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Case Laws
Showing 41 to 60 of 164 Records
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1992 (5) TMI 134 - CEGAT, BOMBAY
Words and Phrases - ‘Abatement’, distinct from ‘Remission’, of duty ... ... ... ... ..... der Sec. 22 of the Act, no further discussion is called for on the issue. However, it is clear that provisions of Sec. 23 cannot, in such a case, stand attracted. If the claim was under Sec. 22 of the Act, a further question also would have cropped in namely, whether abatement is permissible on ldquo deterioration rdquo after import, as the word ldquo deteriorate rdquo is used only in clause (a) and not used in clauses (b) and (c) of sub-section (1) of Sec. 22, and clause (a) deals with damage or deterioration ldquo at any time before or during the unloading of the goods in India rdquo . One may have to, on some appropriate occasion, examine the issue whether deterioration after import is also intended to be covered under Sec. 22. Here, however, no opinion is given. 10. In any case, when the Sec. 23 of the Act alone is intended to be pressed into service, which is, as indicated above, not available, the appeal deserves to be rejected. 11. I therefore concur with the findings.
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1992 (5) TMI 133 - CEGAT, BOMBAY
Words & Phrases - ‘Spares’ and ’Accessories’ ... ... ... ... ..... uo covered under the licence, the issue regarding their non-eligibility for import, because of their alleged figuring in some appendices, making them non-importable spares, does not survive and need not be discussed. 13. While confirming the findings that the imported items are liable to confiscation vide Section 111 (d) of the Customs Act, as they are not covered under the licence produced and examining the quantum of redemption fine, the CIF value of the goods is shown as Rs. 2,38,661/- and as such the fine is over 20 . However, with no specific data available as to margin of profit, and also considering the fact that prior imports have been cleared, the fine in lieu of confiscation can be justifiably fixed at around 10 and hence the same is reduced to Rs. 25,000/-. 14. Thus, with the modification that the redemption fine is reduced to Rs. 25,000/- the order passed by the authority below is confirmed and the appeal is disposed of accordingly. Consequential relief to follow.
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1992 (5) TMI 132 - CEGAT, NEW DELHI
Stay/Dispensation of pre-deposit ... ... ... ... ..... t, Rs. 3 lakhs of penalty in respect of Shri A.P. Goradia, Rs. 5 lakhs of penalty in respect of Shri Mohanbhai Kapoor Chand Jain, it will amount to undue hardship. We dispense with the pre-deposit of the same and further order that recovery proceedings shall not be pursued. 4. For the reasons given in the earlier paras, we are of the view that there was denial of principles of natural justice for which both sides do not object to the remand of matter. Accordingly, we set aside the impugned order and remand the above captioned 3 matters to the Collector of Customs, Kandla and further order that the Collector shall observe principles of natural justice and grant opportunity of cross-examination of the witnesses and also shall grant personal hearing. We further order that the Collector shall re-adjudicate the matter within 3 months from the date of the receipt of the Order. For statistical purposes, the stay applications are allowed and appeals are also allowed by way of remand.
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1992 (5) TMI 131 - CEGAT, BOMBAY
Modvat credit ... ... ... ... ..... Rules to extend Modvat credit on pro rata basis, excluding the duty element on packing materials. These drums/barrels cannot be considered to be waste arising out of processing of the inputs, for which credit has been taken so that provisions of Rule 57F(4) could be applied. Inputs depending upon their nature would be received either in a naked condition or in packed manner. Some of the packing materials might have scrap value or reusable value. All the same, duty on the input is paid on the entire value including the value of the packing material and this duty only is sought to be given as credit under Rule 57G. Hence, we are unable to agree with the Addl. Collector rsquo s view that because the packing materials are not used in or in relation to the manufacture of the final product and they are being cleared as such, modvat credit taken on these used packing materials is required to be reversed. We, therefore, allow the appeal and set aside the order of the Addl. Collector.
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1992 (5) TMI 130 - CEGAT, NEW DELHI
Manufacture ... ... ... ... ..... 74,294 and a penalty of Rs. 10,000 levied by the adjudicating order of the Collector of Customs and Central Excise, Ahmedabad dated 9-3-1984. Hence this appeal. 3. We find that the issue involved is squarely covered by the order of the Tribunal reported in 1988 (35) E.L.T. 480 and Order No. 356/89-D, dated 18-9-1989 wherein it has been held that cement-coated steel pipes are nothing but steel pipes coated with cement and as such not a different product classifiable under Tariff Item 68. 4. We respectfully follow the decision cited above and allow the appeal as already announced in open court.
