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Case Laws
Showing 161 to 180 of 305 Records
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1995 (12) TMI 152 - CEGAT, NEW DELHI
Money credit ... ... ... ... ..... e care of the inputs received immediately before obtaining the dated acknowledgement of the declaration. But it cannot be that in the absence of such a transitional provisions, the receipt of the inputs should be left in the lurch. As stated earlier, the actual wording of Rule 57-O requires that credit can be taken only after obtaining the dated acknowledgement but it is not specifically limited to only inputs received after obtaining the dated acknowledgement. The safeguards built into Rule 57H for Modvat cases are available in the elaborate Notifications themselves. If these are taken care of, the availment of money credit will be in conformity with the provisions governing Money Credit Scheme. On that note, we set aside the order and allow the appeal subject to the condition that the appellants satisfy the Assistant Commissioner that their taking the credit and utilising it were as permitted in the relevant Notification (No. 45/89) and subject to its procedural safeguards.
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1995 (12) TMI 151 - CEGAT, NEW DELHI
Demand - Clandestine removals ... ... ... ... ..... s not very clear as has been pointed out by the learned Consultant as to how the demand in this case has been computed. It is also not ascertainable from the record as to the basis on which rate of duty has been applied to arrive at the duty demandable in this case and as to whether such an application of rate of duty would be in consonance with the terms of Rule 9A(5) of the Central Excise Rules. Since the facts for clarifying this aspect are not before us, we would direct the Collector to consider this aspect and re-compute the demand by correct application of the provisions of Rule 9A(5) relating to the rate of duty to be applied. As regards the penalty on the appellant, we feel that in the absence of clandestine removal, having been actually established with reference to material evidence, some relief is called for in the quantum of penalty. We, therefore, reduce the penalty imposed on them from Rs. 1,50,000/- to Rs. 50,000/-. The appeal is disposed of in the above terms.
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1995 (12) TMI 150 - CEGAT, NEW DELHI
Valuation of captive consumption ... ... ... ... ..... (Appeals) to justify the percentage determined by each of them. The Assistant Collector rsquo s statement that other manufacturers of the product earn 10-30 profit is not supported by any evidence. The reduction of this figure by Collector (Appeals) is also not seen to be based on any evidence. On being asked the advocate for the respondent stated that it would be possible to furnish to the department the profit, if any, that was actually being earned by manufacturers of this product on its sale. We therefore consider it proper that the assessable value should be fixed on the basis of actual profit that would have been earned by the assessee if it had sold the goods, based on profits that other sellers of this product had earned. We therefore allow this appeal by remand. 4. The Collector (Appeals) shall determine afresh the actual margin of profit, based on the data that the respondent supplies and, if necessary his own enquiries and shall pass orders in accordance with law.
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1995 (12) TMI 149 - CEGAT, CALCUTTA
Plastics - Waste and scrap not synonymous ... ... ... ... ..... Para 27(2). Obviously, Para 27(2) does not apply to Plastic Scrap which arises in the course of manufacture of various plastic articles in a factory. It is clear from the various documents on record including the Test Report of the Chemical Examiner, that the goods are Plastic Scraps and not Plastic Wastes. In this view of the matter, Para 27(2) as relied upon by the authorities below for confiscating the goods in question has no application in the present case. 9. emsp I am also inclined to agree with the second plea of the learned Consultant that the requirement of a licence or otherwise, is to be seen from the Policy and not from the Handbook of Procedures. It is the Policy which lays down the substantive restrictions. Handbook merely prescribes certain administrative guidelines and may not necessarily flow from the Policy. In view of the aforesaid observations, I allow the appeal, while setting aside the impugned order, with consequential relief to the appellants herein.
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1995 (12) TMI 148 - CEGAT, DELHI
Penalty when sustainable but reduciable ... ... ... ... ..... penalty of Rs. 15,000/- imposed under Rule 173Q(1)(a) is concerned it is seen that there is a clear admission by the appellants that they were not paying correct duty on the goods cleared by them since they had deposited the differential duty of Rs. 5,300/- and have not contested the allegation that the duty payable on the goods is 10 ad valorem and not at 5 ad valorem as paid by them. The appellants have also not explained the shortage of 164.1 kgs. of DPC Copper Wire with reference to the RG-1 balance which was deducted by the Central Excise Officers. Under these circumstances I find that the order holding that the appellants were liable for penalty under Rule 173Q(1)(a) is sustainable. However, having regard to the overall facts and circumstances of the case and also taking into account the fact that the differential duty involved I reduce the penalty imposed under Rule 173Q(1)(a) from Rs. 15,000/- to Rs. 1,000/- only. 5. emsp The appeal is disposed of in the above terms.
