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Case Laws
Showing 81 to 100 of 286 Records
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1994 (9) TMI 211 - CEGAT, BOMBAY
Redemption fine ... ... ... ... ..... since S.S. Sheets and G.P. Sheets are costlier than M.S. Sheets. This may be so, but it cannot be denied that sometimes error do take place in shipment and there is no evidence to show that the wrong goods were deliberately shipped. The fact that the goods were confiscated does not necessarily mean that the offence was deliberate. The provisions of Section 111(d) of the Customs Act, 1962 do not postulate the existence of mens rea before the confiscation resorted. 5. emsp The Collector had considered the quantum of redemption fine taking into account the fact that the goods were utilised for export. This basis has not been questioned. I also find that there is no evidence regarding the argument MOP which was available. Since Collector has exercised his discretion judiciously and having regard to the fact that the goods are used for export, it cannot be said that the fine imposed is too low and in the circumstances, I decline to interfere with this order and reject the appeal.
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1994 (9) TMI 210 - CEGAT, BOMBAY
Modvat Credit ... ... ... ... ..... Excise Rules, 1944. 2. emsp I have heard both the sides. It is not denied that the declaration was filed before the jurisdictional Suptd. at Kopargaon, the Asstt. Collector being the superior officer. The C.B.E.C. has in its instructions issued under circular F. No. 267/1/87 CX VIII, dated 5-2-1987 says that the credit can be taken from the date when the declaration was filed with the Range Suptd., whose duty is to forward it to the Asstt. Collector. In the light of this, the appellant was entitled to take credit. I therefore allow the appeal.
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1994 (9) TMI 209 - CEGAT, CALCUTTA
Precedent - Appellate Tribunal ... ... ... ... ..... ns, the hon rsquo ble High Court of Orissa held that the Tribunal has no inherent power to grant any such relief to the party concerned. 6. emsp The learned Advocate, Shri Mukhopadhyay also relied upon the decision of the Tribunal reported in 1988 (35) E.L.T. 398. That decision is to the effect that the Tribunal has to follow the decision of the Hon rsquo ble High Court under whose jurisdiction it is situated. Therefore, it is seen that this Tribunal is within the superintendence of the Hon rsquo ble Orissa High Court also and therefore, the decision of the Orissa High Court has to be followed by this Tribunal. There are no other contrary decisions of the Calcutta High Court in this regard. Since there is no contrary decision of the High Court of Calcutta in this regard, the decision of the Hon rsquo ble Orissa High Court is binding on the Tribunal and the same has to be followed. In that view of the matter, this Application is without any force. The same is hereby dismissed.
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1994 (9) TMI 208 - CEGAT, CALCUTTA
Notice of hearing ... ... ... ... ..... they say they have not received Notice of hearing fixed for 20th September, 1994. They also submit in that letter that they could not advise their Advocate Shri N. Mookherjee. 2. emsp From the proceedings of the Court on 25th August, 1994, we, however, observe that today rsquo s (20-9-1994) date of hearing was given in the presence of Shri N. Mookherjee, learned Advocate. He had argued on a Miscellaneous Application which had been dismissed and the learned Advocate had prayed for adjournment on the Appeal. Consequently, today rsquo s date of hearing was given in the presence of the said learned Advocate Shri N. Mookherjee and the Departmental Representative. This proceeding of the Court dictated and pro- nounced in the open Court itself is a valid Notice of hearing to the Appellants. 3. emsp We are, therefore, unable to understand the content of their letter dated 20th September, 1994. Consequently, we dismiss the Appeal for default in appearance and for want of prosecution.
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1994 (9) TMI 207 - CEGAT, NEW DELHI
MODVAT Credit - Deemed credit ... ... ... ... ..... led on the ground that appellants came to know of the order much after it was issued. I therefore do not find force in the contention of the Ld. Advocate that they should be allowed benefit of deemed modvat credit upto the date when they actually came to know about the order. The case laws cited by the Ld. Advocate are clearly distinguishable as in the present case both original authority as well as Collector (Appeals) have referred to withdrawal of deemed credit provision with effect from 2-11-1987 and have not based the reasons on Trade Notice. Since the impugned order itself did not rely on Trade Notice as an authority for confirming the demand, mere mention of Trade Notice in the Show Cause Notice after giving full reasons in the impugned order of Collector (Appeals) about denial of modvat credit without documents by virtue of proviso to Rule 57G(2) would not vitiate the demand. See Kiran Spinning Mills (supra). I therefore uphold the impugned order and reject the appeal.
