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Case Laws
Showing 121 to 140 of 492 Records
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1998 (2) TMI 388 - CEGAT, MADRAS
Import - Machine - Composite machine ... ... ... ... ..... ver, we find that the ld. JDR brought to our notice section note 3 of Section XVI which we have already reproduced above . From the above said section note, it is clear that the subject consignment is of a composite machine consists of three machines which together have a complementary function and perform the principal function of generating electricity. Therefore, the whole issue is covered by the said section note and the adjudicating authority should have recourse to the above said section note and the refund application of the appellants should be redecided in the light of the above said section note. For this purpose, we are of the view that the matter requires to be remanded to the adjudicating authority. 5. emsp Accordingly, the impugned order is set aside and the case is remanded back to the adjudicating authority to decide the refund claim of the appellants in the light of our above observations in accordance with law. 6. emsp The appeal is allowed by way of remand.
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1998 (2) TMI 385 - CEGAT, MADRAS
Import against value based advance licence ... ... ... ... ..... t been dealt with by the adjudicating authority at all. This was duly pointed out by the applicant/appellants herein in para 3 of their reply to SCN. In view of extension period for fulfilment of export obligation and the fact that export obligation has since been fulfilled the charge of violation of Notification No. 203/92 is not sustainable. Hence, we are of the view that the imposition of duty liability and imposition of penalty on the applicants cannot be sustained. Hence, we set aside the impugned order so far as the applicant/appellant is concerned. Hence, we allow the appeal itself. In view of the above, the stay petition also gets disposed of. rdquo 5. emsp Following the earlier decision of this Tribunal, we are of the view that there is no case for demand of duty and there is no violation. In this view of the matter, we set aside the impugned order with respect to the appellant and the penalty imposed on the appellant is also set aside. 6. emsp The appeal is allowed.
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1998 (2) TMI 383 - CEGAT, NEW DELHI
Valuation - Appeal ... ... ... ... ..... ment agent who is paid 4 and only the balance percentage is being passed on to the dealers. 4. emsp According to Shri K. Srivastava, SDR buyers in Gujarat State and the buyers outside Gujarat State fall into two different class and therefore there can be two different prices. This argument would merit serious consideration if all the sales are factory gate sales to buyers. The sales to dealers outside Gujarat State are factory gate sales and uniform discount is allowed to them. Therefore, it cannot be said that factory gate sales are to two different class of buyers. If factory gate sales are to two different class of buyers, there could be two wholesale prices, one each for each class of buyers. Such is not the position in the present case. Therefore, assessable value of goods covered by all the sales would be governed by only the factory gate sale price available. Therefore, demand was not justified. 5. emsp We find no ground to interfere and accordingly dismiss the appeal.
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1998 (2) TMI 382 - CEGAT, MUMBAI
Stay/Dispensation of pre-deposit ... ... ... ... ..... y form to another has to be considered manufacture and this might have taken place. 4. emsp Heading 38.09 is specifically for finishing agents and preparation of a kind used in a textile paper of like industries not elsewhere specified. The test report indicates the goods to be preparations composed of acrylic emulsion, (sic) good and suggests possible use for finishing and fixing. Prima facie the view of the Collector (Appeals) that because Heading 38.09 is a residual entry and there is no specific indication of end use in the test report, the goods are to be classifiable under Heading 38.09 would in our opinion to restrict the scope of Heading 38.09 to an extent which the facts do not contemplate. Taking this and the financial condition of the applicant into account, we order that on the applicant depositing a further amount of Rs. 2 lakhs within two months from today there will be a waiver of the balance amount and stay its recovery. 5. emsp Compliance on 24th March, 1998.
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1998 (2) TMI 381 - CEGAT, MUMBAI
Stay/Dispensation of pre-deposit - Demand ... ... ... ... ..... on the judgment of the Bharat Bijlee Ltd. in Appeal E/38/93-Bom (Order No. 145/97-WRB/C-II, dated 13-1-1998) in which the Tribunal under similar circumstances have granted relief in favour of the assessee. 4. emsp As against this, the Departmental Representative, while reiterating the grounds mentioned in the impugned order, stated that in every transaction, the Department has been kept in the dark about the nature of the transactions. He also made some arguments regarding the nature of the transactions as revealed in service by them. 5. emsp We have considered the rival submissions. The application is only for waiver of pre-deposit of duty. Prima facie we are of the view that the applicant has a strong arguable case. However, taking the totality of the circumstances, we direct the applicant to freeze their Modvat account to the extent of an amount of Rs. 2.50 lacs. On such step being taken, there will be waiver of pre-deposit of the duty amount as well as the penalty amount.
