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Case Laws
Showing 81 to 100 of 365 Records
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1997 (5) TMI 342 - SUPREME COURT
Doctrine of public interest invoked - Held that:- Appeal allowed. The company is only a deemed public limited company. Its shareholding is very closely held. The only other factor referred to in the writ petition to invoke the doctrine of so-called public interest, is the fact that the company had borrowed moneys from public institutions. This is no ground for not availing of the statutory remedies provided under the Act before the appropriate statutory forums which are designed for this very purpose. We are distressed to find that the well-reasoned judgment of the Single Judge was interfered with in a casual manner. The impugned judgment rests on fragile foundations and reads more like in ipse dixit.
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1997 (5) TMI 326 - CEGAT, NEW DELHI
... ...
... ... ..... called, none appeared on behalf of the respondents. However, in their written submis shy sions it was submitted by them that the issue involved in this case has already been decided in their own case by the Tribunal as per Order Nos. 1130-1133/96-A dated 27-2-97 1999 (112) E.L.T. 561 (Tribunal) in Appeal Nos. E/318-321/85-A. It was submitted by them that the Bench has passed the order following the ratio of the decision of the Supreme Court in the case of Geep Industrial Syndicate v. UOI reported at 1992 (61) E.L.T. 328. 4. emsp Shri G.D. Sharma, ld. JDR, appearing for the Revenue reiterated the findings given by the authorities below and fairly submitted that the issue involved in this case has already been considered by the Tribunal. 5. emsp In view of the settled position and taking into consideration that the very issue has already been considered in their own case, we accept the plea of the respondents and accordingly, appeal filed by the department is hereby dismissed.
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1997 (5) TMI 318 - CEGAT, MUMBAI
Classification - Interpretation of statute ... ... ... ... ..... f the notification. Thus 20 duty is liable to be paid. Although this was one of the issues in the notice it is a question of law and, therefore, has to be considered. Glass fabrics which are not impregnated coated, covered or laminated with plastics or varnish appear to be covered both under Sr. No. 10 and Sr. No. 11 of the notification. Sr. No. 10 is for glass fabrics other than fabrics impregnated coated etc. Thus fabrics not so coated will fall under that notification. Sr. No. 11 is for all goods other than glass fabrics, fabricated coated etc. Glass fabrics which are not coated etc. will, therefore also fall under Sr. No. 11. This appears to be a cassus omissis. However, if two notifications provide for different rate of duty an assessee is entitled to choose one at his option. The same principle will apply here. The benefit of the exemption under heading in Sr. No. 11, therefore, will be available. 8. emsp Appeal allowed. Consequential relief if any, if permitted by law.
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1997 (5) TMI 310 - CEGAT, NEW DELHI
Dutiability on captive consumption ... ... ... ... ..... ctric motors used in manufacture of monoblock pumps. We find that this issue is covered by the decision of the Tribunal in the case of M/s. Saga Windel Engg. in Final Order No. E/506/96, dated 25-9-1996. In this case the Tribunal held that rotors and stators are used in the manufacture of monoblock pumps and the electric motor does not come into existence as an identifiable manner. The Tribunal in the case of C.C. v. Bomin (P) Ltd. reported in 1996 (88) E.L.T. 163 also held that dutiability depends on marketability. Electric motors captively used in the manufacture of power driven pumps being different from other base electric motors hence are not liable to pay duty under tariff item No. 30 of the erstwhile Central Excise Tariff. The Tribunal further held that even for levy of duty on goods captively consumed marketability has necessarily to be established. Following the above decision of the Tribunal mentioned above, the impugned order is set aside and the appeal is allowed.
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1997 (5) TMI 306 - CEGAT, CALCUTTA
... ...
... ... ..... re, hold that it has not been proved that the goods seized from the respondent rsquo s premises are M.S. Flats of thickness not exceeding 5 mm. This finding, in our view, is consistent with the purchase vouchers and challans of M.S. Flats exceeding 5 mm thickness produced by the respondent from about 20 suppliers. It would be unbelievable that the respondent and all the suppliers would be conniving to sell M.S. Flats of thickness not exceeding 5 mm thickness. 4.2 emsp In view of our finding on the question of facts about the measurement of thickness of the goods seized, it is not necessary for us to go into the other question of law, namely whether excisable goods herein should be presumed to be duty paid, since Revenue rsquo s appeal fails on our aforesaid finding. Hence Revenue rsquo s appeal is rejected. 4.3 emsp As the respondent had obtained complete relief at the lower appellate level, Cross Objection filed by him are not maintainable. Hence these are dismissed as such.
