|
Advanced Search Options
Case Laws
Showing 61 to 80 of 220 Records
-
1995 (10) TMI 165
Fabrics - Manufacture ... ... ... ... ..... ss cannot be called as a process ancillary or incidental to the completion of the process of the activity of dyeing and bleaching. There is also a doubt about the use of this machine as the panchnama states that the processing was being done without the aid of power. The Collector has relied on the statement of Shree Bharat Bhushan to come to the conclusion that this machine might have been used for a long time as the appellants had failed to produce any invoice of purchase from M/s. Gambhir Dyers and Dry Cleaners. Notwithstanding, this finding of the Collector, we are of the view that this process of hydro-extraction having been done after the entire product as known in the trade had come into existence, i.e. the fabrics, it does not become a process ancillary or incidental to the completion of the process of activity of dyeing and bleaching of cotton fabrics, as held by Larger Bench in the case of Adreena Industries. Thus, the impugned order is set aside and appeal allowed.
-
1995 (10) TMI 164
Yarn - Doubling, twisting or multifolding ... ... ... ... ..... cause notice, order-in-original or review petition, the factual position is not the same and it is true that nowhere the Department has taken a stand that two single yarns fall under two different Tariff Items. Therefore, he submitted that the common view in all the cases could be taken in the light of citations referred to by both the sides. 6. emsp We have carefully considered the submissions made by both the sides and have perused the records. 7. emsp On a careful consideration of the matters, we agree with the contentions made by both the sides. The issue is no longer res integra and that the Tribunal has already concluded that doubling, twisting or multifolding of single ply yarn, cotton yarn does not amount to manufacture and on such removal to doubling section in terms of Rule 9 and 49, no duty is leviable. 8. emsp Applying the ratio of these cited judgments, we dismiss the Revenue appeals and allow the assessees appeals by setting aside the Collector (Appeals) order.
-
1995 (10) TMI 163
Hospital equipments imported by specified category of hospitals ... ... ... ... ..... letter dated 28-12-1990 has also opined that for diagnostic purposes no beds are required and that the bed req- uirement can not be considered essential for receiving the benefits of customs duty exemption. It is also evident that at the time of importation of the aforesaid hospital equipment the customs authorities at Bombay were fully informed and were aware of our facilities. The clearance was also affected only after inter alia furnishing of a bank guarantee for the duty amount. In the circumstances the seizure of the aforesaid hospital equipment by the DRI authorities on 17-8-1992 on the same ground which had been considered and provisional duty-free clearance allowed on bond/bank guarantee by Customs authorities at Bombay, is illegal, bad in law and tantamount to double jeopardy rdquo . 13. emsp In the circumstances, we consider that this appeal merits acceptance. Taking all the relevant considerations into account, we accept the appeal and set aside the impugned order.
-
1995 (10) TMI 157
Appeal - Rectification of mistake ... ... ... ... ..... t of Orissa in the case of Golden Hind Shipping (supra) to grant compensation in exercise of its power as an appellate authority under the Customs Act. 15. emsp Various judgments of the Supreme Court and the High Courts cited by the learned Consultant have already been noticed by Hon rsquo ble Orissa High Court which is binding on us being the only judgment directly on lack of power with the Tribunal to grant compensation. Judgments of the Tribunal, cited by the learned Consultant in which market value of the seized goods has been awarded as compensation were delivered before judgment in Golden Hind Shipping (supra). These judgments, therefore, have no loner binding force. Further, in our view, grant of compensation or damages on account of wrongful acts, if any, of the Revenue, would call for a proceeding under Law of Torts and not under the Special Act like Customs Act, for a tortious act, if at all, of the Revenue. Those proceedings lie elsewhere and not before this forum.
-
1995 (10) TMI 156
Stay/Dispensation of pre-deposit ... ... ... ... ..... and even if the brand name of other manufacturer is put on the carton, even then the same would come within the mischief of para 7 of the Notification 175/86 as amended on 22-9-1987. 4. emsp We have considered the submissions made before us. Prima facie the wording in para 7 of the amended notification refers only to the goods and not to the cartons. It is not prima facie disputed that the petitioner had not affixed the brand name in question on the goods and the goods bore only the petitioner rsquo s brand name Old Sea rsquo and not the brand name of lsquo Gold Seal rsquo belonged to other manufacturer. The letter G rsquo on the carton bearing the brand name of lsquo Gold Seal rsquo is also contended to have been obliterated. Keeping the above factual positions in mind we are inclined to think that the petitioner is entitled to the benefit of waiver of duty and penalty on prima facie grounds and we grant the same pending disposal of the appeal and stay recovery of the same.
