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Case Laws
Showing 121 to 140 of 332 Records
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1994 (3) TMI 216 - CEGAT, NEW DELHI
Exemption to goods imported for Free Trade Zone ... ... ... ... ..... goods rdquo had been added whilst by the amending Notification No. 11/85 similar words were added in condition (c) of the Notification. The appellants have also contended that the said amending Notification No. 11/85 being clarificatory in nature, it would have the same effect from the date of the original Notification No. 272/79-C.E. After going through the Notification No. 272/79-C.E. and the amending Notification No. 12/81-C.E., dated 12-2-1981 we agree with the Ld. Consultant that the goods in question viz. Asbestos Sheets used for the construction of the factory shed in Kandla Free Trade Zone having been used in connection with the manufacture of goods meant for export were covered by the Notification. 5. In the result, we set aside the impugned orders passed by the authorities below and allow the appeal with consequential relief to the appellants, if any, according to law. Operative portion of the order allowing the appeal was dictated and pronounced in the open court.
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1994 (3) TMI 215 - CEGAT, NEW DELHI
Appeal to Appellate Tribunal - Stay/Dispensation of pre-deposit ... ... ... ... ..... n 1989 (39) E.L.T. 178 (S.C.) Para 5 had held as under - 12. We have already observed that the principle of res judicata will not apply in this case. In view of the above discussions, we are not inclined to modify the stay order passed by us. During the course of arguments we had inquired from learned Consultant Shri Asthana that since the order must have been served on the applicant around the first week of December, 1993 and as such 3 months given by the Tribunal appear to be over. Shri Asthana, requested for 10 weeks time for making the payment. Shri Prabhat Kumar, learned S.D.R. does not object to the grant of extension of 10 weeks time as prayed by the learned Consultant. After hearing the both sides, in the interest of justice we grant 10 weeks time for making the payment as ordered by us vide Stay Order No. 349/93-A, dated 28-10-1993 within 10 weeks from today. The matter is listed for mention on 2-6-1993. In the result the Misc. application is disposed of accordingly.
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1994 (3) TMI 214 - CEGAT, NEW DELHI
Reference Application ... ... ... ... ..... ise at all. Learned Advocate Shri K.K. Anand has relied on the decision of the Tribunal in the case of Collector of Central Excise, Madras v. Chennai Bottling Company, Madras reported in 1985 (19) E.L.T. 129 (Tribunal). The facts of the present case are different of the facts of Chennai Bottling Company, Madras case, and as such, the ratio of that judgment is not applicable in the present matter. This Tribunal had an occasion to deal with the similar situation in the case of Bhikusa Papers Private Limited, Nasik v. Collector of Central Excise, Bombay reported in 1986 (25) E.L.T. 264 (Tribunal) at para Nos. 6 and 8 which are reproduced below - In view of the above discussions, we are of the view that the reference application is not maintainable. If the applicant had any grievance against this order, it was open to him to exercise his statutory right of appeal in terms of provisions of Section 130E of the Customs Act, 1962. In the result, the reference application is rejected.
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1994 (3) TMI 213 - CEGAT, NEW DELHI
Appeal - Condonation of delay ... ... ... ... ..... y be the reason as to why the present appellants that is to say Collector of Central Excise has not filed his own affidavit but thought it proper to direct the lowest officer in the hierarchy, i.e., Superintendent to file the present application under his signature for condonation of delay and the affidavit in support of it. Before we part one more fact is also required to be stated that is to say in the instant case the Collector authorised the Additional Collector to file the present appeal exercising his power under Section 35B(2) of the Act and further that he again authorised the Assistant Collector to move an application for early hearing (Misc. Application No. E/1049/92-D) but when the question of the present application arose it is the Superintendent who has filed the present application and his supporting affidavit. 5. In the result the captioned application for condonation of delay is rejected and as a consequence thereof the appeal is also dismissed as time-barred.
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1994 (3) TMI 212 - CEGAT, NEW DELHI
Classification of goods ... ... ... ... ..... and synthetic resins and plaster materials and other materials and articles. The tariff item speaks of no percentage or main characteristics which would be the criterion for classification under the tariff. The product which is packed in a dual container, when mixed is to be an adhesive.The separate packing is to retain the properties of a resin and a hardener till they are mixed together to serve the purpose of adhesives as the product after mixture has a limited life. Obviously, this mixture cannot be kept stored for a long time. Therefore, going by the ratio of the decision cited supra, the end-use is relevant for classification and an adhesive would be classifiable under Tariff Item 68. The appeal filed by the Revenue has no merits and is dismissed. The cross objections filed by the respondents are also disposed of. 4. emsp Thus following the ratio of the said decisions we uphold both the impugned orders classifying the product under Tariff Item 68 and reject the appeal.
