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Showing 101 to 120 of 285 Records
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1993 (2) TMI 202 - CEGAT, CALCUTTA
Stay Petition/Dispensation of pre-deposit of penalty ... ... ... ... ..... mestic jurisdiction, where contractual or conventional Rules operate. The case did not involve a public law situation. But the House of Lords in Lloyd v. McMahon, 1987 AC 625 applied the principle to a clearly public law situation. The principle in Leary rsquo s might, perhaps, be too broad a generalisation. It is thus seen that a failure of natural justice in the Trial Body cannot be cured by sufficiency of natural justice in the Appellate Body. 7. In that view of the matter I hereby remand the case to the Collector of Customs (Appeals) with a direction that he should grant a personal hearing to the applicant/appellant or to his Counsel to substantiate that he has a prima facie case and then the learned Collector should take into consideration the balance of convenience and the hardship and thereafter, he should pass a speaking order with respect to the Stay Petition and then proceed to hear the appeal in accordance with law after observing the principles of natural justice.
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1993 (2) TMI 201 - CEGAT, BOMBAY
Proforma Credit - Demand - Limitation ... ... ... ... ..... his line of argument adopted by Shri Mondal for the following reasons. When there is no dispute that these inputs, as they are declared in the Gate Passes, are otherwise eligible for proforma credit under Rule 56A, there cannot be any intention to evade duty nor could there be any motive to suppress or violate any Rules. Justification for invoking the extended period would arise only if this ingredient is present. No doubt, the officer who is verifying the D-3 declaration can choose to verify whether the inputs are covered by permission or not as submitted by Shri Mondal. But when such a verification, in the context of the Gate Pass being made available to the officer as early as in the year 1979, has not been done within a period of six months, the time limit allowed as per the law, the demands are to be held as time-barred. There cannot be any case for invoking the extended period in the facts and circumstances of the case. I, therefore, dismiss the appeal from the Revenue.
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1993 (2) TMI 200 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... of Note 7 to the Chapter, and since the subject imported goods were not so excluded the same were correctly assessable under Heading 9806. 3. Appearing on behalf of the appellants, Shri Lakshmi Kumaran, learned Advocate reiterated the submissions made before the Collector (Appeals) and submitted that the nozzles are to be replaced too often and, therefore, it could not be treated as part of machine. In reply, Shri J.N. Nair, learned JDR while supporting the impugned Order cited the case of Voltas Ltd. v. Collector of Central Excise, 1991 (46) E.L.T. 569. 4. We have considered submissions. In the impugned order, the Collector (Appeals) has held that the argument that the nozzles are required to be replaced too often and therefore, it should not be treated as part of machine cannot be accepted. We do not find any infirmity in his finding nor any authorities were shown to take a contrary view. In the result, we uphold the Order-in-Appeal and reject all the present three appeals.
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1993 (2) TMI 199 - CEGAT, NEW DELHI
Rectification of mistake ... ... ... ... ..... ioner of Income Tax 1952 (21) ITR 333 Bombay . rdquo 12. The applicants have also taken the plea that the Tribunal has travelled beyond the grounds of appeal and given benefit to the Revenue which they had not even prayed in their appeal and this has resulted in an error apparent from the record. A reference to the grounds of appeal clearly disproves this claim. Besides questioning the remand of the matter by Collector (Appeals) and referring to the guidelines for the purpose, it is also stated in the appeal that the Assistant Collector had rightly modified the classification lists. In view of this, there is no substance in the second plea too. 13. Since we do not find any error apparent from our record and since the material which has been placed before us now was not a part of the record, in the appeal which came up for hearing before us, we cannot take that into account for the purpose of making any rectification of error. The application, therefore, fails and is rejected.
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1993 (2) TMI 198 - CEGAT, NEW DELHI
Manufacture - Chemicals ... ... ... ... ..... n which the manufacturing process does not come to an end with the production of polyethylene. It is true that the appellants have stated that vulcanizable polyethylene was proposed to be manufactured out of duty paid polyethylene granules. As we have seen, the production of vulcanizable polyethylene involves a process incidental or ancillary to the completion of the manufactured product, the liability of payment of duty would arise only at the final stage. This would naturally imply that no duty need be paid in respect of the quantities of polyethylene which are taken for further processing - that is treating with dicumyl peroxide. Even otherwise, since the final product is commercially a distinct product it would be excisable only at that stage. We observe that all this should present no difficulty since the further processing is done in the same factory. 25. In view of the foregoing, the order of Collector (Appeals) is set aside and the appeal of the Department is allowed.