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1992 (5) TMI 129 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... h the show-cause notice issued invoking Rule 9(2) and not Section 11A. 7. The High Court had held (supra) that various rules for confiscation of goods and levy of penalty invoked in the show-cause notices referred to therein under Rules which are not governed by any period of limitation. High Court had also held that the provisions of Section 11A, as a whole, cannot be imported into Rule 9(2). Therefore, the submissions made in this regard, do not have any force. As regards the quantum of penalty, since it has been found that the circumstances of the case do not indicate deliberate suppression of facts by the appellants to evade payment of duty, there is a justification for affording relief in the quantum of penalty which is accordingly reduced to Rs. 25,000. The appeal is disposed of in the above terms. The Cross Objection, filed by the Department, is only supportive of the impugned order by which the Department is not aggrieved. Hence, it is also dismissed as mis-conceived.
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1992 (5) TMI 128 - CEGAT, NEW DELHI
Appeal by department - Review show cause notice ... ... ... ... ..... se of exercise of suo motu power over the subordinate authorities rsquo orders, the date on which such power was exercised by making an order are the relevant dates for determining the limitation. The ratio of this distinction may also be founded on the principle that the Government is bound by the proceedings of its officers but persons affected are not concluded by the decision. Thus, the contention of the Revenue in the present applications that the impugned Order-in-Appeal though dated 29-10-1981 was despatched only on or after 28-5-1982 and, therefore, the limitation should be counted from 28-5-1982, that is to say, from the date of the despatch of the Order and not from the date of the Order itself cannot be accepted, in view of the ratio of the Apex Court. Thus we do not find any error apparent from the record in Order No. E/81 to 107/1990-D, dated 12-2-1990, passed by this Tribunal. 5. In the result, all the present applications are rejected being devoid of any merit.
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1992 (5) TMI 127 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... p of the desired property from which paper is made. Therefore, a clear reading of this write-up discloses that the item cannot be considered independently as a complete machinery or as a tool, as contended by them. The knives are essential parts of chipper and are specially made for the purpose of machinery for chipper and it is not an independent tool for general purpose. Note 1 of Chapter 98 states that the Chapter is to be taken to apply to all goods which satisfy the conditions prescribed therein, even though they may be covered by a more specific heading elsewhere in the schedule of the Tariff. Therefore, the contention of the importer has to be rejected. The ratio rendered in the case of Voltas Ltd. relied by the Revenue is also fully applicable to the facts of this case. It also answers the point raised by the learned Consultant. Applying the ratio of the said ruling, the contentions of the appellants have to be rejected and as a consequence, the appeals are dismissed.
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1992 (5) TMI 126 - CEGAT, NEW DELHI
Confiscation - Clandestine import ... ... ... ... ..... for the commission and omission has not imposed any penalty on two brothers while imposing penalty on the third member. Though not imposing the penalty on the other two brothers is not a mitigating circumstance, there is no justification for imposing the penalty on Shri Anoop Sarin having not imposed the penalty on Shri Anil Sarin and Shri Sandeep Sarin. I, therefore, agree with Shri G.P. Agarwal, Member (Judicial) that the appeal of Shri Anoop Sarin should be allowed and the penalty should be set aside. Sd/. (S.V. Maruthi) Dated 19-5-1992 Member (Judicial) FINAL ORDER 29. In view of the opinion of the majority on the question of imposition of penalty on Shri Anoop Sarin, his appeal is allowed and the order imposing penalty on him is set aside. 30. Both the Members having agreed on the appeal of M/s. Sarin sons, the order of confiscation and penalty are upheld and their appeal dismissed. Sd/- Sd/- (G.P. Agarwal) (N.K. Bajpai) Dated 26-5-1992 Judicial Member Technical Member
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1992 (5) TMI 125 - CEGAT, NEW DELHI
Adjudication - Jurisdiction to confiscate ... ... ... ... ..... t of illegal importation was attached to the goods when the goods were in Bombay. The authority/power of all the Customs authorities had been exhausted after the clearance of the goods on the strength of import licences at the time of importation. It, therefore, cannot be said that Bombay Customs authorities had acted in excess of jurisdiction so far as the facts and circumstances of this are concerned. 16. I am, therefore, of the view that Bombay Customs authorities in seizing the goods and adjudicating upon them has not exceeded their jurisdiction. Nevertheless, this finding is only of academic interest as I agree with my learned Sister on the question that cancellation of licences takes place with effect from the date of cancellation and not with retrospective effect. I, therefore, hold, agreeing with the finding of the learned Sister that the goods had not been imported unauthorisedly. I also agree with her on the question of valuation. Accordingly, the appeal is allowed.
