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Showing 81 to 100 of 264 Records

• 1994 (10) TMI 189 - CEGAT, CALCUTTA
  

  Demand of duty based on excess consumption of raw material

  
  
  ... ...
  ... ... ..... iew of the varying quality of Rock Phosphate utilised by the manufacturers/Appellants herein. It also appears to be true that different consumption is there for different batches and for different months. as is apparent from the Annexure to the Show Cause Notice. Therefore, we are of the view that the entire case of the department is merely inferential, based on the aforesaid consumption of Sulphuric Acid. There is no evidence whatsoever on record that the Appellants have clandestinely removed any part of the Sulphuric Acid so alleged and upheld by the lower authorities. The ratio of the Supreme Court rsquo s judgment in the case of Oudh Sugar Mills Ltd. (supra) squarely applies to the facts and circumstances of the case. The Department has failed to prove their case of clandestine removal. Accordingly, we do not find sufficient basis for confirming the demand and imposition of penalty on the Appellants. Hence, we allow the Appeal with consequential reliefs to the Appellants.

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• 1994 (10) TMI 188 - CEGAT, CALCUTTA
  

  Reference to High Court - Modvat/Proforma credit

  
  
  ... ...
  ... ... ..... held that even though the Appellants were entitled for the property and when the department could not return the property, the Tribunal had no inherent power to grant the market value of the property. That decision turned on its own facts. The facts of that decision are not at all applicable to the facts of this case. On the contrary, the decision of the Supreme Court in the case of Mangalore Chemicals and Fertilisers Limited which is extracted by us above, applies to the facts of this case. In such circumstances, when the questions of law referred to above are clearly concluded by the decision of the Supreme Court as well as by the decisions of the Tribunal, the question of again referring the same to the High Court does not arise. In that view of the matter, we hold that the above questions of law do not merit refer- ence to the Honourable High Court and accordingly this Reference Application is rejected. In that view of the matter, the Stay Petition also stands dismissed.

  ---

• 1994 (10) TMI 187 - CEGAT, BOMBAY
  

  Demand - Limitation

  
  
  ... ...
  ... ... ..... matter could not be detected during yearly checking of the excise registers. The extended period therefore, has to be held as not available. 7. In the result the entire demand has to be held as barred by limitation. 8. With this being the position, the validity of the demand on other counts need not be gone into. 9. As regards the penalty, so far as penalty for non-maintenance of accounts is concerned, show cause notice dt. 31-3-1986 was already issued which was dropped on 15-4-1986. No fresh notice could therefore, be issued on that ground and hence penalty imposed on that count cannot be sustained. 10. Even otherwise, the penalty imposed in excess of the maximum prescribed under the statute, is illegal, and shows non-application of mind and cannot be sustained. 11. emsp In the result, the order, both in relation to demand of duty and imposition of personal penalty is not sustainable and is therefore, set aside. 12. The appeal is therefore, allowed with consequential relief.

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• 1994 (10) TMI 186 - CEGAT, MADRAS
  

  Adjudication - Import of Mace

  
  
  ... ...
  ... ... ..... of the CCI and E is concerned, in para 20 of the Import and Export Policy, it has been clarified that ldquo If any question or doubt arises in respect of the interpretation of any provision in this Policy, the said question or doubt shall be referred to the Director General of Foreign Trade and his decision shall be final. rdquo In the present case, it is seen that the CCI and E has given some opinion to the local licencing authorities and that opinion should have been called for for consideration of the appellant rsquo s pleas. The learned lower authority could have called for the letter of CCI and E referred to in the letter of the JCCI and E before passing the order. This has not been done. I therefore, hold that the learned lower authority rsquo s order is not proper and set aside the impugned order and remand the matter to the learned lower authority for de novo consideration and decision in the light of the above and also after affording the appellants personal hearing.

