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Showing 81 to 100 of 312 Records
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1998 (5) TMI 238
Rectification of mistake - Redemption fine ... ... ... ... ..... with the law and hence the redemption fine is payable because the import is illegal. Payment of redemption fine has nothing to do with payment of duty as such (See in this context Delhi High Court judgment in Punjab Dairy Development Corpn. v. Union of India - 1988 (14) ECR 190. 6. emsp We are also of the view that to say that the Tribunal rsquo s order has been passed without reference to the provisions of Section 125 and to correct that order, would amount to review of that order or sitting in appeal on that order, which is not permissible while dealing with the application for rectification of errors, as the scope for rectification is very narrow. In the result there is no error apparent on the face of the record arising out of the Tribunal rsquo s order for being rectified. The application is therefore rejected. 7. emsp However, if the applicants are still desirous of exercising the option for redemption, they are given further time to do so on or before 31st July, 1998.
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1998 (5) TMI 237
Custom House Agent - Revocation of licence ... ... ... ... ..... ties of Shailesh Varu. It appears likely that the appellant has placed undue trust and confidence in Shailesh Varu. This alone, however, is not, in our view, sufficient to revoke the licence once and for all. 9. emsp Recovation of a licence is a grave punishment, as it deprives the person concerned of the means of livelihood for the rest of his lifetime. Having regard to the effect of involvement of the appellant rsquo s proprietor and absence of mala fides against him, we are of the view that while action against him was called for, it would not justify total revocation of the licence. The licence was suspended in February, 1995 and the appellant was without a licence for three years. This, we feel is sufficient punishment to the appellant. Only on this consideration and subject to the condition that Shailesh Varu does not continue in the employment of the appellant for dealing with Customs clearance or connected matters, we set aside the order impugned and allow the appeal.
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1998 (5) TMI 236
Annual capacity of steel mill - Natural justice ... ... ... ... ..... nal calculated production is less than the actual production, the duty has to be paid on the production so determined. Change in any variable may go to alter the figure of notional production. Rule 4(2) provides for a change to be made in any of the variable. When critically examining merits of the changes claimed, where his findings would go to the detriment of the assessee by way of fixing the notional production at a higher level, it is necessary for him to put the assessees on notice and to make such alterations only on hearing the assessee and on giving cogent reasons. The failure of the Collector to do so, has resulted in the denial of natural justice making into nullity this order. This order is set aside, the matter is remanded back to the Collector, who will give adequate opportunity to the assessees to explain the technical and mechanical aspects of the changes implemented by them and thereafter issue a proper order on merits. The appeal is decided by way of remand.
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1998 (5) TMI 235
Redemption fine - Quantum of ... ... ... ... ..... ued on behalf of and under the authority of the Assistant Collector of Customs. 4. emsp It is seen that the ceiling limit of the redemption fine is the market price of the goods confiscated less the duty chargeable. 5. emsp The adjudicating authority has taken the CIF value of the brass ingots as Rs. 50,000/- on the basis of the value at the rate of US 1700 per M.T. Admittedly, duty involved was Rs. 30,000/-. The market price will also include in addition the margin of profit. Viewed in this light, the redemption fine of Rs. 50,000/- is correct. 6. emsp The adjudicating authority had not imposed any penalty. The importers had not denied the allegations and had only submitted that the import of brass ingots was not intentional. We find that the adjudicating authority has already refrained from imposing any personal penalty. 7. emsp Taking into account the facts and circumstances of the case, we do not find any merit in this appeal and the same is rejected. Ordered accordingly.
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1998 (5) TMI 234
Refund - Return of duty paid goods either for reconditioning or for resale ... ... ... ... ..... 3H had never been raised by Assistant Collector and the fact also remains that D-3 intimation giving purpose of receipt back of the goods as per Rule 173H had been checked and accepted. Thus the facts on record show that from the beginning the Appellants had followed procedure under Rule 173H and mentioning of Rule 173L by them in their refund application was an apparent error. The D-3 intimations are printed to indicate that they are under Rule 173H. Therefore the ground taken to reject the claim as one made under Rule 173L of Central Excise Rules is unsustainable. Nor is there any factual foundation, as noted above, for the fresh ground taken by the Commissioner (Appeals) questioning the applicability of Rule 173H to the process carried out by the Appellants on the returned goods. In the result, the impugned order is set aside and the appeal is allowed. It is made clear that the consequential refund will be subject to amended provisions of Section 11B of Central Excise Act.
