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Case Laws
Showing 121 to 140 of 280 Records
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1997 (6) TMI 172 - CEGAT, NEW DELHI
Appeal - Limitation - Condonation of delay in filing ... ... ... ... ..... eration the appeal filed is still beyond the time of six months. He, therefore, submits that on this ground alone the order passed by the ld. Collector (Appeals) reserves to be set aside. He therefore prayed that the appeal may be allowed. 3. emsp None appeared for the respondent. 4. emsp Heard the submissions of the ld. SDR. Perused the records. We find that the order which has been appealed against was communicated by the Asstt. Collector on 20-8-1987 appeal against this order was submitted by the appellants on 13-5-1988. Thus the appeal was filed beyond a period of 8 months since the maximum time admissible including that condonable is six months. The appeal was filed beyond a period of 8 months therefore we agree with the contention of ld. SDR that the appeal is hit by limitation. We therefore hold that the appeal filed by the assessee before the ld. Collector (Appeals) was time barred. The appeal of the Department is therefore allowed and the impugned order is set aside.
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1997 (6) TMI 171 - CEGAT, NEW DELHI
Refund - Limitation ... ... ... ... ..... er the importer had endorsed them with under protest rsquo or not. This fact can be verified only at the level of the adjudicating authority. The second issue is whether the refund has arisen out of an order passed by the Asstt. Collector informing the appellants that their declared value has been accepted has been appealed against or not which has not been examined in detail. In this view of the matter, we consider it to be a fit case for remand. The case is, therefore, remanded to the Adjudicating authority concerned to examine both the issues in the light of the case law cited and the submissions that the Appellants shall be making while representing their case before the authority and pass appropriate orders in accordance with law. Since this is a very old matter, the case may be heard and decided within 4 months from the date of receipt of this order. Needless to say that he will observe the principles of natural justice. In the result, the appeals are allowed by remand.
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1997 (6) TMI 170 - CEGAT, NEW DELHI
Demand - Clandestine removal ... ... ... ... ..... actually found on physical verification. Therefore, the shortage etc. of nylon filament yarn (POY) sent to the parent unit to the processing units on the basis of total quantity of yarn supplied by the parent unit and received by the processing units and the disposal thereof should have been worked out. This exercise has not been undertaken in the instant case. We, therefore, find it to be a fit case for remand. The case is accordingly remanded to the Commissioner, Central Excise concerned with the direction that he will examine the statement Annexure C rsquo of reply in case No. 25/86 and then examine the total receipts by the processing units and the disposal thereof and arrive at the figure of shortage if any after giving the appellant opportunity of explaining the total receipts and disposals. The adjudicating authority shall pass the order in accordance with law. The case law is not being discussed in view of the remand order. The appeal is, therefore, allowed by remand
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1997 (6) TMI 169 - CEGAT, MADRAS
Natural justice ... ... ... ... ..... this regard as to why the claim of the appellants for classification under 8443.90 is not tenable. On the contrary, without putting the appellants to notice he entered his own findings that the same is classifiable under 8479.89. What he ought to have been done is to discuss the claim of the appellants as to whether it comes under 8443.90 and if he finds that this claim is not substantiated by giving valid reasons then he should have put the appellants to notice as to why the same is not classifiable under 8479 as held by him. Since this was not done we are of the view that the principles of natural justice are violated and in this view of the matter we set aside the impugned order and allow the appeal by way of remand of the Commissioner (Appeals) to consider the claim of the appellants for classification of the goods under 8443.90 and then to pass speaking order in this behalf and thereafter to decide the matter in accordance with law in the light of our above observations.
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1997 (6) TMI 168 - CEGAT, MADRAS
Cement - Exemption ... ... ... ... ..... of India has accorded sanction under the Industries (Development and Regulation) Act, 1951. No provision has been shown to us nor any mechanism has been shown to be there for certifying the licenced capacity of a kiln under any provisions of law or any rules framed under any law for the purpose. The predecessor notifications also point out to only one thing, that is for the purpose of concession the parameters to be taken into consideration is the capacity of the factory to produce a particular product. The benefit as could be read from the parameters laid down is intended for smaller units having limited capacity per day based on the type of kiln that is used. In the above view of the matter we are of the view that the learned lower authority has rightly interpreted the notification to hold that inasmuch as the appellants have production capacity of cement more than 200 tonnes per day they would not be eligible to the benefit of notification. We therefore dismiss the appeal.
