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Case Laws
Showing 61 to 80 of 187 Records
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1988 (6) TMI 208 - CEGAT, MADRAS
Proforma Credit ... ... ... ... ..... n the final products) shall be allowed if duty has been paid on the inputs on or before the 31st day of January, 1986. rdquo 5. A scrutiny of Rule 57H(2) extracted above would show that notwithstanding Rule 57A no credit of duty on the inputs used in the manufacture of final products shall be allowed, if such duty had been paid on or before 31.1.1886 other than those inputs in respect of which credit of duty was allowable under any rule or Notification prior to 1.3.1986. In the instant case the inputs in question were allowed proforma credit under Rule 56A prior to 1.3.1986 and so the inputs would stand excluded from the time bar of 31.1.1986 imposed under Rule 57H(2) in respect of credit availment. Since this matter has not been considered with reference to the inputs in question vis-a-vis their entitlement to proforma credit under Rule 56A, we set aside the impugned order and remit the issue for re-consideration by the original authority. The appeal is accordingly remanded.
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1988 (6) TMI 207 - CEGAT, NEW DELHI
Computation of value of SSI Exemption ... ... ... ... ..... 1033 that printed cartons are products of the printing industry. In regard to the value of plant and machinery, the appellants, as seen from the submissions made before the lower authorities were taking into reckoning the value of plant and machinery employed by them for manufacture of item 68 goods alone for availing of the benefit of Notification No. 176/77. It appears that there was some confusion in the beginning as seen from the facts recorded in the orders of the lower authorities and there were some instructions under which only value of the machinery employed for the manufacture of 68 goods was asked to be taken into account. 9. In view of the above, we hold that the appellants cannot be held to be guilty of suppressing any fact with a view to evade payment of duty nor they can be taken to have cleared their goods clandestinely. The lower authority rsquo s findings that the demand was time-barred is therefore, Tmaintainable in law. The appeal in therefore, dismissed.
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1988 (6) TMI 206 - CEGAT, MADRAS
MODVAT and proforma credit ... ... ... ... ..... ssification List for payment of duty on goods used captively. It is, therefore, not open to the assessee to pay duty at a lesser rate on the intermediate product for captive usage, which is exempted in terms of Notification and avail higher notional credit on the same goods in terms of Notification 175/86 . This observation of the Deputy Collector in his order as upheld by the Collector (Appeals) is valid and is accepted, and the argument put forth by the appellant in this regard is for that reason rejected. In the result the contention of the appellant for availing of the notionaLcredit under Rule 57B is rejected, and the case is remanded to the Deputy Collector for re-determining the eligibility for simultaneous avail-mert of MODVAT and proforma credit by the appellant on inputs after 15.4.1987 in the light of the substitution of sub-rule (9) by Notification 117/87, and in the light of the findings given above in this regard. 6. The appeal is disposed of in the above terms.
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1988 (6) TMI 205 - CEGAT, MADRAS
Natural justice - Evidence ... ... ... ... ..... inion of the expert body. Such a course apart from being violative of principles of natural justice, is not, permissible in law. Therefore, without expressing any opinion on the merits of the issue, on technical grounds, we held that the impugned order appealed against is violative of principles of natural justice and cannot be sustained. Since already the matter has been remanded once, we do not think would be just and proper to remand the matter once over in the context of the case. We are, therefore, constrained to set aside the.impugned order in the above circumstances. We accordingly set aside the impugned order appealed against and allow the appeal. 7. We also direct that copy of the judgment be marked to the Ministry of Finance as well as the concerned Administrative Ministry so that such issues which are Hkely to crop-up in Customs adjudication could be considered and suitable instructions issued. 8. The Bank guarantee executed by the appellants will stand discharged.
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1988 (6) TMI 204 - CEGAT, BOMBAY
Pre-deposit of duty and recovery ... ... ... ... ..... th the sides prima facie. The show cause notice-cum-demand appears totally improper. The investigations appear to have been made by the department to the actual use or alleged mis-use of the imported goods. That apart, if the demand is covered by the two judgments of the Bombay High Court, the. Collector (Appeals) ought to have accepted the said judgments. The Collector (Appeals) does not say in his order that any superior Court had stayed the judgment of the Bombay High Court. His statement that there was an appeal against the Bombay High Court rsquo s Judgments is incapable of verification. Even if there had been that by itself does not operate as a stay. As long as the judgments of the Bombay High Court are not stayed either by the same High Court or by the Supreme Court they are binding not only the Collector (Appeals) but also the Tribunal. On this ground alone the applicants are entitled for an unconditional stay as to the pre-deposit and recovery. We order accordingly.