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1994 (3) TMI 211 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... Now, coming to the claim of the appellant for classification under Chapter 90, it is to be observed that the classificatoin has to be based on the applicability of Note 2(b) to Chapter 90. The literature, catalogue and the certificate makes it very clear that the item in question has assumed an essential character of a part of Chromatograph. In that view of the matter applying the Note 2(b) of Chapter 90, the item has to be classified along with the Chromatograph, falling under the sub-heading 9027.20 of the Customs Tariff Act. The ld. counsel has rightly relied on the rulings in support of his case. As regards the rulings relied by the ld. SDR it has to be observed that there is a specific Tariff heading for Ribbon, as well as for film to be used in camera and, therefore, the analogy drawn by the ld. SDR as well as the ld. Collector is not appropriate and, therefore, the rulings cited by them is distinguishable. In the result the appellants succeed and the appeal is allowed.
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1994 (3) TMI 210 - CEGAT, NEW DELHI
Classificatiom ... ... ... ... ..... is not possible to accept this contention of the Revenue. The entire range of frequency covered by SCA obviously does not fall within the audio frequency range, as mentioned above since the range of frequency between 0 to 15 Hz. is admittedly not covered by the audio frequency range. If we go by the aforesaid data, it is apparent that the SCAs cannot be called audio frequency electric amplifiers. Therefore, their classification under Heading 85.18 would be inappropriate. Section Note 2(a) to Section XVIII would not, therefore, be applicable and hence the Section Note 2(a) to Section XVIII would have to be applied. Based on that Section Note, no doubt is left in view of the overwhelming opinion of the experts brought on record by the appellants and produced in extenso by the learned brother in his order that the SCAs would be classifiable under Tariff Heading 90.30 because SCAs are principally used with Oscilloscopes which are specifically mentioned in the said Heading 90.30.
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1994 (3) TMI 209 - BEFORE THE COLLECTOR OF CENTRAL EXCISE AND CUSTOMS
Notification - Date of effect ... ... ... ... ..... lants have not been able to specify any date from which such copies were made available to public. Since it is refund claim filed by the appellants, the burden of proof lies on them to show that the Gazette notification was made available subsequent to the date of their clearances. The fact that show cause notice was issued on 8-1-1991 does not mean that the notification was made available for sale on 8-1-1991 only. On the other hand, the appellants have themselves admitted that the notification was published in the Excise Law Times of 1-1-1991. This definitely means that public came to know about this notification before 1-1-1991 and that is how it could be published in the Excise Law Times of 1st January, 1991. Therefore, in the absence of any specific date on which this notification was made available for sale to public, it is to be presumed that the same was available to the public on the date it was issued. The appeal has therefore, no merits and is accordingly rejected.
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1994 (3) TMI 208 - CEGAT, NEW DELHI
... ...
... ... ..... of the present respondents (Order No. 481 to 482/89-C, dated 18-9-1989) on facts on the ground that the respondents rsquo mill was a composite mill in which crushing of oil seeds was also undertaken. For ready reference the relevant portion of the said Order may also be reproduced as under ldquo 6. emsp The learned counsel for the appellants has claimed that the matter had been settled in the appellants favour by the Tribunal rsquo s decision in the case of Order No. 481 to 482/89-C, dated 18-9-1989 in the case of M/s Mehta Vegetable Products (P) Ltd. We find the decision relied upon by the learned counsel is distinguishable on facts since the records relating to the case of M/s Mehta Vegetable Products (P) Ltd. reveal that they were a composite unit in which crushing of oil seeds was also undertaken rdquo . 6. Thus, following the ratio of the said Order No. 481 to 482/89-C, dated 18-9-1989, we uphold the impugned Orders passed by the authorities below and reject the appeal.
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1994 (3) TMI 207 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... e 1(a) to Section XVI is of no avail because that note excludes only specific articles falling under specific Headings namely, 40.10 and 40.16. Tariff Heading 59.09 is not mentioned in Section Note 1(a) to Section XVI of Central Excise Tariff Act, 1985. There is no indication in the ground set out by the Collector that Central Excise Tariff Act, 1985 is fully aligned with HSN. For this reason, reliance placed by the appellant-Collector on HSN Explanatory Notes would not be appropriate. Apart from what has been said above, the other ground on which lower appellate authorities have rejected the applications of the Revenue under Section 35E remains unimpeachable. It has been rightly held by the said lower appellate authorities that the Revenue cannot make new cases at the appellate stage beyond what has been made out in the original show cause notices. In view of the aforesaid discussions, we do not find any merits in the appeals filed by the Revenue. Hence, we dismiss the same.
