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Case Laws
Showing 121 to 140 of 305 Records
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1995 (12) TMI 203 - CEGAT, NEW DELHI
... ... ... ... ..... .L.T. 495, if the ex-factory prices were found to be artificially low, it would be open to the lower authorities to reject them and to proceed to determine assessable value on the basis of depot sale price after allowing permissible deductions bearing in view the law laid down by the Supreme Court. This is also the alternate plea made by the appellant that even if the depot price is taken permissible deductions, therefrom, should be given and value should be determined in accordance with Section 4(4)(d)(ii) of Central Excises and Salt Act, 1944 by excluding the duty element thereform. It is, therefore, directed that the jurisdictional Assistant Commissioner should re-determine the assessable value on the above basis in accordance with law and after hearing the appellants in the matter, who may also place before the Assistant Commissioner such material as may be relevant for such re-determination of assessable value. The appeals are allowed by way of remand in the above terms.
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1995 (12) TMI 201 - CEGAT, NEW DELHI
Valuation - Related person ... ... ... ... ..... stributor. A reference to the distributor is in the inclusive part of the definition and the related person to attract the provisions of law had to be a person who is associated with the assessee that they have interest directly or indirectly in the business of each other. In these proceedings, nowhere it has been brought out that the distributor also had any interest in the business of the manufacturer. This aspect of the matter had come up for duscussion in the Supreme Court decision in the case of Bombay Tyre International wherein the Hon rsquo ble Supreme Court had held that only those distributors who are relative of the assessee will be covered by the above provisions of law. On this aspect also we find that the order passed by the ld. Collector of Central Excise (Appeals) does not suffer from any infirmity. 7. emsp Taking all the relevant considerations into account, we find no infirmity in the impugned order and accordingly the appeal filed by the Revenue is rejected.
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1995 (12) TMI 199 - CEGAT, MADRAS
Proforma credit - Yarn ... ... ... ... ..... nal Duties of Excise Act, 1978 is of the same nature as union duty of excise and is clearly referable to the entry 84 of the Union list under the Constitution of India. The Division Bench of the Gujarat High Court in the case of Maheshwari Mills Ltd. v. U.O.I. cited supra has also taken the same view wherein the Bench held that additional duty under Additional Duties of Excise (Textiles aid Textile Articles) Act, 1978 is not separate from duty of excise, but annexed to basic duty at the point of time and place of assessment by reason of adoption of device of legislation by reference. The Bench further held that the provisions of the CESA, 1944 and the rules framed thereunder became integral part of the Duty of Excise Act, 1978. Therefore, in the facts and circumstances of the case, following the ratio of the rulings of the High Courts and the Supreme Court, we hold that the impugned order is sustainable in law and on facts. In this view of the matter, the appeal is dismissed.
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1995 (12) TMI 198 - CEGAT, CALCUTTA
Refund arising out of finalisation of assessment - Refund ... ... ... ... ..... nsultant. Ld. Single Member in his Order dated 14-7-1995, in my view, with respect, has overlooked the language of sub-section (3) when he observes that even if Rule 173-I provided for a different system of claiming refund, that system of claiming refund under Rule 173-I stood modified in terms of sub-section (3) of section 11B ........ rsquo (emphasis supplied by me). What stands modified in terms of sub-ection (3), in my view, is that ........ no refund shall be made except as provided in sub-section (2). rsquo Claiming of refund and making of refund are two different concepts. It is to be noted that section 11B does not envisage that no refund application shall be made except in terms of that Section. Collector (Appeals rsquo ) Order is, therefore, correct in law and on facts. 33. emsp I dismiss the appeal of the Revenue. Lower authority shall decide the claim of the respondents on merits subject to Section 11B except the ground of limitation which stands decided as above.
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1995 (12) TMI 197 - CEGAT, BOMBAY
Refund - Limitation ... ... ... ... ..... stified. 10. emsp The quantification of duty is done by the Superintendent vide his order dated 19-3-1990 and correctness of the same is not disputed by the department. 11. emsp The Appellants have as early as 20-6-1990, lodged their claim though not in the prescribed form for refund of the said amount but seeking permission to take the said amount in their PLA. The same has to be treated as the claim for refund and formal claim for refund filed on a later date, need not operate as bar in appellants getting the legitimated refund. In any case, this issue seized to have any significance because of the clear decision from the Supreme Court in M/s. Oswal Agro Mills (supra). 12. emsp Considering all these, the appellants are entitle to claim the amount of Rs. 5,89,953/- back from the department on the ground of department having collected this amount in excess of the duty legitimately payable. 13. emsp The appeal is under the circumstances allowed. Consequential relief to follow.
