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Case Laws
Showing 141 to 160 of 305 Records
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1995 (12) TMI 177 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... eals) to hold that lactose imported by the appellants was classifiable under Tariff Heading 1702.10 of the CTA, 1975. No doubt, the case-law cited by the appellants in support of their contention was that classification of goods cannot be decided on the basis of exemption notification. In the instant case, we are not deciding the classification of the goods on the basis of the notification. We are saying only that the notification further clarifies the point that lactose is classifiable under Chapter Heading 1702.l0 and we hold accordingly. 12. In view of the case-law cited and relied upon, we hold that the imported goods described as lsquo homoeopathic medicine (single), sugar of milk of 200 Mesh HMS rsquo will be classifiable under Customs Tariff Heading 1702.10. In view of the above, we hold that the benefit of Notification No. 58/85 is not available to the goods in question. 13. emsp Having regard to the above findings, we uphold the impugned order and reject the appeals.
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1995 (12) TMI 176 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... order in the case of Quality Containers reported in 1987 (27) E.L.T. 539 which shows that aluminium tear off and tear down voil seals are seals and not caps and they are classifiable under item 68 and not item 42. 20. emsp In the absence of any detailed product description, technical write up or catalogue etc., it is not possible for us to give a definitive finding at this stage, but we feel that the Govt. of India order in Revision No. 9/81 reported in 1981 ECR 434 D and the Tribunal rsquo s order in the case of Quality Containers will have to be kept in view. Since the order of the Collector (Appeals) is evidently (wrong in so far as it relates) to the classification of the product and the extention of the benefit of the notification, we set it aside but in view of the position outlined above, we remand the matter to the Assistant Collector for reconsideration of the matter de novo with the direction that he should keep the above case law in view while deciding the matter.
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1995 (12) TMI 170 - CEGAT, BOMBAY
Modvat - Declaration ... ... ... ... ..... veal that the credit accruing on polypropylene is being drawn for the undeclared final product and hence the error or omission in non- declaring the final product could have been pointed out within the normal period of limitation. We, therefore, accept the plea that the demand is hit by time bar, apart from our accepting the plea that even if credit is sought to be denied in regard to undeclared final product, that credit could not get extinguished because of the fact that the final product, in which it has gone, is not an exempted one and such a credit would always be available for utilisation towards duty payment in regard to the declared final product master batches. This observation is only meant to show that there is no revenue implication in the final analysis. However, we are allowing the appeal only on the ground of time bar. 7. emsp Since the appeal itself is disposed of, stay application does not survive for consideration and the same is also treated as disposed of.
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1995 (12) TMI 169 - CEGAT, NEW DELHI
Demand - Limitation ... ... ... ... ..... of the Departmental Representative that, at least after the issue of the Board rsquo s Circular dated 21-9-1986, the assessee ought to have been filed a fresh report including the purity. While the Board rsquo s Circular is dated 21-9-1986 it would have taken time to travel down the various steps. Therefore the appellant rsquo s contention that on coming to know about the Board rsquo s Circular in January, 1987 from its publication in the Excise Law Times, submitted revised classification list on 15-1-1987 is convincing. 4. emsp The Supreme Court has held in a long list of judgments, the latest of which is Pushpam Pharmaceuticals v. Collector - 1995 (78) E.L.T. 401 that was the extended period under proviso to Section 11A to be invoked. Suppression must be wilful and with a view to evade duty. On the facts of this case it does not emerge that there was any wilful intent to evade duty. The demand is therefore, barred by limitation. In these circumstances, we allow the appeal.
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1995 (12) TMI 168 - CEGAT, CALCUTTA
Modvat - Rate of Credit on inputs lying in stock ... ... ... ... ..... credit rate was an exception to the normal arrangement of providing credit equal to the duty paid and the exception was applicable strictly within the period specifically applicable. As I have held that the restriction in this period was not applicable to them in the given circumstances of the case, they are eligible for the benefit as applicable after 8-12-1987. 28. emsp For the foregoing reasons, I agree with the view taken by the Hon rsquo ble Member (Judicial) and hold that the Appellants were entitled to take the modvat credit to the extent of full countervailing duty paid by them without the restriction of Rs. 800/- per tonne. 29. emsp The matter may be placed before the original Bench which heard the Appeal for passing the final order. Sd/- (K. Sankararaman) Dated 24-11-1995 Member (T) FINAL ORDER In view of the majority opinion, Appeal is allowed with consequential reliefs to the Appellants. Sd/- Sd/- (T.P. Nambiar) (P.C. Jain) Dated 26-12-1995 Member (J) Member (T)
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1995 (12) TMI 167 - CEGAT, MADRAS
S.S.I. exemption - Value of clearances ... ... ... ... ..... t entitled to S.S.I. benefit, have taken the factory on lease and have chosen to include this premises in their licence already held for three sheds. Licensing of a factory is a procedural requirement for ensuring revenue collection from the factories producing excisable goods. Merely because the respondents rsquo factory was included, during the period of lease to Polyspin Ltd. in the licence of Polyspin, it cannot be held to be ineligible for exemption, when the lease is terminated and run by the respondents. We are told that if value of clearances from the respondent rsquo s shed effected by Polyspin Ltd. is taken into account, this is within 1.5 crores during the preceding financial year. If that be so, in such a factory, run by the respondents as also by Polyspin Ltd. value of clearances as per condition 3 of the notification is within the limit. Hence, we find no reason to interfere with the order of the Collector (Appeals). 6. emsp Appeal from the revenue is dismissed.