-
1995 (10) TMI 155
... ...
... ... ..... ble or not. It is axiomatic that if a non-marketable intermediate product emerges in the course of the manufacture of a final product which is dutiable and notified under the Modvat scheme several non-marketable intermediate products notwithstanding its finding a place in the Central Excise Tariff would not render it excisable or leviable to excise duty under the Act. Therefore, the issue with reference to marketability and consequential leviability to duty of goods emerging as an intermediate product in the course of the manufacture of a dutiable notified end product will call for an examination. I am fortified in this view by the ratio of the ruling of the Bombay High Court cited supra. Therefore, for the reasons stated above, I am of the view that the impugned order has to be set aside and the matter remanded to the original authority for consideration of the issue as to whether the intermediate product namely cotton carded/combed is marketable or not. I order accordingly.
-
1995 (10) TMI 154
... ...
... ... ..... tails have been furnished, it is not correct to demand duty also on the base yarn merely because the relevant documents are not readily available. It is pleaded that base yarn was during the material period produced by certain specified industries, and the appellants could not have procured the same from any other source. 15. emsp The demand of duty also on the base yarn therefore, does not appear justified. 16. emsp There is an admission from the appellants about manufacture of crimped yarn and removal of the same without payment of duty and as such their liability to pay duty has to be upheld. That, however, would be restricted to the duty payment in excess of the duty paid on base yarn, as has been specified in Notification No. 55/78, dated 1-3-1978. 17. emsp In the result, while partially allowing both the appeals, it is directed that the demand shall be reworked out, treating the base yarn as duty paid. The appellants shall make the payment of the demand as reworked out.
-
1995 (10) TMI 153
Confiscation ... ... ... ... ..... was cleared by them. We observe that shortage if any could have been noticed by them when they cleared the goods after clearance from the port. The appellants never came forward immediately after clearance after the goods had been unloaded. Any survey done subsequent to the release of the goods showing that there was shortage or loss or pilferage after clearance from the harbour cannot be taken note of. The Certificate issued by the Port Trust authorities itself cannot be admitted at this stage in the absence of any additional evidence sought to be admitted by filing separate application. We therefore, find no force in the plea of the appellants and we hold that there is no infirmity in the order of the lower authority. The appellants had been remiss in not coming forward to amend the manifest and the goods had been rightly held to be liable to confiscation by the lower authority. The penalty imposed is nominal. We, therefore, uphold the impugned order and reject the appeal.
-
1995 (10) TMI 152
Iron & Steel ... ... ... ... ..... re of castings and during the course of such manufacture scrap came to be generated which had not suffered duty. The learned DR generally adopted the reasoning in the impugned order. 4. emsp We have given a careful thought to the pleas made by both the sides. We observe that the benefit of Notification has to be considered, with reference to the assessee and the Notification benefit requires that the scrap is generated out of the duty-paid materials received by the assessee from another factory. In the present case, the appellants received molten iron which admittedly was not chargeable to duty and this molten iron received by the appellants cannot be held to be produced out of duty sic. steel. The wording of the Notification does not lead to the interpretation that duty payment has to be shown to have been made at some stage anterior to the receipt of the input goods by the assessee. We, therefore, find no force in the appellants plea and accordingly the appeal is dismissed.
-
1995 (10) TMI 151
S.S.I. Exemption ... ... ... ... ..... n the factory. In the case of Truechem Pharma (P) Ltd. the facts are that they were getting the goods manufactured from two independent manufacturers namely M/s. Indica Laboratories Pvt. Ltd. and M/s. Aarex Laboratories on their behalf and hence on the basis of this interpretation and in the light of the earlier judgments, it was held that the demands against the appellants would be sustainable. The judgment is also in favour of the Revenue. In the case of S.O.I. Pharmaceuticals Ltd., the Tribunal found the appellants to be an independent manufacturer and on that ground allowed the prayer of the appellant. This judgment is clearly distinguishable from the facts of the present case. In the present case both the units are belonging to the same manufacturer, therefore, the lower authorities have rightly rejected the appellant rsquo s claim and same is required to be confirmed in the light of the judgments referred to by the appellants themselves. Appeal is, therefore, dismissed.
