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Showing 81 to 100 of 220 Records
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1995 (10) TMI 140
... ... ... ... ..... ector of Customs, Bombay, reported in 1994 (74) E.L.T. 357 took the same view in regard to the agreement which provided for payment of lumpsum royalty. 9. emsp There is nothing to indicate that parties were not dealing with each other at arm rsquo s length or that the agreement regarding price was not an ordinary commercial transaction or that the parties devised the method of providing royalty in order to depress the invoice price or that the invoice price was in any way less than the ordinary price obtaining for indentical or similar goods in international trade. Going by the terms of the agreement, the royalty has nothing to do with the supply of components or the price of components. Therefore, the assessee is entitled to succeed in both the appeals. 10. emsp Appeal C. 3417/90-A is dismissed. Appeal C.168/94-A is allowed. The order impugned in this appeal is set aside holding that the invoice price should be taken as the assessable value under Section 14(1)(a) of the Act.
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1995 (10) TMI 139
Stay - Pre-deposit ... ... ... ... ..... appellant before the Tribunal to get credit by temporary adjustment to the extent to which adjustment can be made. This is what the Tribunal did in the cases earlier. Further the order dated 31-8-1995 also indicates that we were inclined to grant the request. 4. When an appeal is pending before an authority, payment adjustment and the like will only be subject to the final order to be passed by the appellate authority. If amount to cover the liability for deposit is available in the Modvat account, any permission which we grant for making temporary adjustment out of the account will be subject to the result of the appeal. That being so, neither party is adversely affected by issuing a direction prayed for. 5. emsp An opportunity is granted to the department to confirm or deny the submission made by the appellant that the appellant had made debit for the amount required in the Modvat account. The D.R. prays for three weeks, time to get the information. Adjourned to 9-11-1995.
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1995 (10) TMI 138
Rectification of mistake - Appeal ... ... ... ... ..... through the notes maintained by us on the date of hearing of the appeal i.e 11-1-1995 and it appears that the contention of the Counsel that this point was not considered in the order is correct. In this case, the credit was taken in 1991 while the show cause notice was issued on 1-1-1992 and therefore, the learned Counsel rsquo s contention that the demand for the month of June, 1991 (sic) is time barred is correct. Accordingly, we allow the Misc. Application by rectifying the final order of the Tribunal to the extent that the impugned order would be upheld but for the demand for the month of June, 1991 relating to the credit taken in June, 1991. The application is allowed.
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1995 (10) TMI 137
Valuation - Comparable goods ... ... ... ... ..... y being different. This will attract only cases where the manufactured goods are sold and not cases where the production is captively consumed. Therefore sub-section 2 of Section 4 is not attracted in the present case. 8. emsp In the circumstances, the impugned order is set aside with direction to consider the question of granting adjustment on account of relevant factors under the proviso to Rule 6(b)(i). We make it clear that the Collector is required to consider only the difference in the volume of production by the assessee and the Kota manufacturer as a relevant factor and the adjustment, if any, is to be given only in consideration thereof. The assessee shall be given reasonable but brief opportunity to produce relevant materials before the Collector. This order shall not preclude the Department from placing relevant materials before the Collector. The other matters decided by the Collector shall not be reopened. 9. emsp The appeal is allowed in part as indicated above.
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1995 (10) TMI 136
... ... ... ... ..... seem to have considered these invoices and held the issue against them, only on the ground that subsidiary gate passes have been issued after 1-4-1991 and they are not valid documents as per the Notification 16/94. We find that when the appellants have obtained invoices as per the requirements for taking Modvat credit and they have also obtained subsidiary gate pass (if they are not valid, they should not have been issued by the Supdt.) that cannot be the only ground for denying the Modvat credit, without considering the invoices for extending the benefit. We also note that the Board have given relaxation for accepting such invoices. We therefore set aside the order of the Collector (A) and remand the case back to him for considering the invoices produced, in the light of the Board rsquo s instructions and after due personal hearing, pass orders in accordance with law. The appeal is allowed by way of remand. Hence stay application does not survive for separate consideration.