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1995 (12) TMI 166 - CEGAT, MADRAS
... ...
... ... ..... unsel had referred to the Tribunal rsquo s decision in the case of CC, Bombay v. M/s. Birla Yamaha Ltd. reported in 1995 (77) E.L.T. 170 where it had been held that the technical knowhow fees and royalty being payable for right to produce finished products in India were not to be added to assessable value. Reference was also made to the Supreme Court decision in the case of UOI v. Mahendra and Mahendra Limited 1995 (76) E.L.T. 481 (SC) wherein the Supreme Court had held that in the absence of any nexus between the payment for knowhow transfer and that for the goods imported in that case the value of the CKD packs was not loadable. In the case before us, goods imported are in the nature of a raw material and as we find that there was no obligation to purchase them exclusively from the collaborator, in our view there is no ground for loading the invoice and we find no infirmity in the order passed by the C.C. (Appeals) in this regard. We confirm the same and reject the appeals.
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1995 (12) TMI 165 - CEGAT, MADRAS
Exemption - Use of power ... ... ... ... ..... cited supra. Whatever, be our view, the fact is clear that there was a contemporary exposition of law by the highest administrative body namely, Central Board of Excise and Customs, which was binding on all the Departmental Authorities. Similarly placed units would have got the benefit of these Board rsquo s instructions. In the facts and circumstances, we would not like to discriminate against the appellants by taking a different view. Moreover, Sh. Sreedharan rsquo s plea on the ground of time bar also has considerable weightage, inasmuch as even the Departmental Authorities were taking a view regarding the availability of exemption under Notification 179/77 and hence the appellants declaration only in respect of the value of empties for the purpose of exemption under notification 105/80 cannot be construed to be a deliberate mala fide declaration. Hence, on the ground of time bar also, they appear to be having a case. Hence, we allow the appeals with consequential relief.
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1995 (12) TMI 164 - CEGAT, BOMBAY
Demand - Show Cause Notice ... ... ... ... ..... on of a co-ordinate Bench of the Tribunal. I therefore, have to follow respectfully the ratio of the order of the Supreme Court reported in the Court Room Highlights in the aforesaid case. Going by the Supreme Court order and applying the same, to these appeals, I find that the notice has been issued within six months and the jurisdictional Collector holds that this is not a fit case for making any allegation of suppression etc. for imposing penalty as is evident from the appeal filed by him. The Collector (Appeals) ought to have gone into the merits with regard to the sustainability of demand and decided the case on merits of the demand. As regards the penalty, in view of the circumstances discussed, it may not be called for in a case like this. 8. emsp With the aforesaid observations, I allow the appeals from the Revenue and remand the case back to the Commissioner of Central Excise (Appeals), Bombay for deciding the appeals on merits and pass orders in accordance with law.
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1995 (12) TMI 163 - BOMBAY HIGH COURT
Warehoused goods with Port Trust ... ... ... ... ..... he learned counsel for the B.P.T. made an application that, in the present case, there is suppression of material facts. Accordingly, the matter was kept for further arguments on 19-12-1995. B.P.T. has filed further Affidavit on 18-12-1995. However, without going into the allegations made by the B.P.T. in the said Affidavit, dated 18-12-1995, in view of the above facts and in view of the legal position referred to hereinabove Petition is required to be dismissed. 11. emsp Subject to what is stated hereinabove, in the facts and circumstances of the case, no interference is called for. In the present case, importers were given full opportunity to clear the goods. In the present case. I do not find any arbitrariness or mala fides as alleged by the Petitioners. Hence, Writ Petition fails. Rule is discharged with no order as to costs. Mr. Mehta applies for stay of the order for 6 weeks. In the facts and circumstances of the case, stay refused. Issuance of certified copy expedited.