  ---

• 1994 (10) TMI 185 - CEGAT, NEW DELHI
  

  Stay/Dispensation of pre-deposit - Modvat declaration

  
  
  ... ...
  ... ... ..... e Ld. two Members, I am of the view that on merits the appellants have no prima facie case for dispensation of the requirement to pre-deposit the disputed amount of duty and penalty. However, on the point of time bar I am of the view that the appellants do have a prima facie case since in the facts and circumstances as recorded in the referring order and highlighted and canvassed before me by the Ld. counsel. As a sequel thereof I am of the view that the requirement to pre-deposit the disputed amount of duty and penalty requires to be waived and consequently the recovery proceedings have to be stayed pending the appeal. 14. emsp In the light of the foregoing, I answer the point of reference in the emphatic ldquo Yes rdquo . Dated 7-10-1994 Sd/ (G.P. Agarwal) Member (J) 15. In view of the majority opinion, pre-deposit of duty and penalty is waived and its recovery stayed pending the appeal. Dated 18-10-1994 Sd./ (Shiben K. Dhar) Member (T) Sd./ (Jyoti Balasundaram) Member (J)

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• 1994 (10) TMI 184 - CEGAT, MADRAS
  

  Re-export - Penalty

  
  
  ... ...
  ... ... ..... o the liability of the appellant to penalty. I further observe that the learned lower authority has been very lenient inasmuch as the learned lower authority has given the option to clear the goods on payment of a lower redemption fine in addition to the duty payable on the goods. I find the reasons given by the learned lower authority for not allowing re-export of the goods are correct in law and the appellant cannot be allowed to have the benefit of the goods once he has failed to clear the same by holding back the full details of the goods correctly in the declaration made before the authorities. I, therefore, reject the plea of the appellant for re-export. 6. emsp Taking into consideration the value of the goods involved and the facts and circumstances of the case, I hold the ends of justice would be met if the penalty is reduced from Rs. 7,000/- to Rs. 5,000/- (Rs. Five thousand) and order accordingly. 7. But for the above modification, the appeal is otherwise dismissed.

  ---

• 1994 (10) TMI 183 - CEGAT, MADRAS
  

  Re-export - Confiscation and redemption fine

  
  
  ... ...
  ... ... ..... rd to show that the appellants had ordered for sub-standard goods. The goods have been found defective only on test by the authorities. I, therefore, while upholding the confiscation of the goods, direct that the learned lower authority should consider the appellants rsquo plea for re-export and replacement in terms of para 80 of the Handbook and to pass necessary orders under the law. In regard to cassia it is observed that the authorities have, as seen from the record, in the case which had come up for hearing before the Tribunal given option to redeem the goods. No particular reason has been set out as to why in the present case a harsher view of absolute confiscation was required to be taken in the order of the learned lower authority. In regard to confiscated cassia, I order that the learned lower authority should give the appellants option to redeem the goods on payment of a suitable redemption fine under the law. The appeal is therefore, disposed of in the above terms.

  ---

• 1994 (10) TMI 182 - CEGAT, MADRAS
  

  Import - Right to relinquish title

  
  
  ... ...
  ... ... ..... lants chose not to clear the goods and wanted to exercise their option for relinquishing the title to the goods as provided for under the law have become liable to penalty u/s 112 of the Customs Act. I, therefore, hold that appellants rsquo plea for relinquishing the title has to be allowed and the order of levy of penalty is not maintainable under law. The appellant rsquo s Consultant has stated that the goods have not been cleared. The goods as it is in case they are not claimed are liable to confiscation if not cleared and even the Port Trust can exercise the option u/s 48 of the Customs Act to auction the goods. The appellants rsquo plea is only for setting aside the order of penalty. I, in the circumstances of the case, allow the plea of the appellants and set aside the order of levy of penalty. It is clarified that since the appellants have relinquished the title to the goods, they have no right for redemption of the goods. The appeal is thus allowed in the above terms.

