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Case Laws
Showing 141 to 160 of 492 Records
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1998 (2) TMI 357 - CEGAT, MUMBAI
Customs House Agent licence - Suspension of ... ... ... ... ..... on contemplated in the normal course that the licence must not be suspended except by following the procedure specified of issue of notice, opportunity for hearing etc. It is only in exceptional cases that suspension without licence under Regulation 21 is justified. We are not satisfied that this was one of those cases where recourse to this action was justified. The facts of the case did not require such urgency that the passing of a month or so within which notice for suspension could have been issued and the Custom House Agent heard and, thereafter if necessary order passed for suspension under Regulation 17 could not have been aforded. 7. emsp Considering all the factors that we have discussed, we are of the view that the suspension should be set aside and revoked and the licence restored. The Commissioner however is at liberty to take steps to suspend the licence in terms of Regulation 17 if he considers that appropriate. 8. emsp Appeal allowed. Impugned order set aside.
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1998 (2) TMI 356 - CEGAT, MUMBAI
Stay/Dispensation of pre-deposit ... ... ... ... ..... decision of the Delhi High Court in DCM and Another v. Jt. Secretary to Government of India and Another - 1978 (2) E.L.T. (J 121) to say that if the sale of the goods regulated is by a special law, the goods can be manufacturable only if the provisions of that law are complied with and that the goods cannot therefore be manufactured. We are not going to the other aspects. 3. emsp The Departmental Representative contends that the Commissioner has dealt with this issue by holding that the product is classifiable under Heading 1702. 4. emsp Prima facie, in the face of the Rule 47 of the PFA it is not possible to hold that the article is marketable. That being the case, it cannot, prima facie, excisable. On this point we waive pre-deposit of duty and penalty and stay their recovery. 5. emsp Accepting the request made by the Departmental Representative for early hearing on the ground of duty involved and the recurring effect, we order appeal to be listed for hearing on 20-3-1998.
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1998 (2) TMI 355 - CEGAT, MUMBAI
Modvat - Waste and scrap generated in manufacture of plastic films not a final product but by-product.
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1998 (2) TMI 354 - CEGAT, MUMBAI
Stay/Dispensation of pre-deposit ... ... ... ... ..... mmissioner (Appeals) by the impugned order did not discuss the said letter of the applicant rsquo s Counsel dated 26-06-1997. He does not say how there was no financial difficulties confronted by the applicant. But yet without referring to the same he passed the impugned order stating that the persons concerned should pre-deposit the amount which he has been directed to deposit as a tax or penalty. 4. emsp We feel with this approach of the Commissioner (Appeals) is wrong in law. In similar such matters by our dated 7-10-1997 we had remanded the matter to the appellate authority to reconsider. In this case there is a detention order made. Therefore we feel that ends of justice would be met if we set aside the impugned order and remand the matter to the Commissioner (Appeals) for disposal according to law after issuing notice to the Appellants under Section 35F of the Central Excise Act, 1944. The detention order is directed to be lifted. The appeal is allowed by way of remand.
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1998 (2) TMI 353 - CEGAT, CALCUTTA
... ...
... ... ..... the Tribunal on the basis of sale-pattern adopted by the appellant firm, has clearly held that the factory prices of the appellant firm cannot be considered to be non-genuine. Consequently, the demands raised were set aside by that Order. 7. emsp In view of the Tribunal rsquo s aforesaid Judgment dated 5-12-1991, the same ratio would also apply to the present case, the facts and circumstances of the instant case being essentially the same. We are, therefore, of the view that on the same analogy and there being no extra evidence on record in this case, the prices at the factory gate of the appellant firm for the relevant periods can be considered to be genuine ones and therefore, those prices would also be applicable for sales made at the Depots. Hence, we do not find any substance in the contentions of the Revenue or in the findings of the Commissioner. Consequently, we allow the appeal with the resultant relief to the appellants herein, after we set aside the impugned Order.