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1995 (12) TMI 196 - CEGAT, CALCUTTA
Modvat - Aerated water ... ... ... ... ..... pati and Soap ceased to earn the benefit of credit of money while manufacturing their final products with the help of notified inputs but they were not deprived of their right to utilise the credit of money which they had already earned validly so long as the same was or, intended to be, used for payment of excise duty in the manufacture of Vanaspati or Soap as the case may be. Merely because the notifications have been rescinded, it cannot be said that Rule 57N had ceased to operate. The Honourable Punjab and Haryana High Court rendered a similar decision in Amrit Vanaspati Co. Ltd. v. Union of India vide 1990 (50) E.L.T. 64. rdquo 9. emsp It is thus seen that the present case is squarely covered by the above-cited decision which in turn had relied upon the decision of Gujarat High Court in the case of Dipak Vegetable Oil Industries v. Union of India reported in 1991 (52) E.L.T. 221. In these circumstances, there are no merits in the appeal. Accordingly, we dismiss the same.
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1995 (12) TMI 195 - CEGAT, NEW DELHI
Modvat - Transitional provisions ... ... ... ... ..... Rule 57H has two limbs, one pertains to such inputs as are lying in stock or are received in the factory after filing the declaration under Rule 57G and the second limb, pertains to those inputs which are used in the manufacture of final products cleared from the factory on or after 1-3-1987 provided that no credit has been taken by the manufacturer in respect of such inputs under any other Rule or Notification or that the final products of such inputs are not dutiable. The Assistant Collector has held that the purpose of the Rule was to give credit both to the inputs lying in stock for verification and also to those inputs which are already used in the manufacture of the goods cleared from the factory on or after 1-3-1987. Following the ratio thereof, we hold that the appellants are entitled to the benefit of credit in terms of Rule 57H(1)(i)(ii) (sic). We accordingly set aside the impugned order and allow the appeal with consequential relief, if any, due to the appellants.
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1995 (12) TMI 194 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... missions and perused the records. We find that Sulphur under both the Tariff Entries 25.03 and 28.02. The goods under consideration i.e., oil treated sulphur are having 20 of oil content. Sublimed and precipitated sulphur classifiable under Tariff Heading 28.02 are usually about 99.5 pure. Since the oil content in the imported goods is about 20 they cannot be treated as sublimed or precipitated sulphur and accordingly they are not classifiable under 28.02 as it was rightly observed by the Collector in the order. Since the Entry 25.03 covers sulphur of all kinds other than sublimed sulphur, precipitated sulphur and colloidal sulphur and in view of this description particularly with reference to sulphur of all kinds, the item in question is classifiable under Tariff Heading 25.03 as it was rightly held by the Collector (Appeals). Since we do not find any infirmity in the impugned order, we uphold the impugned order and accordingly the appeal filed by the department is rejected.
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1995 (12) TMI 193 - CEGAT, NEW DELHI
Valuation - Related person ... ... ... ... ..... did not produce the sale price at which the goods were sold to Sudershan Trading Co. who is to be held as a related person, the Asstt. Collector was right in adopting the price of similar goods. On the valuation aspect, therefore, we do not find for the appellant. 4. emsp Notification 87/80 gave partial exemption to plywood for tea chests when cut to size in panels, or shooks and packed in sets and which conformed to the relevant ISI standard or supplied by the manufacturer directly to a tea factory. The Asstt. Collector has found that the goods cleared under price list No. 35/81 did not satisfy either requirement. They were neither of ISI standard nor supplied directly to the tea factory. This finding of his has not been disputed in the appeal nor has any evidence been produced to say that either of these two conditions is satisfied. We are, therefore, of the view that the benefit of the notification has been rightly disallowed. 5. emsp In the result the appeal is dismissed.
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1995 (12) TMI 192 - CEGAT, CALCUTTA
Value of clearances - Clubbing of ... ... ... ... ..... ngs when summons were issued, the parties were required to appear personally. Therefore, they had no other alternative except to appear personally before the authorities concerned and the records produced here go to show that they had appeared personally because they had no other alternative except to appear personally before the authorities concerned, as required under the Law. By this submission, it cannot be concluded that the lady partners are taking active part in the partnership business merely because of their appearance before the Income-Tax authorities, which was imperative on their part in view of the provisions of the Act itself. From that, it cannot be concluded that they are taking active part in the case of M/s. Unifab Engineers and that M/s. Unifab Engineers are a separate Concern. 31. emsp In the light of all the above observations, we find that there is no merit in the appeal filed by the appellant firm herein and accordingly, this appeal is hereby dismissed.