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1993 (2) TMI 197 - CEGAT, NEW DELHI
Appeal - Condonation of delay ... ... ... ... ..... iod prescribed and that, in our opinion, is not a valid ground. 3. Learned DR also cited the case of Bhawan v. Jagdish reported in the lsquo Judgment Today rsquo 1990 (3) JD 704. The learned DR had cited the decision of the Supreme Court in the case of Collector, Land Acquisition Anantnag and Another v. MST. Katiji and Others reported in 1987 (28) E.L.T. 185 (S.C.). The decision in the case of Jagdish and Others is latter to the decision of MST. Katiji and Others cited by the learned DR and in the latter decision Hon rsquo ble Supreme Court has confirmed the views expressed in the case of Ramlal and Others v. Rewa Coalfields Ltd. reported in AIR 1962 S.C. 361. With these observations, we hold that the appellant was not prevented by sufficient cause in the late filing of the appeal. The application for Condonation of Delay is rejected. Since we have rejected the Application for Condonation of Delay, the appeal is also dismissed and we are not going into the merits of the same.
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1993 (2) TMI 196 - CEGAT, NEW DELHI
Natural Justice - Test reports ... ... ... ... ..... or printing and writing and is characterised by its smoothness, stiffness, clean appearance and even look through. It is generally used for visiting cards, menu cards and similar products. Thus, we do not think that the goods imported could be called Cardboard since they possessed certain qualities which, according to all the test reports and the technical literature cited before us, were Ivory Boards. They were not material suitable for packing. In these circumstances, it cannot be said that even though, the Institute of Paper Technology has held the samples to be uncoated, the goods imported were Cardboard and not Ivory Board. The authorities cited by the appellants themselves prove the case against them. In these circumstances, the goods imported were rightly held not to be covered by the import licences submitted by the appellants. They were also not entitled to exemption from duty inasmuch as they were found to be Ivory Boards. The appeal therefore fails and is rejected.
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1993 (2) TMI 195 - CEGAT, BOMBAY
Modvat credit of duty when inputs received from small scale sector ... ... ... ... ..... the respondents which is the actual Spl. excise duty paid. The maximum extent to which the higher notional credit can be taken has been fixed at 5 ad valorem and if they take 10.5 ad valorem as claimed by the respondents, it will be in excess of 5 being the maximum ceiling prescribed in Notification No. 175/86. Shri Sindhi however pleads that as per the Act, the special excise duty is leviable as a percentage of the basic duty. This argument does not carry him anywhere. The question is not one of collection of special excise duty but one of granting higher notional credit, for which the authority to be considered is Rule 57B read with Notification 175/86, which has been considered as above and on the basis of such a consideration, the conclusion which emerges is that the assessee can take higher notional credit only up to the maximum extent of 5 and not beyond that. This is the view I have held in the earlier order No. 68/93. 5. I, therefore, allow the appeal of the Revenue.
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1993 (2) TMI 194 - CEGAT, NEW DELHI
Stay/Dispensation of pre-deposit ... ... ... ... ..... age or injury to the cigarettes can be avoided. The corrugated fibre board containers are not necessary for selling the cigarettes in the wholesale market at the factory gate. 28. I accordingly hold that the cost of the further packing of the cartons in which the packets of cigarettes are packed in the corrugated fibre board containers cannot be included in the value for the purpose of assessment of excise duty. In view of the above discussion, we are of the view that prima facie the appellants have got a good case on merits. Keeping in view the judgment of the Hon rsquo ble Delhi High Court in the case of Uptron Powertronics v. CCE, Meerut reported in 1987 (28) E.L.T. 61, we are of the view that if the applicants are desired to deposit the duty amount of Rs. 25,07,513.79, it will amount to undue hardship. We dispense with the predeposit of the same and further order that during the pendency of the appeal the Revenue authorities shall not pursue with the recovery proceedings.
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1993 (2) TMI 193 - CEGAT, CALCUTTA
Readjudication ... ... ... ... ..... he claim for refund to the Assistant Collector in whose charge goods had been manufactured earlier and duty had been paid or obtains the necessary details from the latter and himself disposes of the refund claim is a matter of procedural detail and cannot come in the way of settlement of substantive benefit available under Rule 97. I agree with my Learned Brother that the refund claim cannot be termed as time-barred in the present case. The Collector (Appeals) had correctly held the claim to be in time, going by the date of filing thereof, with the Assistant Collector in the Calcutta Collectorate. But the validity of the claim otherwise has to be checked by the Assistant Collector in charge of the respondents factory at Monghyr. 17. Before parting with the matter, I would like to observe that to regulate the proper procedure to be followed in such cases as between officers of more than one jurisdiction, the Central Board of Excise and Customs may lay down suitable guidelines.
