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Case Laws
Showing 81 to 100 of 267 Records
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1986 (8) TMI 246 - CEGAT, MADRAS
Confiscation ... ... ... ... ..... ll not be ordered to be confiscated but such other action, as is authorized by this Act, may be taken against the person who has, by such act or omission, rendered it liable to confiscation. rdquo Since in the present case, the ornaments under confiscation have been proved to belong to various other persons, and since it is not the case of the Department that the act or omission of the appellant rendering the ornaments liable for confiscation was with the knowledge or connivance of the owners the ornaments are not liable for confiscation. In this view of the matter, the impugned order appealed against is set aside insofar as it relates to confiscation and imposition of a fine in lieu of confiscation is concerned. However, since the contravention under Section 6(2) by the appellant is clearly established by the evidence on record and also admitted by the appellant, the penalty imposed on the appellant under the impugned order is clearly sustainable in law. Ordered accordingly.
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1986 (8) TMI 245 - CEGAT, MADRAS
Seizure and confiscation ... ... ... ... ..... rers. This aspect of the matter has been lost sight of by the Collector (Appeals) and his finding under the impugned order, ldquo from the inventory of the goods seized that the cosmetics and textile items seized in this case bear foreign markings and are notified under Section 11B of the Customs Act, 1962 is factually incorrect. The goods under seizure, according to the inventory did not bear any foreign markings. Only one item i.e. the first item in the inventory viz., 2 Nos. Tiger Head Brand two cells size torch light with bulbs and without cells - Made in China bears the name of a foreign country as the manufacturer. Therefore, so far as the above item alone is concerned the same is liable to confiscation and excepting Item No. 1 aforesaid, the confiscation of the other goods under the impugned order is not legally sustainable for the reasons stated above and consequently the impugned order appealed against is set aside and the appeal is allowed with consequential relief.
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1986 (8) TMI 244 - CEGAT, NEW DELHI
CLASSIFICATION ... ... ... ... ..... neral use, as defined in Note 2, in case they were saved by Section Note 1 thereof, but for the exclusion clauses in related Chapter, that being Section Note 1(g) to Section XVI in this case, though they would ordinarily fall under Section XV but for this exclusion. This intention as has been pointed out by the learned SDR is very expressly spelt out, by all Section notes which deal with highly specialised goods besides, machinery such as locomotives, vessels, aircrafts etc. Obviously by virtue of exclusion clause in each Section note, even though these items like springs, may be for specific purposes, they stand excluded from the respective headings, and we have to revert to Chapter 73, by virtue of Note 2. We, therefore, do not find any ground having been made out to accept the arguments of Shri Kunhikrishnan, and find no infirmity in the orders passed by the authorities below, in regard to this item. No interference is called for, and the appeals are dismissed accordingly.
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1986 (8) TMI 243 - CEGAT, BOMBAY
Short landing - Refund ... ... ... ... ..... llector instead of approaching the Appellate Tribunal. It is open to the appellants to pursue that matter. 6. emsp As regards the shortage, it is undisputed that the joint survey took place before the physical clearance of the goods and when the goods were in the custody of the custodian namely the BPT authorities. The BPT authorities were associated at the time of survey. The law nowhere lays down that the Customs should be associated at the time of survey. Therefore, merely because the Customs was not associated the claim cannot be rejected. The Asstt. Collector is required to examine the evidence with regard to the shortage. Such an examination has not been done either by the Asstt. Collector or the Collector (Appeals). We, therefore, allow this appeal in part and remand the matter to the Asstt. Collector for consideration of the appellant rsquo s claim regarding the shortages. He is at liberty to consider the claim along with the claim in respect of the two missing drums.
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1986 (8) TMI 242 - CEGAT, NEW DELHI
Appeal - Condonation of delay ... ... ... ... ..... od of limitation prescribed and there was delay beyond that period, one cannot overlook that such delay should be explainable and it may be due to oblique motives of the persons charged with the duty of implementation of the law. The ratio cannot, certainly, be applied where the delay is unexplained or where no allegations have been made of oblique motives that delayed the initiation of appropriate proceedings (g) in 1985 (21) E.L.T. 529, the delay was explainable and, in fact, satisfactorily explained, so that even without resorting to the aforesaid decision of the Supreme Court in 1983 ECR 1556, the delay could be condoned in exercise of the power vested in the Tribunal in terms of S. 35B(3) of the Act, (analogous to S. 5 of the Limitation Act) for ldquo sufficient cause rdquo . 9. emsp In the premises, seeing that the applicant had failed to show any cause whatsoever for the delay, we dismiss the Applications for condonation. In consequence, the Appeals are also dismissed.