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1988 (6) TMI 203 - CEGAT, NEW DELHI
Job work - Yarn ... ... ... ... ..... ion 119/75 was not available to the appellants in respect of the subject goods cleared by them. I would, therefore, propose an order of dismissal of this appeal. Sd/- emsp emsp emsp emsp emsp emsp emsp emsp emsp emsp emsp emsp emsp emsp emsp emsp emsp emsp emsp (V.T. Raghavachari) Member (J) ensp emsp emsp emsp emsp emsp emsp emsp emsp emsp emsp emsp emsp emsp emsp emsp emsp emsp 20. I agree with Shri Raghaavachari. Dated 20-5-1988 Sd/- emsp emsp emsp emsp emsp emsp emsp emsp emsp emsp emsp emsp emsp emsp emsp emsp emsp (G. Sankaran) Sr. Vice-President ensp emsp emsp emsp emsp emsp emsp emsp emsp emsp emsp emsp emsp emsp emsp FINAL ORDER 21. In view of the majority opinion, the benefit of excise Notification No. 119/75 was not available to the appellants in respect of the subject goods cleared by them. Accordingly, this appeal is dismissed. Sd/- Sd/- Sd/- (G.Sankaran) Senior Vice-President (V.T. Raghavachari) Member (J) (K. Prakash Anand) Member (T) New Delhi, Dated 16-6-1988
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1988 (6) TMI 202 - CEGAT, NEW DELHI
Proforma credit ... ... ... ... ..... follows from this therefore, is that if the duty payable on the end product is nil, then the extent of exemption that will be available will also be nil or in other words, extent of credit that can be taken will also be nil. 11. In the present case, the issue is the availability in terms of the exemption notification of the set off in respect of the tyres cleared without payment of duty as original equipment. Inasmuch as, no duty in respect of these tyres has been paid, in terms of proviso 2 to the notification, the availability of the credit on the inputs in respect of these tyres will have therefore, to be nil. 12. In view of this, I hold that the credit on duty taken in respect of the inputs used in the manufacture of the tyres which have been cleared without payment of duty was not available to the appellants. In view of my findings above. I do not find it necessary to examine the issue in the context of proviso 3. I, in view of the above, therefore, disallow the appeal.
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1988 (6) TMI 201 - CEGAT, NEW DELHI
Refund - Limitation when provisional assessment finalised ... ... ... ... ..... 12. In view of this therefore, all that we can say is that later amendment of the notification was only clarificatory in nature and it does not make any difference for the purpose of the exemption notification as the term animal feed used earlier was wide enough to cover the goods in question. Following with respect the ratio of the judgment of Hon rsquo ble Gujarat High Court referred to supra, we hold that Di-Calcium Phosphate animal feed grade is covered by the item Animal Feed in the Exemption Notification No. 55/75. We, therefore, find no merit in the plea of the appellants and dismiss the same. So far as the plea of time bar is concerned, evidence produced shows that the assessments earlier done were not final in nature and there is no rebuttal from Revenue of the plea that the earlier assessments were provisional in nature. We, therefore, hold that the claim was not hit by time bar. In view of this, we find no merits in the appeal of the Revenue and dismiss the same. .
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1988 (6) TMI 200 - CEGAT, NEW DELHI
Confiscation and penalty ... ... ... ... ..... n made under Section 77 of the Customs Act. in this case, since the appellant did not make true declaration in respect of the impugned goods, re-export of the same is not permissible under Section 80 of the Act. In the circumstances, prayer for granting, re-export is also rejected. The learned Advocate has relied on a decision of this Tribunal contained in Order No. A-409/87 NRB, dated 8-7-1987. The present case is distinguishable covered by that order inasmuch as the passenger In the said case was a foreign national whereas the present appellant is not a foreign national and in the Said case the adjudicating authority had riot confiscated the goods on the plea that they had been Imported in commercial quantity, whereas in the present case the Additional Collector has clearly held in the Impugned order that the goods are in commercial quantity. There being, basic differences in the facts of two cases, I am not following the said order to allow re-export of the impugned goods.
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1988 (6) TMI 199 - CEGAT, MADRAS
Import - Confiscation ... ... ... ... ..... 6 List 8 Part I Is beyond doubt a general and generic description whereas Item No. 470of Appendix 3 Part A is a specific description in that it refers to components of Photo-copying machines In the face of these facts, there is no doubt left in my mind that the goods are covered by Heading 470 Appendix 3 Part A and that in view of the rule of interpretation mentioned lsquo above, they are not entitled to We OGL. 1, therefore, agree with the lower authorities that the goods were not covered .by.OGL. Confiscation of the same was, therefore, correct. 1 take note that the appellants possibly were labouring under misunderstanding and at no stage they tried to mis-lead the Customs in any way. The c. i.f. value ot-the goods was slated to be Rs. 9,000/-. I feel that in the interests of justice fine should be reduced to Rs. 900/- (Rupees Nine hundred) in the circumstances of the case. I order accordingly. The appeal is thus partly allowed as indicated above and is otherwise rejected.