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1993 (2) TMI 192 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... mber, 1989 to the assessee, had intimated that the classification of bleached and cotton fabrics conform to the Chemical Examiner rsquo s report and that they merit classification under Chapter 52 and that the Collector of Central Excise, Baroda, has been suitably informed accordingly. In view of this understanding of the Government as well as the technical points we have noted. We do not see any case in favour of the department. It has also been pointed out to us that in the erstwhile tariff, the product had been classified under TI 19(1) which correspond to Chapter 52 of the new Tariff. The Departmental Representative has not given any convincing answer to this aspect of the matter but only contended that the Board rsquo s circular and Government of India rsquo s letter is not binding. In these peculiar circumstances of this case, we do not find the contention of the learned DR to be tenable and in the result, we do not find any merit in the appeal and the same is rejected.
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1993 (2) TMI 191 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... lity in the sense that the goods are marketable, such waste material would be liable to duty. We are not impressed with the argument of Shri Jain that Sulphuric Acid present in the activated carbon is merely reacting with colouring agents and, therefore, what comes out as residue is residue of itself and does not qualify to be treated as ldquo residue resulting from the treatment of fatty substances..... rdquo . Whatever be the nature of the reaction and the consequence of it, the fact remains that lsquo spent earth rsquo is residue resulting from the treatment of fatty substances and, therefore, qualifies for assessment under sub-heading No. 1507.00 of the tariff, being also excisable. In view of this, the appeals are allowed. 4. In view of the above observations and the admitted position that activated earth is used for the decolourisation of the oils, we follow the earlier order. In the result, the impugned order is set aside and the appeal filed by the Revenue is allowed.
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1993 (2) TMI 190 - CEGAT, NEW DELHI
Appellate Order ... ... ... ... ..... direction be issued to the Collector concerned either to implement the Order immediately or to appear in person on the next date of hearing to explain the circumstances under which the said Order of the Tribunal could not be implemented. 2. Considered. Admittedly, till date no SLP has been filed before the Apex Court against the said Order of the Tribunal. In these circumstances, the prayer of the applicants is justified. Consequently, we give two weeks time to Collector of Customs, Calcutta either to implement the said order No. C/510 to 512/91-D, dated 18-12-1991 or remain present on the next date of hearing to explain the circumstances as to why the said Order has not been implemented. Needless to say that if in the meanwhile, there is any Order by the Apex Court to the contrary, he may act accordingly and inform the Bench. Copy of this Miscellaneous Order be given Dasti to both sides and be sent to the Collector of Customs, Calcutta by name. To come up on 4th March, 1993.
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1993 (2) TMI 189 - CEGAT, NEW DELHI
Exemption - Goods imported ... ... ... ... ..... otification No. 206/76-Cus. be also examined by the lower authority. Dated 11-2-1993 Sd/- (R.C. Jain) Member (T) 13. emsp Appeal is disposed of in the above terms. In view of the above orders of the Members comprising the Bench, following points of difference have arisen - (i) Whether in the facts and circumstances of the case and on the finding that the goods imported are different from the end-product to be manufactured by the appellant, confiscation of the imported goods under Section 111(m) is justified and consequently whether any redemption fine to the tune of Rs. 2 lakhs is liable to be imposed. (ii) Whether in the facts and circumstances of the case question of examining the satisfaction of other conditions of Notification No. 13/81- Cus., dated 9-2-1981 is required to be remanded to the adjudicating authority or that the benefit of the said notification would not be available to the appellant. Dated 12-2-1993 Sd/- (P.C. Jain) Member (T) Sd/- (S.L. Peeran) Member (J)
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1993 (2) TMI 188 - CEGAT, NEW DELHI
Reference to High Court - Question of fact not referable ... ... ... ... ..... eference on these two points. 19. The last question is about the existence of any act or omission on the part of the appellant to render the goods liable to confiscation and the appellant liable to penalty. It is significant that the appellant was not aggrieved with the order of confiscation of the goods and, therefore, the question about this aspect does not arise from the order of the Tribunal concerning him. As for penalty, the question posed is one of fact and not of law and is, therefore, cannot be a point of reference. 20. Thus, on a consideration of all the questions we come to the conclusion that none of the eight questions merit any reference to the High Court. In coming to this conclusion we have kept in mind the principles enunciated by the Supreme Court in the case of Meenakshi Mills Co. Ltd. v. C.I.T. AIR 1957 SC 49 as well as in the case of C.I.T. v. Scindia Steam Navigation Co. Ltd. 1961 (42) ITR 589 . The application is, therefore, rejected as devoid of merit.