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1998 (5) TMI 233
Valuation - Demand - Limitation ... ... ... ... ..... rder and remand the matter to the original adjudicating authority for recalculation of quantum of duty in the light of our observations made above. 7. emsp Before we part we may record here that we have not found any merits in the appellant rsquo s plea for limitation. The allegations against appellants are substitution of sale of goods with the captive consumption goods and diversion of the captive consumption goods for sale to outside parties at the prices approved for captive consumption. Letter of 1985 relied upon by the appellants only shows that the department was in the knowledge of the fact that the appellants were adopting two different prices for two views of the goods. However, it does not reflect upon any knowledge on the part of the department to the effect that the goods meant for sale would be cleared by them at the value approved for captive consumption. Accordingly the larger period has been rightly invoked by the Collector. Appeal is disposed in above terms.
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1998 (5) TMI 232
Stay/Dispensation of pre-deposit - Demand - Limitation ... ... ... ... ..... 5. emsp We have carefully considered the pleas advanced from both sides. We have also gone through the show cause notice. We observe that the show cause notice starts by referring to only the classification lists submitted by the applicant on 28-3-1993 without referring to what had happened earlier in 1992, when the very machine had been examined by the officers along with the operation manual etc. and the Assistant Commissioner was duly satisfied about it not being dutiable in view of the turn-over of the applicant being lower than what was stipulated in the SSI exemption notification. Accordingly, the machines were released. We are, therefore, prima facie of the view that it is merely a case of change of opinion from one set of officers to another set of officers. Consequently, the larger period of limitation cannot be invoked in these circumstances. We, therefore, allow the stay petition unconditionally without going prima facie into the merits of the classification lists.
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1998 (5) TMI 231
SSI Exemption - Brand name ... ... ... ... ..... e name/logo of brand name of owner are entitled for the benefit of Notification No. 175/86-C.E. dated 1-3-1986. When the collapsible tubes with brand name are entitled for the benefit of the notification, this benefit cannot be denied to the respondents as they are manufacturing only M.S. Boxes and Covers for the Chokes and not the complete chokes. Further the respondents are supplying these covers to the manufacturers of chokes. It is not the case of Revenue that the manufacturers of chokes are not entitled for the benefit of the Notification. 8. emsp In view of the fact that the respondents are only producing M.S. Boxes and Covers for Chokes and not the complete chokes, therefore, in view of the above mentioned Trade Notices, they are entitled for the benefit of Notification No. 175/86-C.E. dated 1-3-1986 as held by the Collector (Appeals), C. Ex., Bombay in the impugned order. Therefore, we do not find any merit in this appeal. The appeal filed by the Revenue is dismissed.
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1998 (5) TMI 230
Appeal by Department - Limitation ... ... ... ... ..... r relevant to the case or not. As regards citations made by the department in the case of C.C.E., Madras v. Union Carbide India Ltd., Calcutta reported in 1988 (38) E.L.T. 263 (A.P.), he submits that the delay condoned in that case are of some days only whereas in the present case it is of about 4 months. 4. emsp I have carefully considered the submissions made and have also seen the certificate given by the postal authorities. It is reasonable to accept that the certificate relates to the despatch of the papers in the present case. As regards precedent judgment, I observe that once it is felt that the delay on account of the postal authorities should not be held against the appellants, there is no need to distinguish the judgment on the basis of number of days of delay. Considering the submissions made, I find the case of the Revenue to be correct. I, therefore, set aside the impugned order and remand the proceedings back to the Commissioner (Appeals) for decision on merits.
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1998 (5) TMI 229
Glass and glassware - Benefit of exemption under Notification No. 67/88-C.E. available. ... ... ... ... ..... wares and its amendment in July, 1991 by which the specification was extended to include bowls, jugs, plates, casseroles, dishes with or without cover and it was also mentioned therein that they can also be used for preparing food. The Commissioner (Appeals) thereafter concluded that the amendment of the ISI specification removes the ambiguity in the matter and clarifies that glass articles like Square Cake Dish, Utility Dish, Pizza Plates are includable in glass tablewares and that such tablewares can also be used for preparing food. We do not find anything in the grounds of appeal to rebut this finding based on relevant material arrived at by the Commissioner (Appeals). In this context the subsequent order of the Commissioner (Appeals) and in the case of the same respondent and on the same issue is also relevant against which no appeal has been filed by the Department. In this view of the matter we find no reason to interfere with the impugned order. The appeal is rejected.
