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Case Laws
Showing 61 to 80 of 248 Records
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1988 (7) TMI 298 - CEGAT, NEW DELHI
Natural justice - Full opportunity to be heard not given ... ... ... ... ..... r not allowing the appellants full opportunity of hearing in violation of principles of natural justice. 12. emsp The appellants have a good prima-facie case and in view of this, without going into the aspect of financial hardship, we held it as a fit case for dispensing with the pre-deposit of duty and penalty amount in terms of Section 35-F of the Central Excises and Salt Act, 1944. In as much as we have held that the lower authority rsquo s order is bad in law on account of violation of principles of natural justice, it is liable to be set aside on this ground alone. We therefore, proceed to decide the appeal itself and set aside the lower authority rsquo s order and direct that the lower authority should adjudicate the case de-novo in the light of our observations above and after giving an opportunity of hearing to the appellants. This shall be done within 4 months from the date of receipt of this order. The order of the lower authority, is therefore, set aside by remand.
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1988 (7) TMI 297 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... ended for the department that the cellulose powder and micro-crystalline powder would be distinct products different from the bleached cotton linters and each of them has its own distinctive characteristics and uses. Sh. Sarma, when enquired, did confirm that the cellulose powder and micro-crystalline powder are evidently to be used in the preparation of medicinal tablets. Sh. Chakraborty points out that this Tribunal has held in the case of Oriental Talc Products Pvt. Ltd. 1984 (18) E.L.T. 657 that grinding of soap-stone for conversion into power of a specific mesh for special use as filler in various inds. would amount to manufacture since the resultant product (of specific mesh) is known separately from the parent product and has its own distinct use in market. It would appear to us that the said principle would apply to the facts of the present case also. 7. ensp We accordingly hold that the order of the lower authorities are correct. This appeal is accordingly dismissed.
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1988 (7) TMI 296 - CEGAT, NEW DELHI
Territorial Jurisdiction ... ... ... ... ..... esent case. What appears to have happened (though we do not wish to pronounce any verdict on this) is that the appellants seem to have claimed duty drawback on cartons made out of non-duty paid imported materials in certain shipments which, however, are not the subject matter of the present dispute because the Collector, in his order, has not demanded repayment of the drawback amount which he should have done if the present dispute was in relation to such shipments. Perhaps, there are separate proceedings in this regard. Be that as it may, it is obvious that in the case before us, the penalty has not been imposed on the ground that the appellants had exported goods under claim for drawback though they had made out of non duty imported materials. 9. emsp In view of our above observations, we set aside the demand of Rs. 5,66,739/-and also quash the penalty of Rs. 50,000/- levied by the Collector. 10. emsp In the result, the impugned order is set aside and the appeal is allowed.
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1988 (7) TMI 289 - CEGAT, BOMBAY
Dispensation with pre-deposit of penalty ... ... ... ... ..... any case, even if the Collector (Appeals) was not satisfied as to the prayer for dispensation, he should have atleast given sometime to make the deposit and if the party in spite of time being granted fails to make the deposit, then only the appeal should be rejected. The procedure followed by the Collector (Appeals) is not in accordance with law. On this ground alone his order is liable to be set aside. Accordingly we set aside the same. 6. Since the appellants herein have challenged the confiscation and fine besides the penalty, it is necessary that the matter should be remanded to the Collector (Appeals) to hear on merit. Accordingly we remand the matter to the Collector (Appeals). He shall also consider the applicants rsquo application for dispensation with the prior deposit of the penalty. He shall give adequate opportunity to the appellants herein. 7. Since we have disposed of the appeal, the stay application does not survive for consideration and the same is rejected.
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1988 (7) TMI 288 - CEGAT, NEW DELHI
Wrapping paper ... ... ... ... ..... y was that normal minimum packing (not any special packing or durable/returnable containers) without which a manufactured product cannot be delivered whether for reasons of transport or otherwise should be treated as a process incidental or ancillary to the completion of that product. It was further held that just because the materials used for the normal minimum packing are not ldquo used up rdquo in the process, it would not be correct to say that they had not been used in any incidental or ancillary process to complete the manufactured product by turning out into marketable goods. In our opinion, the principle applies to the present case also. It must, therefore, be held that wrapping paper was used by the respondents in the further manufacture of paper and that it was used for wrapping other varieties of paper before their clearance from the factory. 13. In the above view of the matter, we hold that the impugned order is correct. We, therefore, dismiss the present appeal.
