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Case Laws
Showing 61 to 80 of 280 Records
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1996 (6) TMI 267
Order - Speaking order ... ... ... ... ..... and. We observe that the learned Lower Authority rsquo s order therefore while is maintainable in law so far as the denial of facility as claimed by them under Rule 56B is concerned, the appellants are entitled to a speaking order in regard to other points raised by them in regard to the demand which has been raised against them in the context of the orders passed by the Tribunal and the order passed by the Collector on 8-1-1988. We observe the learned Lower Authority will have to be taken into consideration as to the finality of the orders which have been passed by them both by the Tribunal and the Collector while adjudicating on the appellants request for withdrawal of the demand. We are not called upon to pronounce on the merits of the case. While upholding the order of the learned Lower Authority, we direct the learned Lower Authority that a speaking order may be issued in regard to other points raised which have been prayed by them through the communications cited supra.
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1996 (6) TMI 266
Classification ... ... ... ... ..... ther worked. 5. emsp We have considered the pleas made by both the sides. We observe that there is no dispute that the goods were in rectangular shape. The only ground urged is that since these were cut to specific sizes these could be taken to have been cut to a definite shape and for that reason, therefore, these will go out of the purview of Tariff Entry 4008. We observe that Chapter Note 9 makes it clear that so long as the goods are in rectangular shape these will continue to fall under Heading 4008, unless it can be shown that these had been cut to definite shape or further worked and these will continue to fall within the purview of Heading 4008. In the above view of the matter, we agree with the reasoning of the learned CCE(A) and hold that his order is sustainable in law. We hold, that there is no force in the plea of the Revenue and we dismiss the appeal. 6. emsp The cross objection filed is in the nature of comments and the same is dismissed as misconceived in law.
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1996 (6) TMI 265
Stay/Dispensation of pre-deposit - Larger Bench ... ... ... ... ..... ivity or not is a matter which depends upon appreciation of evidence. 11. emsp In so far as valuation of Software is concenned, I feel that prima facie the ld. DR rsquo s contention has a greater force inasmuch as the Section Notes and the Chapter Notes are ex-facie meant for determining the classification and not the valuation. We have been informed that an appeal against the Tribunal rsquo s order in the case of Tata Unisys is pending before the Hon rsquo ble Supreme Court. Further the correctness of the decision in the case of Tata Unisys has also been questioned by a coordinate bench and the matter has been referred by it to the Larger Bench Therefore, I agree with the Hon. Member, (J) that without going further into the matter at this stage, it would be appropriate to waive the pre-deposit of the amount in question and stay its recovery till the larger bench decides the issue referred to it. Accordingly, the application is allowed as already pronounced in the open Court.
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1996 (6) TMI 264
Fabrics - Narrow woven fabrics being mentioned after comma under Notification No. 30/95-Cus.,
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1996 (6) TMI 263
Appeal - Limitation - Delay in filing ... ... ... ... ..... challenged before the High Court or in the alternative the appellant should have taken recourse to the statutory remedy of filing appeal before the Tribunal. It is further noted that the Division Bench of the Hon rsquo ble High Court of Karnataka has passed an order directing the appellant to deposit 50 of the duty demanded and only in case the deposit was made, there would have been a stay. It is conceded before us that even that order of the Division Bench was not complied with. Therefore there was no stay of the order of the lower authority and the appellant should have taken recourse to the statutory remedy of filing the appeal before the Tribunal. Since the appellant has not taken care and caution by challenging the impugned order before the Tribunal, it cannot be said that there was sufficient cause for condoning the delay. We, therefore, dismiss the application for condonation of delay. In this view of the matter, the stay petition and the appeal also stands dismissed.
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1996 (6) TMI 262
Import - OGL ... ... ... ... ..... e word ldquo Switches rdquo in Entry No. 565 (18) would have to be read as covering only to those items which have the only function of switch and not when switch is merely a part of the instrument. 11. emsp The objection raised therefore appears to be well founded and does not call for any interference. 12. emsp About wire harness, from what has been observed by the Collector (Appeals), no evidence to refute the allegation was adduced before him. Here also it is not shown as to how they do not fill within Item No. 462 of Appendix 3A. In that case, no interfere with that part of the order is called for. 13. emsp As regards the alternate plea, the redemption fine imposed is about 100 of the CIF value. The appellants are the actual users of the goods, and hence, showing some leniency, the redemption fine totally to Rs. 1,10,000/- is reduced to total of Rs. 75,000/-. 14. emsp With the modification as above the order is otherwise confirmed. Consequential reliefs if any to follow.