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1997 (5) TMI 301 - CEGAT, NEW DELHI
EXIM Policy - Special Import Licence ... ... ... ... ..... des exemption for power driven pumps primarily designed for handling water. In the classification list the appellants nowhere disclosed the facts that these pumps are water proof and flame proof and they were attached with control gun. The appellants disclosed these facts bit by bit during the inquiries made by the respondents. In view of the facts and circumstances of the case, we hold that the provisions of Section, 11-A of the Central Excise Act, 1944 was rightly invoked. 10. emsp In view of the above discussion, we hold that the appellants are not entitled for the benefit of Notification No. 57/78-C.E., dated 1-3-1978 which is only for power driven pumps primarily designed for handling water, whereas the power driven pumps cleared by the appellants are not generally designed for handling water. 11. emsp Taking all the considerations into account, we find that the penalty of Rs. 25,000/- will meet the ends of justice in the present case. Otherwise, the appeal is dismissed.
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1997 (5) TMI 297 - CEGAT, CALCUTTA
Modvat - Inputs, sent out for processing ... ... ... ... ..... espondents by the Assistant Commissioner concerned, inasmuch as the contravention of the said Rule is only a procedural lapse which is rectifiable in nature and as such, he has remanded the matter to the Assistant Commissioner for giving an opportunity to the respondents herein to rectify their mistake, before initiating any action against them. I also find that there is a number of Tribunal decisions to the effect that non-filing/seeking of permission in terms of Rule 57G(2), will not result in denial of Modvat credit. Reliance in this regard is made to the Tribunal rsquo s decisions in the cases reported in - (1) emsp 1990 (46) E.L.T 395 (T) and (2) emsp 1990 (46) E.L.T. 395 and In the case of Rolax Applied Components v. Collector of Central Excise, New Delhi reported in 1995 (75) E.L.T 109 (T). 14. emsp In view of the above settled position, I do not find any illegality in the Order of the Commissioner (Appeals). Accordingly, the appeal filed by the Department is rejected.
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1997 (5) TMI 293 - CEGAT, CALCUTTA
Order on writ petition - Finality ... ... ... ... ..... show cause notice in terms of the said Tariff Advice or on the point of limitation is not acceptable inasmuch as the High Court rsquo s order having become final was holding the field at the relevant point of time. Considering the refund claim on the basis of Tariff Advice on the ground that the same was not a matter before the Hon rsquo ble High Court is not in accordance with the canons of settled principles of law that an order, right or wrong, having attained finality would be applicable. The same cannot be upsetted by the Assistant Collector and the refund could not have been granted by him by taking recourse to the Tariff Advice which was in existence at the time of passing of the order but was not considered by the High Court, refund has been rightly rejected by the Assistant Collector. 7. emsp In view of my discussions above, I set aside the order of the Collector (Appeals) and allow the appeal filed by the Collector by restoring the order of the Assistant Collector.
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1997 (5) TMI 292 - CEGAT, MUMBAI
Import under advance licence - Confiscation of goods ... ... ... ... ..... case Notification No. 116/88 should be applied to determine the rate of duty notwithstanding the fact that it was not in force when the goods were imported. This would give rise to the principle that the provisions of Section 15 would not apply in cases where there is a reference to a notification in a DEEC Book or similar document, and that it is that Notification, which would apply on the date of import notwithstanding that the notification is no longer in force when the goods are imported. This would result the section being rendered redundant. This surely would not have been the intention in referring to notification in the DEEC book. The benefit of the Notification 160/88 will, therefore not apply. 14. emsp Appeal allowed to the extent that confiscation of the goods is set aside and also penalty imposed on the appellant. Collector rsquo s order that the benefit of the notification will not be available and the goods must be cleared on payment of proper duty is confirmed.
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1997 (5) TMI 291 - CEGAT, NEW DELHI
Demand - Show cause notice - Basis of Dutiability - Valuation ... ... ... ... ..... otice. The reply raised various contentions in this behalf. The Collector should have adverted to these contentions and considered on merits what expenses have to be added to the cost price of bought-out items in order to decide if the break-up price of such items was exorbitant. He should have also examined the manufacturing cost and reasonable profit margin thereon after adverting to the various contentions urged by the appellant. In short, the Collector did not really adjudicate the case propounded and demand proposed in the notice. We are inclined to grant an opportunity to the adjudicating authority to do so. In case the proposal in the notice is to be upheld to any extent, benefit of Modvat proforma credit has to be allowed to appellant. 11. emsp For the reasons indicated above, we set aside the impugned order and remand the case to the jurisdictional adjudicating authority for decision afresh in accordance with law and the observations in this order. Appeal is allowed.
