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Showing 81 to 100 of 227 Records
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1995 (5) TMI 161
Stay/Dispensation of pre-deposit ... ... ... ... ..... vation in regard to stand taken by the appellants in support of their claim for credit at the rates specified in the table attached to Govt rsquo s letter dated April 7, 1986. 7.2 emsp Once a stand had been taken, it was for the Collector to have tested the evidence submitted in support of the stand and thereafter arrive at a finding in regard to the admissibility of the claim. 8. emsp We are, therefore, satisfied that at this stage the appellants have succeeded in making out a strong prima facie case in their favour. We, therefore, waive the requirement of pre-deposit of duty and penalty and stay recovery thereof till pendency of the appeal. 9. emsp The Ld. D.R. referred to the observations made in the Order about Modvat Scheme which is intended to avoid only cascading effect of taxes and not to enrich the industry. In view of this, and the fact that revenue involved is heavy, the Deptt. may move an application for Early Hearing of the case for final decision, if so advised.
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1995 (5) TMI 160
Reference to High Court - Modvat ... ... ... ... ..... case of ramming mass as held above, the same is not eligible for the benefit of MODVAT credit. rdquo In this regard, it has been considered by the Tribunal that the use of garnex board is like that of a ramming mass and since a question of law has been allowed in the case of ramming mass, we allow the appellants prayer in regard to this item also for referring the matter to the Hon rsquo ble High Court as a question of law. 5. emsp In view of the above, we refer the following question of law for reference to the Hon rsquo ble High Court u/s 35G of the Central Excises and Salt Act, 1944 - ldquo Whether in the facts and circumstances of the case the appellate Tribunal is right in law in holding that the ramming mass and garnex board taking into consideration the use for lining the furnace cannot be held to be an input in or in relation to the manufacture of iron and steel, the final product declared by the appellants in terms of Rule 57A of the Central Excise Rule, 1944? rdquo
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1995 (5) TMI 159
Appellate Tribunal - Registry - Evidence ... ... ... ... ..... be submitted before the Asstt. Collector of Central Excise to whom the matter has been remanded. 2. emsp As pointed out by the DR, I am extremely doubtful that whether Misc. application would lie and therefore, dismiss it. However, Registry is directed to return the documents to the appellant within 15 days from the date of receipt of this order. The matter may, thereafter be placed before the Vice President to consider whether directions may be issued to registry in order to avoid this type of unnecessary work.
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1995 (5) TMI 158
Confiscation - Penalty ... ... ... ... ..... to them by Captain Bloore one behalf of M/s. Hofflinghouse, they made arrangements by appointing stevedores for unloading the cargo. In pursuance of their arrangements the unmanifested cargo of 524 pieces were unloaded. It is thus seen that their act in getting these unmanifested cargo has made the above goods liable for confiscation and on the same principle as discussed above by us and in the decisions cited supra, they are liable to be penalised. Mens rea or their mental state is irrelevant in imposing the penalty under Section 112(a) of the Customs Act, 1962. For the reasonings given by us above, the appellants, M/s. Oceanic Shipping Agency Pvt. Ltd. are also liable to be penalised and accordingly, the penalty imposed on them is in accordance with law. However, in the facts and circumstances of the case, the penalty is reduced to a sum of Rs. 50,000.00 (Rupees fifty thousand only). But for this reduction of penalties in the above two appeals, they are otherwise dismissed.
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1995 (5) TMI 157
Natural justice - Stay/Dispensation of pre-deposit ... ... ... ... ..... thority. In case manufacturer rsquo s price list relied upon by the Collector has been taken from some other source i.e. from a source other than M/s. Nippon Machineries and Bearings, then the Collector shall disclose that source too, to the appellants and also offer a representative of that source to be cross-examined by the appellants. With the aforesaid directions we allow the appeal by way of remand to the Collector of Customs, Calcutta. 8. emsp At this stage, ld. Advocate has prayed that a time-frame be fixed for the adjudication of the case afresh inasmuch as part of the goods are lying in the custody of the Department and they have not been able to obtain release thereof in view of the high differential duty involved as a result of high valuation fixed by the Department. 9. emsp Having regard to the overall facts and circumstances of the case we accede to this prayer and direct the Collector to decide the case within three months from the date of receipt of this order.