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1998 (2) TMI 352 - CEGAT, MUMBAI
Confiscation and penalty ... ... ... ... ..... he was an illiterate person. It was argued that statement was in English not written by him. If that was the case, we cannot understand then how he could sign the statement in Hindi. During the course of the arguments the ld. Counsel laid stress on the point of cross-examination. We do not find any relevance of this plea. By cross-examining the officer who had recorded the panchnama how will they know about the acquiring of the smuggled goods. We are therefore of the view that the entire plea made by the ld Counsel for the appellant is not at all appealing to us. As far as the burden of proof is concerned, the ld. Counsel rsquo s argument and the facts revealed, we are not satisfied that the burden cast on the appellant under Section 123 of the Customs Act has not been discharged in this case. We are therefore of the view that the entire case has been rightly decided by the lower authority. We therefore feel that no interference is called for. 6. emsp Appeal stands dismissed.
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1998 (2) TMI 351 - CEGAT, CALCUTTA
... ...
... ... ..... h sides. We observe that the question is fairly debatable whether the mixture as aforesaid prepared by the appellants in the course of intermediate process is liable to duty or not. The appellants could be under an impression that it was not dutiable. The department can also urge with some force that it is dutiable. Without going into the merits of dutiability of the said product or classification of the said product, we are of the view that this was not a fit ground for imposition of penalty on the appellants herein for not taking licence and not complying with the Central Excise formalities. Consequently, we set aside the penalty imposed on the appellants. We allow the appeal in the aforesaid terms. We make it clear that this decision will have no effect on the question of dutiability or classification of the product in question which as stated earlier is pending adjudication before the Collector of Central Excise, Calcutta III. 4. emsp Appeal is allowed in the above terms.
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1998 (2) TMI 350 - CEGAT, CALCUTTA
Demand - Provisional assessment ... ... ... ... ..... of proposal to recover differential duty on account of valuation and no mention whatsoever, has been made that since the assessments on account of valuation were provisional, therefore, this show cause notice is being issued to make those assessments final. We are, therefore, unable to accept the submission of the learned SDR that this show cause notice was issued to make the provisional assessments on account of valuation final. Consequently, we set aside the show cause notice and remand the matter to the Assistant Commissioner of Central Excise to issue a show cause notice to the appellants herein for deciding all pending provisional assessments including any other issue on which provisional assessment has been made. Since we are not going into any other issue involved in the present matter, all the pleas will be open before the adjudicating authority. In short, the impugned Order is set aside and the appeal is allowed by way of remand in terms of the aforesaid directions.
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1998 (2) TMI 349 - CEGAT, MUMBAI
Refund - Unjust enrichment ... ... ... ... ..... eeking documentary evidence to back up the Chartered Accountant certificate because the certificate itself seems to have been based on checking of the respondents rsquo record by the Chartered Accountant. In such a situation, the respondents should have been in a position to produce the relevant sale bills or documents relating to placing of the order and the terms of supply which are surrounding corroborative circumstances of proof that the burden of duty has not been passed on to any other person. In this context, it is also seen that it is not an import of calculators along with instruction manual but the instruction manual seems to have been imported by themselves separately. In these circumstances, the Chartered Accountant certificate is not sufficient and it cannot be accepted as the sole document to satisfy the department that the duty burden has not been passed on to any other person. We, therefore, set aside the impugned order and allow the department rsquo s appeal.
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1998 (2) TMI 348 - CEGAT, MUMBAI
Demand - Factory - Workers ... ... ... ... ..... intention to evade duty. Therefore the conclusion of the Commissioner in this case to demand duty although for the normal period of 6 months is absolutely based on the statements obtained by the department following the visit to the unit, but it has been brought out by the defence that some persons taken as workers will not fit in the definition of the term workers, which again defined in the Factories Act. The department cannot be including e.g. the person who had came for repairing job as a worker. Some of the witnesses who were cross-examined have also not supported the department rsquo s case. In these circumstances the demand for duty on the ground that the Appellants fall within the definition of factory rsquo under the Factories Act is not well founded and is not based on tangible evidence. On the other hand, the Appellants have led sufficient evidence to support their case as seen above. In these circumstances the impugned order is set aside and the appeal is allowed.
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1998 (2) TMI 347 - CEGAT, CALCUTTA
... ...