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1992 (5) TMI 124 - CEGAT, NEW DELHI
Valuation - Service charges ... ... ... ... ..... of those activities can be given since they have collected these expenses in respect of such activity which relate to manufacture of excisable goods. They would duly form part of the value of the goods. Hence, I agree with the learned Technical Member. Sd/- (P.C. Jain) 27-4-1992 Technical Member FINAL ORDER Order per S.V. Maruthi, Member (J) . - In view of the majority opinion, the service charges namely for sorting out the printed bottles, separating the broken bottles before they are sent to automatic bottle washing plant relate to manufacture of aerated water and, therefore, they are includable in the assessable value of aerated water. The appeal is remanded to the Assistant Collector to verify the actual rental charges of the bottles and re-determine the assessable value of aerated water for deducting the same from the price of the aerated water. The appeal is partly allowed and remanded. Sd/- Sd/- (V.P. Gulati) (S.V. Maruthi) 8-5-1992 Member (Technical) Member Judicial)
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1992 (5) TMI 123 - CEGAT, NEW DELHI
Revision/Review by Collector ... ... ... ... ..... ings cannot be held to be permissible, in the light of the ratio of the decisions of the Supreme Court and the High Court as well as the Tribunal referred to above. In the circumstances, the view expressed by the Hon rsquo ble Member (Technical) is concurred with and the appeal deserves to be allowed without prejudice to any other remedy that may be available to the Department under the Act for re-opening the assessment made by the Deputy Collector of Customs or lower authority. The papers are returned to the Registry of Special Bench lsquo A rsquo for listing before the Bench for the final order. Dated 18-5-1992 (K.S. VENKATARAMANI) MEMBER (TECHNICAL) Final Order In view of the majority opinion, the appeal is allowed without prejudice to any other remedy that may be available to the Department under the Act for re-opening the assessment made by the Deputy Collector of Customs or lower authority. DATED 22-5-1992 (P.C. JAIN) TECHNICAL MEMBER (G.A. BRAHMA DEVA) JUDICIAL MEMBER
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1992 (5) TMI 122 - CEGAT, NEW DELHI
Valuation - Additional consideration ... ... ... ... ..... the advance paid by the purchaser has nexus with the sale price then Rule 5 is attracted. However, on the facts of the present case, the appellants have also executed the Bank Guarantee being equivalent amount of the advance paid to them and the lower authorities have not examined the issue whether the advance paid by the purchasers and the Bank Guarantee executed by the appellants-has any nexus with the sale price namely whether it has reduced sale price of the goods manufactured by the appellants. We, therefore, remand the matter to the Asstt. Collector to examine whether the advance and the Bank Guarantee executed by the appellants has any nexus with the sale price determined under the Purchase Order. If it has a nexus and reduced the sale price, he may add the interest as additional consideration to the sale price under Rule 5 of the rules otherwise assessable value shall be on the basis of the sale price. The appeals are, accordingly, remanded to the Assistant Collector.
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1992 (5) TMI 121 - CEGAT, NEW DELHI
Modvat Credit - Penalty ... ... ... ... ..... g documents were also received and there was no misutilisation of Modvat credit, the adjudicating authority held that rsquo the demand for a sum of Rs. 32,517.45 issued to the appellants was not sustainable. The adjudicating authority also held that there was substantive compliance of the Modvat scheme by the appellants. 5. Having regard to the findings of the Additional Collector that there was substantive compliance of the provisions of the Modvat scheme by the appellants and no duty was recoverable we are inclined to agree with the learned counsel for the appellants that the offence if any was purely technical in nature. Under these circumstances on the ratio of the Supreme Court decision in the case of M/s. Hindustan Steel Ltd. v. State of Orissa reported in 1978 (2) E.L.T. (J 159) we are of the view that no penalty should have been imposed on the appellants. In view of the foregoing we set aside the penalty imposed on the appellants. 6. The appeal is, therefore, allowed.
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1992 (5) TMI 120 - CEGAT, MADRAS
Modvat Credit ... ... ... ... ..... ed in other units. In this context, therefore, it would appear that there was no-flexibility provided for transfer of the credit from a licensed unit to another unit. The learned counsel fairly concedes that in case where a manufacturer has more than one factory even though manufacturing the same goods with the same inputs, the credit cannot be transferred to one unit to the other unit. In this background, therefore, unless there was a exception provided under the Rules for the transfer of the MODVAT credit from a unit which was existing at once place to a unit if it was shifted to another place the MODVAT credit could not be transferred. For the purpose of Central Excise each factory is treated as a separate entity and it is this entity which has to be taken into reckoning for the purpose of operation of the MODVAT Scheme. In the present case, therefore, Rules did not provide, for the transfer of MODVAT credit as pleaded and the appellant rsquo s prayer has to be disallowed.