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1995 (5) TMI 156
Modvat Credit ... ... ... ... ..... . 203/87 became operative. With the above observation we dismiss the appeal filed by the Revenue. rdquo 7. emsp We observe that we have interpreted Rule 57F under which duty can be recovered by the Revenue in respect of inputs which are lying in stock as above as and when these are cleared for home consumption. Our observation is in line with the opinion tentatively expressed by the Larger Bench in para 17.2 extracted above. We, therefore, find no reason to depart from our earlier decision which has been followed by the learned lower appellate authority while passing his order. We, therefore, find no infirmity in the order of the learned lower authority. The appeal is therefore dismissed. 8. The cross objection filed is in the nature of comments and the same is dismissed as not maintainable in law. 9. emsp We, therefore following the ratio of our earlier rulings referred to above, hold that there are no merits in the plea of the Revenue and therefore, the appeal is dismissed.
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1995 (5) TMI 155
Appeal - Single appeal against composite order ... ... ... ... ..... re than one Appeal arises mainly on account of the fees required to be paid to the Tribunal. Otherwise, such a dispute has no further consequences. I think, it would be better for the executive authorities to consider whether the position in law is required to be made clear in this respect. From the practical point of view, it is unnecessary to ask an Appellant to file more than one appeal when there is a common order passed by a lower authority. It is creation of unnecessary and avoidable scriptory work. 17. emsp So far as the question of fees is concerned, authorities may like to consider whether fees can be fixed on the basis of total value involved by way of demand of duty/interest/Redemption fine/penalty in a case, subject to a minimum fees prescribed in any matter irrespective of the value. 18. emsp I, therefore, direct the Registry to send a copy of this order to the Additional Secretary (Administration), Department of Revenue for further necessary action at their end.
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1995 (5) TMI 154
Modvat credit - Restoration of - Limitation ... ... ... ... ..... by itself does not render the Rule unreasonable or violative of Article 14 of the Constitution. In the absence of any period of limitation it is settled that every authority is to exercise the power within a reasonable period. What would be reasonable period, would depend upon the facts of each case. Whenever a question regarding the inordinate delay in issuance of notice of demand is raised, it would be open to the assessee to contend that it is bad on the ground of delay and it will be for the relevant officer to consider the question whether in the facts and circumstances of the case notice of demand for recovery was made within reasonable period. No hard and fast rules can be laid down in this regard as the determination of the question will depend upon the facts of each case. rdquo I therefore order that subject to the limitation as above the appellants would be eligible to the Modvat credit as prayed for, Ordered accordingly and the appeal is allowed in the above terms.
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1995 (5) TMI 153
Seized goods ... ... ... ... ..... er officer and not the Collector, who passed the order allowing extension. 7. emsp In the impugned order it is stated that the seized goods were released to the appellants provisionally on 22-11-1993. Reference has been made to the judgment of the Supreme Court in Lokenath Tolaram v. B.N. Rangwani 1983 (13) E.L.T. 1520 (SC) laying down that where goods have been released provisionally subject to the undertaking that the goods will be produced when the department wants them to do so, no extension of time for issue of show cause notice is required. The liability of the department under Section 110 of Customs Act in respect of seized goods where show cause notice is not issued within six months is only to return the goods. It does not affect the right to proceed in the matter under Sec. 124 ibid. Where the goods were released already, the question of any liability under Sec. 110 does not arise. The objection taken has no basis. The appeal is devoid of any merit and is dismissed.
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1995 (5) TMI 152
Demand - Modvat ... ... ... ... ..... use the losses were reported around 10 it cannot be held that such figures did not represent the correct position and that the inputs were not accounted for. Moreover, the normal quantum of losses as per the enquiries conducted is reported to be in the range of 5 to 8 . There is no reason indicated, why the minimum level has been applied and excess thereabove disallowed. The method employed is arbitrary and cannot be upheld. The amount of duty involved is also about Rs. 10,000 /-. If there was some doubt felt by the Assistant Collector that the respondents had not accounted for the inputs sent out by them to their job workers for processing and had shown excess losses. The findings have not been supported by any reliable enquiry and data arrived at. The respondents, in any case, are entitled to the benefit of doubt. I accordingly dismiss the appeal in regard to the plea for restoration of the Assistant Collector rsquo s order. 10. The appeal is disposed of in the above terms.
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1995 (5) TMI 151
Classification ... ... ... ... ..... nts. The fact that the instrument may have been calibrated to detect the defects of or about a particular size is not synonymous with each of these defects being specifically measured. The appeal would, therefore, fail on this ground. 6. emsp Apart from this, we are of the view that even if the instruments are held to be capable of measuring, they would be entitled to benefit of Notification No. 194/76-Cus. Even going by interpretation of the department, it cannot be disputed that instrument would be a measuring and checking instrument because a measuring instrument could give exact and accurate size of the various defects. These would, therefore be both measuring and checking instruments and therefore entitled to the benefit of rate of duty 40 ad valorem specified in S. No.2 of the table of the notification. In that event, too, rate of duty would be that as decided in the order of the Collector (Appeals). 7. emsp In the circumstances, we dismiss the departments rsquo appeal.