  ---

• 1994 (10) TMI 181 - CEGAT, MADRAS
  

  Import - Acquired Exim Scrip

  
  
  ... ...
  ... ... ..... ned order, the clarification was not available. The learned Consultant has also pleaded during the course of the arguments that similar imports had been allowed under Exim Scrip in case of other importers. The matter is required to be gone into in depth taking into consideration the overall scheme for import of Fax Machines under the policy provisions for import of office machines vis-a-vis the amendment introduced by incorporation of para 124A in the policy book. 6. emsp In view of the above, I hold that it is desirable that the matter is examined afresh by the learned lower authority taking into consideration the clarification of the licensing authorities and other relevant factors after affording the appellants an opportunity of hearing. It is clarified that it is open to the learned lower authority to place whatever interpretation the authority deems fit under the law on the clarification given by the licensing authorities in terms of the Import and Export Policy 1990-93.

  ---

• 1994 (10) TMI 180 - CEGAT, MADRAS
  

  Confiscation - Gold coins - Smuggled gold

  
  
  ... ...
  ... ... ..... ain to the era upto 1927 and only one coin weighing 18.500 gms. is of recent origin. It is seen from the record and which is also confirmed by the learned Counsel that Government Mint has opined that the manufacture of such coins is not known in India as on date. Taking into account the above factors, circumstances and the evidence on record, I hold that the coins have been rightly held to be of foreign origin liable to confiscation since the burden u/s 123 of the Customs Act cast on the appellant has not been discharged to establish the licit origin of the coins. However, taking into account the facts and circumstances of the case and also the fact that gold is now allowed to be imported free of duty upto 5 Kgs. by certain categories of passengers, the ends of justice would be met if the coins are allowed to be redeemed by the appellant on payment of redemption fine of Rs. 12,000 (Rupees twelve thousand). Except for the above, modification, the appeal is otherwise dismissed.

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• 1994 (10) TMI 179 - CEGAT, MADRAS
  

  Import Licence - Redemption fine - Quantum

  
  
  ... ...
  ... ... ..... a, as pointed out by the learned Consultant himself, as separate items in the Import and Export Policy. In view of the above, it is to be held that the licence granted for Cinnamon cannot be valid for the import of Cassia. It is further seen that the appellants were aware of the nature of the goods and tried to mis-lead the authorities by mis-declaring the goods as Cinnamon. In view of the above, I hold that the learned lower authority has rightly held the goods to be confiscable. No facts have been brought on record to show that the redemption fine fixed as Rs. 1,00,000/- having regard to the margin of profit is in anyway excessive. It may be mentioned that the upper limit for fixing redemption fine under Section 125 of the Customs Act is the market value of the goods and it is not the case of the appellant that the fine fixed exceeds this norm. In view of the above, there is no warrant to reduce the redemption fine as pleaded by the appellant. I therefore reject the appeal.

  ---

• 1994 (10) TMI 178 - CEGAT, CALCUTTA
  

  Modvat credit - Intermediate goods

  
  
  ... ...
  ... ... ..... or synthetic elastomers. Intermediates are the foundation of the modern approach to organic technology. The distinction between an intermediate and an end product is not always precise. See also azo dye intermediate. rdquo Page 1096 of the Shorter Oxford English Dictionary ldquo A. adj. Coming or occurring between two things, places, times, numbers, members of a series etc. holding the middle place or degree between two extremes rsquo (J.) Interposed, intervening. rdquo 11. emsp Therefore, in the context of the meaning of the word, intermediate rsquo , it has to be seen with reference to the inputs brought in by the manufacturer and the final product manufactured from it. 12. emsp In view of the foregoing discussion we do not see any reason to agree with the learned S.D.R., Shri D.K. Saha that we should keep this matter in abeyance pending the decision of the Calcutta High Court on a reference made to it as mentioned above. We, therefore, allow the appeals in the above terms.