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1995 (12) TMI 162 - CEGAT, NEW DELHI
Modvat credit ... ... ... ... ..... o duty payable on the finished product. The consequence of opting for the benefit of Small Scale Sector Exemption Scheme is that for the first clearances upto 30 lakhs nil duty is payable on the finished product. On the raw materials in stock on 1-4-1990 in respect of which duty element had been credited in the relevant register, appellant would not be entitled to Modvat credit since those raw materials would be used in the manufacture of finished goods only after 1-4-1990 and such finished goods would bear nil duty. Therefore duty element on raw materials in stock could not be credited under the Modvat scheme. Similarly, the finished products in stock on 1-4-1990 would also bear nil duty. Therefore to the extent of duty element in the raw materials used for the manufacture of finished goods lying in stock on 1-4-1990, Modvat credit could not be availed. 5. emsp The contention of the appellant is without merit. The impugned orders are correct. Appeal is accordingly dismissed.
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1995 (12) TMI 161 - CEGAT, NEW DELHI
Modvat - Opting out of Modvat Scheme for availing SSI exemption ... ... ... ... ..... Collector (Appeals) had grossly erred in holding that refund was admissible to the respondents herein. The learned SDR also submitted that the manner of utilization of modvat credit was specifically laid down in Rule 57F and there was no provision for refund as claimed by the respondents herein. 5. emsp Heard the submissions of the learned SDR and perused the orders passed by the lower authorities. I find that the only Rule, under Central Excise Rules laying down the procedure for utilization of modvat credit is Rule 57F. Rule 57F(3) does provide for refund of credit of duty paid on inputs in the circumstances stated therein. As there is no provision for refund of duty except the one pertaining to the finished product being exported, I find that the finding of the Collector (Appeals) is not justifiable in law. Having regard to this view, I hold that the refund was not admissible to the respondents herein. Accordingly, the impugned order is set aside and the appeal is allowed.
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1995 (12) TMI 160 - CEGAT, NEW DELHI
Appeal - Early hearing ... ... ... ... ..... ave been sent to the applicants. 3.2 emsp In view of this, since no notice appears to have been issued the application is restored and taken up for hearing on merits for early hearing. 4. emsp Ld. Advocate submits that the applicant is 62 years old. He is drawing pension and has income only to cover daily expenses. The appellant is also a patient of hypertension and coupled with his age this calls for early hearing of the case since prima facie the merits are in their favour. 5. emsp Ld. DR has no objection to the early hearing. 6. emsp Considered. In view of the reasons furnished by the Ld. Advocate, I consider this fit case for early hearing. The matter is posted for hearing on 4th Dec., 1995. Ld. Advocate takes notice.
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1995 (12) TMI 159 - CEGAT, NEW DELHI
Modvat - Argon gas ... ... ... ... ..... facilitates homogenising the temperature of the liquid steel in the ladle. He contended that argon gas was a consumable item and is an essential input in or in relation to the manufacture of steel. He, therefore, pleaded that the impugned order may be set aside and the appeal may be allowed. 3. emsp On behalf of the respondent Shri P. Dass, learned SDR reiterated the findings in the impugned order. 4. emsp I have considered the submissions made on behalf of both sides. It is seen that the Collector (Appeals) has held that argon gas is in the nature of tool or appliance. According to the appellants argon gas is used for homogenising the temperature of liquid steel in the ladle. I am inclined to agree with the appellants rsquo contention that argon gas in question is a consumable item and is used in or in relation to the manufacture of steel. It cannot by any stretch of imagination be deemed as tool or appliance. I, therefore, set aside the impugned order and allow the appeal.
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1995 (12) TMI 158 - CEGAT, NEW DELHI
Demand - Unjust enrichment ... ... ... ... ..... the respondent had been sanctioned and the amount of refund had actually been paid before coming into force of the Central Excise and Customs Laws (Amendment) Act, 1991, dated 18-9-1991. There was no legal basis on the part of the Revenue to demand amounts on the grounds of unjust enrichment. 3. emsp No one is present on behalf of the respondent. On behalf of the appellant-Collector, Shri Y.R. Kilania, JDR reiterated the grounds as given in the Memo of Appeal. 4. emsp In this case, as pointed out by the Collector (Appeals) the refund amount had been sanctioned and also paid before coming into force of the Central Excises and Customs Laws (Amendment) Act, 1991. I am, therefore, inclined to agree with the finding in the impugned order that there is no provision in law to invoke the provisions of the said amendment dated 18-9-1991 on the ground of unjust enrichment. I therefore do not find any infirmity in the impugned order. 5. emsp The appeal filed by the Revenue is rejected.
