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Case Laws
Showing 61 to 80 of 181 Records
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1988 (10) TMI 175 - BOMBAY HIGH COURT
Writ jurisdiction ... ... ... ... ..... dent No. 1 was not the proper authority who could exercise the power of review and I have further held that the respondent No. 1 had exceeded this power of review, it will have to be concluded that the impugned order passed by the respondent No. 1, dated 27th July, 1987 is liable to be struck down. Consequently, the order, dated the 25th November, 1986 passed by the respondent No. 3 will have to be restored. 23. In the result, the petition succeeds. Rule is made absolute in terms of prayer Clause (a). In the facts and circumstances of this case, there will be no order as to costs. Mr. Dalal appearing on behalf of the respondent No. 4 prays for stay of my order for a period of four weeks in order to enable him to prefer an appeal. Mr. Jhangiani appearing for the petitioners strongly object by contending that the petitioners rsquo entitlement for the quota for the year 1988-89 shall be adversely affected. My aforesaid order to stand stayed for a period of four weeks from today.
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1988 (10) TMI 173 - CEGAT, NEW DELHI
Appeal - Condonation of delay ... ... ... ... ..... appeal under the amended provisions the same could be done within time. 16. Even if for the sake of argument, it is granted that the right for appeal was available to the Collector in the present proceedings till the amended provisions came into force, there is no satisfactory explanation as to why Collector could not file the appeal till 1985. No case has been made out before us that any officer suppressed or held the file back with the mala fide intention or that inspite of circular having been issued by the Collector for the case of the type before us, for being put up to him, it was not put up to him. All that can be said is that the Collector did not take sufficient steps to get the case examined for the purpose of filing the appeal to the Tribunal. The averment that the appellate order did not come to his notice is of no avail. I therefore, hold that it has not been shown that there was sufficient cause which prevented the Collector from filing the appeals within time.
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1988 (10) TMI 172 - CEGAT, NEW DELHI
... ...
... ... ..... ds are ordinarily sold by the assessee to a buyer, (ii) in the course of wholesale trade, (iii) for delivery at the time and place of removal but the buyer should not be a related person and the price is the sole consideration for sale. There are clearances of the goods at the factory gate to the consignment agents who store the goods in magazines and sell to different customers. At the time of the removal of the goods at the factory gate, it is not known to whom the goods are to be sold and accordingly we are of the view that the lower authorities were correct in holding that the goods cleared at the factory gate for consignment agents are subject to the levy of central excise duty at the normal price to the others i.e. the third category of sales as discussed above, as it is not known that the goods are sold to whom and the name of the final customer is not known at the time of removal. Accordingly, we uphold the findings of the lower authorities and the appeal is rejected.
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1988 (10) TMI 171 - CEGAT, NEW DELHI
Confiscation ... ... ... ... ..... amination of the goods. He, however, is not in a position to confirm or deny the presence of the goods. 3. We have considered the arguments of both sides and perused the papers. It appears that due to some reason or the other the Customs department has not been able to deliver the goods to the appellants though the fine imposed was paid more than 6 years ago. It is basic justice that if a fine is imposed either the goods should be released to the importers and if that cannot be done the fine should be refunded to them. Keeping this in view we order that Collector should, within 2 months from the date of receipt of this order, either release the confiscated goods to the importer or grant him a refund. We pass this order especially keeping in view that as stated by learned Advocate the duty was returned to them. While fixing the two months time limit we take into consideration that for over 6 years the money has been with the Government. 4. The appeal is allowed in these terms.
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1988 (10) TMI 170 - CEGAT, BOMBAY
Demand - Limitation ... ... ... ... ..... gh Court of Madhya Pradesh 1985 (19) E.L.T. 329 in the case of Madhumilan Syntex Pvt. Ltd. and Another v. Union of India and Another a show cause notice is not an empty formality. It postulates the opportunity of showing cause to be adequate. It is not merely enabling a party to make a mere representation. The expression ldquo showing cause rdquo connotes an opportunity of leading evidence in support of ones allegation and controverting the charge or allegation as are made against the person called upon to show cause. The mere opportunity of submitting an explanation is not enough. The letter of Superintendent dated 26-11-1977 in our opinion, cannot be considered as show cause notice contemplated by law. We, therefore, reject Shri Arya rsquo s contention. 12. In the result we allow this appeal in part. The demand of differential duty for the period beyond six months immediately preceding the date of show cause notice is allowed. The appellants be granted consequential relief.