  ---

• 1994 (10) TMI 177 - CEGAT, NEW DELHI
  

  Adjudication - Ex parte adjudication

  
  
  ... ...
  ... ... ..... i Gupta, Sr. partner of the local firm took seriously ill and unfortunately passed away also eventually. Since Shri Gupta was in-charge of the case and adjournment was sought for by a letter and presumably before the same was received the impugned order was passed without offering the appellants an opportunity of being heard. The learned Consultant prays that in view of the above facts and circumstances in the interest of justice the impugned order would be set aside and the matter remitted with a direction to dispose of the issue after affording the appellants a reasonable opportunity of being heard. 3. Heard Shri K.K. Dutta, JDR. 4. In the facts and circumstances cited above, we are inclined to agree with the Ld. Consultant that in the interest of justice the impugned order is liable to be set aside. Accordingly, the same is set aside and the matter remitted to the original authority for reconsideration after affording the appellants a reasonable opportunity of being heard.

  ---

• 1994 (10) TMI 176 - CEGAT, NEW DELHI
  

  Export - Raw materials imported under DEEC Scheme

  
  
  ... ...
  ... ... ..... A cumulative reading of the letters appears to support the argument of the learned Counsel for the appellants that they have been procured by the Customs Department and are, therefore, of dubious nature and hence cannot be relied upon for forming the sole plank of the Department rsquo s case and are required to be discarded. Once this plank is removed, the case of the Department falls to the ground, the finding on the contravention of the conditions of import under the DEEC Scheme read with the relevant notifications the charge of misdeclaration and consequent liability of the goods to confiscation and imposition of penalty cannot be sustained. In view of our finding on the merits, we do not consider it necessary to go into the submission regarding non-applicability of Section 113(i) of the Customs Act, 1962 to the goods in question. 11. emsp In the result the impugned order is set aside in toto and the appeal allowed with consequential relief, if any, due to the appellants.

  ---

• 1994 (10) TMI 175 - CEGAT, NEW DELHI
  

  Stay/Dispensation of pre-deposit

  
  
  ... ...
  ... ... ..... . emsp Cipla Ltd. v. Asstt. Collector of Central Excise - reported in 1993 (64) E.L.T. 381, 4. emsp M/s. Anil Steel and Industries Ltd. v. CCE, Jaipur - (CEGAT Stay Order No. S/126/94-NRB, dated 28-2-1994). 4. emsp The learned DR submits that proper classification has not been indicated and therefore declaration has not been properly filed. 5. emsp Considered. Since there is complete description of the inputs, and no dispute in regard to eligibility to the Modvat or otherwise no allegation in regard to invalidity of the documents or non-receipt of goods, mere difference of opinion in regard to classification regarding sub-heading would not have the effect of denying the appellants substantive benefit of law available to them. I am therefore satisfied that the appellants have succeeded in making out a prima facie case in their favour. Pre-deposit of duty amounting to Rs. 49,362.80 is waived and its recovery stayed till pendency of the appeal. The case to come up in due course.

  ---

• 1994 (10) TMI 174 - CEGAT, MADRAS
  

  Money Credit Scheme

  
  
  ... ...
  ... ... ..... ority in this regard and hold that the appellants would be eligible to the money credit scheme. 7. emsp In regard to the manufacture of neem antifeedant the lower authority has held that no evidence has been produced in regard to application for licence for the manufacture of the same. The appellants have also not produced any evidence in regard to approval to the classification list for clearance of the goods. In view of the above, the Ld. lower authority rsquo s action for violations of the provisions of Rule 174 read with Rule 173Q of the Central Excise Rules, 1944 is maintainable in law. 8. emsp Taking into consideration the facts and circumstances, I hold that so far as the redemption fine of Rs. 10,000/- is concerned, the same cannot be considered as excessive and I confirm the same. However, I hold that ends of justice would be served if the penalty is reduced to Rs. 3,000/- (Rupees Three thousand). Except for the above modifications, the appeal is otherwise dismissed.