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1995 (12) TMI 191 - CEGAT, NEW DELHI
Modvat vis-a-vis exemption from duty - Exemption -Demand - Limitation - Penalty ... ... ... ... ..... avail of benefit vide Notification No. 53/88. 44. emsp The appellants, thus are eligible for availment of concessional rate of duty vide Notification No. 53/88, and irrespective of the same being time barred, the order confirming demand would have to be set aside even on merits. 45. emsp This being the position, the question of imposition of penalty would not arise at all. Even assuming that the case, on merits, was against the appellants, the judgment of the Supreme Court in Re HMM Ltd. (supra) may stand attracted. In any case, this does not appear to be the case, where any penalty is called for. 46. emsp In this view of the matter, I concur with the conclusion drawn by the ld. Member (Judicial) that the order in original has to be set aside and appeal be allowed. Bombay 1-12-1995 Sd/- P.K. Desai Member (J) FINAL ORDER 47.In view of the majority opinion, the impugned emsp order is set aside and the appeal is allowed. S.L.Peeran Member(Judicial) S.K. Bhatnagar Vice President
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1995 (12) TMI 190 - CEGAT, NEW DELHI
SSI Exemption - Value of clearances ... ... ... ... ..... onsidered separate persons for the purposes of electric connection, in payment of income tax, the factory licence etc. The Collector rsquo s claim that these are artificial breakups rsquo cannot deny their separate existence for these purposes. 9. emsp We also note that while the Collector rsquo s arguments about the existence of common factors relate to all these units, he has only ordered clubbing of three, holding the other three to be in the nature of abators of such clubbing. He does not say why he singled out three units alone, or indicate the particular characteristics of these three which places them on a separate footing from the other nor does he say in what manner these other three abetted the first three. 10. emsp On balance we must hold that there has not been sufficient evidence, either to justify the clubbing of the three units, or to find that the other three units have helped in such clubbing. We therefore allow these appeals with consequential relief if any.
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1995 (12) TMI 187 - CEGAT, NEW DELHI
Wires and cables - Short length wires ... ... ... ... ..... ght to be cleared contains short lengths of wires capable of being sold or sold or actually sold as cables and wires, then such a quantity would not be covered by the aforesaid order of the Tribunal. 10. emsp It is worth repeating and emphasising that marketable short lengths of cables are not to be confused with the cable waste cleared or presented for clearance as such and disposed of as waste. 11. emsp It is also open to the department to ensure that the Board rsquo s circular is duly enforced and only what is really waste is cleared or allowed to be cleared duty free (being non-excisable). 12. emsp In the present case however, the show cause notice refers only to waste and scraps of wires and cables generated during the course of manufacture of wires and cables and the impugned orders also relate only to scrap and waste of wires and cables. Therefore, following the ratio of the Tribanal rsquo s orders in the case of Finolex Cables, we reject the department rsquo s appeal.
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1995 (12) TMI 186 - CEGAT , NEW DELHI
... ... ... ... ..... pter 10 procedure. It is also seen that subsequently in the year 1985 vide amending Notification No. 216/85, dated 7-10-1985, exemption was provided if ferro alloys were manufactured by employing the Alumino Thermic or the Thermit process irrespective of whether power is used or not. 8. emsp There is nothing on record to show that the ferro alloys are not used in the iron and steel industry. The use of power for activities not related to the manufacturing process cannot be the ground for denying the exemption. 9. emsp Taking all the relevant considerations into account both the appeals are allowed . The appellants have also contended that a part of the demand is also hit by limitation. As we have come to a decision that the goods were otherwise eligible for exemption under the relevant exemption notification, we are not passing any orders on the issue of limitation. 10. emsp Accordingly both the appeals are allowed with consequential relief, if otherwise admissible under law.
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1995 (12) TMI 183 - CEGAT, MADRAS
Reference to High Court ... ... ... ... ..... uo would require essentially the opening of Letter of Credit and whether, in the present case, in the absence of Letter of Credit, the import in question was covered by the licences or not. 9. emsp While coming to the conclusion that such import was not covered by licences as no Letter of Credit had been opened, the Tribunal rsquo s reliance on the said case law was incidental. The request for inclusion of all the points other than the central question discussed earlier is rejected. In the circumstances, the following question of law is referred to Hon rsquo ble High Court for their valued advice ldquo Whether the Appellate Tribunal was right in imposing the condition of requiring an order to be backed by Letter of Credit for its acceptance as firm order when there is no such definition or provision by necessary implication in the import policy book. rdquo 10. emsp Registry is directed to send the Reference Application to the Hon rsquo ble High Court with required enclosures.