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1997 (5) TMI 287 - CEGAT, MUMBAI
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... ... ..... place in the main plant and that it was integral to the manufacture. Here too, while the appellant could perhaps have been more detailed in its submission, the submission in essence has been made. These two issues are central to the appellant rsquo s contention. We consider that we are handicapped by not having the benefit of Commissioner rsquo s finding on these issues of fact. The Departmental Representative rsquo s contention that the Commissioner has given his finding on these two issues is borne out by a reading of his order. We, therefore, consider it appropriate that this Commissioner should specifically decide this aspect. Since the imposition of penalty and other issues would be directly relied to these issues we do not think it necessary to give a finding on them. Both sides are at liberty to cite such evidence as they desire subject to principles of natural justice. The Commissioner shall decide the appeal in accordance with law. 5. emsp Appeal allowed accordingly.
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1997 (5) TMI 286 - CEGAT, MUMBAI
Modvat on capital goods ... ... ... ... ..... the furnace which is capital goods. The fact that the furnace in questions was not classifiable under a particular tariff heading would not affect the fact that it is covered by the category of machines machinery etc. specified in Clause 1(a) to the explanation to Rule 173Q. The bricks which form part of the furnace would therefore be eligible for credit under Clause 1(b). In the absence of any express provision to deny credit to parts of such goods, Commissioner rsquo s reasoning cannot be upheld. We cannot import anything into the rule which does not exist in it. 5. emsp Credit was therefore available on these goods in terms of explanation under Rule 57Q even as it stood before its amendment in March, 1995 by inclusion of refractories of Chapter 69. The expanded definition appears to have been necessitated to clarify the position as it stood to set at rest doubts which existed, both outside and within the department. 6. emsp The impugned order is set aside. Appeal allowed.
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1997 (5) TMI 285 - CEGAT, MUMBAI
Modvat on capital goods ... ... ... ... ..... Gurdeep SIngh, the ld. DR for the respondents, we find that several of these items have been held to be eligible for such Modvat credit in the appellants rsquo own case by this Bench in its Order No. 1521/97-WRB, dated 14-4-1997 1999 (112) E.L.T. 494 (Tribunal) . There is also another recent Order No. 1364-66/97-WRB, dated 27-3-1997 1998 (99) E.L.T. 620 (T) in the case of M/s. Kalyani Steels Ltd. v. Commissioner of Central Excise, Pune, which covers some of the materials involved in these appeals. Besides, there are other decisions of the Tribunal as in the case of Commissioner v. Uttam Engineering - 1996 (86) E.L.T. 498 Commissioner v. Nova Udyog - 1996 (88) E.L.T. 532 and also Jeep Industry v. Commissioner 1996 (88) E.L.T. 753. From the ratio of the above-cited decisions of the Tribunal, it can be concluded that all the materials involved in these appeals as noted above would be eligible for Modvat credit on capital goods under Rule 57Q. The appeals are accordingly allowed.
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1997 (5) TMI 284 - CEGAT, CALCUTTA
Import - OGL ... ... ... ... ..... heard the submissions made by Shri D.L. Basu Roy as also by Shri R.K. Roy, ld. JDR, I find from the ITC Policy that the lubricating oil and greases of both synthetic mineral origin are importable under OGL Appendix 5B. As per the test report, the items are containing less than 70 of petroleum products and as such they are falling under Tariff Heading 34 as lubricating preparation. The chemical examiner has also mentioned in the said test report that the sample may find use for lubricating purposes. Tariff Heading 34 covers lubricating preparation but those having less than 70 petroleum oil. Nevertheless, the same are lubricating preparation. Taking into account the fact that the Item in question is meant for lubrication and also taking into con- sideration the publication on Import Licensing Policy by the Government of India, I hold that the product in question was covered under OGL. Accordingly, the appeal filed by the appellants is allowed with consequential relief if any.
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1997 (5) TMI 283 - CEGAT, CALCUTTA
... ...
... ... ..... d by the Department. 7. emsp I have considered submissions of the ld. SDR, Shri T. Prem Kumar as also put on record by the respondents. I find that the issue is no more res integra and has been settled by the Tribunal vide its Order No. A-238/Cal/97, dated 3-3-1997. Vide the said order, the Tribunal has held that the goods cleared by the respondents are not merely wire and cables simplicator and as the value of the coupler has been included in the value of the final product and the duty has been paid on the total assessable value, the benefit of Modvat credit has been rightly allowed. The said order of the Tribunal is in the respondent rsquo s own case and it has not been brought on record whether any appeal against the above order has been filed. I do not find any reasons to deviate from the above order of the Tribunal. I hold that the Modvat credit has been rightly allowed on the coupler by the first appellate authority. Accordingly, appeal filed by the Revenue is rejected.