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1995 (12) TMI 147 - CEGAT, NEW DELHI
Modvat - Dry ice ... ... ... ... ..... is transported to the market would be admissible for Modvat credit. On behalf of the respondent Shri P. Dass, SDR reiterated the finding in the impugned order. He, however, conceded that the matter stands settled by the Tribunal rsquo s decision cited by the Ld. Counsel for the Appellants. 3. emsp I have considered the submissions made on behalf of both sides. It is seen that in the case of CCE, Meerut v. M/s. Mon-Santo Manufacturers (P) Ltd. vide Final Order No. A/770/93-NRB the Tribunal has held that solid carbon-di-oxide used in the container for transporting Ice Cream and Kulfi would be eligible for availment of Modvat credit. Following the decision of the Tribunal I set aside the impugned order and allow the appeal.
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1995 (12) TMI 146 - CEGAT, MADRAS
Reference to High Court - Modvat ... ... ... ... ..... ading was given declaring the input as cement, but the proper description should have been Sulphate Resistant Cement instead of Cement. 4. emsp We have considered the submissions made by both the sides and gone through the records. We take note of the fact that MODVAT Scheme was introduced in 1986 and extended the benefit for cement in 1987 and further keeping in mind the Tariff Heading 2502 given by the appellant covering cement, the input in question, and also following the ratio of the aforesaid rulings, we are inclined to think that a question of law would arise meriting reference and in this view of the matter, we refer the following question to the High Court of Karnataka in terms of Section 35G (1) of the CESA, 1944 ldquo Whether the declaration filed by the applicant declaring cement as input and also giving Tariff Heading 2502 under Central Excise Tariff Act, 1985 is correct in terms of Rule 57G of the Central Excise Rules, 1944 for availment of MODVAT Credit? rdquo
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1995 (12) TMI 145 - CEGAT, NEW DELHI
Paper cutting machine - Confiscation and penalty ... ... ... ... ..... reads as follows Paper or paper board cutting machines of all kinds other machinery for making up paper pulp, paper or paper board rsquo Heading 84.41 of the HSN reads as follows Other machinery for making up paper pulp, paper or paper board, including cutting machines of all kinds rsquo . Explanatory Notes 84.33 of the CCCN provides that the Heading includes ldquo slitter-reelers rdquo for unwinding reels of paper and cutting the paper into bands of required width and rewinding it. The Explanatory Note to Heading 84.41 of the HSN includes Winders (slitter-winders) for unwinding reels of paper, slitting the paper into bands (slits) of the required width and rewinding it rsquo 3. emsp Thus, a slitter cum rewinding machine is internationally recognised as a paper cutting machine. In this view of the matter, we set aside the findings of the Adjudicating authority that the machine imported by the appellants is liable to confiscation, set aside the penalties and allow the appeals.
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1995 (12) TMI 144 - CEGAT, NEW DELHI
Confiscation and penalty ... ... ... ... ..... ollection of duty which may arise under various circumstances and circumstances would certainly arise in cases where the authorities of Customs Department may come across certain goods which are covered by the said scheme and find irregularities or evasion of Customs duty and in such of these instances what they will have to do is to forward the particulars which have come to their notice to the Controller of Imports and Exports, who will have to take the follow-up actions and determine whether any Customs duty would become payable as stipulated in the scheme rdquo . 5. emsp In this case in all the three licences there is an endorsement from the appropriate licensing authority that the export obligation have been met by the appellants. We, therefore, hold that confiscation of the PVC leather cloth is not warranted and set aside the same. We also set aside the penalties imposed on the proprietary concern and its proprietor. Impugned order is thus set aside and appeals allowed.
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1995 (12) TMI 143 - CEGAT, MADRAS
Modvat - Regulator for ceiling fan eligible to Modvat Credit ... ... ... ... ..... reme Court in the case of Eastend Paper Industries reported in 1989 (43) E.L.T. 201 (SC). Following these decisions we are to hold that regulators, though externally fitted, are indispensable parts of the ceiling fan irrespective of fan can function without regulator. Fans cannot be marketed without regulator at the factory gate. 2. emsp Before parting with this order we would like to observe that in the case of engineering goods, it is not always the position that the components go in to the final product for its operation. In the case of table fans, the regulator is fitted to the fan itself whereas in the case of ceiling fan, regulator is fitted externally. This does not mean that regulator fitted in table fan is eligible for MODVAT Credit while regulator for ceiling fan is not eligible for the same benefit. What has to be seen is whether regulator is an indispensable part of the fan and whe- ther fan can be marketed without regulator. In view of above, we allow the appeal.