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1995 (12) TMI 182 - CEGAT, NEW DELHI
Zoom lens/glass lens ... ... ... ... ..... g out that zoom lens is a special type of lens meant for movie cameras etc. At the same time it cannot be denied that it is a variety of glass lens and in the absence of any indication to the effect that Sr. No. 6 in the Notification was intended to cover only simple lenses and not special lenses, the item is hit by the exclusion entry. In this connection we further note that no technical or commercial literature has been produced by the appellant in support of his contention that zoom lens is required to be treated differently from other glass lenses. 11. emsp Further more, the item has been assessed under 90.02 read with 90.08(ii), and 90.02 is specifically mentioned in the headings shown in Col. 2. 12. emsp In view of the above position, we consider that the appellants claim has remained unsubstantiated and there is no reason for us to interfere with the orders of the lower authorities in the facts and circumstances of this case. 13. emsp The appeal is therefore, rejected.
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1995 (12) TMI 181 - CEGAT, NEW DELHI
... ... ... ... ..... he manufacturer is that they are necessary to protect the goods from damage during long transit. This, of course, is not a directly relevant test. Its importance is only to contradict the stand of the department that such packing is ldquo necessary rdquo to make them marketable in the wholesale trade at the factory gate. Even if the purpose of such packing is to safeguard the goods during transit, such packing may be ldquo necessary rdquo to make the goods marketable in the wholesale trade at the factory gate. On the facts of the case, it can be seen that bulk of the sales in the wholesale trade at the factory gate are of goods packed in wooden cases. It must follow that such packing is ldquo necessary rdquo in the sense in which it has been explained in MRF Ltd. case. 16. emsp We, therefore, hold that the cost of the secondary packing has to be included in the assessable value. 17. emsp In the result, we dismiss both the appeals and confirm the order passed by the Collector.
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1995 (12) TMI 180 - CEGAT, BOMBAY
Modvat credit ... ... ... ... ..... that Rule 57F also would be attracted in this case. I am not persuaded to accept the appeal for the following reasons The respondents are availing Modvat credit in respect of PVC compound and the waste is admittedly arising in the course of manufacture of wires and cables which is the final product. As per the provisions of Rule 57D of the Central Excise Rules notwithstanding the fact that any waste or scrap or intermediate products are exempted, duty credit need not be varied. In this case plastic scrap is exempted, without any condition of availment of Modvat credit, if it is made out of duty paid materials . Hence applying the provisions of Rule 57D, credit initially taken on PVC compound would not call for variation. Even the provisions of Rule 57F would not come in the way, because credit accrued on the inputs can be utilised in regard to the clearance of similar final products covered by the Modvat declaration. I therefore see no merit in the appeal which is dismissed.
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1995 (12) TMI 179 - CEGAT, NEW DELHI
... ... ... ... ..... annot be relied upon as the respondents got the samples tested after the remand of the case by the High Court, and the samples so drawn was not drawn in the presence of the Department rsquo s Officers and, therefore, the same cannot be correlated, has no force. From the order-in-original passed by the Assistant Collector, it is clear that the genuineness of the samples were never doubted by him, on the other hand, he has relied upon the test report. The fact that sample was drawn or tested after the remand of the case by the High Court does not make any difference when the genuineness of the samples or correctness of the test report was never challenged by the Revenue during adjudication proceedings. After going through the literature cited by the learned JDR, we find that in the light of the test report the findings recorded by both the authorities below are correct and does not call for any interference at our end. In the result, the appeal filed by the Revenue is rejected.
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1995 (12) TMI 178 - CEGAT, BOMBAY
Modvat not deniable while confirming the demand ... ... ... ... ..... ity on the tetrapods, we remand the case back to the Collector, before whom all the documents regarding removal of the duty paid cement and their use in the manufacture of tetrapods should be produced by the appellant, who should cause necessary verifications into these documents and on satisfaction, extend the Modvat benefit. After extending the Modvat benefit, net duty payable should be computed, which should be enforced for recovery. 7. emsp We accept the plea that there could be a bona fide misconception on the dutiability of tetrapods and the activity of construction of jetty was done in the open, no mala fid es could be attributed. Hence we set aside the penalty on both the appellants. Considering the nature of the goods involved, which are huge tetrapods deposited on the break water, we remit the redemption fine, even if they are held liable to confiscation, otherwise. 8. emsp Appeal is disposed of in the above terms, Hence stay petitions may be treated as disposed of.
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