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Showing 81 to 100 of 288 Records
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1990 (10) TMI 219 - CEGAT, CALCUTTA
Confiscation of goods ... ... ... ... ..... setting aside the order of confiscation. This decision was followed by the Tribunal in a decision of M/s. Golden Hind Shipping (India) Pvt. Ltd., New Delhi v. Collector of C. Ex., Bhubaneswar, vide Order No. 223/Cal/90/223 dated 10th May 1998, disposing of Appeal No. CD (T) Cal-234/82. In view of the above decision. We are of the, opinion that the applicant is entitled for the market value of the goods in question as on the date of the order passed by this Tribunal, i.e. 11-9-1989, on which date the order of confiscation of the goods was set aside and the same was ordered to be returned to the appellant. 6. Accordingly, we allow the application and direct the respondents to pay to the applicant/appellant the market value of the goods in question as on the date 11-9-1989, on which date the order of confiscation of the goods was set aside by this Tribunal. The authorities should pay the appellant the above-said sum within a period of four months from the receipt of this order.
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1990 (10) TMI 218 - CEGAT, BOMBAY
Appellate Tribunal - Jurisdiction ... ... ... ... ..... per the legal position, the appellants are entitled to proforma credit of duty paid on stators and rotors used in the manufacture of electric fans. Hence there cannot be any deliberate violation of rules with an intention to evading duty, justifying extended period and imposition of penalties. Apart from this, the appellants have been pursuing their case by way of representation to the Collector since the order of refusal by the Assistant Collector was not an appeasable order. Hence, in such a case, even deliberate violation of rules cannot be alleged. The appeal is therefore required to be allowed even on ground of time-bar. 14. While allowing the appeal of the appellants, we also direct the appellants to withdraw the refund claims filed in respect of duty paid on stators and rotors, in respect of which, we now direct the extension of proforma credit. The bank guarantee furnished by the appellants shall also stand discharged. 15. The appeal is disposed of in the above terms.
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1990 (10) TMI 217 - CEGAT, BOMBAY
Demand - Limitation ... ... ... ... ..... e notice issued on 29-11-1985, which was earlier adjudicated upon by the Collector, it is not open for them to allege it after the case has been remanded back only for the limited purpose of compliance with the principles of natural justice. In any case, it does not appear to be in good spirit. Moreover, we have observed that observance of the wrong procedure and clearance of goods without gate passes is partly on account of the department rsquo s own mis-understanding of the whole situation. In such a case, the extreme penalty of confiscation of plant and machinery is not called for, especially when it is not alleged in the original show cause notice issued and such an order came to be passed only on the basis of an addendum issued during the course of de novo adjudication proceedings. 18. In view of our findings on the main issue, it is needless for us to consider the other minor issues and we do not propose to go into them. 19. The appeal is disposed of in the above terms.
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1990 (10) TMI 216 - CEGAT, BOMBAY
MODVAT Credit - Plain paper and aluminium foil being ‘packaging material’ to be considered as inputs
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1990 (10) TMI 215 - CEGAT, CALCUTTA
Evidence - Additional ground ... ... ... ... ..... g the appeal on the question of limitation cannot be faulted though he should have been categoric in his finding about the notice being hit by limitation instead of hedging it with the stipulation ldquo subject to the aforesaid contention being found correct rdquo . It was for him to be satisfied with this aspect before passing the order. Anyway, as I find that the facts are as stated by the respondents, the decision of the Collector (Appeals) has to be endorsed. Accordingly, I dismiss the appeal with consequential reliefs for the respondents. 10. The Cross Objection filed by the respondents is actually by way of comments on the appeal and is not a Cross Objection in the real sense as it has not challenged any point of the orders of the Collector (Appeals) as it was totally in their favour. The said Cross Objection stands disposed of with the dismissal of the appeal. 11. The operative part of this order was pronounced in the open Court on 22-10-1990 when the appeal was heard.
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1990 (10) TMI 214 - CEGAT, NEW DELHI
Export - Alleged misdeclaration of quantity of fish ... ... ... ... ..... be taken to have been misdeclared in the Manifests as also in the Shipping Bills. We observe that for any misdeclaration to be held against the appellants the one thing that has to be shown is that according to an acceptable basis the quantum of fish is other than what has been declared. When there is no clear basis set out the question of holding that the quantity of fish was misdeclared would not arise. In this view of the matter we hold that the learned lower authority has not analysed the position correctly and has not given clear findings as to the basis on which the misdeclaration has been held to be there and we, therefore, set aside the orders of the learned lower authority and remand the matter for de novo adjudication in the light of what we have held above after giving the appellants an opportunity of hearing and also making them aware of the basis on which the learned lower authority would be proceeding in the matter. The appeals are, therefore, allowed by remand.