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1993 (2) TMI 187 - CEGAT, NEW DELHI
Confiscation of goods - Clandestine removal ... ... ... ... ..... s is a case of suppression of production and failure to account for the excisable goods in the statutory accounts, such goods were liable to confiscation under Rules 9(2), 52A, 173Q and 226 and the Polyvinyl Acetate Dispersion (Modified) was liable to confiscation under Section 120 of the Customs Act as made applicable to like matters under Section 12 of the Central Excises and Salt Act. We do not consider that in the circumstances of the case, the fine in lieu of confiscation was excessive and reject the prayer for reduction in fine. Since the delivery van was used for transportation of goods which were liable to confiscation and the order of confiscation has been upheld, the order confiscating the van is also upheld. We do not consider any reason to reduce the fine in lieu of confiscation of the van. For the same reasons, we do not consider there is any justification for reduction in the penalty on the appellants. The appeal, therefore, fails on all counts and is dismissed.
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1993 (2) TMI 186 - CEGAT, NEW DELHI
Prosecution ... ... ... ... ..... No. 39/85, dated 15-7-1985 (on Misc. Application No. 94/85-B) in Stay No. 162/85-B), the Tribunal had not considered it necessary to pass any orders on the request of the Senior Advocate in view of the statement of the Advocate for the respondents that the complaint against the appellants in competent Criminal Court was independent of adjudication Order passed by the Collector, Central Excise. 55. Earlier, the Tribunal vide Order dated 10-6-1985 considering the entire facts and circumstances of the case had restrained the respondent Collector of Central Excise from taking any action on the strength of the impugned Order dated 4-1-1985 till the next date of hearing or until further orders. 56. In this Order, we do not find anything to support the arguments of the learned Senior Advocate. 57. Taking all the above considerations in view and after giving our anxious thought to the matter we reject the Misc. Application No. E/Misc. 31 /93-A, dated 11-1-1993, and Order accordingly
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1993 (2) TMI 185 - CEGAT, NEW DELHI
Manufacture - Henna powder ... ... ... ... ..... of Henna powder in unit packings, a perusal of the literature relating to Instructions for use of Red Rose Henna there is a clear indication for its use as a hair dye as follows - RED ROSE HENNA FOR HAIR DYE Open the packet and take powder according to your requirement. Make paste by mixing water, curd, tea or coffee or egg in a bowl. Make paste one hour before its application. It should be applied gently up to the roots of hair. Wash the hair when Henna is fully dried. It is a good hair conditioner. It gives body and texture to hair and dispel heat and have soothing effect. From the above, it will be evident that Henna powder in such unit packings will be covered by Chapter Notes 2 and 4 of Chapter 33 and hence such Henna powder will fall for classification under Heading 33.05 Central Excise Tariff Act, 1985. In respect of Rose herbal Shikakai Powder, the goods are classifiable under Heading 33.05 Central Excise Tariff Act, 1985. The appeal is disposed of in the above terms.
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1993 (2) TMI 184 - CEGAT, MADRAS
Appeal - Remand improper if issue decidable by appellate authority ... ... ... ... ..... the impugned orders without expressing any opinion on the merits of the issue and remand the matter to the Collector (Appeals) for deciding the twin issues i.e. the valuation and the legality of the import in accordance with law after affording the parties an opportunity of being heard. We make it clear that it is open to the importers to put forth all the pleas open to them under law for consideration by the Collector (Appeals). At this stage a plea was made by the learned Consultant that since the importation was way back in April 1992 and the importers are incurring demurrage without the goods being cleared, the lower appellate authority should be directed to dispose of the same expeditiously. In the circumstances, we direct the lower appellate authority to dispose of the case in accordance with law expeditiously preferably within two months from the date of receipt of this order. The parties are also directed to co-operate with the authorities without seeking adjournment.
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1993 (2) TMI 183 - CEGAT, NEW DELHI
Rectification of Mistake ... ... ... ... ..... ter decision which, according to them, settles the issue in favour of the assessee, to be applied to their case, although their own appeal had been disposed of earlier in point of time... 8. The learned Counsel has stated that in para 11A of its decision, the Larger Bench itself has recorded a finding that Hopkinsons Valves were Isolating Valves. We have carefully seen this portion of the decision and are unable to find any finding by me Larger Bench to that effect. 9. Therefore, we find that on facts alone, it cannot be said that there was any error in the order of the Tribunal which would call for rectification of the order in the light of the Larger Bench decision. What the applicants are seeking to achieve is exactly the same as what happened in the Sirpur Paper Mills case (supra). The Tribunal has clearly held that one cannot take advantage of the later decision of the Tribunal by moving an application for rectification. The application, therefore, fails and is rejected.
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