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1986 (8) TMI 241 - CEGAT, NEW DELHI
Appellate Tribunal not to sit over appeal against to own order ... ... ... ... ..... uch a question of fact as the evidence of the facts, and, further that, a finding on a question of fact is open to attack, as erroneous in law, only where there is no evidence to support it or if it is perverse, (emphasis added). It is not even applicant rsquo s case that any such position prevails in the present case. Their Lordships further emphasised that the question, whether a fact has been proved when evidence, for and against, has been properly admitted, is necessarily a pure question of fact. The decision of the Income Tax Appellate Tribunal, dealing reference to the High Court, was endorsed in that case, for the reasons that on facts, as found, no question of law arose. 23. emsp For all the foregoing reasons, I am of my considered view that no question of law, requiring reference to High Court, arises in the present case, and the Reference Application deserves to be declined. FINAL ORDER In accordance with the majority judgment the Reference Application is dismissed.
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1986 (8) TMI 240 - CEGAT, NEW DELHI
Imports by post - Customs - Warehousing ... ... ... ... ..... imported by post. 6. emsp So far as the Notification No. 163-Cus., dated 16-10-1965 is concerned, we find that the Notification exempts any ocean-going vessel manufactured in warehouse in accordance with the provision of Section 65 of the Act from customs duty leviable thereon when cleared from the warehouse. What this Notification exempts is the ocean-going vessel manufactured in warehouse in accordance with the provision of Section 65 of the Act. Imported parts or accessories are not exempted from customs duty under this Notification. The contention of the appellants that the parts and accessories which will be used in the manufacture of ocean-going vessels are exempted from customs duty under this Notification, is not acceptable. Shri Balakrishnan has not been able to cite notification, if any, under which such parts and accessories are exempted from customs duty. 7. In view of the above discussions, we find no merits in this appeal and accordingly, the same is dismissed.
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1986 (8) TMI 239 - CEGAT, NEW DELHI
CLASSIFICATION ... ... ... ... ..... rms ldquo chewing gum rdquo and ldquo bubble gum rdquo have been synonymously used. If they are one and the same thing there would be no need to specify them separately. Shri Sachar urged before us that Item No. 1A(1) reads ldquo Chewing gums rdquo . His point was that since the plural has been used, all types of chewing gums, including bubble gum, would be covered by the same item. We do not see any force in this argument. No doubt different kinds of chewing gums would be covered by the said entry, but bubble gum which, as we have seen, is not the same thing as chewing gum, cannot be said to be covered by the said entry. 5. emsp In the light of the aforesaid discussion, we hold that bubble gum did not fall under Item No. 1A(1) but under Item No. 68 CET. The appeal is allowed. The Assistant Collector is directed to work out the relief consequent to this finding on classification and grant to the appellants the relief due within 3 months from the date of receipt of this order.
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1986 (8) TMI 238 - CEGAT, BOMBAY
Gold - Penalty imposed on shortage in stock ... ... ... ... ..... as leviable for that part of the offence. Taking all aspects into consideration, I reduce the penalty from Rs.5,000/-to Rs.3,000/- (Rupees Three thousand only). 12. emsp In the result, that part of the Gold Control Administrator rsquo s order by which he reduced the penalty from Rs.10,000/- to Rs.5,000/- is confirmed. 13. emsp The order of absolute confiscation of primary gold weighing 116.300 grams is set aside. The appellant is given an option to redeem the said primary gold on payment of fine of Rs.5815/- the value set out in the panchanama and he shall exercise that option within two months from the date of communication of this order. He shall also convert the primary gold on redemption into ornaments immediately thereafter. The confiscation, as well as redemption allowed in respect of primary gold weighing 590.350 grams is confirmed. The personal penalty imposed on the appellant is reduced from Rs.5,000/- to Rs.3,000/-. The appellant be granted the consequential relief.
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1986 (8) TMI 237 - CEGAT, NEW DELHI
Demand - Time limit ... ... ... ... ..... mands and the Appellate Collector set them aside as incorrect, and at the end of it, the Central Government steps in to make a correction, it does not need too much imagination to see with direction the correction is meant to take. The only conclusion we are able to arrive at is that the correction will take the form of recovering the duty, the duty that the Assistant Collector set out to recover in his two orders and which the Appellate Collector by his order ruled out. There can be no doubt, therefore, that the notice of the Government of India was issued only because it had formed the opinion that there had been a short levy, and that it issued the notice with the sole intention of recovering the short levy which the order of the Appellate Collector had temporarily prevented. 18. emsp The notice is, therefore, time barred and is set aside. In arriving at this decision we have relied entirely on the decision of the New Delhi High Court in the Associated Cement Company case.