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1995 (12) TMI 142 - CEGAT, NEW DELHI
Steam produced and supplied to a `factory’ ... ... ... ... ..... venue does not satisfy the definition of factory given in Central Excises and Salt Act, 1944. We find that this factory is also making Fusel Oil and in fact this was correctly relied upon by Collector (Appeals) in holding in their favour. Since the only ground on which it was proposed to deny exemption to them has been squarely met we cannot travel beyond Show Cause Notice in giving a finding. In the case of Rephael Pharmaceuticals Pvt. Ltd. v. Superintendent of Distilleries, 1988 (38) E.L.T. 11 (AP) it was held by Hon rsquo ble High Court of Judicature, Andhra Predesh that, since the basis on which the Appellate Authority or the assessing authority gave the finding is not the basis mentioned in the demand notice, the orders of authorities below are quashable. On this ground, therefore, we reject the Revenue appeal and uphold the impugned order. For the reasons mentioned while dealing with Appeal No. E/3053/86-C we allow Appeal No. E/798/89-C and set aside the impugned order.
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1995 (12) TMI 141 - CEGAT, NEW DELHI
... ...
... ... ..... dum. The first is that further depreciation of 3 should have been allowed. Having regard to the date of manufacture of the car and the date of import, the claim made is reasonable and genuine. Therefore, further depreciation of 3 is allowed. 5. emsp The second contention relates to the correctness of the freight charges added. The car was imported in a container. The Asstt. Collector obtained the actual freight charges and included the same. We find no ground to interfere in this behalf. 6. emsp The third contention relates to the air-conditioner. According to the appellant, it should have been treated as part of the car for the purposes of duty. We do not agree. Air-conditioner cannot be regarded as a necessary accessory of the car. We notice that on the air-conditioner the duty payable is less than that on the car and only lesser duty has been charged. This contention is also rejected. 7. emsp Appeal is dismissed. We grant partial relief to the appellant as indicated above.
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1995 (12) TMI 140 - CEGAT, NEW DELHI
Import - OGL ... ... ... ... ..... ed that wrong goods were sent by mistake and expressed readiness to take back the goods. It is surprising that in the face of such a serious blunder, appellant was content with a telephone conversation and did not put its objection in writing to the supplier. In these circumstances, it is difficult to accept that wrong goods were sent under a bona fide mistake. It is significant to note that in spite of a clear mis-description being made out even at the earliest stage, appellant did not produce before the Collector copy of the original order placed for the supply of goods. That would have made it clear whether the goods ordered were magnetic locks or mechanical number locks. In these circumstances, we are not persuaded to agree that the appellant should be allowed to re-export the goods. 13. emsp However, in the circumstances, we reduce the redemption fine from Rs. 5 lacs to Rs. 3 lacs. Penalty is reduced from Rs. 50,000.00 to Rs. 30,000.00 14. Appeal is accordingly disposed.
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1995 (12) TMI 139 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... age which keeps them in place and ensures that their spacing remains constant. PARTS 1. emsp ......... 2........... 3........... 4.Rings, cages, fixing sleeves, etc. 20. emsp Hence, the roller retainers/metal cages are rightly classifiable under Customs Tariff Heading 84.62 as it stood at the relevant time. 21. emsp This heading is however, not covered by the exemption Notification No. 35/79. Therefore, the Asstt. Collector was right in denying them the benefit of this notification. 22. emsp In view of the above position, we hold that foot step bearings are correctly classifiable under Heading 84.63 as bearings and metal cages which are parts of bearings are not eligible for exemption under Notification No. 35/79. 23. emsp The order of the Collector (Appeals) is modified to the above extent and the Asstt. Collector rsquo s order is restored in full and confirmed. 24. emsp Accordingly, the department rsquo s appeal stands accepted and the assessee rsquo s appeals are rejected.
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1995 (12) TMI 138 - CEGAT, CALCUTTA
Reference to High Court ... ... ... ... ..... ). On the ratio of the decisions of various Courts including the case of Solar Pesticides, it has been held in those cases that the question ldquo unjust enrichment rdquo arises only in those cases when the duty paid goods are sold as such and not after any processing of those goods. This is also, apparent, as pointed out above, from the legal presumption made in Section 12B of the Act. In view of the foregoing, both the questions, as raised by the Collector, stand already decided by judgments of various High Courts one of which in turn relies upon a judgment of Supreme Court in the case of H.M.M. Limited v. The Administrator, Bangalore City Corporation (A.I.R. 1990 SC 47). Therefore, no question of law, as raised by the Collector in the subject Reference Application, arises in the case. Accordingly, the Reference Application is rejected. 5. emsp The Stay Petition filed by the Revenue also stands rejected in view of the above order of rejection of their Reference Application.