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1988 (10) TMI 161 - CEGAT, NEW DELHI
Demand - Time-limit ... ... ... ... ..... se demands were quantified. While the notice, dated 27.6.1981 indicates that the figures for computation had been taken from the registers of the appellants, there is no such indication in the notice, dated 20.6.1980. As earlier see the demand for duty (as raised in the notice, dated 27.6.1981) has been set aside by us. In quantifying the duty on the seized fabrics, the Department shall indicate the basis thereof before enforcing the said demand. 9. The quantum of redemption fine as well as the penalty has been substantially reduced by the Board. Even with reference to the conclusions we have arrived at, we do not feel that any further reduction is called for in that regard. 10. Accordingly, this appeal is allowed to the extent of setting aside the demand for duty as raised under notice 27.6.1981. The orders of the lower authorities are modified to that extent. In quantifying the duty on the seized goods, the same shall be done in accordance with the directions given earlier.
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1988 (10) TMI 158 - CEGAT, NEW DELHI
Demand - Limitation ... ... ... ... ..... which is relevant in the case of fraud, collusion or any wilful statement or suppression of facts. So, we find that not only the relevant rules have not been cited for invoking the extended period, but there is no allegation in terms, which can justify the invoking of the extended period. 7. emsp There are a number of cases in which this Tribunal has held that the period of 5 years cannot apply where there is no allegation in the show cause notice of fraud, collusion, wilful mis-statement or suppression of facts. These include - Maharashtra Agro Industrial Development Corporation Ltd. v. Collector of Central Excise, Bombay -1984 (18) E.L.T. 14 and Collector of Central Excise, Bombay-II v. Pioneer Industries, Thane -1987 (29) E.L.T. 330. 8. emsp In the light of these facts, the Collector of Central Excise (Appeals) was quite right in holding that the demand of duty should be restricted to the normal period. We, therefore, see no reason to interfere with his orders. Dismissed.
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1988 (10) TMI 157 - CEGAT, NEW DELHI
Supplier not to have or claim by right or ownership in Trade Mark ... ... ... ... ..... eement. The appellants have contended that they were manufacturing the goods on their own and not on behalf of M/s. Kusum Products Limited. In the light of our findings on the first point as in the preceding paragraph, there is nothing to hold that the appellants were to mention in the classification list that they were manufacturing the goods on behalf of M/s. Kusum Products Limited. The decisions relied on by the learned counsel, as discussed herein earlier, also support the appellants rsquo contention that there was no clandestine removal of the goods by them. In view of these discussions, we hold that there was no clandestine removal of the goods in this case. Since the appellants were not liable to pay duty because of exemption Notification No. 83/83-C.E., the demand for duty is not sustainable and hence, the same is to be set aside on the merit of the case. We order accordingly. 10. In view of the above discussions, we set aside the impugned order and allow this appeal.
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1988 (10) TMI 156 - CEGAT, NEW DELHI
Demand - Limitation ... ... ... ... ..... h June, 1981 in regard to manufacture of sodium sulphide, that they cleared the goods beyond the exemption limit without due payment of duty and without applying for Central Excise licence, that they failed to furnish to the department the value of the clearances, and that they cleared the goods without valid gate passes, in this way evading Central Excise duty. These are allegations of suppression of facts and evasion of duty spelt out at length, justifying the invoking of the extended time limit for raising the demand of duty. The decisions in the various cases cited by the learned consultant are distinguishable on facts and they would not apply in this situation. 14. emsp We also hold that this is a case where removal of goods had taken place in contravention of Rule 9(1) of Central Excise Rules, 1944 and Rule 9(2) has been correctly invoked in the show cause notice. 15. We therefore see no reason to interfere with the orders of the lower authority and dismiss this appeal.
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1988 (10) TMI 155 - CEGAT, NEW DELHI `
Nuts and Bolts ... ... ... ... ..... dia, cannot be considered as goods cleared for home consumption. The value of such goods cannot be taken into consideration for computation, as has been done in this case. The plea of the appellants in this regard is, therefore, allowed. 22. The learned Consultant had also stated that in the light of his submissions, there was no case for imposition of penalty of Rs.1,00,000/- and that this should be set aside. In the light of our findings, the imposition of penalty has to be upheld. However, considering all the facts and circumstances of the case, we reduce the penalty to Rs. 50,000/- (Rupees fifty thousand only). 23. Accordingly, we order as follows (a) The nuts are correctly classifiable under Item 52-CET. (b) The duty may be demanded for a period upto 5 years. (c) Appellants may be given due benefit of the quantum of goods which are shown to the department as having been exported. (d) The penalty is reduced from Rs. 1,00,000/- to Rs. 50,000/- (Rupees fifty thousand only).