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1998 (2) TMI 377 - MADRAS HIGH COURT
Writ jurisdiction - Seized documents ... ... ... ... ..... ether the evidence procured during any illegal search is to be admitted or not were considered repeatedly. Recently the Supreme Cout in a decision Stone Warden v. Powell 1983 (13) E.L.T. 1477 (S.C.) 1971 (3) S.C.R. 802 (1972) 1 S.C.J. 579 A.I.R. 1972 S.C. 689 delivered on 6th July, 1976, went back on its earlier view and held that the basis of exclusion of evidence to deter the policement deflects the truth-finding process, and often frees the guilty and is not in conformity with the concept of justice. Taking all the circumstances into account, we do not think that a writ of mandamus should issue when the officers have got a right to retain the documents under the other provisions of the Act. rdquo 8. emsp In view of the above and in view of the admitted fact that the adjudication proceedings have already been commenced, the writ of mandamus as sought for cannot be granted. Accordingly, this writ petition is dismissed. No costs. Consequently, W.M.P.No. 816 of 1998 is closed.
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1998 (2) TMI 375 - CEGAT, CALCUTTA
Adjudication - Natural justice ... ... ... ... ..... t for a confirmation of minutes of hearing from the applicant rsquo s letter dated 19th September, 1996 which was duly submitted to the Commissioner on 20th September, 1996 and which has not been referred to at all in the impugned order. It was incumbent upon the adjudicating Commissioner if he wanted to proceed with the adjudication of the case before disposal of the writ petition in Karnataka High Court to give another personal hearing to the applicant/appellant so as to give them an opportunity for placing all the relevant materials as well as case law in their support. The present impugned order, therefore, suffers from violation of principles of natural justice. Consequently, we are of the view that the matter is fit for remand. Hence we set aside the impugned order and remand the matter to the adjudicating authority for de novo adjudication according to the principles of natural justice. 4. emsp Since the Appeal has been disposed of, Stay Petition also gets disposed of.
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1998 (2) TMI 374 - CEGAT, MUMBAI
Demand for Modvat - Limitation ... ... ... ... ..... assessee rsquo s records. In these circumstances, the assessee could legitimately believe that the bobbins were inputs. It is not necessary that for a commodity to be an input used or in relation to the manufacture of the final product, it has necessarily to form a part of it. There are innumerable decisions to support this view. Therefore, I cannot agree that the assessees ought to have known that the bobbins were not inputs nor can it be said they did know that they were not inputs and despite that knowledge deliberately said that they were inputs. Further the fact is that the department knew that assessees intended to take, and actually took credit with respect to the bobbins, both from the declaration and the RT 12 returns filed. However, the department chose to acquire in its assessees taking credit for nearly four years. 6. emsp Therefore, I do not find anything to question the Additional Collector rsquo s findings on the issue of limitation. 7. emsp Appeals dismissed.
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1998 (2) TMI 373 - CEGAT, MADRAS
Import - Advance licence ... ... ... ... ..... h are required to be verified. These invoices which were produced by the appellants were not at all discussed by the lower authorities. Actually, in such circumstances, this was the case which should have been remanded to the adjudicating authority to make available the market enquiry report to the appellant and then to pass the orders after verification of the invoices produced by the appellants. But the ld. Advocate stated that the goods are incurring demurrage and he would like to have a decision from the Tribunal without any remand. 9. emsp In the facts and circumstances of the case we are of the view that ends of justice will be met, if the redemption fine is reduced to Rs. 15,00,000/- (Rupees Fifteen lacs only) and we order accordingly. 10. emsp In the facts and circumstances of the case, the penalty is reduced to Rs. 1.5 lakhs (Rupees One lac Fifty thousand only). 11. emsp The appeal is otherwise dismissed but for the above reduction in the redemption fine and penalty.