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1990 (10) TMI 213 - CEGAT, MADRAS
MODVAT Credit ... ... ... ... ..... s, which are by themselves in the nature of tools or apparatus, have to be held to be used in the manufacture of the sand moulds and not in or in relation to the manufacture of the castings. The appellants are also not eligible for the benefit of Rule 57D, as the sand moulds do not qualify to be intermediate goods for the reasons given above. 6. The West Regional Bench in the case of Shivaji Works Ltd. v. Collector of Central Excise Sholapur - reported in 1990 (50) E.L.T. 50 (Tri.) 1990 (29) ECC 139 (WRB) has held that chemicals used in the manufacture of sand moulds which are in the nature of equipment are not eligible for the Modvat Credit under Rule 57A of the Central Excise Rules. In view of the above, I hold that the ratio of the ruling of this Bench as also of the West Regional Bench squarely applies to the facts and circumstances of this case and I find no reason to depart from these decisions. In the result, the plea of the appellant fails and the appeal is dismissed.
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1990 (10) TMI 212 - CEGAT, MADRAS
Modvat Credit ... ... ... ... ..... manufacture of final product nor any processing of the material takes place as such by these devices. In this view of the matter, therefore, the pyrometric cone cannot be said to be falling under the excluded category, as the excluded category of the goods mentioned in (i) above are only such, which are used for producing or processing of any goods or bringing about any change in the substance in relation to the manufacture of the final product. The pyrometric cone is only an aid in the process of manufacture of the ceramic materials but it is an essential aid and is designed specifically for being placed in the furnace to give an indication of the degree of fire. In that view of the matter it has to be held that it is used in or in relation to the manufacture of the final product. We, therefore, hold that on merits the findings of the learned lower authorities are not maintainable and the plea of the appellant has to be allowed. The appeal is thus allowed in the above terms.
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1990 (10) TMI 211 - CEGAT, BOMBAY
Confiscation ... ... ... ... ..... e car with RTO, Bombay. Even on payment of purchase price, he has initially given version inconsistent with the plea now raised, by stating that his father had paid the purchase price. His father Trilokchand has however in his reply to show cause notice, pleaded ignorance. Inconsistent and conflicting versions given by the appellant in basing his defence would provide a painter to appellant involving in purchasing the subject matter car knowing the same to have been not licitly imported, and we would have been justified in not extending benefit of the provisions of Section 125 of the Customs Act, even on that count. Here however, with the Appellant pleading to have not purchased the same on payment of purchase price, and seeking release only on his alleged moral obligation, the decision from that angle becomes unnecessary. 13. In the result, we see no reason to interfere with the conclusion drawn and final order passed by the Authorities below and hence we dismiss the appeal.
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1990 (10) TMI 210 - CEGAT, MADRAS
MODVAT Credit ... ... ... ... ..... ke any difference in law so far as the facility provided under the Rule 57F(2) is concerned. As pointed out above, but for the issue of Notification 214/86 even under Rule 57F(2) the job worker would have been called upon to pay duty on the intermediate goods manufactured before return of the same under the Rules. As it is, in the present case, the Revenue cannot be said to have suffered any prejudice inasmuch as whatever duty was paid at the intermediate stage, the appellant took only that much credit on receipt of the duty paid intermediate goods and therefore, this transaction between the job worker and the appellants was Revenue neutral. The inputs as seen have been used in the process of the manufacture of the intermediate goods intended for the manufacture of the final products covered under the MODVAT Scheme. In this view of the matter, we hold that the appellants are eligible for the benefit of MODVAT Credit in respect of the goods and accordingly we allow the appeal.
