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Case Laws
Showing 81 to 100 of 284 Records
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1991 (8) TMI 217 - CEGAT, NEW DELHI
Natural justice - Opportunity of hearing ... ... ... ... ..... sequently, was not truthfully made? It is significant that in these circumstances, even the Indian Evidence Act, 1872, provides in Section 27 that so much of the statement of an accused before a police officer which leads to the fact thereby discovered may be proved in evidence against that person. We have referred to the provisions of the Evidence Act only to show the principle which is universally accepted in these matters. In this view of the matter, we do not consider any merit in the argument of the appellant. The appeal is therefore, liable to be dismissed. 17. As for the quantum of penalty, we consider that, keeping all the facts in mind, a lower amount of penalty would meet the ends of justice. We observe that a penalty of Rupees one lakh has been imposed on the appellant under Section 112 of Customs Act. We, therefore, reduce the penalty from Rupees one lakh to Rs. 50,000/- (Rupees Fifty Thousand only). Subject to this modification, the appeal is otherwise dismissed.
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1991 (8) TMI 216 - CEGAT, NEW DELHI
Manufacturer ... ... ... ... ..... k of the appellants. The supply of the board, ink and slide bromides, as well as the first set of cutting and creasing rollers and printing gluts, by the ITC was for the reason that the work to be done by the appellants on that material was to manufacture a product suitable for the ITC only. Hence supply of these materials would not amount to ITC having control ldquo over the manufacturing activities of the appellants. The absence of sale of raw material to the processor and the sale of the manufactured product by the processor does not mean that the raw material supplier viz. ITC would be the actual manufacturer and not the processor. rdquo 7. Following the ratio of the earlier decisions and in view of the facts and circumstances of the case, we hold that appellant was not the manufacturer in respect of goods manufactured by the other independent units and, accordingly, he was not liable to pay duty, fine or penalty in respect of the same. This appeal is allowed accordingly.
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1991 (8) TMI 215 - CEGAT, BOMBAY
Import - REP Licence ... ... ... ... ..... f binders. The Tribunal held that such licences issued against the export of leather goods covering handbags, wallets etc. cannot seek to cover metal fittings meant for book binding. The issue in this case also is identical namely whether evaporators, (the item specified in the licence) can refer to evaporators for air-conditioners, which are totally not connected with export product - lsquo machine tools rsquo . In view of the decision of the Special Bench referred to above, the issue in the appeal has to be answered in favour of the revenue and against the appellant. 7A. I therefore, uphold the order of confiscation. However, taking note of the plea that the goods have incurred heavy demurrage and the appellants, being transferee of the licence were under the impression that they can import evaporators for air-conditioners. I would extend some more leniency and reduce the fine from Rs. 40,000/- to Rs. 30,000/- (Rupees thirty thousand only). The appeal is otherwise rejected.
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1991 (8) TMI 214 - CEGAT, NEW DELHI
Modvat Credit ... ... ... ... ..... n for passing this order whereas the impugned order in appeal has been passed by the Collector (Appeals) and at Executive Collector rsquo s level an appeal has been filed against the order of the Collector (Appeals) in so far as it relates to this item. In view of these circumstances, it cannot be said that the department as such had accepted availability of deemed credit in respect of this item. Hence, we have to proceed on the basis that the Department is aggrieved of the impugned order in respect of this item. 48. However, at the same time we notice that both the sides have referred to their respective submissions advanced in the Appeals No. 312 to 317/88-NRB. 49. Hence in respect of Items No. 2 to 10 we see no reason to interfere with the order of Collector (Appeals) for the reasons recorded in paragraphs 39 to 41 above and the ratio of our observations therein. 50. With the above observations and orders, all the 10 appeals as well as the Cross Objections are disposed of.
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1991 (8) TMI 213 - CEGAT, BOMBAY
Refund on returned goods ... ... ... ... ..... t of the legal provisions applicable to such re-entered goods. The Asstt. Collector has not held it as time barred but rejected under Section 11B. 5. If the argument of the ld. advocate is to be accepted, it would mean that goods cleared on payment of duty can be brought in the factory after any length of time lag and kept in the factory for some time and by paying duty again, the entire provisions of Rule 173L can be set at naught, by claiming that duty has been paid second time. As can be seen from the scheme of Rules 173H and 173L, it is evident that these rules have been made only with a view to mitigating the rigors of double payment of duty on such duty paid re-entered goods. If the appellants do not choose to follow the discipline prescribed under the rules, he cannot get the benefit by looking at Section 11B in isolation, disregarding the provisions of Rule 173L. 6. I, therefore, do not propose to interfere with the orders of the authorities below. Appeal is rejected.