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1995 (10) TMI 135
Valuation - Trade discount ... ... ... ... ..... nto. That price list specifically shows that the price chargeable to the two main dealers was the price shown in the price list less 35 per cent. It is open to the manufacturer to offer, for relevant reasons, different kinds of discount to different kinds of dealers. It is not disputed that the price charged to the two main dealers was the price list price less 35 per cent. Only the goods sold to these two main dealers were sold at the factory gate. The goods sold to the smaller dealers were sold at lesser discount at depot. It must necessarily follow that there was a factory price for the goods and that was the price list price less 35 per cent. If that be so, going by the observations contained and the directions issued in the remand order, the price charged at the factory gate to the main dealers, namely, the price list price less 35 per cent should be taken for the purpose of valuation for all the manufactured goods. 5. The appeal is allowed in the manner indicated above.
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1995 (10) TMI 134
Modvat - Declaration ... ... ... ... ..... ven according to the technical opinion, gear box is admittedly one which varies speed either by increasing or decreasing and reduction gear is meant for reducing the speed. DC Drive likewise also performs the function of regulating speed. In the case of DC drive, this Bench vide Order No. 370/95/WRB, dated 20-2-1995 have held that the description speed regulator rsquo could be construed to be DC drive and the objection of the Department was not accepted. In the case of gear box, the same latitude is to be applied, because it is also a mechanism for regulating speed and both the gear box and reduction gear box fall in the same chapter heading and sub-heading and there is no dispute on this. When it is also not disputed that the items brought into the aforesaid heading are otherwise for eligible for Modvat credit and when the description also has nexus with the inputs otherwise, the substantive benefit of Modvat credit cannot be denied. I, therefore, dismiss the revenue appeal.
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1995 (10) TMI 133
Appeal - Pre-deposit if not made ... ... ... ... ..... oner to consider the modification application filed on 2-1-1995 which has been annexed to the appeal memo at page 70. 2. emsp We have considered the submissions made by both the sides. We grant waiver of pre-deposit and take the appeal for disposal as per law. The appellant had filed modification application, supported by annual report and accounts for the year ended 31-3-1993. The ld. Commissioner should have considered this modification application before dismissal of the appeal and ld. Commissioner has also not given them a show cause notice before disposal of the appeal. Therefore, in the circumstances and in the light of the ratio of the judgments cited before us, we set aside the impugned order and remand the case to the ld. Commissioner. The ld. Commissioner should consider the modification application. The ld. Commissioner shall grant the applicants personal hearing to make their submission on the modification application. Appeal is remanded for de novo consideration.
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1995 (10) TMI 132
Remand - Modvat credit ... ... ... ... ..... rational basis. The appellants should have been called upon to furnish the data in regard to the deposits taken and also explain the position whether the same can be reckoned towards recovery of cost of bottles and crates the besides, the appellants should have been called upon to make available the data for the relevant time in regard to the inclusion of cost of materials. The learned Collector has left open all the issues as observed in para 13 of his order in the following terms ldquo it is open to the appellants to rebut these assumptions and produce evidence to that effect if they wish to make a fresh bid for MODVAT Credit rdquo . The learned lower authority has not examined the issue in depth and we therefore, hold that his order is not a proper order. We, therefore, set aside the order and remand the matter for reconsideration of the issue in the light of our observations above in accordance with law after affording the appellants reasonable opportunity of being heard.
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1995 (10) TMI 131
Refund - Return of goods due to rejection by customer ... ... ... ... ..... aforesaid order was confirmed. 3. emsp After hearing both the sides, the facts are not disputed. If the duty paid goods have been returned back to the factory and this has been verified on D-3 declaration and when the duty has been again paid on the same goods, there is an apparent erroneous payment of duty, when the returned goods were cleared again on payment of duty because such goods not subject to any process, could have been cleared under Rule 173H or such duty paid goods could be stored in relaxation of the provisions of Rule 51A. Hence, paying duty on the same goods second time is an erroneous payment. If a refund claim has been filed within the limit laid down under Section 11B and the evidences confirm the double payment of duty on the same goods, refund claim is to be considered under Section 11B. Hence, I remand the case back to the Asstt. Collector for considering the refund claim in the light of the above observation. 4. emsp Appeal is allowed by way of remand.
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1995 (10) TMI 130
Demand - Limitation ... ... ... ... ..... them, the value of clearances have been given for the previous year 1979-80. 4. emsp After hearing both the sides, we find that in this case as seen from the deliberations of the Collectors rsquo conference that in regard to the question of classification of master batches, there was a genuine doubt even among the departmental officers. Hence the plea of Shri Willingdon Christian that the appellants were under the bona fide belief that they were not liable to any further duty, cannot be brushed aside. Moreover when the declaration has been filed giving all the particulars from 16-2-1981 and even the Chemical Examiner rsquo s report was available in June 1982, there was no justifiable reason for issue of show cause notice only on 30-3-1984 that too covering the period even extending beyond 5 years. In the circumstances, the Collector rsquo s order holding that the entire demand is in fact time barred cannot be interfered with. We therefore dismiss the appeal from the Revenue.