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1990 (10) TMI 209 - CEGAT, NEW DELHI
Refund claim ... ... ... ... ..... consistent with the previous practice. (c) Question No. 3(a) and (b) - In the light of our answers to questions Nos. 1 and 2, the only relevant question is, when was the application for refund made to the Assistant Collector? It was certainly before the expiry of six months from the date of payment of duty. The fact that the application, addressed to the Assistant Collector, was received in his office on a later date is of no consequence. The date on which the application was presented or submitted to the Superintendent of Central Excise should be taken as the date of receipt of the application by the proper authority, which, admittedly, in this case is within the time allowed by law. It is academic to answer question No. 3(a) and (b), since the practice at present seems to be to file the application directly before the Assistant Collector. 7. In view of the decision of the Kerala High Court no question of law survives now. Accordingly, the reference application is dismissed.
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1990 (10) TMI 208 - CEGAT, NEW DELHI
Review application not treatable as an appeal before the Tribunal, ... ... ... ... ..... Collector of Central Excise and Customs, Bangalore. A simple perusal of the authorisation shows that the authorisation was for the filing of an application to the Appellate Tribunal. Perusal of the Appeal Memo and records show that the Revenue had chosen to file a review application before the Tribunal under Section 35E(2) of the Central Excises and Salt Act, 1944. It appears that the same has been filed by mistake. In view of these observations, we hold that no proper appeal has been filed before this Tribunal and this review application cannot be treated as an appeal, as the impugned order was passed by the Appellate Collector, Central Excise, Madras, and if the Revenue was aggrieved from the aforesaid order, the Revenue should have filed an appeal before the Tribunal in terms of provision of Section 35B of the Central Excises and Salt Act, 1944 read with the Removal of Difficulties Order, 1982 within the limitation period. For statistical purposes, the appeal is dismissed.
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1990 (10) TMI 207 - CEGAT, NEW DELHI
Export of goods without payment of duty ... ... ... ... ..... the recovery of duty on yarn is waived under Rule 13 along with the duty on fabrics. Now, the Special Excise Duties are levied by way of a percentage of the basic excise duty leviable under the Central Excise Tariff. Where, therefore, the basic excise duty is lsquo nil rsquo , interpretation in levying the additional duty of excise on the textiles and textile articles under the Additional Duties of Excise (Textiles and Textile Articles) Act, 1978. On the same analogy, since the duty on yarn is nil, the interest is also nil. Therefore, as construed in this manner, Rule 49A does not authorise the department to charge interest where fabrics are exported without payment of duty under Rule 13 by a composite mill which has adopted for payment of duty on yarn under Rule 49A. rdquo 13. Therefore, we are of the view that the department cannot charge interest on the facts and circumstances of this case. Accordingly we allow the appeal and set aside the orders of the lower authorities.
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1990 (10) TMI 206 - CEGAT, NEW DELHI
Double taxation ... ... ... ... ..... s factory under Item 15C will start from that date and the demand for duty thereon will have to be redetermined accordingly. It is, therefore, ordered accordingly. The plea of the appellants that the demand cannot exceed 6 months prior to the Show Cause Notice has to be rejected as the fact of manufacture of the excisable goods came to light only on the visit of the officers to the factory and the appellants had not also filed any declaration. No doubt, the fact that they had maintained their records properly which has been relied upon by the department will be mitigating factor for reducing the penalty which is accordingly reduced to Rs. 1,000/- (Rupees one thousand only) considering that the appellant is a small scale unit. Since the excisable goods have been found to be manufactured without Central Excise licence and observing Central Excise formalities the confiscation thereof is in order and redemption fine levied reasonable. The appeal is disposed of in the above terms.
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1990 (10) TMI 205 - CEGAT, NEW DELHI
S.S.I. Units - Value of clearances ... ... ... ... ..... factured is neither exempt from the whole of duty nor is chargeable to nil rate of duty. So, when full exemption under Notification 80/80 is claimed on the finished goods, then the captively consumed input cannot be held to be eligible for exemption. The lower authorities have, however, not taken the value of clearances of such goods in computing the aggregate value of clearances for purposes of exemption under Notification 80/80 which is correct in law and flows from the terms of the notification itself. In the result, it is held that the appellants will be eligible for refund in respect of their refund claim dated 5-4-1982 for the period on and from 4-10-1981, and that too, only in respect of the finished product, and not input, which the Assistant Collector should consider in accordance with law. Their refund claim dated 27-4-1982 for the period 2-4-1981 to 29-8-1981 has been correctly rejected as time-barred under Sec. 11B CESA 1944. The appeal is disposed of accordingly.