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1997 (5) TMI 282 - CEGAT, NEW DELHI
Rectification of mistake ... ... ... ... ..... e receipts of inputs as per such documents were directed to be correlated to the duty paying documents. Such duty paying documents have been stated to have been submitted to the department and there are stated to have been checked and defaced by the Excise staff. The receipt of less quantity in their Ballabgarh unit as compared to the quantity covered by the duty paying documents has been explained to be due to certain quantities out of the quantity covered mentioned therein having been sent to their other units. It is stated that no credit has been taken by their such other units. The correctness of these contentions and the question of correlation of the private transfer notes with the duty paying documents needs to be looked into. It was for this purpose that the appeal was allowed by remand to the Commissioner for de novo decision. The order does not disclose any error warranting action under Section 35C(2) of Central Excises Act. The application is accordingly dismissed.
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1997 (5) TMI 281 - CEGAT, CALCUTTA
... ...
... ... ..... n retrospective effect. We do not see any bar in accepting a CT-3 Certificate produced subsequently so long as the goods are covered by the CT-3 Certificate, if the goods in question are also installed or used in the premises of the 100 E.O.U. Obtaining the CT-3 Certificate and producing the same - are in any view procedural matters. It is a settled proposition of law that a substantial benefit cannot be denied merely for procedural deviation. Therefore, in view of production of CT-3 Certificate in respect of the said goods, the appellants herein are entitled to the benefit of Notification No. 123/81-C.E., subject to the satisfaction of the authorities on the following two counts - (i) emsp that the said goods have reached the 100 E.O.U. and have been utilised by the said E.O.U. in terms of the said Notification No. 123/81-C.E. and (ii) emsp the appellants herein have not passed on the burden of duty claimed by them on the said consignee. Appeal is disposed of in above terms.
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1997 (5) TMI 280 - CEGAT, MADRAS
castings are not goods for the purpose of levy of duty ... ... ... ... ..... he limited purpose of providing medium for testing the parameters of the metal of which the castings which have been ordered for specific purposes and use by the customers. The testing is a part of the manufacturing process and is a technical necessity. The Test Bars as such cannot be bought and sold by the very nature of the article, for use for any specific purpose as castings. There is no averment to the contrary in this regard from the Revenue and the plea of the appellants in this regard has also not been controverted by any evidence. In our view taking into consideration the nature and the use of the goods we have to hold that the Test Bars are not goods for the purpose of levy of duty. The Revenue as it is suffered no disadvantage as the appellants would be including the cost incurred in respect of the Test Bars in the value of the castings. We therefore set aside the order of the learned lower authority and allow the appeal of the appellants with consequential relief.
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1997 (5) TMI 279 - CEGAT, NEW DELHI
`Furniture’ - Scope of - Classification ... ... ... ... ..... d a judgment rendered in the context of a particular Tariff entry could not be automatically applied in interpreting an altered Tariff entry. Even under the old Central Excise Tariff, Item No. 40 relating to furniture the Supreme Court had held that x-ray protective screen was rightly classifiable as furniture. Further, the goods under consideration were being classified as items of furniture under the erstwhile Central Excise Tariff and the nature and use of the goods had not undergone any change after the introduction of the new Central Excise Tariff based on the Schedule to the Central Excise Tariff Act, 1985. There is no ground for classifying them as ldquo vehicles rdquo . 16. emsp In the light of the above discussion, we consider that the various trolleys whose illustration had been given above, were not in the nature of a vehicle and were rightly classifiable under Heading No. 94.03 of the Central Excise Tariff. As a result, the appeal is rejected. Ordered accordingly.
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1997 (5) TMI 278 - CEGAT, NEW DELHI
Natural justice - Interference in the independent working of quasi judicial authority ... ... ... ... ..... e capable of exercising influence on the witnesses. We find that this action of the adjudicating authority without discussing the test reports and the affidavit and without discussing the contents of the Dr. Manjunathan is depriving them of the opportunity rebutting the findings and producing evidence to support their case. In view of the above factors we find that there has been failure of justice. We also note that the order is non-speaking on the test report and affidavit. In the circumstances we consider a fit case for remand and remand it to the adjudicating authority concerned with the direction to examine the evidence independently of what Dr. Manjunathan had indicated in the letter which was not discussed and also the question of imposition of penalty under the two Sections as referred to above and after giving the appellants an opportunity of presenting their case and pass appropriate orders in accordance with law. 4. emsp The appeal is accordingly allowed by remand.
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