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1986 (8) TMI 236 - CEGAT, NEW DELHI
Valuation of goods captively consumed ... ... ... ... ..... to that of industrial consumers and hence the price charged to industrial consumers should apply. The appellants rsquo argument that this price was in terms of the first proviso to Section 4(1 )(a) which pre-supposed an actual sale and since there was no sale in the case of captive use, the price to dealers under the main Section 4(l)(a) should apply, is misconceived. Section 4(l)(a) also talks of sale price as much as the proviso does. In fact, prices under both the provisions are deemed normal prices. The prices relevant under both are sale prices of ldquo such rdquo goods. It is not necessary that the very goods must be sold. So long as the normal price of identical goods is available, the same would apply to the quantity captively used too. And of the two normal prices available, the one applicable to industrial consumers has a natural claim to be adopted for the appellants rsquo own industrial use. 3. We, therefore, uphold the lower orders and reject both these appeals.
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1986 (8) TMI 235 - CEGAT, NEW DELHI
... ...
... ... ..... ime of the receipt. 8. emsp The identical rule has been adopted as Rule 6 in the Customs, Excise and Gold (Control) Appellate Tribunal (Procedure) Rules, 1982. Sub-rule (2) of Rule 6 specifically says that a Memorandum of Appeal sent by post shall be deemed to have been presented to the Registrar on the date on which it is received in his office. 9. emsp That being so, it has necessarily to be held that the appeal was delayed by five days, excluding the date on which the appeal was posted and the date on which it was actually received in the Registry of this Tribunal. 10. emsp Even so, the question is if such delay can be condoned in terms of Section 35B(5) of the Act. We see no reason as to why we should not. While it is true that each day rsquo s delay after the expiry of the period of Limitation, has to be explained, it is explained, in the facts and circumstances of the case, by the delay in postal transmission. We accordingly, allow the application and condone the delay.
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1986 (8) TMI 234 - CEGAT, MADRAS
Customs - Confiscation - Video Cassette Tapes ... ... ... ... ..... ette tapes but, however, taking into consideration the admitted fact that the goods were lawfully acquired by the appellant under a valid purchase coupled with the fact that the appellant was misled to believe that the statutory obligation to give a statement containing the relevant particulars in terms of 11-C in respect of the notified goods would arise only in respect of blank video cassette tapes, I am inclined to hold that the contravention in the peculiar facts and circumstances of this case is technical in nature and venial in character meriting a sympathetic consideration. In this view of the matter I reduce the fine from Rs. 5000/-to Rs. 2500/- (Two thousand five hundred only). So far as the penalty is concerned in the peculiar facts and circumstances of this case, I am of the opinion that interests of justice would be met if the appellant is given a stern admonition. Accordingly I set aside the penalty by admonishing the appellant and let him off with an admonition.
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1986 (8) TMI 233 - CEGAT, NEW DELHI
Demand without Jurisdiction ... ... ... ... ..... had been granted in respect of duty which was legally payable and in respect of which no refund was permissible. It is therefore clear that in passing his order dated 18-4-1979 the Superintendent purported to exercise a right which was not available to him in law. 6. emsp Further such a proceeding to claim recovery of a refund wrongly granted is to be exercised under Rule 10 of the Central Excise Rules and under the said Rule as it stood at the relevant time the authority competent to pass an order on adjudication after issue of notice under Rule 10 was the Assistant Collector and not the Superintendent. Since the order dated 18-4-1979 was passed by the Superintendent and not the Assistant Collector it follows that the Superintendent acted in excess of his jurisdiction in passing the said order. 7. For both these reasons we hold that the order of the Superintendent of 18-4-1979 was not legal. Accordingly we allow this appeal and set aside the orders of the lower authorities.
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1986 (8) TMI 232 - CEGAT, BOMBAY
Appeal - Condonation of delay ... ... ... ... ..... cate Shri Kotwal on behalf of the respondents has urged that the Bombay High Court did not take into account the Supreme Court rsquo s decision in AIR 1972 SC 749 which laid down that ldquo sufficient cause rdquo could not be interpreted too liberally for the purpose of condoning the delay when Govt. was a party. As against this judgment, the learned SDR has relied on the ratio of the Supreme Court rsquo s decision reported in 1983 ECR 1556D. The Supreme Court rsquo s decisions imply that each case has to be decided, more or less on its own merits. Therefore, we find considerable force in Shri Sethna rsquo s alternate plea for condonation of the delay in the presentation of the appeal, but tressed by the ratio of the decision of the Bombay High Court in the State Bank rsquo s case. Accordingly, we allow the application of the Collector, condone the delay in the presentation of his appeal, and direct that the appeal be admitted for hearing and disposal on merits in due course.