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1988 (6) TMI 198 - COLLECTOR OF CENTRAL EXCISE (APPEALS), BOMBAY
MODVAT credit ... ... ... ... ..... 9.8.1986, evidently, because no evidence had come on record relating to scraps received by the appellants being clearly recognisable as non-duty paid. It is also well settled by judicial pronouncements that the Govt. of India rsquo s policy cannot be questioned and, benefit of such policy dented on any supposed intention. The appellants are, therefore, entitled to avail of the concession of deemed credit upto 28.8.1986 only. However, the appellants rsquo were not entitled to avail of the concession of deemed credit on or after 29th August, 1986 by virtue of Ministry rsquo s letter F. No. B.22/30/86-TRU, dated 28.8.1986 and are required to pay back the same by adjustment in PLA or reversal of credits in R.G. 23. However, the credit taken on or after 29.8.1986, i.e. after the withdrawal of the deemed credit provision, was totally unwarranted. Hence, no change in the penalty which is reasonable. 8. The appeal is modified to the extent indicated above and disposed of accordingly.
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1988 (6) TMI 197 - CEGAT, MADRAS
Jurisdiction ... ... ... ... ..... . 7. The Collector of Centraltxcise (Appeals) has not adverted tethese aspects in the impugned order. Therefore, I set aside the order of the original authority, which has merged with the order of the lower appellate authority. At this stage, the learned D.R. submitted that even if the original order of adjudication by the Superintendent of Centra) Excise (Technical) is without the authority of law and without jurisdiction, the show cause notice having been cleariy issued in terms of Section 11 A of the Act it would be open -to the Assistant Collector to take up the adjudication afresh as per law. Shri-Subramaniam, the learned Consultant for the appellant, intervened to submit that in such an event it is open to the appellant to put forth such legal pleas as are open to him against such adjudication. I am not inclined to express any opinion on this question at this stage as the same does not arise before me now and leave it open. In the result the impugned order is set aside.
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1988 (6) TMI 196 - CEGAT, NEW DELHI
Ex party order ... ... ... ... ..... ave, as suggested by the Learned SDR, made an application rnuch eariter without watting till the last moment. At the same, we feel that in view of the complexity of this matter and the amount involved, it would be in the interest of justice that a fresh order is passed after affording a hearing to the appellants. In view of this, we hold that the impugned order as worded cannot be sustained. In this view, we grant waiver of deposit of lsquo the adjudged amounts rsquo of duty and penalty. 3. The appeal also was heard with the consent of both parties. In view of our observations above, the impugned order cannot be sustained. It is set aside and the matter is remanded to the Collector for a fresh adjudication after giving one reasonable opportunity to the appellants to be heard in person. The opportunity may consist of a notice with at least 3 weeks rsquo time before the date of hearing. The stay application and the appeal are disposed of accordingly. (Pronounced in open court).
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1988 (6) TMI 169 - CEGAT, NEW DELHI
Specialized material handling equipment fixed thereon ... ... ... ... ..... . But since the legal fiction created by the Tariff Entry 34 treated the composite specialised vehicle as a motor vehicle, any part of such a vehicle could not be denied the status of a motor vehicle part. Similarly, though the appellants were not going to use the specialised vehicle itself in their factory, they were to use the specialised equipment, which is the bone of contention before us, for mounting on the chassis. The department cannot reasonably plead that while the fact of step by step mounting of the equipment and the equipment being a fixture on the vehicle could be ignored for the purpose of levy under Item 68, it could not be ignored for the purpose of exemption notifications under the same tariff item. 6. In the result, we hold that no duty was chargeable under Item 68 on the specialised equipment which was born as a fixture on the duty paid chassis. Accordingly, we set aside the impugned orders and allow this appeal with consequential relief to the appellants.
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1988 (6) TMI 168 - CEGAT, NEW DELHI
... ...
... ... ..... the Assistant Collector erred in finding that the higher valued grapes were of the same kind and quality as those of the appellants has not been substantiated. The arguments put forward by the Ld. SDR that there is no reference to quality in the indent etc. is pertinent. Besides, the appellants have no evidence at all to prove that their importation differed in any way from the other imported grapes 8 US Dollars per crate. 7. The Assistant Collector was correct in having fixed the value for importation on the basis of the value of like goods on the same day at the same place and presumably from the same country, and his action is in accordance with Section 14 of the Customs Act. The issue of the stenciled order was not desirable but in the circumstances does not, as claimed by the Ld. Advocate, indicate non-application of mind. We see no reason to interfere with the impugned order which upheld the Assistant Collector rsquo s order. We, therefore, dismiss these three appeals.