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1988 (10) TMI 154 - CEGAT, NEW DELHI
Valuation -Special packing provided at customers request ... ... ... ... ..... their respective arguments, also asked for a remand only so that the deductible elements and their true cost could be determined in clear terms and in specific amounts. 20. In the result, we set aside the impugned order and remand the matter to the Collector for a fresh adjudication. The appellants should, within four months from the date of receipt of this order, furnish to the Collector, a statement of quantification of costs signed by them and certified by a Cost Accountant in respect of those elements which we have held to be deductible in principle. After necessary scrutiny and a due hearing to the appellants, the Collector should re-determine the assessable values and the differential duty due, if any, afresh within six months from the date of receipt of the quantification from the appellants. The Collector would be at liberty to adjudge confiscation, fine and penalty if so warranted by his findings. 21. The three appeals are disposed of by way of remand in these terms.
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1988 (10) TMI 153 - CEGAT, NEW DELHI
Emergence of ethyl alcohol as non-dutiable intermediate product ... ... ... ... ..... will become all the more apparent when we see that the Central Government, in terms, thought it necessary to provide for credit of a certain fixed amount of money per kilolitre of ethyl alcohol when the prices of molasses and ethyl alcohol apparently came to be notified under the relevant law by the Ministry of Industry. This would not have been so had the Department rsquo s stand that the emergence of ethyl alcohol as an intermediate product altogether disentitled the manufacturer from availment of the import duty relief scheme was correct. 10. emsp In the above view of the matter, we are of the opinion that the appellants are eligible for credit of the duty already paid on the input (molasses) used in the manufacture of the specified final products, notwithstanding the fact that the intermediate product (ethyl alcohol) was not leviable with Central Excise duty. In the result, the impugned order is set aside and the appeal allowed with consequential relief to the appellants.
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1988 (10) TMI 152 - CEGAT, NEW DELHI
Confiscation ... ... ... ... ..... toms Act, 1962 is a new provision. Hence, the case of the appellants has to be decided in the light of the provisions available in the Customs Act, 1962 and the case of East India Commercial Company, supra is not applicable to the instant case. Even otherwise the liability for breach of a condition of the licence granted under the provisions of the Imports and Exports Control Act, 1947 and the liability of the goods to be confiscated for violation of the provisions of Section 111 of the Customs Act are independent and distinct in their nature and both the authorities under the Customs Act and the Imports and Exports (Control) Act, 1947 are free to take action under their respective Acts according to law. Thus we reject the contention of the learned counsel for the appellants and hold that the Customs Authorities were competent to confiscate the goods in question under Section 111 (o) of the Customs Act. 28. In the result we find no substance in the appeal and reject the same.
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1988 (10) TMI 151 - CEGAT, NEW DELHI
Classification of goods ... ... ... ... ..... ore, we do not accept that the Assistant Collector and the Collector (Appeals) gave perverse findings. 26. The detailed scrutiny of the documents filed by the appellants, their own Product Manual, and of the nature of the product, therefore, leads us to the finding that reading the words of the Tariff strictly, the classification done by the impugned orders is correct and that these orders do not call for interference. 27. In view of this finding, the other arguments advanced by the appellants became irrelevant. We do not express any opinion on the classification of the product prior to 17-3-1985 as that is not an issue before us. To. conclude, we hold that the product in question is clearly a massage oil, intended for care of the skin, but possibly having some marginal medicinal properties. We, therefore, hold that the lower authorities committed no error in coming to the conclusion about the classification of the product. We uphold the impugned order and dismiss the appeal.
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1988 (10) TMI 150 - CEGAT, NEW DELHI
... ...
... ... ..... he criteria laid down by the Hon rsquo ble Supreme Court as referred to supra the decision regarding the inclusion or exclusion of the secondary packing has to be taken. 13. As pointed out earlier for want of the facts on record it is not possible for us therefore to give any findings on the plea made by the revenue. The proper course, we observe for the Collector (Appeals) were that since the Assistant Collector had not passed a reasoned order, he should have remanded the case for de novo decision rather than accept of the facts as stated by the appellants without examining the nature of the packing for the purpose of arriving at the decision. 14. We observe that it is necessary that all the facts are properly gone into by the original authority after giving an opportunity to the appellants in this regard. We, therefore, set aside the order of the Appellate Collector and remand the matter for de novo adjudication to the lower authority in the light of our observations above.