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1996 (6) TMI 261
Valuation - Captive consumption ... ... ... ... ..... vely consumed including profits, if any, earned by the assessee in determining the assessable value. In the instant case the Assistant Collector has taken the margin of profit as 9.03 . On the other hand the Collector (Appeals) observed that the Assistant Collector should have accepted the profit as shown in the Balance Sheet and Profit and Loss Account which is 6.7 . He also observed that the Assistant Collector has also not given any cogent reasons in adopting 9.03 as margin of profit. 4. emsp On going through the facts and circumstances of the case and in view of the categorical findings of the Collector (Appeals) that profit showing in the Balance Sheet is to be added to the goods captively consumed in the absence of any reasons given by the Assistant Collector, we do not find any infirmity in the impugned order of the Collector (Appeals) in adding the profit in the Balance Sheet. 5. emsp In the result, as aforesaid, the appeal filed by the Department is hereby dismissed.
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1996 (6) TMI 260
Demand - Clandestine removal ... ... ... ... ..... n the pocket diary tallied with the entry in RG-1 register. I also observe that this diary was recognized by Shri M.L. Daga. I also find that the statement of Shri S.S. Daga was fully confirmed by Shri M.L. Daga and hence it can be concluded that the diary recorded the correct entries of the marble slabs manufactured by the appellants. 9. emsp Now, let us examine the statements of Shri S.S. Daga and Shri M.L. Daga. Both these persons identified the pocket dairy and stated that the diary showed the production and clearance of marble slabs of the appellants . These statements are voluntary and also true to explain the entries in the diary. 10. emsp In view of the above discussions, it is proved beyond any doubt that the appellants had suppressed the production and did not record it in RG-1 register and removed this excess production without payment of duty. In this view of the matter and in view of the evidence discussed above, I uphold the impugned order and reject the appeal.
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1996 (6) TMI 259
Food - Baby Food ... ... ... ... ..... and vitamin concentrates of vitamins A, B group, C and D rdquo . One of the pleas of the Revenue is that the product does not contain milk. We observe that in the background in which this formulation of food in question was done clearly shows that it was to take care of the need of infants and that it could also be taken by pregnant women and lactating mothers. This goes to show that basically it was meant for taking care of the child, pre-natal and immediate post-natal stage. In this background if the product also meets the requirements of another sector of population for the limited purpose as above, in our view, does not take away the character of the product as baby food. We observe that in view of the fact that the food as formulated is for infants, the ISI standard which is for the limited purpose of standardisation of product does not come to the rescue of the revenue. In view of the above discussion we hold that the plea of the revenue fails and we dismiss the appeal.
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1996 (6) TMI 258
Confiscation and Penalty - Excess in Stock ... ... ... ... ..... finishing room. In that circumstances, applying the ratio of the Western Transformer and Equipment (supra) and Garden Silk Mills, the confiscation and imposition of fine in respect of goods still lying in the finishing room is not sustainable and that portion of the order is set aside. With these modifications the other penalty imposed for non-maintenance of the register is upheld. 7. emsp In the present case as noticed, the department has not found any clandestine removal or preparation having been made for .such removal. In the circumstances, the confiscation of seized goods and granting an option to redeem on payment of Rs. 40,000/- is clearly unsustainable in the light of the judgments referred to above. Applying the ratio thereof, the order of confiscation and granting an option to redeem the same on payment of Rs. 40,000/- fine is set aside. However, the penalty of Rs. 2,000/- imposed is confirmed in the facts and circumstances of the case. 8. emsp Ordered accordingly.
