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Case Laws
Showing 41 to 60 of 219 Records
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1990 (6) TMI 186 - CEGAT, BOMBAY
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... ... ..... 10 of AM 1982-83 Policy. The latest order confirmation is dated 26-4-1983, which has been obtained only for ensuring that the terms and condition of sale have not been changed, which are necessary for opening the Letter of Credit. From these documents, we are satisfied that this would come within the purview of condition No. 7 of Appendix 10. Moreover, we find that the appellants are actual user. Even if they had gone to the licensing authority for import of this item, they would have been granted the licence. In any case, since we are satisfied that the condition No. 7 prescribed in Appendix 10 of AM 1982-83 Policy is satisfied and hence even though the import has taken place in 1983-84 Policy period, it is to be taken to have been on the basis of a firm contract registered with the bank prior to 28-2-1983 and hence should have been allowed in terms of the condition No. 7 of Appendix 10 of AM Policy 1982-83. 7. In view of this, we allow this appeal with consequential relief.
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1990 (6) TMI 185 - CEGAT, NEW DELHI
Demand - Cess ... ... ... ... ..... cess leviable thereon. In the case of. M/s. Chitavalasah Jute Mills, supra it was held that there was no warrant for demanding cess separately on sacking cloth captively consumed for making the bags once the cess has been paid in respect of the bags cleared. For this proposition reliance was also placed on the case of M/s. Nellimarla Jute Mills, supra. Needless to say that in that case it was also argued by the Department that the case of M/s. Nellimaria Jute Mills related to the period 1-5-1984 to 30-9-1984 and, therefore, the ratio of that judgment will not apply to a case which relates to the period before coming into force of the Jute Manufactures Cess Act, 1983. After examining the provisions of the old Cess Act of 1951 and Cess Act, 1983 the said contention was repelled. 6. Thus following the ratio of the said decision rendered by the CEGAT in the case of M/s. Chitavalasah Jute Mills, supra, we allow the appeal and set aside the impugned order with consequential relief.
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1990 (6) TMI 184 - MADRAS HIGH COURT
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... ... ..... blic document. The instant case instituted on a private complaint by the first respondent. Merely because the complaint happens to be based upon the S.P. rsquo s Report, that would not give the accused a right to summon or peruse the Report. The decision of the Supreme Court referred to by the learned counsel for the petitioner relates to privileges under Sec. 123 of the Evidence Act which is not the case here. The S.P. rsquo s Report is an inter-departmental communication containing law officers, their comments, their suggestions, opinions of police officers/discussion of the facts, lapses of the department, suggestions for avoiding them and so on. The nature of the report is such that the document is not one, which an accused either under the Criminal Procedure Code or under the Evidence Act, is entitled to peruse. The learned Magistrate has rightly rejected the petitioners rsquo prayer with reference to the S.P rsquo s Report. 11. In the result, this revision is dismissed.
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1990 (6) TMI 183 - CEGAT, BOMBAY
Absolute confiscation ... ... ... ... ..... approach the licensing authorities. This appears to have a definite purpose and is not an empty formality, which can be condoned or only the excess value adjudicated by Customs Authorities. If the value limit exceeded Rs. 50,000/- the licensing authority could critically examine their claim for importing such items as samples based on the recommendations of the Export Promotion Council, before endorsing the licence. The appellants, having deliberately kept the licensing authority away from such a scrutiny as laid down in the Policy, cannot claim for condonation of excess value or seek for adjudication of only excess value. The entire item is therefore to be held as unauthorised and absolute confiscation is well justified. 13. We also are satisfied, in view of the foregoing discussion the absence of good faith in the whole transaction relating to import and their claim of import as sample. Hence we also uphold the order imposing penalty. 14. In the result, appeal is dismissed.
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1990 (6) TMI 182 - CEGAT, CALCUTTA
Remission of duty ... ... ... ... ..... 16-1-1984 in letter No. Cus/26/33/84. This letter clearly shows that though a quantity of 9722.580 MT was removed, only a quantity of 9718.380 MT was received and warehoused at Randia. Therefore, there was a shortage of 4.200 MT during the transit in several trucks to a distance of 180 km. It is not the case of the department that there was any pilferage or clandestine removal by the appellant. In such circumstances, we are of the opinion that the principles enunciated in the above said decisions are applicable to the facts of the case. We are not able to accede to the contentions of the learned SDR that those decisions are to be distinguished from the facts of this case. In our opinion, the principles enunciated in those decisions squarely applies to the facts of the case. In such circumstances, the appeal is allowed, and the impugned order of the Collector of Customs and Central Excise (Appeals) is set aside. The appellant is entitled for the consequential reliefs, if any.