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1997 (6) TMI 167 - CEGAT, MUMBAI
Valuation - Additional consideration - Demand - Limitation - Confiscation ... ... ... ... ..... under proviso to Section 11A is sustainable. 7. emsp However, in the matter of quantum of penalty on the appellant, considering the amount of duty involved, the penalty appears to be on the higher side and accordingly it is reduced from Rs. Ten lakhs to Rs. Two lakhs. As regards the order confiscating land building, plant and machinery, etc., under Rule 173(2), Central Excise Rules, sub-rule of 173Q has two sub clauses and the adjudication order does not indicate the precise ground on which confiscation of land, building, plant and machinery, etc., has been ordered and because of this infirmity, the confiscation is set aside. The appeal is disposed of by holding that the loading of the sale price by including the element of expenditure on selling cost incurred by Darshak is sustainable. However, in the circumstances of the case, a lower penalty is called for, as ordered above. The confiscation of the land, building, plant and machinery, etc., is not in order and is set aside.
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1997 (6) TMI 166 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... ich is placed at page 4 of the supplementary paper book indicates that audio transformers are housed in a compact mu-metal case with screw-in coupling for chassis or panel fixing, they are supplied complete with securing nuts and 50 mm(2 ) long colour coded leads. It further strengthens the plea that in fact these are parts of the transformers. It is pleaded by the representative of the appellant rsquo s company that the benefit of assessment under Heading 85.04 was in past given to them and in fact is being given even today by the Customs Authorities. In this connection, he presented in the court Bill of Entry dated 9-4-1997 which indicates mu-metal housing is assessed as transformer parts under CTH 8504.90. Considering all these factors, therefore, we are of the view that the appellants have succeeded in making out a case in their favour and the impugned goods can be considered as transformer parts only. In view of this, we set aside the impugned order and allow the appeal.
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1997 (6) TMI 165 - CEGAT, NEW DELHI
Import - Value based licence - Spares - Bearings ... ... ... ... ..... s. It is claimed that even if these are treated as engine bearings these bearings being spare bearings could be cleared under OGL as spares. Addl. Collector has fully dealt with this plea. Once the value restriction has been placed on bearings, the same bearings cannot be imported as spares without any value restriction. We are, therefore, not in a position to accept that the character of the case would change even if the plea regarding classification of the Customs Tariff Act is accepted. 6. emsp In view of what is mentioned hereinbefore, we are satisfied that on merits there is no infirmity in the order of Addl. Collector. Considering however that the appellant is actual user who was not engaged in trading. We are of the view that ends of justice would be met if redemption fine is reduced from Rs. 7 lakhs to Rs. 3.5 lakhs. Ordered accordingly. We do not consider any modification in regard to penalty is merited. Subject to this modification, the appeal is otherwise rejected.
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1997 (6) TMI 164 - CEGAT, MADRAS
... ...
... ... ..... carried out which would constitute manufacture at the premises of the customers. It is common knowledge that in case of sophisticated equipments customers seek the help of the manufacturer to make the system workable to the desired levels and that by itself would not enrich the value of the goods, but would rather contribute towards the goodwill of the suppliers of the goods. Technical services though may be an activity relating to the goods, but it relates to the making of the equipment functional at the customers premises. In our view, these activity cannot be taken to enrich the value of the goods. We observe that it has not been shown that the extra realisation made towards technical services rendered was disproportionate to the services rendered. In the above view of the matter, we hold that the lower appellate authority was in error in having included these charges for the purpose of assessment. We, therefore, set aside the order and allow the appeal of the appellants.
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1997 (6) TMI 163 - CEGAT, NEW DELHI
Adjudication - Documents ... ... ... ... ..... pection could not be completed on a particular date i.e., on 9-4-1997. He also submits that further Department did not allow the party to inspect the remaining documents and take copies thereof. It was also his submission that documents which were not relied upon in the impugned order, were required to be returned but the same has not been done. Shri G.D. Sharma, JDR states that to this effect there was no request from the party to return the documents which were not relied upon. 2. emsp We make it clear in this order that Department is directed to return the documents which were not relied upon in the impugned order immediately. Copy of this order may be shown to the concerned Commissioner and party is directed to request him to return the documents which were not relied upon and to allow inspection in respect of the documents which were referred to in the show cause notice. The matter to come up for mention on 28-8-1997. Copy of this order may be supplied to both the sides.