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1995 (10) TMI 129
Classification ... ... ... ... ..... t with the judgment of Hon rsquo ble Supreme Court rendered in the case of Amrutanjan in the light of evidence and earlier Supreme Court rsquo s judgment noted in their respective orders. In that view of the matter there being no conflict of opinion between any judgments of the Tribunal, I do not see any reasons for reference of this matter to larger Bench. Therefore, I agree with my Learned Brother, Shri Gowri Shankar, M (T) for dismissal of the appeal. Sd/- (S.L. Peeran) Dated 6-9-1995 Member (J) FINAL ORDER 64. emsp In view of the majority opinion, it is held that the products in question cannot be considered as Ayurvedic rsquo as they were not exclusively Ayurvedic preparations. They are only Patent and Proprietary Medicament rsquo classifiable under Tariff Heading 3003.10 for Central Excise purposes. 65. The appeal is dismissed accordingly. Sd/- Sd/- Sd/- (Gowri Shankar) (S.L. Peeran) (S.K. Bhatnagar) Member (T) Member (J) Vice President) 11-10-1995 11-9-1995 17-10-1995
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1995 (10) TMI 128
Precedent - Judicial Discipline ... ... ... ... ..... wnings without the brand name or the metal plate and supplies the same to Madura Coats Ltd., who supplies the same to the dealers and the dealers then affix the brand name after receipt of the same. This is clearly not a case where the manufacturer affixes the brand name to the specified goods. Admittedly, at the stage of clearance of goods, the goods did not have the brand name affixed to them the affixture of the brand name was at a subsequent stage either by the Madura Coats Ltd. or by its dealer. Thus, the pre-condition contemplated under para 7 of the notification is not satisfied in the instant case. It must follow that the assessee is entitled to the benefit of the notification. The levy of excise duty and that of penalty on the manufacturer and the confiscation of goods and the levy of penalty on Madura Coats Ltd. are legally impermissible. The impugned order to that extent indicated above is set aside and the appeals are allowed to that extent with consequent relief.
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1995 (10) TMI 127
Manufacture ... ... ... ... ..... id not amount to manufacture rsquo . 31.5. emsp Considering the facts of the case in the light of the Principles of Law laid down by the Hon rsquo ble Apex Court, I am of the view that by compacting powder into tablets as in this case the umbilical Cord of identity between powder and tablet has not been scissored and, in that view, the process does not amount to ldquo manufacture rdquo and I, therefore, agree with the Hon rsquo ble Vice President. 32. The point of difference is in consequence answered as under 33. emsp Considering the facts and circumstances of the case, converting enzyme blend powder into tablets does not amount to a process of manufacture, and therefore, appeal was required to be accepted. 34. In view of the majority opinion, the appeal is accepted. Sd/- (Shiben K. Dhar) Dated 19-10-1995 Member (T) FINAL ORDER 34.In view of the majority opinion, the appeal is emsp accepted. Dated 25-10-1995 Sd/- Sd/- (S.L. Peeran) (S.K. Bhatnagar) Member (J) Vice President
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1995 (10) TMI 126
Stay/Dispensation of pre-deposit ... ... ... ... ..... rned Consultant insisted to consider his submission, we, after going through the provisions of Section 35F, find that the language used in the Section i.e. ldquo Where in any appeal under this Chapter, the decision or order appealed against relates to any duty ....... rdquo itself indicates that the assessee who is aggrieved with the order must first file the appeal before the Tribunal and thereupon, this Tribunal has got power to consider the stay application therein. Admittedly, the present appeal has not been filed against the said stay order but against the said stay order of the Collector (Appeals) under which they have already deposited Rs. 943/-. 4. emsp In view of the above, the present application is not only frivolous but filed under the wrong conception of law leading to wastage of time of the Tribunal. However, if the assessee is aggrieved with the said stay order, he may file his appeal, if permissible under the law. 5. In the result, the application is rejected.