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1996 (6) TMI 257
Classification - Refund - Limitation ... ... ... ... ..... points of difference are answered as under (i) emsp I agree with the ld. Vice President that the products in question were classifiable under Item 19(iii). (ii) emsp I agree with the ld. Vice President that refund claims were time-barred and not maintainable also. (iii) emsp I agree with the ld. Vice President that the appeals of the Department were required to be accepted and appeal of the Fenner India Limited are required to be rejected. Sd/- (Shiben K. Dhar) Member (T) FINAL ORDER In view of the majority opinion - (1) The products in question were industrial fabrics classifiable under erstwhile Tariff Item 19(iii). (2) The refund claims filed by M/s. Fenner India were time-barred and not maintainable also. (3) In view of the above position, the appeals of the Department were required to be accepted and the appeal of M/s. Fenner India Ltd. was required to be rejected. Sd/- Sd/- (Jyoti Balasundaram) (S.K. Bhatnagar) Member (J) Vice President Dated 14-6-1996 Dated 13-6-1996
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1996 (6) TMI 256
Hessian bags and sacking bags - Cess ... ... ... ... ..... ......... 10. Any other articles of jute manufacture ...... 4. emsp Further, Rule 3 of the aforesaid Jute Manufactures Cess Rules, 1984 also states that cess shall be payable at the rate specified by the Central Government in accordance with the Act on finished jute manufactures removed for sale/subsequent sale by the producers for export abroad and/or for distribution and consumption within the country. Since the Respondent herein has produced an article of jute manufactures, viz. jute bags, it falls under Sl. No. 10 of the Schedule to the said Act and, therefore, the cess would be again leviable if it is removed for sale on which aspect there is no dispute before us in these proceedings that the Respondent herein is removing the said jute manufactures, viz. jute bags for sale within the country. 5. emsp In the aforesaid view, we hold that the view taken by the lower appellate authority is not correct in law. Accordingly, we set aside the impugned order and allow the Appeal.
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1996 (6) TMI 255
Valuation - Related person ... ... ... ... ..... ow any flow back and except that the price declared is not in conformity with the price worked out by the department, no evidence is adduced to indicate why prices lower than the prices that can be arrived at according to the cost structure has worked out. The decisions referred to by the ld. Counsel clearly indicates that if the transactions between the buyer and seller are at arm rsquo s length and there is no flow back of money from the buyer to the assessee, even if the price declared is below the manufacturing cost, the same should not be rejected as incorrect. Here the relationship is not established and the transactions have to be held as between two independent parties at arm rsquo s length. Therefore all these aspects considered by the ld. Commissioner (Appeals) appears to be in conformity with the law and hence there is no justifiable ground to interfere with the order passed by the authority. The same is confirmed and the appeal filed by the department is rejected.
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1996 (6) TMI 254
Classification of goods - Refund ... ... ... ... ..... rawing etc. furnished as documents before him at the appeal stage. 6. emsp On the second issue whether the Collector could grant suo moto refund in excess of the demand of differential duty, we find that the Collector (Appeals) in his order had held that consequential benefit shall be admissible to the respondents herein. If the consequential benefit on account of change in classification happens to be more than the amount of differential duty demanded, we do not see any reason to disagree with this. After all a refund is paid out of the amount collected from the importer. In the instant case the amount ordered to be refunded by the Collector (Appeals) is not more than the total amount collected as duty from the importer. Having regard to this view we hold that there is nothing wrong if the amount to be refunded happens to be more than the differential duty demanded insofar as the amount refunded is less than the amount collected as duty. In the result the appeal is rejected.
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1996 (6) TMI 253
Proforma credit - Eligibility criterion ... ... ... ... ..... present in the finished goods. In a case where raw material has been used merely in purifying the lye and purifying agents are not entitled to benefit of set off under Notification No. 201/79. 5. emsp We have heard both sides. It is clear to us that sodium sulphate has entered into the steam of the manufacture. The question to be answered in such cases is not whether the input is present in the finished product but whether final product could have emerged without intervention of the input. In other words, it is not the presence of the input in the final product but the indispensability of the input for the manufacture of the final product. Considering the fact that sodium sulphate is used to remove impurities in the spent lye and the clear lye, after dilution on with alkali, is evaporated to get crude glycerine, it can reasonably be concluded that sodium sulphate has entered the steam of manufacture. In the result, the appeal is allowed, and the impugned orders are set aside.