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1991 (8) TMI 212 - CEGAT, CALCUTTA
Adjudication order bad ... ... ... ... ..... ns in this behalf. But the whole order shows that the reply was not specifically dealt with. Only on the ground that the appellant confessed the offence in his statement he was found guilty. Whether that confession was voluntary or not was not discussed at all. When any party pleads that the confessional statement has been obtained under threat, a brief discussion should have been made to come to the conclusion whether the party rsquo s contention is correct or not. In this respect, we observe that the impugned order is not a speaking order and it has not dealt with the reply statement of the appellant. In the circumstances, we feel that the impugned order is to be set aside and the appeals are to be allowed by way of remand. Accordingly, the appeals are allowed by way of remand. The adjudicating authority is hereby directed to afford a personal hearing to the appellant and pass a speaking order after hearing the party, as per law, observing the principles of natural justice.
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1991 (8) TMI 211 - CEGAT, BOMBAY
Re-export - Redemption fine and penalty ... ... ... ... ..... f the item as above on this ground does not appeal to us. The other objection is that these are for recreational purposes and not for educational purpose. Even this criterion does not appeal to us because of the fact that there are many books meant for recreational purposes like fictions. They may have or may not have an educational value. Hence the safe and sound method for identification is the trade parlance. Whether the item is recognised as a book or recognised as a toy? When the evidences cited before us clearly indicate that item is recognised as a book and these evidences are not rebutted by the Department, we hold the issue in favour of the appellants. Accordingly we allow their request for reshipment of the books without fine and penalty. This offer for reshipment of the books without fine and penalty is required to be exercised within a period of three months from the date of communication of this order, failing which the right to re-export will stand extinguished.
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1991 (8) TMI 210 - CEGAT, NEW DELHI
Matter relating to rate of duty but referable in view of High Court’s directions ... ... ... ... ..... 76, even though such Cess was payable on the jute at the time of final clearance from the factory rdquo . They also filed a stay application alongwith the reference application requesting the Tribunal to stay the demand of Rs. 9,34,455.20. 9. The Tribunal rejected the aforesaid stay application and reference application mentioned in para 8 above vide its Order No. S-217/90-D and M-257/90-D dated 23-10-1990 holding that in view of provisions of Section 35-G(1) of the Central Excises and Salt Act, 1944 a reference application does not lie against the Tribunal rsquo s Order dated 16-5-1990 read with order dated 25-1-1991 since the order involves a question relating to rate of duty and question posed in the reference application also relates to the rate of duty. Since this position was not disputed by the learned counsel of the applicants, the reference application was dismissed. 10. However, now in view of the High Court rsquo s direction, the Statement of the case is furnished.
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1991 (8) TMI 209 - CEGAT, CALCUTTA
Stay of Order granting refund with interest ... ... ... ... ..... t 12 p.a. from the date of expiry of the abovesaid period. Therefore, ultimately if the case is decided in favour of the respondents in the light of the opinion of the Hon rsquo ble High Court on the questions of law, the respondents will be entitled for the interest 12 per annum. But the Department is pleading that if the amount is taken back by the respondents and ultimately, if the case is decided in favour of the Department it will be difficult for the Department to take back the amount from the respondents. In such circumstances, the balance of convenience is in favour of granting the stay as prayed for by the applicant Collector. Accordingly, this application is allowed. The stay of the operation of the Tribunal rsquo s Order Nos. 532/Cal/90 and 533/Cal/90 dated 29-10-1990 and 154/Cal/90 dated 30-4-1990 and 224A/Cal/90 dated 26-4-1990, are hereby granted as prayed for by the applicant Collector till disposal of the Reference Applications by the Hon rsquo ble High Court.
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1991 (8) TMI 208 - CEGAT, CALCUTTA
Stay/Dispensation of predeposit of duty and penalty ... ... ... ... ..... ested interests, is a generalisation which may not be true in all cases. It was certainly open to him after providing the opportunity to the concerned persons to give further statements, and give his finding as to which statements in the given circumstances were reliable and proceed accordingly. The course adopted by him has left the applicants with the justifiable grievance that they had not been given the necessary opportunity to submit their defence explaining the records properly. 4. For the foregoing reasons, we allow the Stay Petition. We waive predeposit of penalty and duty. 5. As prayed for by the learned Counsel and with the consent of the learned Departmental Representative, we proceed to hear the appeal. For the same reasons that have inclined us to grant the stay, we allow the appeal itself by setting aside the impugned order and remand the matter to the adjudicating authority for de novo adjudication in accordance with law and the requirements of natural justice.