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1995 (10) TMI 125
Stay/Dispensation of pre-deposit ... ... ... ... ..... city units is normally consumed for production of the above mentioned quantity of Ingots and if the case of the applicant is to be accepted, then there would be no difference in duty at all. She submits that the duty demand is based on conjecture and prima facie is not sustainable. 2. emsp The Departmental Representative Shri Tyagi submits that the Collector has not committed any error in adopting the figure of 1000 units, and therefore the demand has been correctly confirmed and penalty is rightly imposed in accordance with the provisions of rules. 3. emsp Having considered carefully submissions of both the sides and having regard to the fact that norms of production with regard to the power consumption and other relevant factors have not been fixed in terms of Rule 173E, we are of the view that the applicants have made out a prima facie case for waiver and hence we dispense with the requirement of pre-deposit of duty and penalty and stay recovery thereof pending the appeal.
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1995 (10) TMI 124
Reference to High Court ... ... ... ... ..... these questions may be referred on the lines indicated above. Registry to refer the following questions to the Honourable Court with the enclosures cited in the application in para 10 of the Reference Application (1) emsp Whether levy of duty at 25 ad valorem under Notification 212/86, instead of 15 ad valorem claimed by the applicants under Notification 175/86, during the period 1-3-1986 to 24-3-1986 was legal and justified by denying from 1-3-1986 itself the benefit of the latter Notification 175/86 and relegating them to the lesser benefit available under the former notification for the period 1-3-1986 to 24-3-1986. (2) emsp Is the demand of differential duty of 10 ad valorem violative of Article 265 of the Constitution of India and also contrary to Central Duties of Excise (Retrospective Exemption) Act, 1986? (3) emsp Whether the differential rate of duty at 10 ad valorem is payable for the whole month of March, 1986 or only for one week between 25th and 31st March, 1986?
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1995 (10) TMI 123
Value of clearances - Clubbing of - Dummy units ... ... ... ... ..... such evidence at all, to show that such an arrangement is in existence. The mere fact of management control and a few directors being common and also by the fact that interest free loans are being given to the other units by the first unit, these factors, by itself, is no ground for holding them as dummy units and for ordering clubbing of all their clearances, and to deny the benefit of the exemption notification. 7. emsp By applying the criteria laid down in this decision, we do not find it possible to agree that the restrictions on the pricing and manufacture of other goods results in the agreement being anything other than one between a buyer and the seller who uses the patent of the buyer. In the absence of evidence to show any degree of control by the first appellant over the management and production of the others or financial control we do not find it possible to hold that the first appellant is the manufacturer of the goods. In the circumstances, we allow the appeals.
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1995 (10) TMI 122
Valuation under valuation and mis-declaration as to descriptions ... ... ... ... ..... contention that the value of their imported goods was determinable on the basis of the invoice price of M/s. Naresh Udyog, M/s. Varsha Industries and M/s. Graphic Arts relied upon by the appellants. rdquo The facts in the appellants rsquo case being identical inasmuch as the correct description, grade, the manufacturer rsquo s name etc. had not been declared in the invoice and other import documents and the goods on actual examination were found to be Acrylic Moulding Powder Shinkolite-P, MDP Grade 001 manufactured by Mitsubishi Rayon Co. Ltd. of Japan, following the ratio of the Tribunal rsquo s order extracted above, we hold that the Collector rsquo s finding that the value of the imported goods was determinable under Section 14(1)(a) of the Customs Act, 1962 on the basis of the invoice price of identical goods imported contemporaneously by M/s. Lumax Industry Pvt. Ltd. against Bill of Entry No. 1470/12 dated 26-9-1983 is sustainable. 5. The appeal is, therefore, rejected.
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1995 (10) TMI 121
Stay/Dispensation of pre-deposit ... ... ... ... ..... ssis comes into existence in the hands of the appellants. We also cannot prima facie visualise a situation where a vehicle can be without a chassis. In view of above, prima facie there is no infirmity in the order of the lower authority. So far as the financial position of the applicants is concerned, no balance sheet or any other evidence has been produced and the learned Counsel submitted that the applicants are a small scale unit and are operating in a highly competitive field and their financial position is not bad and offered to make pre-deposit of Rs. 5,00,000/-. We find that this offer is too low. Taking into consideration the pleas made and facts and circumstances of the case, we direct the applicants to make a pre-deposit of Rs. 25,00,000 (RUPEES TWENTY FIVE LAKHS) on or before 29-11-1995 and report compliance subject to which pre-deposit of the balance amount would stand dispensed with pending appeal. The matter will be called on 30-11-1995 for reporting compliance.
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