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1988 (7) TMI 287 - CEGAT, BOMBAY
Confiscation ... ... ... ... ..... d the addressee or have been delivered subsequently. The letter and the telex from the suppliers are undated and appear to have been solicited. Moreover, the importers had pre-plan to import the polyamide fibre concealed in some of the bales by placing 2 indents simultaneously on the same date and also importing them with same marks and numbers. It is also strange to note that the suppliers do not offer any explanation as to why the consignment contained polyamide fibre concealed in 23 bales. All these factors lead us to the conclusion that the importers rsquo action is deliberate and cannot be let off with leniency. However, taking into account the fact that removal of undeclared goods has been timely arrested and both the consignments have been ordered for absolute confiscation, we consider that the penalty of Rs. 2,00,000/- (Rupees two lakhs) would meet the ends of justice. Accordingly, we modify the Collector rsquo s order to this extent. The appeal is otherwise rejected.
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1988 (7) TMI 280 - CEGAT, NEW DELHI
... ...
... ... ..... ake up the price of the goods ex-factory. Such charges, therefore, will have to be added to the price declared by the manufacturer. 15. There are two other points. As regards charge on account of rental for the cylinders and the interest which accrues on account of deposit receipts for the supply of gases in returnable cylinders, we are not persuaded that either of these charges is related, to the cost of manufacture of the goods as such. In the case of Premier Oxygen and Acetylene Co. (P) Ltd., Gwalior (supra) this Bench has already held that rental charges for retention or holding of gas cylinders are not includible in assessable value. We fully endorse this view and we also hold that any interest accruing on deposits received for such gas cylinders cannot constitute a part of assessable value. 16. The 13 appeals before us are disposed of in the foregoing terms. The Assistant Collector will refix the assessable value as intimated. Consequential reliefs, if any, will follow.
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1988 (7) TMI 277 - HIGH COURT BOMBAY
Preventive detention ... ... ... ... ..... Irani complained that detaining authority did not bother to inform the next friend and therefore the order of detention should be set aside. We are unable to accept the submission. The detenu was fully aware of the name as well as the residential address of his next friend. The next friend was residing in Bombay at J.K. Bhaskar Niwas, Chira Bazar, Bombay. The detenu addressed letter to the detaining authority and nothing prevented the detenu from communicating with his next friend by addressing a letter. It was not the duty of the detaining authority to go in search of his next friend and keep him present before the Advisory Board to represent the detenu. In our judgment, no fault can be found with the action of the detaining authority and the challenge to the order of detention is without any basis. The order of detention does not suffer from any infirmity and is required to be upheld. 5. Accordingly, petition fails and rule is discharged. There will be no order as to costs.
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1988 (7) TMI 276 - CEGAT, NEW DELHI
Exemption Interpretation of Notification ... ... ... ... ..... uch evidence from the consignees because the latter are already furnishing the necessary data to the Education Ministry, Government of India in terms of its guidelines dated 22-6-1979. 13. In view of the above incidental power with the Proper Officer to prevent misuse of the excise duty concession we consider this to be a fit case for remand to the Assistant Collector of the Central Excise concerned to satisfy himself as to whether the paper supplied by the respondent here has been actually used for the purpose for which it is claimed to have been supplied. The appeal of the Department is allowed only to the aforesaid limited extent and disposed of in the above terms. Dated 19-7-1988 Sd/- (V.P.Gulati) Sd/- (P.C. Jain) Member (T) Member (T) FINAL ORDER The appeal is disposed of in accordance with the opinion of the majority as contained in paragraph 13 of the judgment. Sd/- Sd/- Sd/- (P.C. Jain) (V.P. Gulati) (V.T. Raghavachari) Member (T) Member(T) Member (J) Dated 27-7-1988
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1988 (7) TMI 275 - CEGAT, NEW DELHI
Remand order ... ... ... ... ..... of the lower appellate authority as recorded in the order of remand. It, therefore, follows that in the present instance this Tribunal, in considering the entire issue, is entitled to go into the whole matter afresh and would not be bound by the opinion of the appellate Collector as recorded in the remand order. We have already seen that this Tribunal has held, in the case of these very appellants themselves, against them on the question of classification and liability for payment of duty. The said decision is binding on us, unless set aside by the Supreme Court. 10. Therefore, respectfully following the said decision we hold that the refund claim was rightly rejected by the lower authorities. We have, therefore, to necessarily dismiss this appeal. If the appellants wish to keep their refund claim alive till the Supreme Court disposes of their earlier appeal they will have to file an appeal against this order also to keep this refund claim alive. 11. This appeal is dismissed.