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1990 (6) TMI 181 - CEGAT, NEW DELHI
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... ... ..... pugned order may be set aside and the appeal be allowed. 2. Although Shri Nair has reiterated what has been stated by the Collector (Appeals) in her impugned order, we are unable to uphold the same. The materials cited by the learned advocate before us clearly prove that assessments during the period from 1-4-1976 to 12-8-1976 were provisional. Therefore, the time limit for lodging the refund claim is not applicable in this case. The rejection of refund claim by the Assistant Collector on the ground that the claim was lodged on 23-6-1980, was not correct. Consequently, we set aside the impugned order and allow this appeal with consequential refund of the excess excise duty paid during that period to the appellants. 3. The learned Advocate has prayed before us that a direction may be given by the Tribunal so that the refund is paid promptly as duty was paid 14 years ago. We direct that the Department should pay the refund within 2 months from the date of receipt of this order.
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1990 (6) TMI 180 - CEGAT, CALCUTTA
Penalty - Imposition on short-landed goods ... ... ... ... ..... that case the petitioners were acting as agents for a vessel, Lukita which had on board cargo for discharge at Colombo and called at the port of Colombo. Since there was a strike in Colombo, a part of the goods only was discharged at Colombo and the vessel came back to Bombay and the agents decided that the balance goods should be transhipped to another vessel which would sail to Colombo. Therefore, the remaining cargo was discharged at Bombay. Therefore, on physical verification a shortage of the quantity was found which actually was discharged in Colombo. On these facts the Hon rsquo ble High Court held that Section 116 is not attracted. The facts of that case are not similar to the facts of this case, as in this case there is a clear shortage of Urea bags found at Calcutta Port. In such circumstances, we are unable to accede to the contentions of the learned advocate of the appellant that Section 116 is not attracted in this case. Accordingly, these appeals are dismissed.
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1990 (6) TMI 179 - CEGAT, BOMBAY
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... ... ..... aused by blow with blunt and hard object. Though there is no evidence produced to show that the statement was obtained under duress and that the same was retracted at any time before issue of show cause notice, we may not take the same statement as retracted one, but a doubt does exist about the truth in the disclosures made in the said statement. When however the nexus between the seized Vitamin-B-12 powder and Shri B.C. Shah is not established beyond doubt, a benefit arising therefrom has to go to the appellant. 14. Considering the same, it appears that the involvement of the appellant Shri B.C. Shah in smuggling of the seized Vitamin-B-12 powder is not conclusively established beyond doubt and hence by granting benefit thereunder, we hold that the imposition of penalty on the appellant Shri B.C. Shah under Sec. 112(b) of the Customs Act cannot be sustained. 15. In the result, both the appeals are allowed and the order imposing penalties on both the appellants is set aside.
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1990 (6) TMI 178 - CEGAT, CALCUTTA
Absolute confiscation ... ... ... ... ..... s carried out in accordance with the provisions of Code of Criminal Procedure. rdquo In this ease, by virtue of Section 105 of the Customs Act, the provisions of the Criminal Procedure Code regarding search should have been followed. That was also not done in this case. 10. Another reason given by the learned Additional Collector to disbelieve the bill is that quantity purchased was 300 Kgs., whereas what was recovered was 274 Kgs. But the appellant had stated in his reply that he had sold 26 Kgs. which was not taken into consideration. On the whole we are satisfied that there was no material to hold that seized cloves were of foreign origin and there was nothing to show that they were smuggled into India. Further, the order violates the principles of natural justice, for the reasons which we have discussed above. On all these grounds, the impugned order is liable to be set aside, and we order accordingly. The appeal is allowed. The seized cloves be returned to the appellant.
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1990 (6) TMI 177 - CEGAT, BOMBAY
Import - Piperazine ... ... ... ... ..... nvoke the provision of Sec. 125 of the Customs Act and when the department has not preferred any appeal against that, no interference therein is called for. However, considering the quantum of redemption fine, the fine imposed is about 50 of the value of the goods. The authority below has not considered it necessary to impose any penalty under Sec. 112 of the Customs Act, indicating that the appellants are not found to have any grave mala fide. The appellants are actual users (industrial), and have imported the same drug for manufacturing other medicines. The appellants could have imported the item through the canalising agency. Taking all the factors into consideration, I hold that the redemption fine to the extent of 50 of the value is not called for. I, therefore, reduce the redemption from Rs. 27,000/- to Rs. 15,000/- (Rupees Fifteen thousand only). 20. With the modification as above, the appeal is rejected. The consequential reliefs arising out of modification to follow.