... ... ..... d Order is based on Calcutta High Court rsquo s Judgment in the case of Singh Alloys Steel Ltd. v. Assistant Collector of Central Excise reported in 1993 (66) E.L.T. 594. The judgments referred to by the learned SDR are in the context of the classification of the steel sheets and the surface-plates and are not directly on the question of admissibility of Modvat Credit in respect of the aluminium sheets. As such, the same are distinguishable on facts. Even otherwise, I find that the said judgments held that the sheets and plates are parts of the main machinery and the Larger Bench of the Tribunal in the case Graphite (sic) India has already held that the Exclusion Clause of Rule 57A applies to the plant and machinery and not the parts thereof. As the respondents rsquo case stands fully covered by the Tribunal rsquo s decision in their own case, I do not find any justifiable reason to differ from the same. Accordingly, following the same, I reject the Department rsquo s appeal.
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1998 (2) TMI 346 - CEGAT, MUMBAI
Modvat - Duty paying documents ... ... ... ... ..... n to the first component of the demand in this case. 6. emsp As regards the second portion of the demand of Rs. 8,054/- the document, namely cash memo produced before us is an original cash memo bearing endorsement including the endorsement for Modvat credit. Apparently the lower authorities have omitted to note this aspect and therefore we are inclined to grant stay and also take up the appeal and remand the case for re-determination of the eligibility of Modvat credit in relation to the cash memo dated 24-4-1994 from Bharat Petroleum Corporation, as we find the actual document shown to us is an original document and not xerox copy. 7. emsp So far as the denial of Modvat credit of Rs. 1,03,191/- is concerned the matter is covered by the precedent decision of the Tribunal cited above and following this decision the demand is set aside. 8. emsp The matter is therefore remanded on the limited aspect indicated above to the jurisdictional Assistant Commissioner of Central Excise.
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1998 (2) TMI 345 - CEGAT, NEW DELHI
... ...
... ... ..... the seven compared imports. Without such details, it would not be correct to state that since the compared import from CIS and the imports from other countries were at the same price, namely, US 2245.00 per metric tonne CIF, this price should be accepted as correct in the case of the said imports. 6. emsp In view of the circumstances indicated above, we are not satisfied that the Commissioner has arrived at the correct assessable value. Correct assessable value has to be determined on consideration of the various circumstances referred to above and after ascertaining the relevant facts indicated above. 7. 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 the law and the observations contained in this order. If any more details are collected by the authority, the same will be made available to the appellant before personal hearing. The appeal is allowed.
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1998 (2) TMI 344 - CEGAT, NEW DELHI
... ...
... ... ..... ent of manufacturing profit estimated at 10 . Though respondent opposed the notices, the Assistant Collector confirmed the demands and his order has been set aside by the Collector (Appeals) on the ground that he has taken a view against the Department in another appeal on the basis of the decision of the Supreme Court in Ujagar Prints case 1989 (39) E.L.T. 493 (S.C.) This order is now challenged by the Collector of Central Excise. 3. emsp Shri K. Srivastava, SDR contended that no evidence has been produced to show that job charges received by the respondent included respondent rsquo s manufacturing profit. This contention is not acceptable for the simple reason that the Department had no case at any stage that besides job charges respondent received anything more from the buyer. Ordinarily job charges cover manufacturing cost and profit of the job worker. Question of paying duty separately on manufacturing profit would not, in these facts, arise. 4. emsp Appeal is dismissed.
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1998 (2) TMI 343 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... 4. emsp Heard Shri Nunthuk, Ld. D.R., who reiterated the ground taken by the Department. He submitted that 85.17 clearly specifies telephone or line-telegraphy and since the intercom functions as telephone this has to be classified under 85.17. 5. We have considered the matter. We find that Karnataka High Court has made a clear distinction between telephone and intercom. It has analysed the systems and held that intercom though performs the function of a telephone, but it is altogether different having individual functions confining to a particular office or an establishment. Following the ratio of the decision of the Karnataka High Court and in the absence of any contrary citation, we are of the opinion that this item is classifiable under 84.79 as it was held by the Collector (Appeals). Since we do not find any infirmity in the impugned order, the appeal filed by the Department is hereby dismissed. Cross objections filed by the party are also disposed of in the above terms.
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1998 (2) TMI 342 - CEGAT, NEW DELHI
... ...