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1994 (3) TMI 206 - CEGAT, NEW DELHI
Import Control ... ... ... ... ..... me Court in the case of Union of India v. Sampat Raj Dugar reported in 1992 (58) E.L.T. 163 holding that an exporter who has not been paid for the goods supplied by it continues to be the owner of the goods and is entitled to ask for their re-export unless proved to be a party to fraud or unless payment of the price of the goods stands guaranteed to him by virtue of letter of credit or otherwise, we are satisfied that the applicants are ldquo persons aggrieved rdquo within the meaning of Section 129A and entitled to file appeals before the Tribunal. 3. We would also like to observe that the decision in the Sampat Raj Dugar case has been followed by the Tribunal in the case of Electromac India v. Collector of Customs, New Delhi reported in 1993 (45) E.C.R. 20. 4. The miscellaneous application for early hearing is hereby allowed, on the ground that the goods have been detained since 1991 and the appeals are now fixed for hearing on 22nd April 1994. Notice may issue accordingly.
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1994 (3) TMI 205 - CEGAT, NEW DELHI
Stay/Dispensation of pre-deposit ... ... ... ... ..... order in this case has been passed on 28-9-1993 and on the request of the appellants herein further time for compliance had also been granted. The appellants have moved the High Court and in view of that, the matter has once again been adjourned, the position before the High Court is still the same. There is no order of the High Court staying the operation of the Tribunal rsquo s order. Since the pre-condition under Section 35F of the Central Excises and Salt Act, 1944 for the hearing of the appeal is mandatory and as has been well settled by the Supreme Court, the appeal itself is governed and is conditional upon the pre-deposit being made, in such circumstances, the appellants having failed to make the pre-deposit in terms of the stay order passed by the Tribunal and also even within the extended time granted to them by the Tribunal, the appeal deserved to be dismissed under Section 35 of the Central Excises and Salt Act, 1944. We order accordingly. Order dictated in Court.
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1994 (3) TMI 204 - CEGAT, NEW DELHI
Composite articles of plastics ... ... ... ... ..... been paid, was examined by the Tribunal in the appellants rsquo own case reported in 1991 (53) E.L.T. 65. In para 9 of its order the Tribunal held as under - 7. On the ratio of the decisions quoted above, we accept the appellants rsquo contention that in the absence of any stipulation in Notification No. 182/82-C.E., dated 11-5-1982 that Articles of Plastics rsquo falling under Tariff Item 68 should be produced exclusively rsquo or wholly rsquo out of artificial resins or plastic materials or Cellulose esters and ethers in any form falling under sub-item (1) of Item No. 15A of the First Schedule to the Central Excises and Salt Act, 1944 the products made predominantly out of inputs falling under Tariff Item 15A(1) and having some admixture of inputs falling under Tariff Item 15A(3) were also eligible for exemption under the said notification. 8. In view of the above discussions, we set aside the impugned order and allow the appeal with consequential relief to the appellants.
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1994 (3) TMI 203 - CEGAT, NEW DELHI
SSI Exemption - Clubbing of clearances ... ... ... ... ..... t has no relationship with the concept of dummy units and units set up as a facade to evade taxes. As pointed out by the ld. senior advocate, the ld. Collector has confused this aspect of the matter with the aspect of creation of dummy units. The ground taken by the Revenue in this case is already answered against them in the case of Jagjivan Das and Co., Bhagwan Das Kanodia and Others, Prabhat Dyes and Chemicals, Bapalal and Co. and Prima Control referred before us. The other judgments cited before us also deals on the same aspect of the matter. Applying the ratio of these rulings, we have to hold that the mere fact of management control or of grant of interest free loans is not sufficient to hold the four units as dummy units of M/s. Alpha Toyo Ltd., in the absence of any money flow back, profit sharing and total control on other four units by M/s. Alpha Toyo Ltd. In the result the appellants succeed in all these appeals. The impugned order is set aside and appeals allowed.
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1994 (3) TMI 202 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... la rsquo are one and the same, we are not inclined to take different view on this issue. It is not even the case of the Department that ingredients of Hajmola are different from Swad. The Hon rsquo ble High Court after examining the ingredients of the item with reference to the provision of Drugs and Cosmetics Act, authoritative Ayurvedic text books, and experts rsquo opinion arrived at the conclusion that it was not an Ayurvedic medicine. No contrary decision of any High Court or of Apex Court with reference to the item in question or of identical goods having similar ingredients placed before us. The position would have been different if it was so. In the absence of any contrary decision respectfully we are following the decision of Madhya Pradesh High Court on this issue. Accordingly, we hold that Hajmola Candy is classifiable under heading 3003.30 of C.E.T. 7. In the result, we set aside the impugned order and, accordingly, the appeal is allowed with consequential relief.