-
1995 (10) TMI 150
Reference to High Court ... ... ... ... ..... refore reference made in the instant case to the Hon rsquo ble Supreme Court under Section 130 seems to be misconceived and without any authority or jurisdiction. The Appellate Tribunal, however, can make a reference direct to the Supreme Court under Section 130A, if there are conflicting decisions of the High Courts on a question of law. In the instant case there has been no conflicting decisions of the High Courts but only of the different Benches of the Tribunal itself. In these circumstances a direct reference to the Supreme Court is even beyond the purview of Section 130A. It is unfortunate that neither the Counsel for the assessee nor the SDR pointed out these known provisions to the Bench that a reference under Section 130 can only be made to the High Court. The order referring the question of law to the Supreme Court being beyond jurisdiction requires to be recalled and referred to the respective High Court as per the provision of Section 130 of the Customs Act, 1962.
-
1995 (10) TMI 149
Rate of exchange, for warehoused goods ... ... ... ... ..... om a warehouse under Section 68 have to be determined as on the date on which the goods were actually removed from warehouse by virtue of sub-section (1) of Section 15 of the Act. The rate of exchange is no longer dealt with in Section 15 but dealt with Section 14, according to which the calculation of the price shall be made with reference to rate of exchange as in force on the date on which a Bill of Entry is presented under Section 46. It must, therefore, necessarily follow that while calculating the rate of duty and tariff valuation as on date of removal of goods from warehouse, the rate of exchange as in force on the date on which Bill of Entry was presented under Section 46 has to be adopted. The view taken by the Collector (Appeals) in his impugned order is erroneous and that taken by the Assistant Collector is right. 6. emsp We, therefore, set aside the order passed by the Collector (Appeals) and restored the order passed by the Assistant Collector. Appeal is allowed.
-
1995 (10) TMI 148
Exemption Notification ... ... ... ... ..... ratio was applied in other cited cases rendered by the Tribunal. It follows that on the date of manufacture, if the goods were leviable to duty and on the date of clearance, if got exempted and no duty was leviable, then in that event, the party having paid full duty, makes a claim for refund, then the same cannot be denied, on the ground that the rate of duty as on the date of manufacture would be applicable. In the light of the ratio laid down by the Hon rsquo ble Supreme Court, it is the rate of duty prevalent at the time of removal of goods from the factory, which has to be applied. In the instant case, no duty was leviable as on date of removal of the goods. The appellants had paid full duty and hence refund allowed by the Assistant Collector cannot be negatived by the Collector (Appeals). 6. emsp Respectfully following the ratio rendered by the Hon rsquo ble Supreme Court and the Tribunal, we set aside the impugned order and allow the appeals with consequential relief.
-
1995 (10) TMI 147
... ...
... ... ..... whereas at page 4 he has stated that he has seen samples of 17 items out of 18 items which according to the department fall under Tariff Item 52. He submitted that it is not clear as to which of the samples of 17 items were seen or who provided the same. In this premise both sides submitted that the case be remanded for de novo adjudication after giving effective and reasonable opportunity of personal hearing to the assessee. 3. emsp Considered. In view of the above we remand the case to the Assistant Commissioner of Central Excise having jurisdiction in the matter. On receipt of the papers he would inspect the parts of the agricultural implements in dispute and the assessee would assist in this regard. 4. emsp In the result the impugned order-in-original is set aside and the case is remanded as aforesaid to the Assistant Commissioner of the Central Excise having jurisdiction of the matter, i.e. Bombay -II. 5. emsp In the result both the appeals are allowed by way of remand.
-
1995 (10) TMI 146
Appeal - Early hearing ... ... ... ... ..... emsp On hearing learned SDR who fairly leaves the matter for decision by the Bench, and perusing the miscellaneous application and further noting the plea of financial hardship and payment of Rs. 1 lakh as ordered by the Hon rsquo ble Delhi High Court vide order dated 17-5-1995 (modifying the Tribunal rsquo s stay order dated 17-4-1995 directing predeposit of Rs. 2 lakhs ) and having regard to the nature of the goods involved, we are satisfied that this is a fit case for granting early hearing and accordingly list the appeal for hearing on 5-12-1995, as already announced in open court.