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1996 (6) TMI 252
Notification - Date of effect - Change in rate of duty for Cigarettes ... ... ... ... ..... al No. E/3465/88D In this matter, the appellant company was manufacturing Cigarettes of various brands falling under the erstwhile Tariff Item 4.II (2) of the First Schedule to the Central Excises and Salt Act, 1944 and effected certain clearance of the said goods from time to time. Notification No. 201/85, dated 2-9-1985 was issued prescribing revised rate of duty on Cigarettes enhancing for the consignment of the said goods and during clearance of the same on 2-9-1985, there was an increased levy to the Excise Duty amounting to Rs. 1,99,530.00. The legal arguments are similar to the one raised in the another appeal which we have already disposed of. In this case also, there was an announcement in the Radio and TV in a cryptic way on the same day. But one differene is that the Gazette Copy was available from the Sale Counter much later. However, in view of our observations already given in Appea1 No. E.(SB) 503/86-Cal. of the same appellant, this appeal also stands rejected.
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1996 (6) TMI 251
Classification ... ... ... ... ..... ing the question of classification under Tariff Item 84.48 for cots and aprons in their appeal. In fact the classification claimed in the department rsquo s Appeal 40.16 was at variance with their earlier stand and it was just as well that this was given up at the argument stage when the Departmental Representative fell back on the old faithful 84.48. This classification has been found to be acceptable by the learned Vice President with which I am in agreement. 36. emsp Thus the decision of the learned Vice President on the classification question having been agreed to by me, the appeal papers may be returned to the regular Bench for passing appropriate orders on both the appeals. Dated 31-5-1996 Sd/- ensp ensp emsp emsp (K. Sankararaman) Member (T) FINAL ORDER In terms of the majority order, the assessee rsquo s appeal is rejected and Revenue rsquo s appeal is allowed. Dated 6-6-1996 Sd/- emsp emsp (S.L. Peeran) Member (J) Sd/- emsp emsp emsp (S.K. Bhatnagar) Vice President
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1996 (6) TMI 246
... ...
... ... ..... ho do not avail of the SSI benefit and availed of Modvat credit at the higher rate. There is no convincing reason available to hold as to why the said benefit should be withheld when the goods have been received prior to filing of the declaration particularly when vide Rule 57H, the benefit is intended to be given to the inputs lying in stock. If the inputs were brought from non-SSI unit, full credit was available. No discrimination is intended or spelt out the provisions of rule as they stood. Composite reading of all the rules has to be undertaken and therefore the approach of the authorities below in restricting the Modvat credit to the extent of the duty paid on the goods removed from the SSI unit and not granting benefit of higher notional credit, does not seem to be in confirmity with the provisions. Under these circumstances, the approach of the authority below, cannot be sustained and the order is therefore set aside. Appeal is allowed. Consequential relief to follow.
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1996 (6) TMI 245
Bags - Modvat - Demand ... ... ... ... ..... te. We therefore, hold that in such a situation, while demanding duty, benefit of Modvat should be given to them after they file the declaration in terms of Rule 57G, from the date of show cause notice and on satisfaction of the authorities about duty paid nature of the goods. We have held in similar cases, where the assessee could not file the declaration, for no fault of the assessee, they should be given the benefit of Modvat credit if otherwise eligible. Further, at the relevant time, since the appellants were clearing the goods without payment of duty with the approval of the department the question of their filing the declaration from 1-3-1988 could not have arisen. In our view, therefore, in the peculiar facts and circumstances of this case, the appellants, would be entitled to Modvat credit subject to the satisfaction of the other conditions set out in the Modvat Rules and the notifications issued under the said rules. With the above observation we dismiss the appeal.
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1996 (6) TMI 244
Reference to High Court ... ... ... ... ..... Mathuraprasad Motilal and Co. v. CIT - 1956 (30) ITR 695 (Nag.) has been cited. 6. emsp In the circumstances, I belive that in the present case, it is not necessary to refer the provisions of the Civil Procedure Code pertaining to the reference to the High Court and the situation is different from the one given in Rottschaefer rsquo s Constitution Law at page 29 or Halsbury rsquo s Laws of England at page 150 or the cases quoted in paragraph 18. It will be sufficient for our purpose if we confine ourselves to the cases relating to the Customs Act and similar provisions in allied laws and therefore, I agree with my learned brother that the present case is distinguishable from the case of Chander Bhan Harbhajan Lal (supra), SAIL (supra) and Indian Metal and Ferro Alloys Ltd. (supra) mentioned in Paragraphs 15, 16, and 17. I agree also with my learned colleague rsquo s observations in paras 12 and 13 hence I also hold that the reference applications are required to be rejected.
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