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1994 (3) TMI 201 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... MPU) that they add water to the concerned fruit juice. Therefore, the fruit drink produced by them cannot be considered a fruit juice falling under Tariff Heading 20.01 in view of HSN Notes. Therefore, Tariff Heading 22.02 would be the appropriate Heading for these two products, namely, VOL FRUIT DRINK rsquo AND PINAP rsquo produced by KDMPU. 27. emsp In view of the aforesaid discussion, appeals of KDMPU are rejected, as held by the Judicial Member and the other apeals are required to be remanded to the original authority for readjudication in the light of observations of the Hon rsquo ble Vice President in his order and in my order above. Sd/- (P.C. Jain) Dated 21-3-1994 Member (T) FINAL ORDER In view of the majority opinion the appeals of KDMPU are rejected and the other appeals are remanded to the original authority for re-adjudication in the light of observations of the Vice President. Sd/- Sd/- (G.A. Brahma Deva) (S.K. Bhatnagar) Date 25-3-1994 Member (J) Vice President
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1994 (3) TMI 200 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... given a categorical opinion that the assessee rsquo s products are not steel backed so as to be attracted under IS 4778 1966. The opinion of these three authorities had been taken by the department by sending the goods for verification and opinion. The department rsquo s experts have given a categorical opinion that the goods cannot be considered as thin walled bearing both technically, as well as as per IS specification. Therefore, there is no question of drawing an independent inference by ignoring the evidence on record. Such an inference will be presumptuous and unsustainable. The assessee rsquo s product also satisfies the trade nomenclature and their understanding of not being a thin walled bearing. Thus, both technically as well as in trade parlance the product is not satisfying the definition of ldquo thin walled bearing rdquo and hence its classification under Tariff Item 34A does not arise and in the result, there is no merit in the appeal and the same is rejected.
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1994 (3) TMI 199 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... epartment has to counter these opinions, they should have better and more solid evidence from other experts. Such an exercise has not been done nor they have cross-examined the experts to prove the point that the experts had given the opinion in favour of the assessee is a self- interested testimony and a false one. The Department not having done such an exercise, cannot reject the evidence and hold their own opinion for the purpose of classification of the goods. The final say in the matter is that of the experts and once the experts have given the unprejudiced opinion then the department has to accept the same. The enormous evidence produced in the assessee rsquo s case is also not considered by the department. Thus, it is sufficient to hold that the items in question do not satisfy the definition of thin-walled bearing and therefore, they are to be classified under T.I. 68 as contended by them and in that view of the matter, the appeal is allowed with consequential relief.
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1994 (3) TMI 198 - CEGAT, NEW DELHI
Modvat credit ... ... ... ... ..... re-deposit and has no objection if Appeal itself is heard and disposed of. 6. Learned Counsel also states that as this is the only point involved he has also no objection if the appeal itself is heard and disposed of. 7. We observe that the assessed Bill of Entry is a document which constitutes proof of payment of duty in respect of the goods mentioned therein and it is well settled that modvat credit can be availed of on the basis of such documents, particularly in the case of sale on High Sea Sales basis provided that the Bills of Entry are duly endorsed in favour of the purchaser (and the required certificate/declaration are noted thereon). We therefore, waive the pre-deposit of the amount in question. 8. Further we take the main appeal itself with the consent of both the sides. 9. Since it is already well settled, by a catena of orders of this Tribunal, that modvat can be availed of in the circumstances, noted above, we set aside the impugned orders and accept the appeal.
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1994 (3) TMI 197 - CEGAT, NEW DELHI
Refund - Jurisdiction ... ... ... ... ..... copies of the relevant certificates have been produced before us, it is not possible for us to verify whether they cover the goods in question and are otherwise valid in all respects. The appellants have claimed that the original copies of the certificates in question were submitted before the Customs authorities in connection with the clearance of another similar consignment and they were retained in the Customs file S/16-974/87 ACC, we therefore remand the case to the Assistant Collector for re-adjudication of the matter after inspection of the original copies of the relevant NMI and Duty Exemption Certificates to determine whether the goods in question were covered by the said certificates and whether the certificates were otherwise valid. We direct that the adjudicating authority should keep in view the observations made by us in this order and also grant a personal hearing to the appellants before deciding the matter. 12. The appeal is therefore allowed by way of remand.
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