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1994 (9) TMI 206 - CEGAT, MADRAS
Modvat Credit ... ... ... ... ..... ionary and Webster rsquo s dictionary would not cover the items like aluminium sheets and use of the aluminium sheets has to be taken to be in relation to the manufacture of the specified final product under Rule 57A as in the case of titanium metal anodes in respect of which MODVAT credit has been held to be admissible and, therefore, no question of law arises for reference. Following the ratio of the Hon rsquo ble Supreme Court in the case of J.K. Cotton Mills Co. v. Sales Tax Officer 1965 A.I.R. S.C. 1310 (VC 213) the Tribunal rejected the Reference Application. Following the decisions of this Tribunal cited supra we hold that Titanium anodes is an eligible item of import for the benefit of MODVAT credit and, therefore, there is no question of law arising out of the Tribunal rsquo s order. 6. emsp In the facts and circumstances of the case, we hold that no case has been made for any reference to the Hon rsquo ble High Court and therefore, dismiss the Reference application.
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1994 (9) TMI 205 - CEGAT, CALCUTTA
Smuggling - Penalty - Evidence ... ... ... ... ..... it is assumed that the name found in the Insurance Note is the name of the appellant, Shri Trilochan Singh, that itself cannot be said to be an independent corroboration of the evidence of the co-accused. As held by the Hon rsquo ble Supreme Court reported in AIR 1968 SC 832 supra, the corroboration being not only as to factum of the crime but also as to the connection of the co-accused with that crime in question, should be established. This evidence itself will not establish the connection with the actual crime. In that view of the matter, no purpose also will be served by remanding the matter to the Adjudicating Authority. Accordingly, the evidence in this case is insufficient to hold that the Department has established that the appellant, Shri Trilochan Singh is connected with the conveyance of the smuggled gold seized in this case. In that view of the matter, this appeal of Trilochan Singh is allowed and the penalty of Rs. 1,00,000.00 imposed on him is hereby set aside.
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1994 (9) TMI 204 - CEGAT, NEW DELHI
Appellate order ... ... ... ... ..... passed by the Tribunal. We shall appreciate if necessary consequential effect is given to the Order No. 107/89-B1, dated 31st July, 1989 within one month from the date of the receipt of this order by the adjudicating authority. In the result, miscellaneous application is disposed of accordingly. EDITOR rsquo S COMMENTS The CEGAT in the above case had held that the law of limitation will apply for giving consequential effect to the orders passed by the Tribunal. This finding seems to be lacking any legal backing inasmuch as neither the Limitation Act, 1963, nor the Central Excises and Salt Act, 1944, or the CEGAT (Procedure) Rules, 1982, provides any time limit for giving effect to orders passed by the Tribunal. However, the CEGAT may prescribe a period for implementing its orders as anciliary and incidential functions of its appellate jurisdiction but there is no ldquo law of limitation rdquo which prescribes the time limit for giving consequential effect to the CEGAT orders.
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1994 (9) TMI 203 - CEGAT, BOMBAY
Stay/Dispensation of pre-deposit ... ... ... ... ..... at the compounds which are manufactured out of the inputs, are being used for manufacture of detergent powders by the appellants themselves in their own factories and those detergent powders are cleared on payment of appropriate duty and that they have been utilising the Modvat credit on these inputs for the purpose of paying the duty. One cannot ignore the aspects that the cost of production would also get reduced to the extent of the credit, and the ultimate beneficiary would be the consumer, who is the central figure in the object of the Modvat scheme. 5. Considering all these aspects we are directing the appellant to furnish a personal bond to the extent of the duty amount payable. On execution of the personal bond, there shall be stay and waiver of recovery of the duty. 6. As the matter involves heavy duty amount and has a recurring effect on compliance by the appellants, the department may move the concerned Special Bench for taking up the matter by out of turn hearing.
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1994 (9) TMI 202 - CEGAT, NEW DELHI
... ...
... ... ..... between quotation and the price declared but the important point whether similar goods were imported with reference to quotation or at higher price than the price declared during the relevant period was not looked into while determining the assessable value. We are of the view that this issue has to be examined thoroughly and the value is to be determined with reference to contemporaneous evidence, if any. Accordingly we are remanding the matter to the concerned Collector to examine the issue on making detailed enquiry and to determine the value based upon the relevant evidence and to pass an appropriate order after disclosing such evidence and giving an opportunity of hearing to the appellants. In case the Department fails to establish with contemporaneous evidence there would be no justification for enhancement of the value based upon mere quotation and accordingly the declared price is to be accepted as transaction value. Thus the appeal is disposed of in the above terms.