... ... ..... ear to have been considered by the lower authorities. The claim of the present appellants that the Bill of Entry was assessed duty free on 13-3-1987 has not been disputed by the Department. Once the assessment to duty is complete, the fact that the goods were not physically removed by the importer and that it had to be sold subsequently in auction cannot by itself become a ground for reassessing the goods and for demanding duty thereon. 8. emsp We accordingly set aside the impugned order and direct the jurisdictional Executive Commissioner of Customs to issue directions to the concerned Assistant Commissioner to deal as appropriately with the request, if any, of the present appellant for the return of the amount of Rs. 5,62,878 appropriated towards Customs duty from the sale proceeds of the impugned goods in accordance with law. The concerned Assistant Commissioner will no doubt observe the principles of natural justice and pass a speaking order while disposing of the matter.
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1998 (2) TMI 341 - CEGAT, NEW DELHI
Set off of duty - Exemption ... ... ... ... ..... pondents had duty paid inputs. We consider that subject to the other conditions in the notification, if they are used in the manufacture of final products which are cleared after 24-4-1986, then the manufacturer was eligible for the benefit of set off. To that extent we agree with the view of the appellate authority. 7. emsp Appellate authority has observed that the manufacturer was eligible for consequential relief. In appeal filed by the Revenue it had been pleaded that if the relief is given to the assessee, they may be by way of credit in their RG 23A account. On this point Shri Vilas appearing for the respondents had no objection. Taking all the relevant considerations into account while on merits, we do not find any infirmity in the view taken by the Collector of Central Excise (Appeals) in these proceedings, in so far as the relief is concerned, we order that it be given by way of credit in their RG 23A account. With these observations, the appeal is otherwise rejected
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1998 (2) TMI 340 - CEGAT, NEW DELHI
Exemption under Notification No. 104/90-Cus. admissible. ... ... ... ... ..... alled Rheometer rsquo by one concern and Elastograph by another. We observe that the learned Collector has passed a very well-reasoned Order on the above basis and has rightly concluded that in the light of the material placed before him including the certificates of the experts of Rubber Research Institute of India, Kottayam, Department of Polymer Science and Rubber Technology, Cochin University, it is apparent that Rheometer rsquo and Elastograph rsquo are merely different names of basically the same type of machine. In our opinion also, these too can only be treated virtually as synonyms rsquo . Since the exemption Notification No. 104/90 admittedly specifies Rheometer rsquo as one of the items eligible for lower rate of duty, the same benefit was required to be extended to the Elastograph rsquo . Hence, we see no reason to interfere with the Order passed by the learned Collector. The Department rsquo s appeal is, therefore, rejected as already announced in the open court.
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1998 (2) TMI 339 - CEGAT, NEW DELHI
Stay/Dispensation of pre-deposit - SSI Exemption ... ... ... ... ..... te that the financial condition of the appellants is not good. At the same time the appellants should have ascertained the correct legal position once it was manufacturing or getting manufactured excisable goods and filed the declarations which were prima facie, required but the effect of such non-filing is also related to merits to be gone into at details at the time of hearing of the main appeal. Hence, the appellant rsquo s financial condition do not appear to be good. 6. emsp Looking at the totality of facts and circumstances, we consider it appropriate to grant waiver of the pre-deposit of the amount in question subject to the appellants depositing Rs. 7,00,000/- (Rupees seven lakhs only) within twelve weeks from the date of receipt of this order. On such a deposit being made, the pre-deposit of the rest of the amount and penalty shall stand waived and the operation of the order shall stand stayed during the pendency of the appeal, as already announced in the open court.
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1998 (2) TMI 338 - CEGAT, MADRAS
Reference to High Court - Stricture against the department ... ... ... ... ..... ns of law. 7. emsp We find that 4 years have passed after the decision of the East Regional Bench and the department could not have filed an appeal against this decision. There is also nothing on record to show that there was any reference application which was allowed by the High Court. There is no such pleading in the application that any reference application is filed against the decision of the ERB. The mere fact that the department has not accepted the decision as mentioned in the application is not the ground to hold the points of law as arisen. The decisions of the Tribunal are binding on the lower authorities. The question of acceptance or otherwise is immaterial. The question is whether any reference application has been filed against this decision. There is no such averment that any such application is filed and the matter is dealt with by the High Court. In this view of the matter, we see no reason to refer the questions. Accordingly, this application is dismissed.
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