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1988 (7) TMI 274 - CEGAT, NEW DELHI
Adjudication ... ... ... ... ..... establishing the charge framed against the appellants. The Department did not make proper investigation to bring home the charge. The Additional Collector brushed aside all the evidence produced by the appellants and he has based his decision only on the retracted statements of one partner and some employees of the firm. In the facts and circumstances of the case, those evidence could be rejected if proper investigation had been done and the results of investigation showed that the contention of the appellants was untenable. No such material has been produced by the Revenue. In the circumstances, benefit of doubt has to be given in favour of the appellants. 9. Consequently, we give benefit of doubt to the appellants, set aside the impugned order and allow the appeal. The amounts already recovered from them for provisional release of the seized goods and also in terms of the impugned order and this Tribunal rsquo s interim order on the stay petition should be refunded to them.
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1988 (7) TMI 273 - CEGAT, NEW DELHI
Additional evidence ... ... ... ... ..... s of those letters to the appellants and also by deciding the case by the Additional Collector without giving any intimation whatsoever to the appellants after the case was heard by the Deputy Collector of Central Excise. He has prayed that on this ground itself the appeal should be allowed and impugned order should be set aside. 4. We have considered the arguments and the records of the case. We are convinced that there is violation of principle of natural justice inasmuch as the case was heard by the Deputy Collector of Central Excise on 16-6-1983, but the adjudication order was passed by the Additional Collector of Central Excise without giving a fresh hearing to the appellants. Consequently, the impugned order is set aside and the matter is remanded to the Additional Collector of Central Excise, Kanpur for de novo adjudication after giving copies of those two letters to the appellants and also giving them an opportunity of personal hearing. 5. Appeal is allowed by remand.
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1988 (7) TMI 262 - CEGAT, NEW DELHI
Confiscation and penalty set aside ... ... ... ... ..... as given in CCCN and HSN under the relevant Explanatory Notes under Tariff Headings 53.03 and 51.03 respectively. The Explanatory Notes, we observe, merely give by way of examples of yarn waste as broken, knotted or tangled yarns. It is also on record that the spools and cones are small pieces in 10 gms. to 200 gms. and vary in shade, quality of wool and count of yarn as well. It is also further on record that the appellant has offered to get the goods mutilated according to the satisfaction of the Customs authorities to make them conform to lsquo wool waste rsquo as per the latter rsquo s understanding. Since the department has not categorically proved that the goods are not wool waste, as discussed above, the charge of misdeclaration of description of goods and their value is also not tenable. Hence while setting aside the impugned order with consequential relief to the appellant, we order that the goods shall be released to the appellant. 6. Appeal disposed of accordingly.
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1988 (7) TMI 261 - CEGAT, BOMBAY
Appeal by Department ... ... ... ... ..... her in the Central Excise Act or Rules conferring the power to Collector to condone the delay in exercising power under sub-section (2) of Section 35-E. There is also no provision in the Act or Rules conferring power on the Collector of Customs (Appeals) to condone the delay in such matters. Prima facie, the order of the Collector is bad in law since it was exercised beyond the statutory period. It was contended that the Collector (Appeals) had not considered this aspect and the appellant was not given an opportunity of being heard. If the Collector could not exercise his power after the statutory period fixed under the statute, the proceeding before the Collector of Customs (Appeals) cannot be considered as validly filed. However, these are matters to be gone into in detail at the time of hearing the appeal. The facts stated above require granting of an unconditional stay and accordingly we grant an unconditional stay both as to the prior deposit as well as stay of recovery.
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1988 (7) TMI 260 - CEGAT, BOMBAY
Adjudication - Penalty ... ... ... ... ..... n in view of the fact that the Addl. Collector rsquo s findings are to the effect that Shri Thete had offered to transport the contraband with prior knowledge. Since the confiscation of the scooter has not been contested during the hearing, we uphold the order of confiscation. 13. emsp Before parting, we would like to place on record the fact that the counsel for the appellant, Shri Menon was informed before the commencement of the hearing that one of the Members (Shri K. Gopal Hegde) had already decided the appeal filed on behalf of Shri Shaikh and in the said order certain observations have been made with regard to the present appellant. In view of this, the counsel was informed that the member (Shri K. Gopal Hegde) would not like to associate with the proceeding and the appeal would be heared by the other Member (Shri Jayaraman). Shri Menon, however, insisted that the case may be heard by the Bench consisting of both the Members and his request was therefore complied with.