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1997 (6) TMI 162 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... ch is in semi-molten (semi-plastic) form is kept. Since the plastic sheet is hot, if flows down in the mould cavity due to the gravitional force. As soon as the plastic material touches the inside cavity of the mould, it gets chilled and solidifies. The top plate of the machine presses the plastic sheet without applying any pressure only to give outline of the mould. Thereafter, the sheet with the impression received from the mould is taken out and the formed insoles are cut out. No punching is done by the press. The manufactured insole does not acquire the shape by any stamping or pressure from the machine. rdquo 7. emsp Considering the evidence placed before us and also after examining sample displayed in the Court, we are satisfied that the impugned goods can be considered only as moulds for classification under Chapter 8480 and would in consequence be entitled to benefit of Notification 314/85. 8. emsp In view of this, we set aside the impugned order and allow the appeal.
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1997 (6) TMI 161 - CEGAT, MUMBAI
Confiscation - Smuggled goods ... ... ... ... ..... ppellant from the customs, which does not get discharged if the appellants are not able to meet inference arising therefrom (Para 13) burden of proof on Customs Authorities it is discharged, if the offender gives false evidence. The burden gets discharged from the Customs authorities by falsifying many particulars of the story put forward by the appellant, a false denial could be relied on for concluding that the goods had been illegally imported (Paras 14 and 15). In the instant case the department has not shown, falsifying the case of the appellant that the Antimony is not a smuggled goods, nor succeeded in falsifying the case of the appellant regarding the purchase of the Antimony Metal in India so the above ruling is not applicable to the case on hand. 13. emsp For the reason discussed above we accept the case of the appellants and answer the points raised in the negative and pass the following order ORDER These three Appeals are allowed and the impugned order is quashed.
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1997 (6) TMI 160 - CEGAT, NEW DELHI
Stay/Dispensation of pre-deposit - Modvat ... ... ... ... ..... at all that is required is that duty should be paid in case such waste or material could be shown as an excisable product which was dutiable. The manner of discharge of duty liability could only be considered in terms of Rule 57A with 57F since all the Modvat provisions and rules have to be read together to get a complete picture and unless it could be shown prima facie that there was a direction to pay from PLA or otherwise then through RG 23, the case would prima facie appear to be none in the favour of the appellants. 10. emsp I also notice that the ld. Commissioner (A) has himself observed that no mala fide appears to be there on the part of the appellants. In the circumstances, I consider it appropriate to waive the pre-deposit of the amount and stay recovery thereof subject to the appellants giving a personal bond to the satisfaction of the ld. Commissioner within eight weeks from the date of receipt of this order. To come up for reporting compliance on 12th Sep., 1997.
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1997 (6) TMI 159 - CEGAT, MADRAS
Modvat - Duty paying documents ... ... ... ... ..... Entry can be related to the appellants as the owners of the goods who have effected the clearance from the harbour by reason of purchase of the goods on high seas basis. In such a circumstance, in our view, no further endorsement or a certificate would be required from the customs authorities or from the importer who transacted the importation originally for the purpose of taking the Modvat credit. The Bills of Entry as such can be taken as valid documents in terms of Rule 57G for Modvat purposes. We observe the documentation has been prescribed so as to ensure that the goods which were cleared from the harbour or from a factory are moved under the documents which can be connected with the importer or the manufacturer to ensure that there is no misuse of the documents. In the present case this basic requirement can be taken to have been satisfied. 6. emsp In the above view of the matter, we hold that the appellants rsquo appeal has to be allowed. 7. emsp Ordered accordingly.
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1997 (6) TMI 158 - CEGAT, MADRAS
Stay/Dispensation of pre-deposit ... ... ... ... ..... en brought on record nor it is possible to verify at this stage as to how much of the amounts collected ultimately could be allocated under various heads. Taking into consideration, therefore, the totality of the facts of the case, we hold that the offer made by the learned Senior Advocate is quite reasonable and we order that on the appellants pre-depositing a sum of Rs. 1,00,00,000/- (Rupees One Crore) on or before 30th July, 1997 and report compliance by 31st July, 1997, the pre-deposit of the balance amount of duty shall stand dispensed with and the recovery of the same stayed pending appeal. 9. emsp The amount involved in this case is Rs. 6,44,629/-. The learned Senior Advocate, taking into consideration the amount involved has offered to pre-deposit the same. 10. emsp We, therefore, order the appellants to pre-deposit this amount of Rs. 6,44,629/- (Rupees Six Lakh Forty Four Thousand Six Hundred and Twenty Nine) on or before 30-7-1997 and report compliance by 31-7-1997.