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1995 (5) TMI 150
Refund - Bar of unjust enrichment ... ... ... ... ..... t only the aforesaid statutory provision but also the well known decisions of the Hon rsquo ble Supreme Court in Jain Spinners rsquo s case, when it held that the rejection of the refund claim by the Assistant Collector on the ground of unjust enrichment cannot be upheld because prior to the amendment of Section 11B in September, 1991, the refund claim could not be rejected on the ground of unjust enrichment. The CEGAT order in question being contrary to the statutory provision and Supreme Court rsquo s pronouncements, needs to be rectified under Section 35C(2) of the Central Excises and Salt Act, 1944. The Hon rsquo ble Bench in para 2 has recorded that Departmental Representative ldquo strongly argued on behalf of the Collector (Appeals) rdquo . As per provisions of Central Excises and Salt Act, 1944, the Appellate Authority is never a party to the proceedings filed against its order, therefore, the question of DR arguing on behalf of the Collector (Appeals) does not arise.
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1995 (5) TMI 149
Appellate Tribunal - Jurisdiction ... ... ... ... ..... and returned back for reprocessing in the same or another factory. The claim for refund clearly relates to the duty paid on the goods when they were firstly cleared either for home consumption or for export. In the light of this distinction, the question of such manufacturer being considered an agent for the purposes of refund or the claim of refund being transferred to him would not arise. It would follow that it is the jurisdictional Assistant Collector who has the records of payment of duty who would consider it. Even in a situation where the goods are reprocessed in a factory other than that of manufacturer, it is the jurisdictional Assistant Collector who has verified the clearance and who offers ascertains the details of the re-processing in the different factory, would process the claim. In this view of the matter, I do not find it possible to accept this claim made by Shri Gupta. In the circumstances, I confirm the order of Collector (Appeals) and dismiss the appeal.
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1995 (5) TMI 148
Modvat Scheme ... ... ... ... ..... nufacture of wholly exempted goods. It has been further held that, if a manufacturer has got unutilised inputs and also unutilised credits, the latter has to be disallowed if the final products become exempt. It has been held that there is no escape from that, in terms of Rule 57C. This view has been accepted by WRB in the case of Kirloskar Oil Engines Ltd. v. C.C.E. - 1993 (67) E.L.T. 412. But in view of contrary judgment in the case of C.C.E., Bangalore v. Wipro Information Technology -1988 (33) E.L.T. 172 (Tribunal) 1988 (14) E.C.R. 490 and that of C.C.E., Cochin v. Premier Tyres Ltd. - 1992 (62) E.L.T. 104 (Tribunal) 1992 (43) E.C.R. 499, the matter had been referred to Larger Bench and the Larger Bench has already concluded the matter as reported in 1994 (73) E.L.T. 835. The relevant Paras 17.1, 17.2 and Para 18 are extracted herein below 9. emsp The above ratio supports the view taken by us. Therefore, respectfully following up the ratio thereof, we dismiss this appeal.
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1995 (5) TMI 147
Classification ... ... ... ... ..... les, shuttle, healds and heald-lifters and hosiery needles etc. The items described in 84.36, 84.37 and 84.38 all refers to textile machinery parts, while Heading 84.63 does not refer to textile machinery but to all transmission shafts, cranks, bearings and pulleys which are having different functions, then the one which is in question. The department having not given reasons for considering spare parts of Jute Mills, as transmission shafts, bearings and pulleys, therefore, the contentions of the appellant that there is no reason for revising the classification, which is also agree to by the Collector, is an acceptable proposition. The original assessment of classification done as parts of textile is correct one in the light of evidence before us. 7. In that view of the matter, taking into consideration the certificate produced by the appellants which has not been considered by the lower authorities, therefore, the appeal is required to be accepted and we ordered accordingly.