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1986 (8) TMI 231 - CEGAT, BOMBAY
Appeal - Condonation of delay ... ... ... ... ..... cate Shri Kotwal on behalf of the respondents has urged that the Bombay High Court did not take into account the Supreme Court rsquo s decision in AIR 1972 SC 749 which laid down that ldquo sufficient cause rdquo could not be interpreted too liberally for the purpose of condoning the delay when Govt. was a party. As against this judgment, the learned SDR has relied on the ratio of the Supreme Court rsquo s decision reported in 1983 ECR 1556D. The Supreme Court rsquo s decisions imply that each case has to be decided, more or less on its own merits. Therefore, we find considerable force in Shri Sethna rsquo s alternate plea for condonation of the delay in the presentation of the appeal, but tressed by the ratio of the decision of the Bombay High Court in the State Bank rsquo s case. Accordingly, we allow the application of the Collector, condone the delay in the presentation of his appeal, and direct that the appeal be admitted for hearing and disposal on merits in due course.
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1986 (8) TMI 230 - CEGAT, NEW DELHI
Confiscation and penalty ... ... ... ... ..... icants. This very Bench, as constituted today, passed the appellate order dated 10-2-1986. While passing that order what was in our mind is that the appellants (now applicants) did not make entry in the GS 12 register. It was immaterial to us whether the said register was to be maintained under Rule 11 or Rule 13. Even if it was brought to our notice before passing the said order, that Rule 13 was not relevant and its contravention was not indicated by non-entry in GS 12 register, it could not produce any different impression in our mind nor could it affect the amount of penalty confirmed by us. In the circumstances, we are of the view that this point need not be referred to the High Court under Section 82-B of the Act. 13. emsp In the light of the above discussions, we hold that none of the points raised in the Reference Application is fit for reference to the High Court under Section 82-B of the Gold (Control) Act, 1968. In the result, we dismiss this Reference Application.
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1986 (8) TMI 228 - CEGAT, MADRAS
Gold control - Adjudication ... ... ... ... ..... safety from his way-ward younger brother is far from convincing. As indicated earlier, we find the statement of Ratnakara Pai dated 24-12-1982 to be true and voluntary meriting acceptance and reject the later retraction as belated and as an afterthought. Therefore, on the evidence available on record, we find that the silver ingots under seizure are liable for confiscation under Section 113(1) of the Customs Act, 1962 and we accordingly, confirm the confiscation of the same under the impugned order. 18. emsp In the facts and circumstances of this case, we do not think that the penalty imposed on appellant Ratnakara Pai under Section 114 of the Customs Act calls for any interference. In the result, except for the setting aside of penalty imposed on appellant Chandrasekhara Pai under Section 112 of the Customs Act, 1962, as indicated above, we confirm the findings of the Collector under the impugned order in other respects. Thus, the appeals are disposed of as indicated above.
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1986 (8) TMI 202 - CEGAT, NEW DELHI
Valuation - Commission paid to an agent for procuring orders is not a trade discount ... ... ... ... ..... hi High Court judgment reported at 1984 (24) E.L.T. 526 (Delhi) and certain rulings of this Tribunal. But they conceded that this judgment and the rulings related to pre - 18-6-1977 period when tariff item 33 read differently. With effect from 18-6-1977, this tariff item was specifically amended to include regulators along with fans in the tariff item/sub-items. The earlier judgment and the rulings cannot, therefore, apply when the law itself underwent a change. The amended tariff makes it abundantly clear that regulators go along with the fans and their cost has, therefore, to be included in the assessable value of the electric fans whenever regulators are supplied with the fans. The material period in the present appeal is from 1-7-1980 to 10-11-1983, i.e., after 18-6-1977. There is, therefore, no question of deducting the cost of regulators. 3. emsp In the result, we uphold the impugned orders in so far as they relate to the above three items and reject the present appeal.
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1986 (8) TMI 201 - CEGAT, NEW DELHI
Valuation - Electric fans ... ... ... ... ..... case, are electric fans. Deduction towards sales tax or purchase tax paid on raw materials, which go into the manufacture of the fans, is not permissible. Such tax on the raw materials becomes a part of the price paid for the raw materials and enters into the manufacturing cost of the fans. The respondents contended before us that purchase tax on raw materials was levied by the West Bengal State Government in lieu of sales tax which the said State Government could not impose on inter-state sales. Whatever may be the intentions of the State Government, the legal position remains that sales tax or purchase tax paid on the raw materials of electric fans cannot be deducted while determining assessable value of the electric fans themselves. 2. emsp Accordingly, we set aside the order of the Collector (Appeals) in so far as it relates to purchase tax and restore the order of the Assistant Collector in respect of purchase tax. The appeal of the department is allowed in these terms.
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