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1998 (5) TMI 228
Reference to High Court ... ... ... ... ..... respondent the Department filed an appeal. That is Appeal No. E/370/97. The Tribunal by its judgment dated 23-5-1997 following the judgment of the Tribunal in Moosa Haji Patrawala rsquo s case has held that the claim of the respondent is justified in law and the appeal of the revenue was dismissed. 4. emsp The question is whether the above said question raised by the De- partment is referable to the Hon rsquo ble High court of Ahmedabad for its opinion. 5. emsp The Tribunal by its judgment in the Moosa Haji Patrawala case reported in 1997 (92) E.L.T. page 588 has referred the question to High Court of Mumbai for its opinion. Hence following the said judgment in this case also I refer the above said question to the High Court for its opinion. The Reference Application is allowed. 6. emsp The Registry may send with the necessary papers namely the Order-in-Original, Order-in-Appeal and show cause notice along with this order to the Registry of the High Court for further action.
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1998 (5) TMI 227
Appeal - Maintainability and limitation ... ... ... ... ..... lant has failed to prefer appeal in time, being an aggrieved person. How far it is correct is to be seen. 10. emsp From the above, it is clear that 1-6-1990 communication is only a demand notice, and not an adjudication order. The principal M/s. Ocean Products and Shipping Ltd. has failed to pay the penalty of masters, and appellant being its local agent has become liable to pay it. The appeal against such a demand notice is not maintainable. 25-10-1988 adjudication order received by the appellant on 1-11-1988 speak the liability of appellant, for payment of penalty of masters as local agent, for which appellant was naturally aggrieved. For having failed to appeal against it at proper time, now his filing the appeal on 1-6-1990 demand notice cannot come to his rescue. The appeal cannot be maintained. The contention of the department has to be and is upheld. Hence we pass the following order. ORDER For the reasons discussed above the appeal is not maintainable. It is rejected.
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1998 (5) TMI 226
Confiscation and penalty ... ... ... ... ..... tement on 9-6-1988. Before this date he appeared before the authority more than once but did not retracted from his statement. Hence the retraction at this stage is of no avail. 7. emsp The appellant produced some purchase bills in respect of tungsten carbide tips. But on verification these were found to be false. Therefore, we do not find any merit in the arguments of the appellant that goods were purchased from local market. 8. emsp In respect of classification of the goods the plea of the appellant is that goods are waste and scrap of tungsten. The report of the Chemical Examiner shows that the goods are tips for tools of tungsten carbide. In view of the test report and admission made by Shri C.P. Aggarwal, we find that the goods were tungsten carbide tips and classifiable under Heading 8209 of the Customs Tariff as held by the Additional Collector in the impugned order. 9. emsp In view of the above discussion, we do not find any merit in the appeal, the same is dismissed.
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1998 (5) TMI 225
Modvat - Declaration ... ... ... ... ..... complete the Department will be justified in denying the Modvat credit. 3. emsp We have heard Shri S.V. Singh, the ld. DR for the appellant Commissioner and Shri S.K. Banerjee, General Manager (Finance) of the respondent is also present. We find that the Commissioner (Appeals) has taken the view that where the declaration has made indicating the chapter heading in the Tariff and where it is found incorrect, that should not be made a ground for denying Modvat credit. This view find support in several decisions of the Tribunal which have held that for such minor breaches Modvat credit should not be denied. Therefore, the appeal of the Department on this aspect of the Commissioner rsquo s (Appeals) order is not sustainable as it is consonance with the broader purpose of Modvat scheme for input duty relief. The appeal of the Department is accordingly disposed off upholding that portion of the Commissioner rsquo s (Appeals) order against which the Department has come up in appeal.
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1998 (5) TMI 224
Remand for readjudication ... ... ... ... ..... we have extracted above. 5. emsp Since it has been stated across the bar that no show cause notice has been received by the applicant so far despite the expiry of one month from the date of receipt of the Tribunal rsquo s order as communicated by the ld. SDR on 23-3-1998, we are of the view that the Commissioner of Customs has not implemented the Tribunal rsquo s order. We, therefore, direct him to release the goods in pursuance of the Tribunal rsquo s aforesaid order dated 12-11-1997. At this stage, ld. Consultant, Shri K. Chatterjee submits that most of the goods according to his knowledge have been disposed of by the Commissioner of Customs, Customs House, Calcutta. We, therefore, direct the Commissioner of Customs to hand over whatever goods still remains in his custody and also hand over the sale proceed of the goods already sold if any, within 15 days of the date of receipt of this order. Case to come up for ascertaining compliance with the direction on 23rd June, 1998.