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1998 (2) TMI 372 - CEGAT, MADRAS
Demand - Limitation - Suppression - Penalty ... ... ... ... ..... parties the omission by one to do what he might have done and not that he must have done does not render it suppression of fact. Therefore, when the facts are known to the department, that the goods are transferred from the factory to their depot it cannot be said that the party must have intimated the department about the sale price, but it is not an act which the appellants must have done because there is no such requirement under the law to intimate the sale price from the depot. There is a clear distinction brought out by the Hon rsquo ble Supreme Court and it is only the act which the assessee must have done and if the fact is not made known to the department, then only it can be said that there was suppression of material fact with intent to evade payment of duty. In this view of the matter we are of the view that longer period of limitation cannot be invoked in this case and the appeal is accordingly allowed. The penalty imposed is also unsustainable, and is set aside.
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1998 (2) TMI 367 - CEGAT, NEW DELHI
Yarn - Proviso to Notification No. 172/72-C.E. ... ... ... ... ..... to waste yarn arising prior to its removal for weaving. Since the proviso was amended only on 3-2-1982, the restriction comes into force from that date and that proviso is not applicable retrospectively as it was rightly argued on behalf of the appellants. Accordingly, the benefit in terms of Notification 172/72 cannot be denied in the absence of such restriction therein. We also take note of the fact that the issue is similar in Appeal No. E/987/91-D. Apart from that issue, it appears that the demand was also barred by time since the show cause notice was issued on 6-2-1980 for the period December, 1977 to July, 1979. In the absence of allegation of suppression of facts in the show cause notice, demand was clearly barred by time. Time and again, the Supreme Court has clearly held that issue be clearly brought out in the show cause notice in view of the larger period. We find that the appellants succeed on merits in both the cases. Accordingly, both these appeals are allowed.
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1998 (2) TMI 366 - CEGAT, MUMBAI
Customs House Agent Licence - Suspension of ... ... ... ... ..... 23 come to be taken against him. But so far as the suspension of the licence is concerned, we are inclined to follow the Tribunal decision in the case of Syed Ahmed and Co. v. Collector of Customs, New Delhi - 1996 (84) E.L.T. 494 (Tribunal) and Tribunal decision in the case of Kothari and Sons v. Commissioner of Customs, Mumbai - 1997 (94) E.L.T. 219 (Tribunal) cited before us by ld. Counsel wherein the Tribunal took note of the loss of livelihood caused by suspension for long period of the CHA licence and directed that suspension be revoked. We, therefore direct the Commissioner to restore the CHA licence to the appellants after taking suitable safeguards as deemed necessary to facilitate proper investigation. It is made clear that this direction to set aside the suspension order is without prejudice to the right to the department to proceed in the matter in the light of the investigation under Regulation 23 of CHA Regulations. The appeal is disposed of in the above terms.
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1998 (2) TMI 365 - CEGAT, NEW DELHI
Remission of duty for goods used for special industrial purposes ... ... ... ... ..... that the remission of duty is not available when the purchaser is not a holder of L-6 (CT 2 Certificate). Thus, it is clear that whether the party is a holder of L-6 licence or CT 2 Certificate even if the said certificate is produced belatedly the benefit cannot be denied so long as it can be established that the substantive provision has been complied. In this case the Collector himself has granted benefit in respect of GP 1s, 34 and 35, but denying benefit in respect of others only on the ground that the CT 2 certificate has been issued belatedly after the clearance. As can be seen from the records and the facts of the case the issue falls within the aspect of procedural violation and there is no substantive violation in the matter. In view of the judgments on this point and ratio laid down as noted above, the appellants are entitled for the benefit in respect of GP 1s, 5, 6, 34 and 35. In that view of the matter, the impugned order is set aside and the appeal is allowed.
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1998 (2) TMI 364 - CEGAT, MUMBAI
... ...
... ... ..... price of the goods. rdquo It is clear from this that unless it can be shown that the advance taken results in a lowering of the goods to the buyer is such the fact of such an advance cause influence in the assessable value. This is not the case in the present appeal. The Assistant Collector does not record any finding to this effect. The contention of the Departmental Representative that goods were tailor made to the special requirements of the buyer, and therefore it cannot be demonstrated that there has been a reduction in price on account of the advance being taken does not convince us. It merely asks us to assume that in such cases there is a reduction in price. Even if the price is a contract price, documents such as offer, acceptance and record of negotiations would show that there has been a reduction in price on account of the advance taken, if that was the case. This has not been shown to be the case in this matter. 4. emsp We decline to interfere. Appeal dismissed.