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1988 (6) TMI 167 - CEGAT, NEW DELHI
Modvat - M.S. Sheets ... ... ... ... ..... partment has produced no evidence whatsoever that the M.S. sheets purchased by the respondents are non-duty paid or have been charged to nil rate of duty. They merely rely on Notification 208/83. This notification obviously cannot help the department because the notification gives full exemption only if the conditions spelt therein are satisfied. As already mentioned, department has not produced evidence to that effect as well that the conditions of the Notification 208/83 (as amended) have been satisfied in respect of the M.S. sheets purchased by the manufacturers from the open market proving thereby that such M.S. sheets are either clearly non-duty paid or charged to nil rate of duty. 6. In view of the foregoing discussion, I do not see any merit in the three appeals. Therefore, while confirming the impugned order, I reject the appeals. 7. Cross-objections, being in the nature of comments are not maintainable as the respondent has got full relief through the impugned order.
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1988 (6) TMI 166 - CEGAT, NEW DELHI
Duty paid in excess by mistake ... ... ... ... ..... context of Section 72 of the Indian Contract Act, that the department cannot be allowed to take advantage of the mistake committed by the petitioner in paying a higher amount to the department and the department cannot be allowed to retain any such amount which it would not have received but for the mistake on the part of the petitioner in paying it in the first place. In the case of Sahu Cylinders (Supra), this Tribunal rejected the contention that merely because an assessee paid duty voluntarily in excess, he is not entitled to claim refund thereof. 6. In the present instance also, the appellants cannot be denied the benefit of Notification No. 80/80 only on the ground that they had paid duty without claiming its benefit at the time of clearance of the goods. We, therefore, set aside the orders of the lower authorities and remand the matter to the Assistant Collector for de novo consideration of the claim with reference to Notification No. 80/80 and other provisions of law.
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1988 (6) TMI 165 - CEGAT, NEW DELHI
Confiscation - Notified goods ... ... ... ... ..... tion 110. The camera is stated to be old and used. This has not been rebutted by the department. The age of the camera has not been determined, and it is doubtful in these circumstances whether the camera was acquired after the enforcement of provisions of Chapter IVA. Confiscation of old and used camera recovered from the residential premises of a person merely on the ground that the appellant herein is not a professional photographer is not valid. A camera can be acquired and be used not merely by a professional photographer but it cannot be used by even any other person. In these circumstances, it is not appropriate to confiscate the camera in question. Its confiscation is, therefore, set aside. In the result, the impugned order as a whole is set aside and the appeal is allowed with consequential relief to the appellant. 7. Since the cross-objections merely reiterate maintaining the impugned order, they are also disposed of in the above terms and are, therefore, dismissed.
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1988 (6) TMI 164 - CEGAT, NEW DELHI
Two Collectors (Appeals) cannot take different view in the same case ... ... ... ... ..... ollector (Appeals) also failed to take note of the earlier Order passed by his predecessor on 18.11.1982 which was referred to in the readjudication order passed by the Assistant Collector inasmuch as he was very much bound by the earlier Order passed by his predecessor in the instant case which was admittedly never reviewed or challenged in appeal by the department. Under these circumstances I have no hesitation in holding that the impugned order holding the claim of the appellants as time-barred is without jurisdiction and therefore it cannot be allowed to stay even for a moment. 7. In the result the appeal is allowed and both the orders passed by the two authorities below are set aside and the case is remanded to the Assistant Collector with the direction to examine the claim of the appellants strictly in accordance with the remand order dated 18.11.1982 passed by the Collector (Appeals), New Delhi and to grant the consequential relief expeditiously as the case is old one.
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1988 (6) TMI 163 - CEGAT, BOMBAY
Appeal - Stay ... ... ... ... ..... d therefore it cannot be contended that the Asstt. Collector rsquo s order is in violation of the Rules of natural justice. 4. We have considered the submissions made on both the sides. The question whether the appellants themselves should have purchased the inputs in order to claim the benefit of modvat credit is not free from doubt. That apart, the perusal of the Asstt. Collector rsquo s order clearly indicate that there are two infirmities firstly that there was a demand-cum-show cause notice which is not in accordance with law secondly that without affording a reasonable opportunity, on the basis of the earlier order the demand had been confirmed. There was a clear violation of rules of natural justice. It is now settled that an order which is passed in violation of the rules of the natural justice is a void order. It can neither be confirmed nor annulled by the Appellate authority. In the circumstances, we grant an unconditional stay as to the prior deposit and recovery.
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