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1998 (5) TMI 223
Appeal by Public Sector Undertaking ... ... ... ... ..... the case for some time so that the appellants may be able to pursue the matter with the Committee for early clearance. 2. emsp Considered. We observe that this appeal is of 1992 and the appellants have taken up the matter of obtaining clearance from the Committee on Disputes only on 23-4-1998. It is not certain as to how much time will be required for obtaining the necessary clearance from the Committee on Disputes. 3. emsp In these circumstances we dismiss the appeal with liberty to the appellants to seek restoration of the appeal to its original number as and when they are able to obtain the necessary clearance from the Committee on Disputes.
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1998 (5) TMI 222
Adjudication by Collector of Customs, Delhi - Jurisdiction ... ... ... ... ..... under which the exemption had been given. Any deletion amendment in the licence by the Licencing authority will no doubt cover the import-export obligation but will have no effect on the duty exemption under the relevant provisions of the Customs Act, 1962. In view of the above mentioned decision of the Tribunal we find no force in the arguments of the appellant that export obligation is to be fulfilled in terms of value only. 11. emsp In respect of contention of the appellant that Collector of Customs, Delhi has no jurisdiction to adjudicate the matter, we find that the appellant applied to the Collector Customs, Delhi for issue of no objection certificate and the export were also made through Collector of Customs, Delhi. Therefore we find no force in the plea of appellant that Collector Customs, Delhi was not competent to pass the orders in respect of goods imported by the appellant. In view of the above discussions, we find no merit in this appeal. The appeal is dismissed.
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1998 (5) TMI 221
Modvat - Packing material ... ... ... ... ..... istant Collector has unnecessarily raised the question of non-inclusion of cost of packaging in the value for cess. The period involved is January 1989 to September 1991. We allow this plea of the appellants subject to the verification that the appellants were entitled to pay duty at specific rate on their production of paper and paper board during the aforesaid period. Otherwise they will have to prove that the cost of packaging materials was being included in the assessable value of the final product. In other words in short we have allowed the appeal in respect of all items regarding admissibiity of Modvat credit, and subject to verification on packaging materials as aforesaid except in respect of two items coal and steam on which the appellants ld. representative does not prays for Modvat credit. 7. emsp Keeping in view the above facts and circumstances the appeals of the assessees are allowed with consequential relief to them and revenue rsquo s appeal is thus dismissed.
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1998 (5) TMI 220
Modvat - Transfer of proforma credit to Modvat credit ... ... ... ... ..... , we hold that if credit for differential duty paid subsequently cannot be given in the proforma account because of its closure, it would still be available by way of credit in PLA. Hence, the whole exercise of taking initial credit in RG 23 (proforma) account and that thereafter its closure and thereafter transfer to Modvat account in terms of Rule 57H, is redundant and is not called for. Following the said decision, the Tribunal in the subsequent case of M/s. Moti Laminates (P) Ltd. had also allowed the appeal of the appellants. Hence, following the said precedent decisions, we allow the appeals of the appellants. However, we add and declare that for the period from 1-6-1983 to 28-2-1986 since the appellant was given refund, they are not entitled to the transfer of proforma credit to Modvat credit account. For the qualification purpose, we remand the matter to the jurisdictional Asstt. Commissioner. Appeals are allowed and remanded to the jurisdictional Asstt. Commissioner.
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1998 (5) TMI 219
Valuation - Notional interest on advances ... ... ... ... ..... e inferred that the receipt of the advance depressed the price to any extent. In the case of goods which are available on the shelf, it would be easy to verify whether there was nexus by comparing the prices charged by the particular manufacturer to buyers who did not pay any advance amount or the prices charged by other manufacturers for identical goods. As pointed out by Shri K. Srivastava, SDR, such a comparison is not possible in a case like the present one where the goods are tailor-made goods. The fact that it would be more difficult in the case of tailor-made goods to establish a nexus, will not relieve the department of the responsibility of establishing nexus by some credible means or other. 6. emsp The facts of the present case by themselves are not sufficient to establish such a nexus that being so the Commissioner was in error in including in the assessable value notional interest on amount of advance. 7. emsp We set aside the impugned order and allow the appeals.
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