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1990 (6) TMI 176 - CEGAT, NEW DELHI
Rectification of mistake ... ... ... ... ..... for duty for the period from 28-11-1983 to 28-5-1984 was payable by the appellants, whereas the demand for duty prior to 28-11-1983 was barred by limitation under Section 11A(1) of the Central Excises and Salt Act, 1944. However, the demand in that case was actually raised by the Department for the period from 1-8-1983 to 7-12-1983. The applicants have, therefore, requested in this ROM application that the period 28-11-1983 to 28-5-1984 may be corrected to ldquo 8-11-1983 to 7-12-1983 as there was no demand for duty for the period from 1-1-1984 to 28-5-1984. This request of the applicants is acceptable in view of the facts on record. In the circumstances, the sentence rdquo The demand for duty should, therefore, be confined to the period 28-11-1983 to 28-5-1984 appearing in paragraph 7 of this Tribunal rsquo s order dated 11-1-1990 maybe substituted by the following sentence ldquo The demand for duty should, therefore, be confined to the period 28-11-1983 to 7-12-1983. rdquo
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1990 (6) TMI 175 - CEGAT, CALCUTTA
Classification ... ... ... ... ..... No. 36 (194)-Cus-III/55 of 3-4-1956 as amended by M.F. (DR) No. 25/20/59-Cus 3 of 11th October 1961 as a machine tool. Further in the Machine Tool licencing policy of April 1977 to March 1978 Rolling Mill has been specifically shown against sub-serial No. 13 of serial No. 18 in List A of Machine Tool, i.e., even after the import policy was based on B.T.N. In such circumstances on this count that Rolling Mill is not understood in trade parlance as a machine tool, the appellant rsquo s claim cannot be defeated. So also the dictionary meaning is not relevant in this case in view of the wordings to Heading No. 84.45 explanatory notes to CCCN at page 1324, volume 3, about which we have discussed earlier. 18. In such circumstances we are of the opinion that Rolling Mills imported by appellant are included in the category of Machine Tools for the purposes of I.T.C. policy of year 1985-88. Accordingly, this appeal is allowed and the appellant is entitled to the consequential relief.
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1990 (6) TMI 174 - CEGAT, CALCUTTA
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... ... ..... es, it was mentioned as to why the goods should not be confiscated under Sec. 111(d) of the Customs Act, 1962 and why a penalty should not be imposed under Sec. 112 of the Customs Act, 1962. It was also mentioned that the goods were imported in contravention of Sec. 3(2) of the Import (Control) Order, 1955 as amended read with Sec. 03 of the Imports and Exports (Control) Act, 1947. It is, therefore, clear on a perusal of the show cause notices that the goods of the appellants are covered by Sec. 112(b) and this fact was borne by the Adjudicating Officer. In such circumstances, a mere non-incorporation of Sec. 112 of the Customs Act, 1962 in the order will not vitiate the imposition of the penalty. To that extent, the above-said decision of the Madras High Court is distinguished on the facts and circumstances of these cases. In the result, we are of the opinion that no grounds are made out to interfere with the impugned orders and accordingly, these four appeals are dismissed.
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1990 (6) TMI 173 - CEGAT, BOMBAY
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... ... ..... njankumar there is a clear indication that the goods were purchased for and on behalf of the present appellant. 6. Considering the submissions made and the observation made by the adjudicating authority to which my attention was drawn by the learned Advocate, it appears that the authority below has based his conclusion solely on the statement of Shri Ranjankumar, an accomplice. Statement of an accomplice can be admitted into evidence to base the conclusion provided the same is corroborated on the material particulars. Here there is no corroboration whatsoever, in whatever form, is available and basing a conclusion solely on what an accomplice has said is therefore not proper and the finding thereon imposing personal penalty on the appellant cannot be sustained. 7. In the result, the order passed by the Additional Collector in so far as it relates to imposition of personal penalty on the present appellant cannot be sustained and is set aside. The appeal is accordingly allowed.
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1990 (6) TMI 172 - CEGAT, BOMBAY
Demand - Show Cause Notice ... ... ... ... ..... de. 45. On behalf of the appellants M/s. Mihir Textiles in appeal No. E/772/89 Shri S.I.Nanavati, the Learned Senior Counsel, fairly conceded that the arguments contained in the appeal memorandum before us were the same, which were advanced in the appeals relating to M/s Mafatlal Industries Ltd. and Ors. The main argument was that no notices could be validity issued under Sec. 11A prior to 20-2-1982. He also fairly conceded that this question has been decided in our Order No. 1187-1214/89 WRB dated 27-12-1989. In view of the aforesaid submission, we find no reason to go in detail on merits of the appeal filed on behalf of M/s Mihir Textiles Ltd., since all the issues raised in the present appeal have been considered by us in detail and decided in favour of the Revenue. We, therefore, reject the appeal filed by M/s Mihir Textiles Ltd. 45. In the result, the appeal No. E/847/89 filed by the Department succeeds and the appeal No. E/772/89 filed by M/s Mihir Textiles is rejected.