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1988 (7) TMI 259 - BOMBAY HIGH COURT
Preventive detention ... ... ... ... ..... y. There is no reason why the proposal forwarded on December 30,1987 should have been kept idle on the table of the detaining authority for about two months. The detention is directed with a view to prevent prejudicial activities, but such prejudicial activities must be in immediate future. The order of detention is required to be struck down on the ground of delay. 3. The second ground urged by Shri Patel is equally strong. The grounds of detention exhaustively recite the fact of issue of show cause notice by the adjudication authority. Shri Patel complains that the detailed reply filed by the detenu was not placed before the detaining authority. If the show cause notice is relevant, then the reply cannot be said to be irrelevant. In our judgment, the order of detention must fail on both the grounds. 4. Accordingly, petition is made absolute and the impugned order of detention is quashed and the detenu is directed to be released forthwith. There will be no order as to costs.
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1988 (7) TMI 258 - BOMBAY HIGH COURT
Preventive detention ... ... ... ... ..... because the detaining authority has not filed any return in answer to the petition. Shri Satpute, learned Assistant Government Pleader, sought adjournment to file the return and when we inquired as to what is the reason for not filing the return, the learned counsel very fairly stated that instructions have not been received from Delhi. We declined to adjourn the hearing of the petition as the petition was admitted on April 26,1988 and more than two months had lapsed from the date of admission. In detention matters it is necessary for the detaining authority to file the return at once, because the detenu cannot be deprived of his liberty because the detaining authority has no time to file the return. In absence of return, we have no option but to accept the claim made in the petition and set aside the order of detention. 4. Accordingly, petition succeeds and the order of detention is quashed. The detenu is directed to be released forthwith. There will be no order as to costs.
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1988 (7) TMI 257 - BOMBAY HIGH COURT
Detention order ... ... ... ... ..... Magistrate at Trivandrum and remanded to judicial custody till December 12,1987. A telex dated November 30,1987 was sent by the Asstt. Collector, Trivandrum, to the Bombay office and, thereafter, police party left Bombay for Trivandrum to fetch the detenu. The detenu was taken into custody on December 5,1987 and at that time the order of detention and the grounds were furnished. The return does not dispute the claim of the detenu that Trivandrum police took the detenu into custody only because of the impugned order dated November 11, 1987. It is, therefore, obvious that the detenu, when arrested on November 26,1987, was not furnished with the order of detention and the grounds of detention. The detention, therefore, was clearly illegal and the order of detention cannot be sustained. 4. Accordingly, the petition succeeds, rule is made absolute and the impugned order of detention dated November 11, 1987, is quashed and set aside. The detenu is directed to be released forthwith.
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1988 (7) TMI 256 - BOMBAY HIGH COURT
Preventive detention ... ... ... ... ..... n for detention on October 5,1987. The Screening Committee met on December 11,1987 and approved the proposed detention. The proposal and the documents were then sent to the detaining authority of February 12,1988 and the order came to be passed on April 11,1988. Shri Page, learned Assistant Public Prosecutor, was unable to explain why it took two months from the date of meeting of the Screening Committee to forward the proposal and the documents to the detaining authority. There is no explanation as to why the detaining authority sat over the proposal for further two months. In these circumstances the conclusion is inescapable that the order of detention is passed after a considerable delay and there is no reasonable explanation for the same. On this ground the order of detention is required to be set aside. 4. Accordingly, rule is made absolute and the impugned order of detention is quashed. The detenu is directed to be released forthwith. There will be no order as to costs.
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1988 (7) TMI 255 - CEGAT, NEW DELHI
Issue of Show Cause Notice ... ... ... ... ..... present their case was offered to them and that there was no notice to show cause against the assessment at this stage, and that the notice to show cause issued subsequently did not result in a proper adjudication. The Bench held that the appellant was correct in his submission that the procedures had become vitiated in consequence of failure to afford an opportunity to be heard at the time of RT 12 assessment and to failure to adjudicate on the notice to show cause subsequently issued. 10. In the light of this case law, the legal position is clear that even if there is a demand on the RT 12, a show cause notice has to be issued. In the present appeal the show cause notice was issued well after the period of limitation provided by Section 11A, namely, 6 months. 11. We, therefore, held that the demand raised against the respondents as time-barred as the show cause notice was issued beyond the period of limitation. We, therefore, dismiss the appeal. The Cross-Objection abates.
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