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1997 (6) TMI 157 - CEGAT, MADRAS
Money credit - Modvat ... ... ... ... ..... the way of the appellants for claiming the benefit of Modvat credit. I therefore hold that subject to the satisfaction of other provisions and on verification regarding payment of duty on Molasses and its utilisation through the route of intermediate product the appellants rsquo claim has to be considered. The learned Advocate has cited the judgment of the Hon rsquo ble Supreme Court in the case of Formica India Division v. Collector of Central Excise reported in 1995 (77) E.L.T. 511 in support of his plea. We have followed the judgment in another cases under similar circumstances. In that view of the matter I hold that this plea of the appellants has to be reconsidered in the light of my observations above. The learned lower authority rsquo s order so far as this aspect is concerned is set aside and the matter is remanded to the original authority for de novo consideration and decision in the light of the above. The appeals are therefore allowed by remand in the above terms.
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1997 (6) TMI 156 - CEGAT, NEW DELHI
... ...
... ... ..... n appreciating these two situations. He has presumed that both the conditions had to be satisfied whereas the rule makes it clear that these two situations are separate and not co-existent. Thus where the manufacturers are able to satisfy the Assistant Collector that these inputs were used in the manufacture of final products which were cleared from the factory after filing the declaration, the availment of credit is admissible. The ld. Collector also did not notice this grave mistake made by the Assistant Collector. The other belief of the Assistant Collector that for availment of provisions of this rule prior permission had to be obtained, is also found to be without basis as determined in the citation made by the ld. Counsel. 5. emsp In the result, the appellant succeeds. The case is remanded back to the Assistant Collector for determining whether the impugned goods were used in the manner prescribed under Rule 57H and for granting appropriate credit if he is so satisfied.
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1997 (6) TMI 155 - CEGAT, NEW DELHI
Valuation - Prices declared in Part II price lists ... ... ... ... ..... emsp The next aspect relates to the deduction claimed for freight. The qua- ntum of freight was not mentioned in the price lists, since, according to the res- pondent, the exact quantum was not known at that time. The Assistant Collector was in error in holding the deduction inadmissible for want of particulars. He should have held the actual freight to be admissible for deduction, subject to documentary evidence in support of the quantum. This was what was done by the Collector (Appeals) and we find no ground to interfere in this regard. 8. emsp We set aside the part of the order passed by the Collector (Appeals) directing assessable value of goods covered by price list No. 133/87 to be based on the price of Rs. 59.00 per running metre and restore the order passed by the Assistant Collector directing assessable value to be based on the price of Rs. 59.20 per running metre. In other aspects, the order passed by the Collector (Appeals) is confirmed. Appeal is allowed in part.
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1997 (6) TMI 154 - CEGAT, NEW DELHI
Refund - Limitation ... ... ... ... ..... lants do not categorically state that they have posted the letter by RPAD. They have not placed any postal proof of service or any endorsement of department of receipt of the letters of protest. Merely asserting that they had filed letter of protest alongwith Bill of Entry and the same was not received is not sufficient. There is a procedure for lodging a protest, which has not been followed by the importer. There is no endorsement on the Bill of Entry that entry was paid under protest rsquo . The lower authorities, therefore, held that the claim of the importer is not substantiated. We are constrained to hold that even before the Tribunal, the appellants have not chosen to appear and explain their case in person. They have also not placed any proof of having atleast depatched the letter of protest, let along showing proof of service of the said letter to the departmental officials. In the circumstance, we do not find any substance in this appeal and hence we reject the same.
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1997 (6) TMI 153 - CEGAT, NEW DELHI
Scalp Vein Sets ... ... ... ... ..... ed by the Tribunal. We are also not aware as to the fate of the appeals filed by the revenue against similar orders passed in the case of Bharathi Surgical, Shah Trading Corp. and South India Surgical Co. Ltd. In view of the revenue not producing basic documents like Bill of Entry, Catalogue and the manner in which these goods have been imported, it is but proper that the impugned order is set aside and the matter is remanded to the original authorities for de novo consideration in the light of the judgments rendered by the Tribunal and in the light of the submissions made by the revenue. In these appeals the revenue shall also take into consideration the judgments rendered by Tribunal as well as by Calcutta High Court and also the evidence relied by the importer. The importer shall be heard in these matters before the authorities take a view. Thus the appeals are remanded to the original authorities for de novo consideration. The Cross objections are disposed of accordingly.
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