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1998 (2) TMI 363 - CEGAT, MADRAS
Reference to High Court - Modvat ... ... ... ... ..... the nature of apparatus or appliances. Therefore, she stated that no question of law has arisen in this regard. 4. emsp We have considered the submissions. We find that the Tribunal had held that these goods are used in the medium of transfer. In the order of the tribunal it is held as follows - ldquo But as far as the other items are concerned, we are satisfied with the argument of the learned Advocate that these cannot be termed as appliance or apparatus as they are used as a medium of transfer. In that view of the matter they cannot be considered as appliances or apparatus in which the goods are processed. rdquo Even in the reference application the department itself has stated that these are used as medium of transfer. Therefore, taking into consideration the use of the goods in question and when the Tribunal has entered a finding of fact, in our view, it cannot be said that a question of law has arisen in this regard. Accordingly, this reference application is rejected.
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1998 (2) TMI 362 - CEGAT, MADRAS
Thyristors are semi-conductors - Eligible for exemption under Notification No. 91/89-Cus. as amended by Notification No. 174/89-Cus.
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1998 (2) TMI 361 - CEGAT, CALCUTTA
Reference to High Court ... ... ... ... ..... ering that question of law. 3. emsp In the present case, the Customs (Preventive) is seeking review of the Tribunal rsquo s Order. It is not permissible under the provisions of Section 130 of the Customs Act, 1962. It is also seen from the findings of the Tribunal in the Order dated 2-6-1997 that the Tribunal on the basis of appreciation of evidence had held that Shri Ram Avtar Agarwal rsquo s statements are in the nature of hearsay evidence and in the nature of statement of co-accused. These statements are not sufficient to penalise the appellants. Consequently, the impugned Order was set aside and the appeal was allowed with consequential reliefs to the appellant. This finding, it is apparent, is an appreciation of evidence. It is well-settled that sufficiency of evidence is not a question of law. Accordingly, the question raised by the Commissioner being not a question of law is not valid for referring to the High Court. Consequently, the Reference Application is rejected.
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1998 (2) TMI 360 - CEGAT, MUMBAI
Stay/Dispensation of pre-deposit ... ... ... ... ..... t be considered to be fabric after such a process is carried out. 3. emsp Pile fabric, as it is named denotes a fabric which has on it hair and fibre projecting from one surface. Prima facie it is reasonable to accept that for such a fabric to be rendered suitable for use and hence marketable, the pile must be of uniform length and that any process which is necessary for this purpose would be a process necessary for manufacture of the fabric, and hence not a process carried out after the fabric comes into existence. The first decision of the Tribunal holding this view supports the applicants case prima facie. The other decision of the Tribunal has held the view that cropping and shearing is synonymous. The applicant has therefore a reasonably good case prima facie although the matter is not entirely free from doubt. On this view we direct the applicant to deposit Rs. 20 lakhs within two months from today upon which we waive deposit of the remaining amount of duty and penalty.
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1998 (2) TMI 359 - CEGAT, MUMBAI
Classification ... ... ... ... ..... he has done in the impugned order that the Ministry rsquo s instructions are for guidance and such instructions have no legal authority unless they are issued under provisions of Section 37B of the Act. This stand has clearly been now over-ruled. The appellants have also lead evidence to show that jarda tobacco could be both unmanufactured variety as well as processed manufactured tobacco and in this case the department has not shown that any ingredients had been added to the tobacco in question. In these circumstances, when once the goods are seen to be unmanufactured tobacco, the question of applying Chapter Note 2 of Chapter 24 CETA will not arise because that chapter note does not apply to unmanufactured tobacco falling under Heading 24.01 of CETA. 5. emsp In the result, it is held that the tobacco in this case was correctly classifiable under Heading 24.01 as unmanufactured tobacco and in this view of the matter the impugned order is set aside and the appeal is allowed.
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1998 (2) TMI 358 - CEGAT, MUMBAI
... ...
... ... ..... Wire refers to the quality of the Stranded Steel Wire. On this point now before us both the parties have referred to certain pieces of evidence. The Department has relied upon the declaration by Hindustan Conductors to support their argument that the two materials are different from each other and the respondents have produced certain certificates, some of them from their suppliers of the input, to the contrary. Therefore we deem it fit, to allow the appeal by way of remand the matter to the Commissioner (Appeals) for considering the question whether the two materials High Tensile Steel Wire and Stranded Steel Wire are understood differently in commercial parlance and both the parties will be at liberty to file before the Commissioner (Appeals) such evidence that they may have to substantiate their respective point of view. The Commissioner (Appeals) will decide the case afresh, in accordance with law after granting personal hearing. The appeal is remanded in the above terms.
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