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1988 (10) TMI 149 - CEGAT, NEW DELHI
Claasification ... ... ... ... ..... ng to this note, Chapter 29 covers mixtures of two or more isomers of the same organic compound. It is contended, therefore, that it was wrong on the part of the lower authorities to reject the classification of Methyl Cellulose under Chapter 29. According to the Condensed Chemical Dictionary (page 579) ldquo isomer rdquo is defined as one of two or more molecules having the same number and kind of atoms and hence the same molecular weight, but differing in respect to, the arrangement or configuration of the atoms. As the dictionary notes, Methyl Cellulose has a wide range of moleculer weights from 40,000 to 1,80,000. Obviously, Methyl Cellulose having different molecular weights cannot be called isomers or mixtures of isomers. 9. emsp In the light of the foregoing discussion, we are of the opinion that the lower authorities have correctly classified Methyl Cellulose under Heading No. 39.01/06 of the Schedule. Accordingly, we uphold the impugned order and dismiss this appeal.
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1988 (10) TMI 148 - CEGAT, NEW DELHI
Transaction between partnership firm and proprietary firm owned by relatives ... ... ... ... ..... establish manufacture for or on behalf of one another. 6. emsp The ratio of the aforesaid decisions are not disputed, but the ratio of these decisions are to be applied to the cases having similar facts and the points to be decided. In the present case, we have held that M/s. Super Paints and Chemicals did not actually manufacture cement paint and the said product was manufactured for them by M/s. Mangalam Paints. Had M/s. Super Paints and Chemicals actually manufactured cement paint in their premises, then following the decisions relied on by the learned Consultant, there could be no question of clubbing their production with the production of M/s. Mangalam Paints. Here, in this case, the facts are not similar. In the circumstances, we are of the view that the ratio of the aforesaid decisions cannot be applied to the present case. 7. emsp In the light of the above discussions, we find no infirmity in the impugned order. Accordingly, we uphold the same and dismiss the appeal.
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1988 (10) TMI 147 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... rtaining to the products filed by the appellants. The contention of the appellants that since Beckman instrument ldquo is not an instrument designed or capable of measuring, checking, analysing or controlling any electrical factor rdquo and since it is designed for chemical analysis and used for analytical work in chemical laboratories, therefore, it would not fall under Heading 90.28 is based on incorrect interpretation of the Tariff. Heading 90.28 covers electrical instruments as against Heading 90.25 which covers other than electrical instruments. The electrical counterparts for non-electrical instruments as specified would fall under Heading 90.28. Thus Heading 90.28 would cover electrical analysers. 7. As has been rightly pointed out in the orders of the Collector (Appeals), PH meters are specifically mentioned under Heading 90.28. Hence there can be no doubt about the correct classification. 8. In view of the foregoing, we see no merit in this appeal which is dismissed.
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1988 (10) TMI 146 - CEGAT, NEW DELHI
Classification of goods ... ... ... ... ..... Collector of Central Excise dated 23.1.1987 cited by the learned SDR opined that the ISI definition will, therefore, fit quite easily, the portion left out after specific length are cut or sheared from a long length of hot rolled sheet. This order later on held that the side sheet cuttings are not eligible to the exemption under Notification No. 150/77-C.E. But the amendment to the IS specification was not brought to the notice of the Bench in that appeal. 9. There is a penalty of Rs. 500/- against the appellants. The penalty was obviously imposed because the appellants did not make it clear that the scrap they cleared consisted of cuttings from length as well as from width. The Collector held that the appellants deliberately categorised trimmings and side cuttings of the sheets as butts and shorts only with intent to evade payment of duty. However, in view of our observations above, we hold that the penalty should not be maintained. We set it aside thus allowing the appeal.
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1988 (10) TMI 145 - CEGAT, NEW DELHI
Claasification ... ... ... ... ..... e, given a proper shape or design, be treated as a component part of the other article. Unless a shape and design has been given it will not be appropriate to call a general purpose article as a component part of another article. In the instant case, panels, shelves, and partition plates admittedly are used not only in assembly of steel furniture but can also be used for many other structures such as catwalks, mezzanine floors, ladders etc. in an industrial establishment. In view of the multiple uses of the products under consideration it would not be appropriate to call them as parts of steel furniture at all though they may find their use in assembling of steel furniture as well. In this view, therefore, the classification upheld by the lower appellate authority as Tariff Item 68 for the goods under consideration is appropriate. Hence the appeal is rejected. 14. Since the cross-objections pray for sustaining the impugned order, these are also disposed of in the above terms.
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