 28-2-1986 when such a facility was admissible to them. Taking this line, we do not see any force in the Appeal to dislodge the finding of the Collector (Appeals) for grant of permission to utilise the credit in question, though we have arrived at that finding by a different approach. We have held that such transferred amount in the P.L.A. is to be effectuated by an accounting exercise, as pointed out by us. It was an accounting irregularity, ab initio, and it has got to be regularised and reversed only in the manner indicated by us and not by wiping it out, as done by the Assistant Collector, which decision is sought to be restored in the present Appeal. The Appeal is dismissed but the impugned Order-in-Appeal is modified on the above terms.
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1993 (1) TMI 160
Stay/Dispensation of pre-deposit ... ... ... ... ..... 2) that the records pertaining to such sale of heating elements by the appellants effected by the party for the period 1986-87 to 1990-91 had been resumed by the Department. It is also relevant in such a context, as discussed above, that this Bench in granting stay earlier had noted the precedent decision of the Tribunal relating to Notification No. 80/80 in similar circumstances. In such a view of the matter, the order proposed by the Hon rsquo ble Member (Judicial) is concurred with to say that on merits prima facie case in favour of the applicants has been made out and this will be a fit case for granting unconditional stay, except for that quantity of inputs cleared as such other than for captive consumption. , Papers are forwarded to the Registry of B1 for being submitted before the Bench for final order. 26. Final Order . - In view of the majority opinion unconditional stay is granted except for that quantity of inputs cleared as such other than for captive consumption.
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