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1995 (5) TMI 146
Classification ... ... ... ... ..... taken the similar view in the following cases - (1) Collector of Central Excise v. Perfect Electric Corporation (P) Ltd., 1989 (43) E.L.T. 653. (2) Collector of Central Excise v. Sundaram Clayten Ltd., 1989 (42) E.L.T. 156 (3) emsp Automotive Ancillary Services v. Collector of Central Excise, Madras, 1987 (32) E.L.T. 735 (Tribunal) 1987 (13) ECR 1057. 9. emsp In the facts and circumstances of the case and particularly in the absence of any evidence placed by the Revenue to show that subject goods could be used as general electric lighting fittings and they are known in trade parlance as electric lighting fittings or they are to be found with the dealers of electric lighting fittings, following the ratio of the decision in the case of P.M.P. Auto Industries Ltd., I am also of the view that these goods are classifiable under Tariff Item 68. Accordingly, I agree with the conclusion arrived at by my Learned Brother Shri Gowri Shankar in classifying the item under Tariff Item 68.
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1995 (5) TMI 145
Boxes - Exterior container for explosives ... ... ... ... ..... hat the expression containers in the context in which it is used in the relevant Tariff Item i.e. 17 of the old Tariff and Heading 48 of the new Tariff, has to be construed to mean ldquo packing containers rdquo which are analogous to boxes and cartons i.e an enclosed receptacle which can be used for storage and transportation of articles (emphasis supplied). (The Supreme Court held that the item in dispute before it viz. egg trays being receptacles which are not covered or enclosed cannot be regarded as containers, while the card board cases which are the subject matter of the present appeal are receptacles which can be closed with unattached 4 flaps). 6. emsp In the light of the above discussion, we hold that the corrugated 5 ply printed card board boxes made out of duty paid kraft paper are printed card board boxes and hence excluded from the benefit of Notification 66/82 by virtue of the Proviso thereto. Accordingly, the impugned order is set aside and the appeal allowed.
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1995 (5) TMI 144
Stay/Dispensation of pre-deposit - Modvat credit ... ... ... ... ..... , Meerut and also in the case of Kusum Ingots and Alloy Ltd. in which the judgment of the Calcutta High Court in the case of Singh Alloys and Steel Ltd. was taken into account, it has to be held that the matter is contentious and the applicants do have a prima facie case on merits in their lavour and therefore I am inclined to agree with the learned Member Judicial that having regard to the overall facts and circumstances of the case the pre-deposit should be waived and recovery stayed pending the disposal of the appeal. Sd/- (P.K. Kapoor) Member (T) Dated 28-3-1995 In view of the majority opinion the pre-deposit of duty is waived and recovery stayed pending the appeal. Dated 24-4-1995 Sd/- (Jyoti Balasundaram) Member (J) N.B. The Tribunal has since, vide its majority decision in its Final Order No. A/129/95-NRB, dated 21-2-1995 in case of CCE, Indore v. M/s Raipur Alloy Steel held that Modvat credit is not admissible on fire-bricks. Sd/- (Shiben K. Dhar) Member (T) 8-5-1995
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1995 (5) TMI 143
Printed shells and printed H.L. Blanks ... ... ... ... ..... any other entry in the Schedule to the erstwhile Central Excise Tariff while in this case, we are called upon to decide classification of the two items either under TI 17(4) or under TI 68. 7. emsp According to us, the outer shells are printed paper boards cut to particulr size and shape and they are parts of cigarette packets and are market- able and the assessees herein do not dispute that the shells manufactured by them are sold to cigarette manufacturers hence they are excisable. As regards H.L. Blanks, we see force in the contention of the learned DR that these are classifiable under TI 17(4) as cartons or boxes in flattened/unassembled form. 8. emsp In the light of this discussion, we regret that we are unable to persuade ourselves to follow the order of the Tribunal in the case of India Tobacco Co. v C.C.E., Madras reported in 1994 (71) E.L.T. 547 . We therefore, place these papers before the Hon rsquo ble President for reference to a Larger Bench to resolve the issue.
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1995 (5) TMI 142
Cassettes - Fidelity Cassettes ... ... ... ... ..... the High Court had observed that when the customs authorities have cleared identical goods at identical price in the past they are bound by their own precedents. It is evident that these observations were made in a case relating to the determination of the value of imported goods for the purposes of assessment in terms of Section 14 of the Customs Act, 1962. It has been held by the Delhi High Court in the case of Metal Forgings Pvt. Ltd. v. Union of India reported in 1985 (20) E.L.T. 280, that the principles of estoppel or res judicata are not applicable to tax matters and if an assessee has wrongly classified his goods, then it cannot be taken as an estoppel for claiming a correct or revised classification. For these reasons we are of the view that the judgment of the Calcutta High Court cited by the Learned Consultant also does not help the appellants. 13. In view of the above discussion we do not find any infirmity in the impugned order. The appeal is accordingly rejected.
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