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1991 (8) TMI 207 - CEGAT, NEW DELHI
Penalty imposed by Tribunal in respect of goods seized from truck ... ... ... ... ..... arned counsel has stated amounts to questioning the evaluation of seriousness of violations and award of punishment (penalty) by the Tribunal. This amounts to challenging the assessment and judgment of the Tribunal. 14. Hence it appears that the appellant is aggrieved with the order of the Tribunal and wants to reopen the case in this way but the mode of reference application has not been provided in the law to act as a substitute for an appeal. If the appellant is aggrieved of the order passed, it is upto him to pursue such other course as may be open to him under the law but a reference application is not intended for this purpose and cannot be allowed to be used in this way. 15. In view of the above discussion we observe that no point of law requiring reference to the Hon rsquo ble High Court arises out of the order of the Tribunal in this case. Hence no reference is called for in terms of Section 35 of Central Excise Act. The reference application is accordingly rejected.
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1991 (8) TMI 206 - CEGAT, CALCUTTA
Statement - Retraction after 3-4 months ... ... ... ... ..... g Rs. 2/- as his charge for loading two gunny bags. If that were to be so, he could not have been in possession of Rs. 500/- in his pocket, which was seized by the officers and which was returned to him as per the adjudication order holding that the same does not represent the sale of smuggled goods. Seizure of Rs. 500/- further corroborates his version that he has agreed to transport this medicinal powder, and for that purpose he had taken an amount of Rs. 500/-. Therefore, the statement of the appellant dated 24-10-1988, and the subsequent conduct of the appellant and the seizure of Rs. 500/- from his person, go to show that he was a person concerned in the transport of the smuggled medicinal powder and, therefore, the penalty of Rs. 1,500/- imposed on him under Sec. 112(b) of the Customs Act, is in accordance with law. Considering the value of the goods and the circumstances of the case, it cannot be said that the penalty is excessive. Accordingly, the appeal is dismissed.
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1991 (8) TMI 205 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... below - ldquo The Supreme Court Bench comprising of Hon rsquo ble Mr. Justice K. Jagannatha Shetty and Hon rsquo ble Mr. Justice M.N. Venkatachaliah on 13-2-1991 dismissed Civil Appeals Nos. 274/91 with 2321/89 filed by Collectors of Central Excise, Bombay and Jaipur respectively against CEGAT Order No. 923/90-C, dated 5-6-1990 (Collector of Central Excise, Bombay v. Bhor Industries Ltd.) and No. 598/88-C, dated 11-7-1988 (Collector of Central Excise, Jaipur v. Chetna Polycoats (P) Ltd., Bhiwadi, Dist. Alwar). The Appellate Tribunal in its orders in question had held that Electrical Insulating Tapes are classifiable under Heading 85.46 (8546.00) and not under Heading 39.19 (3919) of the Central Excise Tariff Act, I985. In view of these observations, we hold that the insulation tapes manufactured from polyester film and PVC fall under Heading 8546.00. The appeal filed by the appellant is allowed. The revenue authorities are directed to give consequential effect to this order.
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1991 (8) TMI 204 - CEGAT, NEW DELHI
Confiscation and penalty ... ... ... ... ..... into India. They were therefore, liable to confiscation and so was the scooter on which they were being transported. I do not think that in the circumstances of this case, the appellants have made out a case for setting aside the order of confiscation even of the two citizen watches. The order of confiscation of the watch movements, the watches and the scooter is therefore, upheld. I do not think that the fine in lieu of confiscation is excessive. I do not think that in view of the facts and circumstances discussed, Shri Sumer Chand Jain can be said to have dealt with smuggled goods without knowledge and the imposition of penalty of Rs. 2000/- on him is unjustified. 16. There is nothing in the order to indicate that Shri Nagin Chand Jain had allowed his scooter to be used for carrying the smuggled goods with his knowledge or consent. There was therefore, no justification for imposing any penalty on him. The order imposing penalty on him is set aside and his appeal is allowed.
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1991 (8) TMI 203 - CEGAT, NEW DELHI
Rejection of application for condonation of delay ... ... ... ... ..... quo Application for condonation of delay in the matter of Filing an appeal rsquo and the prayer made in this application was as under - ldquo In the circumstances, it is humbly prayed that the appeal may kindly be taken on record and the delay be also condoned. rdquo (emphasis added) 8. In view of this, the plea that it was not a case of condonation of delay is not borne out by the facts on record. The provision which permits admission of an appeal after the expiry of the prescribed period is contained in sub-section (5) of Section 35B and any order passed on this point is therefore, an order under that provision viz., Section 35B (5). Not being an order under Section 35C, it cannot form the basis of a reference to the High Court under Section 35G in view of the specific provisioin to that effect. Thus, if is evident that the rejection of the application for condonation of delay cannot be subject-matter of a reference to the High Court. The application is therefore, rejected.