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1992 (5) TMI 119 - CEGAT, NEW DELHI
... ... ... ... ..... t of the Delhi High Court. The Delhi High Court observed as follows - ldquo .......in the present case the roof canopy is not even an ordinary accessory with the tractor. In regard to the tractor itself the Division Bench of the Bombay High Court in Union of India v. International Tractor Company 1985 (22) E.L.T. Pg. 780 has held that hour meters and wheel weights, which are sold with the tractors, do not form an integral part of the tractors. It was held that such accessories which are fitted to some of the tractors are not necessary components of the tractors and, therefore, could not be included for determining the excisable value of the tractors. With respect we agree with the said decision. 6. Since the Delhi High Court has expressed a view that the value of the Roof Canopy cannot be included in the assessable value of the tractors, we allow the appeal and set aside the orders of the lower authorities following the judgment of the Delhi High Court. The appeal is allowed.
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1992 (5) TMI 118 - CEGAT, NEW DELHI
Confiscation ... ... ... ... ..... of confiscation under Section 111(d) was fully within the four corners of the law. The impugned order does not, therefore, suffer from any infirmity. Having considered all the contentions raised by the learned Counsel before us, we find that the appeal is devoid of any merit and it is rejected. 12. So far as the order imposing penalty is concerned, there is enough evidence that the appellant had not only retained the vehicle beyond the prescribed period, but had also failed to produce evidence in support of his bonafide purchase of the vehicle and its registration. In these circumstances, even if the value of the Car is accepted to be Rs. 52.000/- for which the appellant claims to have purchased it, it cannot be said that the imposition of penalty of Rs. 15,000/- was excessive or out of proportion. Thus, without going into the question of valuation of the Car we consider that this is a fit case for imposition of penalty of Rs. 15,000/- and reject the appeal on this count too.
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1992 (5) TMI 117 - CEGAT, NEW DELHI
Confiscation - Misdeclaration of quantity ... ... ... ... ..... Taiwan. The invoice is dated 27-3-1988. It is an import made by CMS Computer Pvt. Ltd., Bombay. Bill of Entry No. is A-3551/1(i), dated 4-4-1988. The price indicated is FOB Taiwan US dollars 220 for Motherboard-Baby AT and 240 US dollars for Motherboard-AT. Therefore, the price declared by the appellants, cannot be said to be under-valued. We, therefore, accept the invoice price as there is no other evidence of imports at higher prices. 7. As regards the excess quantity of import the Collector has not dealt with the issue in the light of Chartered Engineer rsquo s certificate and also in the light of para 116(3) of the Import and Export Policy. Inapplicability of para 116(3) of Policy found by the Collector on the basis of distinction between components and spares is not prima facie tenable. We, therefore, direct the Collector to examine the issue in the light of the other condition mentioned in para 116(3) of the Policy. The appeal is allowed and remanded as indicated above.
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1992 (5) TMI 116 - CEGAT, NEW DELHI
Stay/Dispensation of prior deposit ... ... ... ... ..... learned Vice-President that the applicant be directed to deposit Rs. 27,000/- by making entry in the P.L.A. or depositing in cash within 8 weeks from the receipt of the final order that would be passed by the Bench which considered the stay application in the first instance. 14. I direct the papers to be placed before the respective Members of the Bench to pass the final order. 15. The Point of difference referred to me is answered accordingly. Dated 16-3-1992 (S.L.PEERAN) MEMBER (JUDICIAL) 16. Final Order . - In view of the majority opinion the appellant rsquo s prayer for waiver of pre-deposit and for stay of recovery/reversal of credit is allowed subject to the appellant rsquo s depositing Rs. 27,000/- by making entry in the P.L.A. or depositing in cash within 8 weeks from the date of receipt of this order failing which the appeal shall be liable to be dismissed without further notice. Dated 19-5-1992 (S.K. BHATNAGAR) VICE PRESIDENT (JYOTI BALASUNDARAM) MEMBER (JUDICIAL)
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1992 (5) TMI 115 - CEGAT, MADRAS
Modvat Credit ... ... ... ... ..... , we hold that the respondents are not eligible to the grant of MODVAT credit in respect of Oxygen and in this view we set aside that part of the order of the lower appellate authority allowing MODVAT credit in respect of Oxygen. 5. In the result the appeal of the Department is partly allowed. 6. Assent per V.P. Gulati, Member (T) . - I agree. I however, observe that in so far as the use of Oxygen for the purpose of testing of steel is concerned, it is in the nature of quality control check. We have held in a number of decisions that where the materials are prepared by use of some inputs for final use in the process of manufacture the same would be eligible for the benefit of MODVAT credit. Testing could not be considered such an activity. In this view of the matter the learned lower authority rsquo s order in regard to Oxygen cannot be held to be proper one and, therefore, we set aside the impugned order so far as the MODVAT credit allowed is the case of Oxygen is concerned.
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