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1995 (12) TMI 157 - CEGAT, NEW DELHI
Import-Export ... ... ... ... ..... of the quantity of 36104.50 Kg, they have contravened the condition stipulated in the above notification. Similar is the provision regarding utilisation of exempt material imported under a licence under the Import-Export Passbook Scheme as seen from Para 281 thereon. The further contention of the appellants that in the absence of any charge that the imported material had been loaned or sold or transferred or disposed of contrary to the condition of the notification, there is no warrant for penalty in terms of Section 112(a), cannot also be accepted as we find that the charge against the appellants is of contravention of Section 111(o) of the Customs Act which charge has been established in the above paragraphs and hence the provisions of Section 112(a) are attracted to the facts of this case. In the result, we uphold the order of the Additional Collector of Customs but however reduce the penalty imposed on the appellants to Rs. 40,000/-. The appeal is disposed of accordingly.
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1995 (12) TMI 156 - CEGAT, BOMBAY
Refund of pre-deposit ... ... ... ... ..... e unable to agree with the contention raised by Shri K.M. Mondal, the ld. SDR. Any demand confirmed by the lower adjudicating authority, if challenged by way of appeal, as provided under the law, the appeal itself could be construed to be a protest against demand. Moreover, as per the statutory requirements, if the amount is required to be deposited, so that the appeal could be heard on merits, that payment cannot be construed to be a voluntary payment and has to be construed only as a payment for fulfilling the statutory obligations. When the assessee succeeds in the appeal and the amount paid in fulfilling the statutory requirements under Section 35F of the Act becomes refundable to them, the question of bringing in the time limit prescribed under Section 11B or insisting on a separate letter of protest before payment, does not arise. We therefore see no merit in the appeal. Hence we dismiss the appeal and the stay application may also be treated as disposed of accordingly.
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1995 (12) TMI 155 - CEGAT, NEW DELHI
Remission of duty for loss of goods due to theft ... ... ... ... ..... the warehouse within 48 hours after the discovery of such loss of the goods. In the present case, the appellants had not been diligent and had also not informed the department immediately on lodging the FIR but they have taken their own time to inform the department through the R.T. 12 returns. Even after the show cause notice was issued they did not come up with the defence for seven months. The appellants had informed about the theft on 16-1-1990. The Supdt. Central Excise by his letter dated 17-1-1990 pointed out to the party that the FIR revealed about the theft had occurred on 25-11-1989 and hence he called upon them to inform the full progress of the case. The appellants neither informed the department nor replied to the show cause notice. The police have closed the case on investigation. In view of this specific Rule 147 and also for the reasons given in the impugned order and as stated in this order, there is no merits in this appeal and hence the appeal is rejected.
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1995 (12) TMI 154 - CEGAT, NEW DELHI
Modvat credit ... ... ... ... ..... so submitted that they had submitted endorsed copy of the original gate pass. I find that the appellants contention that the original gate pass duly endorsed in their favour and submitted to the Department needs to be examined. The gate pass having been endorsed in favour of their Head Office at Kanpur instead of the factory located at Fatehpur should, in my view, not stand in the way of their availing Modvat credit. Hence in case the original gate pass duly endorsed was produced and the goods in question were actually received in the factory and consumed as an input would be eligible for Modvat credit. I therefore set aside the impugned order and remand the matter to the officer having jurisdiction to re-adjudicate the case after ascertaining the fact in this regard and keeping in view the observations made by me in this order. I direct that before deciding the appeal the appellants should be granted personal hearing. 5. emsp The appeal is therefore allowed by way of remand.
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1995 (12) TMI 153 - CEGAT, NEW DELHI
Modvat - Aluminium bronze rods and phosphor bronze wire ... ... ... ... ..... ound that the sale invoice does not indicate this. The verification of the figures in the documents shows that special excise duty has been paid although it is not shown separately. DR also agrees this to be the case. Collector rsquo s findings in this regard are set aside and credit allowed. (D) E/1857/93-NB The denial of credit on aluminium scrap supplied by the manufacturer is confirmed for reasons indicated above. Credit has been refused on lead oxide only for failure to declare it. We agree that is governed by the description in 2(B) 18 page 1 - while its correct classification is under a different Chapter as an oxide of lead, the fact remains the same that it was cleared as a paint. Credit cannot be refused because of incorrect classification by the supplier. The McGraw Hill Dictionary of Scientific and Technical terms also shows on one of the uses of oxide of lead is described as paints. We therefore, allow credit on this point. The appeals are disposed of accordingly.
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