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1990 (10) TMI 204 - CEGAT, NEW DELHI
Refund - Limitation ... ... ... ... ..... nder the Act by the department, the provisions of limitation, prescribed in the Act will prevail. It may, however, be open to the department to initiate proceedings in the Civil Court for recovery of the amount due to the department in case when such a remedy is open on the ground that the money received by the assessee was not in the nature of refund. rdquo It is clear from these two decisions that authorities, including Tribunal, acting under the Act, are bound by the provisions of the Statute and cannot grant relief beyond the provisions of the Statute. The remedy, if any, either for claiming refund or for recovery of duty beyond the prescribed period under the Statute, the concerned parties may seek recourse to such alternative remedy outside the purview of the Statute under the common law. In the view we have taken, we have no alternative except to hold that refund claim was barred by time. 7. In the result we uphold the impugned order and dismiss the appeal accordingly.
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1990 (10) TMI 203 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... lso for classification under Customs Tariff Act. We find that same argument had been put forth before the Tribunal in the case of Allied Chemicals and Pharma v. CC -1990 (48) E.L.T. 124 wherein the Tribunal held that for claiming the benefit of Notification 33/83, the goods have to answer to the description of Heading 29.01/45(13). In that case the Tribunal held that sodium laurel sulphate is a drug aid and not a drug classifiable under Heading 29.01/45(13) and is for that reason also not eligible for exemption under Notification 33/83. The same reasoning will hold good in this case also wherein Amidotrizoic Acid is only diagnostic aid in radiology as a contrast media not having therapeutic or prophylactic value by itself, and as such cannot claim classification, under Heading 29.01/45(13) and will not be eligible for exemption under Notification 33/83. There is thus no reason to interfere with the orders passed by the lower authorities and the appeal is, therefore, rejected.
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1990 (10) TMI 202 - CEGAT, NEW DELHI
Whether fresh declaration required after withdrawal to be considered at the time of hearing ... ... ... ... ..... sel. 10. It was however, their contention that the Assistant Collector rsquo s clarification cannot over-ride the law. 11. In this connection he would draw attention to the discussions in the operative portion of the order of the Collector, he requests that their prayer may be rejected. 12. We have considered the submissions of both the sides. We are of the view that prima facie the appellants have succeeded in showing to us that they were under a bona fide belief and the clarification issued by the Assistant Collector strengthened this belief. 13. The legal value which should be attached to such a communication and implication thereof could be more appropriately taken up at the time of hearing of the main appeal. At this stage, it is sufficient to observe that looking to the totality of the facts and circumstances and noting the above points in particular, the prayer of the applicants was justified. Hence, we stay the operation of the Order during the pendency of the appea1.
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1990 (10) TMI 201 - CEGAT, NEW DELHI
Valuation of compressors with accessories ... ... ... ... ..... t of only 6 items (supra), the value of all accessories supplied has been included while working out the assessable value of compressors. We are therefore not able to accept this costing method. 9. It is brought to our notice that the method of computation of assessable value adopted in this case has been rejected by the same Collectorate in the case of M/s New India Refrigeration Stores, New Delhi wherein the expert opinion of the Advisor (Cost) Ministry of Finance, was obtained and the expert rsquo s costing data was the basis of calculation. We are of the opinion that this is the proper method to be adopted. Accordingly, we set aside the impugned order and remand the matter to the Collector for determining the correct assessable value in terms of Rule 6(b)(ii) based upon the costing data furnished by the Advisor (Cost), Ministry of Finance. In view of this, it is not necessary to go into the other contentions of the parties. 10. The appeal is thus allowed by way of remand.
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1990 (10) TMI 200 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... ditional Collector rsquo s order that the appellants had placed orders for waste paper only. That they are manufacturers of paper and not traders is also not in dispute. Therefore, on a consideration of the totality of the evidence, and applying the ratio of the two decisions of the Tribunal (supra) to the facts of the present case, we hold that the Additional Collector rsquo s order confiscating the goods and imposing personal penalty holding the goods to be printing and writing paper and assessing it to duty as such is not sustainable, and it is accordingly set aside. We may, however, observe that the clearance of the goods will be subject to the execution of the end-use bond prescribed under Notification 219/84 to the satisfaction of the Assistant Collector, who is also free to decide whether or not such clearance could be effected after getting the goods mutilated depending on the feasibility of such an operation in the docks. The appeal is disposed of in the above terms.
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