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1995 (12) TMI 137 - CEGAT, NEW DELHI
Demand - Limitation ... ... ... ... ..... deny the benefit of Notification 105/80, if in his opinion, this benefit was not available in these circumstances. But in spite of it, he approved the classification list - a fact which has not been denied Hence the appellant would not be charged with suppre- ssion or mis-statement of facts with an intention to evade duty. It is significant in this connection that another Assistant Collector vide order dated 29-11-1983 has observed inter alia that allegation of suppression of facts was not sustainable as permission to work under Rule 56C had been granted. This order relates to the period immediately following the period of demand in the present case but refers to the permission under which they were operating during the relevant period. 8. In the above circumstances, the extended period of time was not available to the Department. Hence, the demand was time-barred. As such without going into the merits of the case, the impugned orders are set aside and the appeal is accepted.
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1995 (12) TMI 136 - CEGAT, NEW DELHI
Reference to High Court ... ... ... ... ..... exemption Notification No. 345/86 was also involved and on this point, the matter had been remanded. 8. emsp Learned counsel stated that in view of the language of the Section 130, if a question relating to rate of duty is one of the issues involved, then also no reference lies. 9. emsp We observe that the learned counsel is correct. A reading of Section 130 of the Customs Act shows that if the order relates, among other things, to the determination of any question having a relation to the rate of duty of customs or to the value of goods for purposes of assessment, no reference lies to the High Court. Since interpretation of exemption notification is one of the points involved in the present case, no reference would lie to the High Court under this provision. We also observe that the learned counsel is right in citing the orders and judgment mentioned above. 10. In view of the above position, we hold that the reference application is not maintainable. It is dismissed as such.
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1995 (12) TMI 135 - CEGAT, NEW DELHI
Valuation - Misdeclaration ... ... ... ... ..... e circumstances of the case, we agree that there is no ground for ordering mutilation. 11. emsp On the question of jurisdiction also, the adjudicating authority had discussed the matter in para 12 of his order. We agree with him that the seizure of the goods as well as issue of the show cause notice by the DRI could not be said to be without jurisdiction. 12. emsp The Collector of Customs had ordered that the impugned goods should be assessed to duty as acrylic tow of prime quality under Tariff Heading No. 5501.30 and the assessable value of the goods should be determined on the basis of CIF value of US 1.76 per kg. We confirm this part of the Order. 13. emsp However, keeping in view the overall circumstances of the case we reduce the amount of fine from Rs. 2 lakh to Rs. 1 lakh (Rupees One lakh only) and the amount of penalty from Rs. 1 lakh to Rs. 50,000/- (Rupees Fifty thousand only). Subject to above modifications, the impugned order is confirmed and we order accordingly.
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1995 (12) TMI 134 - CEGAT, NEW DELHI
Valuation - Best judgment assessment ... ... ... ... ..... 14 of the Customs Act, with which application of Rule 8 assessment of value should be shown to be consistent. In the circumstances, the valuation based on invoices which were at much lower commercial level and in the absence of qualitative comparison, cannot be considered as well founded. In this context, the mode of purchase of the watch parts by weight and the claim that a part of the consignment is unusable and that the usable parts go into production of only cheap watches also assumes relevance. Therefore, it is held on the facts and in the circumstances of this case that the enhancement of assessable value is unsustainable. But the violation of Import Trade control provisions remains and is also not seriously challenged, and hence the consequential order of confiscation is upheld. However, in view of the findings, as above in regard to valuation, the redemption fine is reduced to Rs. 3 lakh and the penalty to Rs. 50,000/-. The appeal is partly allowed in the above terms.
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1995 (12) TMI 133 - CEGAT, NEW DELHI
Valuation - Assessable value - Undervaluation ... ... ... ... ..... lier, and in Orson Electronics, the importer, is also a very relevant factor in this context, and it hardly sounds plausible that vital policy decisions on pricing, involving such heavy stakes, would have been taken at lower levels, as appellant Chhabria would have us believe, or that directions to stop the price manipulation, emanating from the Chairman controlling both the firms, would have gone unheeded. It is also significant that appellant Chhabria ultimately neither gave his explanation for the irregularity in pricing, nor located the person responsible, as he had promised in his various statements. In such a context, it is no argument to say that since the Collector had not penalised Shri Bhatia, ipso facto he should not have imposed penalty on appellant Chhabria. Therefore, penalty on Shri Chhabria is sustainable, and, in the facts and circumstances of the case as discussed above, appellants Orson Electronics have also been rightly penalised. The appeals are rejected.
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