-
1995 (10) TMI 145
Penalty - Benefit of doubt ... ... ... ... ..... 7 2.00 - 19 In case you want to include any other sizes in the moped category kindly advise us at your earliest so that we can directly take this matter with the Central Board of Excise and Customs for issuing necessary instructions to the field formation on this matter. It is also not disputed that the appellants passed on to the consumers the incidence of only that much of the duty which they paid and did not collect any more tax. The clearance of the goods also was under physical control. In the above circumstances, I am of the view that it cannot be said that the appellant was actuated by any mala fide or cleared the goods with deliberate intent to evade payment of duty. At any rate, in the admitted facts and circumstances, the proceedings being penal in nature, I am of the view that the appellant should be entitled to the benefit of doubt and in this view by giving the appellant the benefit of doubt, I set aside the penalty and allow the appeal with consequential relief.
-
1995 (10) TMI 144
Modvat credit ... ... ... ... ..... e line of manufacture of the machines. In that process, if argon gas is brought in as an input for enabling welding operation to be carried out, it has to be construed only as a consumable used in the line of manufacture. If can never be construed as a part of machinery or appliance or tool. It has been held by this Bench in the case of Mukund Iron and Steel Works Ltd. v. Collector of Central Excise reported in 1990 (48) E.L.T. 552 (Tribunal) that oxygen and acytelene gases, though used through the medium of flame torch, cannot be construed as a part of flame torch or cannot be construed to be tool by themselves. Even the Central Board of Excise and Customs have allowed Modvat Credit in respect of oxygen and acytelene gases used for welding and cutting in the manufacturing operation. In the circumstances, there is no merit in the Department rsquo s objection to deny the Modvat credit in respect of argon gas. I, therefore, allow the appeal with direction to restore the credit.
-
1995 (10) TMI 143
Export goods - Overvaluation of - Penalty ... ... ... ... ..... ort value, was realised by them in full foreign exchange remittance through the proper legal channels. If that is so, we fail to understand as to how the appellants can be penalised when they have realised the full foreign exchange remittance back through the proper legal channels which value they had declared to the Customs Authorities. It is also not discussed in the impugned order as to what was the advantage which they had obtained in view of this declaration of value made by them. There is no discussion on this aspect. On the contrary, it only shows that the country earned a larger foreign exchange which was realised through proper legal channels as admitted in the impugned order. In such circumstances, the imposition of penalty on all the above-said grounds is not tenable and accordingly, we set aside the same. In the result, both the appeals are allowed. Operative part of the Order was already pronounced in the open Court, after conclusion of the hearing on 24-10-1995.
-
1995 (10) TMI 142
Penalty on Customs House Clearing Agent when not imposable ... ... ... ... ..... o S COMMENTS As per the certified copy of the order, this appeal was before the Bench of Shri S. Kalyanam, Vice President and Shri G.R. Sharma, Member (T) but the Order has been signed only by Shri S. Kalyanam, Vice President. In this respect Rule 26 of the CEGAT (Procedure) Rules, 1982 reads as under - ldquo Every order of the Tribunal shall be in writing and shall be signed and dated by the members constituting the Bench concerned. rdquo As per this Rule an order has to be signed by all the Members constituting the Bench concerned. On the face of this Rule, this order is not valid in the eyes of law since it has not been signed by all the Members constituting the Bench. Further, as per the certified copy, the date of order is shown as 20-10-1995 whereas it has actually been typed on 2-1-1996 and signed by Shri S. Kalyanam only on 3-1-1996 i.e. during last working days before his retirement. This extraordinary delay in typing a short order of 2-3 pages is not understandable.
-
1995 (10) TMI 141
Modvat - Duty paying documents ... ... ... ... ..... ription of a document as evidence of payment of duty in exercise of its power under proviso to Rule 57G(2). Prescription of a document as evidence of payment of duty is of general importance to each and every assessee/manufacturer. Present practice of intimating the Collectors through an internal letter and leaving it to them to issue suitable trade notices in this behalf, is, in our view, not only incorrect but illegal for several reasons. Under Rule 57G(2), proviso, power lies with the Board and the Board alone is to prescribe a document as evidence of payment of duty with its attendant limitations and conditions. A Collectorate may make mistake in paraphrasing the Board rsquo s letter and may omit relevant, or introduce extraneous, matter while issuing its trade notice. The Board may, therefore, like to issue notifications or public notices for information of the manufacturers/assessees in general. 4.5 emsp A copy of this order be sent to the Chairman, C.B.E.C., New Delhi.
........
|