  ---

• 1994 (10) TMI 173 - CEGAT, NEW DELHI
  

  Duty liability in case of change of ownership

  
  
  ... ...
  ... ... ..... flated balance of stock of biris in the factory, we find that even from March 1982 to July 1982 when the ownership of the factory had already devolved upon Shri Mushtaq Ahmad, the biris stock balance had accumulated from around 2 crores to 2.3 crores and therefore, we cannot agree with the inflated records was shown in the records. The adjudicating authority has rightly held that the shortage was detucted during the period when Shri Mushtaq Ahmad had become the owner/sole proprietor of the factory and he cannot absolve himself of the responsibility of paying duty due on biris on 31-7-1982 by shifting the blame on the previous Manager Shri Abdul Gaffar. In the light of the above discussion, we uphold the finding of the Adjudicating authority, confirm the order of the Additional Collector and reject the appeal, subject however to the reduction of penalty to Rs. 500/-. The cross objections are in the nature of comments on the impugned order. Hence no order is called for thereon.

  ---

• 1994 (10) TMI 172 - CEGAT, BOMBAY
  

  Appealable order - Adjudication

  
  
  ... ...
  ... ... ..... sue has to be considered on merits by the authorities after giving the appellant reasonable opportunity of putting forth their views and thereafter pass final orders. In this case, this has not been done. The authorities below seem to have taken the communication dated 23-9-1991 as a final order, which according to us, is only the basis or the grounds for denial of the MODVAT Credit, for which Show Cause Notices have been issued. We therefore, set aside the impugned order and remand the case back to the Assistant Collector for consideration of the appellants rsquo reply on merits and after due personal hearing, pass orders in accordance with law. All the appeals are allowed by way of remand. 5. emsp Since the appeals themselves are disposed of, stay applications do not survive for consideration. It is reported that the amounts have already been reversed and hence even otherwise the stay applications have become infructuous. The same are therefore, also treated as disposed of.

  ---

• 1994 (10) TMI 171 - CEGAT, NEW DELHI
  

  MODVAT Credit

  
  
  ... ...
  ... ... ..... ply to the show cause notice). However, these have not been considered in the proper perspective by the adjudicating authority. If it can be shown by the appellants that the inputs have been utilised for the finished end-product declared by them then it can be said that substantive compliance has been made for availing Modvat credit. In this view of the matter, we hold that the lower authorities should re-examine the issue to determine whether with reference to the records it can be verified that the inputs which was sent out have been received back after reprocessing and the inputs have been ultimately utilised in the end-product. Subject to such satisfaction, the benefit of Modvat credit should be extended to the appellants, notwithstanding their failure to apply and obtain necessary permission. In the facts and circumstances of the case, we set aside the impugned order and remand the matter to the adjudicating authority for de novo decision in the light of our order above.

  ---

• 1994 (10) TMI 170 - CEGAT, MADRAS
  

  Confiscation and penalty - Export

  
  
  ... ...
  ... ... ..... It is observed that Shri Abdullah Baramy and Shri Hassan Baramy have acted in concert to effect the shipment of the contraband goods as is borne out by the records and they are liable to penalty under Section 114 of the Customs Act, 1962. However, taking into consideration the facts and circumstances of the case and the pleas made, I hold that ends of justice would be served if the penalty levied on Shri Hassan Baramy is also reduced to the same level as on Shri Abdullah Baramy, i.e. Rs. 15,000/- (Rupees fifteen thousand). So far as the Tindal of the vessel is concerned, keeping in mind the facts and circumstances of the case and that he is only an employee and would have done the loading at the behest of the owners, who are partners herein, I hold that ends of justice would be served if the penalty levied on Shri Siddique is reduced to Rs. 2,500/- (Rupees two thousand five hundred) and I order accordingly. But for the above modifications the appeals are otherwise dismissed.

  ---

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