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1990 (6) TMI 171 - CEGAT, CALCUTTA
Refund - Limitation ... ... ... ... ..... lector of Customs. It is thus seen that the authorities functioning under the Act are bound by the period of limitation pres.c.ribed under the Act and the starting period of limitation is from the date of payment of duty and not from the date on which the excess payment was intimated to the appellant. The date on which the appellant was intimated about the excess payment of duty is only a date which makes them aware of the excess payment of duty by them, and not the original date on which the duty was paid to the department after the assessment. In such circumstances, the decision of the Supreme Court in the case of Miles India Limited v. Assistant Collector of Customs, reported in 1987 (30) E.L.T. 641 S.C. is binding on the Tribunal and accordingly I hold that the claim made by the appellant for refund of duty is barred by limitation. In the circumstances, no case is made out to interfere the orders passed by the lower authorities and accordingly this appeal stands dismissed
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1990 (6) TMI 170 - CEGAT, CALCUTTA
Refund - Limitation ... ... ... ... ..... lector of Customs. It is thus seen that the authorities functioning under the Act are bound by the period of limitation pres.c.ribed under the Act and the starting period of limitation is from the date of payment of duty and not from the date on which the excess payment was intimated to the appellant. The date on which the appellant was intimated about the excess payment of duty is only a date which makes them aware of the excess payment of duty by them, and not the original date on which the duty was paid to the department after the assessment. In such circumstances, the decision of the Supreme Court in the case of Miles India Limited v. Assistant Collector of Customs, reported in 1987 (30) E.L.T. 641 S.C. is binding on the Tribunal and accordingly I hold that the claim made by the appellant for refund of duty is barred by limitation. In the circumstances, no case is made out to interfere the orders passed by the lower authorities and accordingly this appeal stands dismissed
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1990 (6) TMI 169 - CEGAT, BOMBAY
Redemption Fine ... ... ... ... ..... e margin left behind. For assessing the quantum of redemption fine, each case is to be decided on the basis of facts and circumstances of the particular case. The learned advocate has emphasised that if there is no malafide, redemption fine should be remitted in full. On the claim of bona fide, we have rejected their contention. Even then, we could have considered relief in the quantum of redemption fine, if the relevant factors were put forward before us. This, having not been done, we are left with no alternative but to believe that even after payment of the redemption fine imposed by the Collector, the appellants have made their margin of profit and hence the quantum of redemption fine does not call for any modification. 26. In the result, both the appeals are dismissed. 27. We are much thankful to Shri G.L. Rawal, the learned advocate and Shri K.M. Mondal, the learned SDR, for their lucid presentation of facts and also points of law, which enabled us to give this finding.
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1990 (6) TMI 168 - CEGAT, NEW DELHI
Rate of duty ... ... ... ... ..... ip takes place after presentation of B/E, the rate of customs duty in force on the date the ldquo entry inwards rdquo is granted to the vessel would be attracted under Section 15(1) (a) of the Customs Act, 1962 read with its proviso. 7. In this connection, Supreme Court judgment, reported in 1979 (4) E.L.T. (J-241) in the case of M/s. Prakash Cotton Mills (P) Ltd. v. B. Sen and Others is also relevant. In the said case, it was held by the Hon rsquo ble Supreme Court that under Section 15(1) (a) of the Customs Act, 1962, the rate of duty, rate of exchange, and the tariff valuation applicable to any imported goods shall be the rate and valuation in force on the date on which the warehoused goods were removed from the warehouse. 8. In the light of the above discussions, we hold that the rate of duty prevailing on 2-3-1982 is applicable in this case. We find no infirmity in the orders of the lower authorities. Accordingly, the impugned order is upheld and the appeal is dismissed.
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1990 (6) TMI 167 - CEGAT, NEW DELHI
Destruction of goods found unfit for human consumption or marketing ... ... ... ... ..... ng. In the present instance, it would appear that there was no permission from the Collector covering the period in dispute. However, that, as observed by the learned Vice-President, at worst, might entail a penalty. (No penalty has, however, been imposed on the appellants for failure to obtain permission.) The contention that HCl was destroyed has neither been controverted nor verified by the Revenue. 22. In the aforesaid circumstances, I would answer the point posed by the referring Bench as follows - ldquo The matter may be remanded to the Assistant Collector of Central Excise with the directions as set out in the learned Vice-President rsquo s order rdquo . Order per K.S. Venkataramani, Member (T) . - 23. In the light of the President rsquo s finding as above under Section 129C(5) of the Central Excises and Salt Act, 1944, the appeal is remanded to the Assistant Collector of Central Excise with the directions as set out in the then Vice-President (Judicial) rsquo s order.
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