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1991 (8) TMI 202 - CEGAT, MADRAS
Rectification of mistake ... ... ... ... ..... above evidence to the notice of the Tribunal when the matter was decided. Therefore, in the interest of justice we are of the view that the omission to take note of the evidence cited supra is an error apparent on the face of the records warranting rectification. In this view of the matter, the impugned order is amended by rectifying the error holding that the petitioner would be entitled to the Modvat credit in respect of the inputs in question taken on 1-4-1986. The impugned order would stand modified accordingly after rectification of this mistake. 6. Since the ROM application of the petitioner in regard to the mistake in the impugned order has been considered and the error ordered to be rectified in accordance with law, a Reference Application out of the same cannot co-exist simultaneously along with the rectification application. In this view of the matter the Reference application along with the connected stay petition - E/REF/134/87 and E/REF/Stay/92/88 - is dismissed.
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1991 (8) TMI 201 - CEGAT, NEW DELHI
Demand - Clandestine removal of goods not established ... ... ... ... ..... entries and over-writing are not a dependable record to establish clandestine removal unless the same is supported by other evidence, such as, raw materials consumed, goods actually manufactured and packed Kashmir Vanaspati (P) Ltd. v. Collector of Central Excise and Raza Textiles Ltd. v. Collector of Central Excise supra. The other citations produced by the learned Advocate have also been considered and carefully perused by us and it is now a settled law that the evidences for clandestine removal has to be cleared and unrebuttable and relying upon the entire rulings the impugned order has to be set aside. 19. The Tribunal has already given the findings that the soap manufactured without the aid of power by the appellants was within the department rsquo s knowledge as in the Order No. 426/91-C dated. 10-5-1991 and therefore, the demand raised on the removal of the soap is not sustainable. 20. Hence, in view of our findings we set aside the impugned order and allow the appeal.
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1991 (8) TMI 200 - CEGAT, MADRAS
Baggage - Unacco.+3++++++mpanied baggage containing New and Valuable articles ... ... ... ... ..... note of the fact that the receipt for the goods now produced before us is dated 2-3-1990 and no reason has been given as to why the same was not produced before the learned lower authority and attached to the baggage declaration in case the same was in his possession. It is seen that the appellant had purchased VCR, Video Camera, National A/c., T.V. Sony, Iron Box as per this receipt all on the same date paying an aggregate amount of 7865.00 DHS and he has not produced any evidence by way of his having paid this amount out of his resources either by showing withdrawal of this amount from his bank or any other means. In view of the discussion above we hold the delay in despatch of the baggage has not been satisfactorily explained and it appears to us that the delay was for the reason that the appellant was trying to get more new items sent over as baggage after his arrival in India. In view of the above we uphold the order of the learned lower authority and dismiss the appeal.
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1991 (8) TMI 199 - CEGAT, MADRAS
Modvat Credit ... ... ... ... ..... be removed on payment of duty or it can be destroyed and it can be removed without payment of duty only when it is covered by contingency provided under sub-rule (b) of Rule 57F(4). Admittedly, the Trade Notice No. 94/89 was issued only in respect of Aluminium scrap and this trade notice can be taken to have been issued at the behest of the Board or the Central Government and a claim can be made that this can be treated as an order of the Central Govt. for the purpose of sub-rule (b) of Rule 57F(4). In that view of the matter in case of Aluminium, the benefit of extended interpretation of sub-rule (b) can be given. However, in respect of brass and zinc no such trade notice or order has been issued and therefore, in terms of Rule 57F(4) the scrap has to suffer duty before it can be cleared out of the factory. We, therefore, hold that the lower appellate authority rsquo s order is not maintainable in law and we set aside the same. The appeal of the Revenue is therefore allowed.
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1991 (8) TMI 198 - CEGAT, MADRAS
Refund - Limitation ... ... ... ... ..... nly after the decision of the Supreme Court. It is not in dispute that, both the appellants and the Department, were aware of the fact that the final price was dependent on the decision of the Supreme Court. It cannot be ignored that the Department could not have completed the assessment by taking into consideration any price in excess of the price fixed under the Price Control Order and, therefore, the mere fact that the assessment orders were final would not shut out the Department from claiming the additional duty . In view of above, we hold that the following questions of law would arise for reference 1. Whether the Appellate Tribunal was right in holding that applicant rsquo s Refund Application was time-barred under Section 11B of the Act? 2. When a price list with downward revision was approved retrospectively from a date, whether the applicant is entitled to file a refund application within 6 months from the date of approval of the price list for the excess duty paid?
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