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1994 (9) TMI 201 - CEGAT, NEW DELHI
Demand - Clandestine removal of Decorative Laminated Top Units ... ... ... ... ..... nding that the demand of Rs. 10,28,914/- on steel furniture is not sustainable, we reduce the penalty upon the first appellant company to Rs. 5 lakhs. The penalty on the second appellant Director is legally sustainable in terms of Rule 209A as he was the person looking after the affairs of the first appellant company and had carried out the entire operation of clandestine manufacture and removal of decorative laminated top units (DLTUs) with the knowledge of liability of the goods for confiscation and had initiated the misdeclaration in the invoice (relating to DLTUs) marked lsquo NE rsquo in order to falsely bring into existence non-excisable trading goods. For the same reason which weighed with us for reducing the penalty on the appellant company, we reduce the personal penalty imposed on the second appellant director to Rs. 2,50,000/-. In the result, the impugned orders are upheld and the appeals dismissed subject to the modification in quantum of penalty as set out above.
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1994 (9) TMI 200 - CEGAT, BOMBAY
... ...
... ... ..... to the fact that the appellants were granted permission to store the molasses in kutcha pit and they were given express permission to store the same. On reading of the provisions of Rule 49, in such a case the appellants are not required to discharge the duty liability. This is what has been held in the decision of this Bench referred to as above. If there was any contractual liability arising out of the execution of the bond then the remedy available to the department was to approach the competent court for enforcement of the same. With the provisions of Rule 49 being in force and that the Tribunal being the creature of the statute, it is not open for the Tribunal to go beyond the scope of the statutory rules and when the rules do not provide for raising a demand for the molasses destroyed and that too with the permission of the department the demand raised and confirmed, cannot be sustained. The order of the authority below is therefore, set aside and the appeal is allowed.
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1994 (9) TMI 199 - MADRAS HIGH COURT
Bail - Narcotic Drugs ... ... ... ... ..... 28 of 1994 was sent to the court of XIV Metropolitan Magistrate, Egmore on the very same day of seizure which was 24-4-1994. Learned Magistrate had initialled in Form No. 91 acknowledging the receipt of the property and ordered the same to be produced before the Special Court on the next working day. And records disclose that the Special Court received the property on 3-5-1994. In the other case the property had been produced before the very same Magistrate on 12-5-1994 and as per his orders it was received in Special Court on 18-5-1994. So, there is absolutely no delay in sending the property to Court in these cases. And no materials have been placed for the Court to be satisfied that there are reasonable grounds for believing that the petitioners are not guilty of the offences alleged against them and they are not likely to commit any offence while on bail. The requirements of Section 37(1)(b)(ii) are not complied with. 7. In the result, both the applications are dismissed.
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1994 (9) TMI 198 - CEGAT, BOMBAY
Demand - Limitation ... ... ... ... ..... eptt. to take advantage of the lacuna left out so as to warrant further investigation in the matter and the benefit of the lacuna left out in the SCN should necessarily go to the assessee. In this view the notice served by the Supdt. invoking the extended period is not permissible under the provisions of law, it has to be held illegal and void so far as the duty demand is concerned and the demand raised thereon has to be set aside. 6. emsp However, it is clear from the records that the appellants were negligent in proper maintenance of the accounts and as such the penal liability cannot be doubted. The Collector (A) has considered this aspect and has thought it proper, to restrict the penalty amount to Rs. 250/-. There appears no reason to take a view different from the same. 7. emsp In the result, the appeal is partly allowed, whereas the demand for payment is set aside, the order in relation to the confirmation of penalty is confirmed. Consequential relief if any to follow.
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1994 (9) TMI 197 - CEGAT, BOMBAY
Reference to High Court - Demand - Limitation ... ... ... ... ..... nothing is brought on record to show that the view, same as the one adopted in the impugned order, taken in the earlier decisions has been sought to be referred to any High Court. 11. emsp Facts peculiar to the matter under consideration did indicate that the assessment was not to be in confirmity with the declaration made in RT-12 returns. On the contrary, the claim made was sought to be denied and during the said process the classification list of M/s. Madhusudan Mills Ltd., which was subject matter of same Court litigation, was also referred to. 12. emsp The ratio of two decisions referred to by the Ld. SDR, to substantiate the plea for reference to the High Court on the question as formulated, would not lead to indicate that the view expressed by the Supreme Court, in Re Kosan Metal Products, and followed by this Bench in the impugned order calls for a reference vide Section 35G(1) of the Central Excises and Salt Act, 1944. 13. The Application therefore, stands rejected.
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1994 (9) TMI 196 - CEGAT, BOMBAY
Penalty - Jurisdiction - Demurrage ... ... ... ... ..... n 2(i) of the Customs Act, 1962, to mean any order that he passes under the Act, may not only lead to hazardous results but would tantamount to enlarging the scope of the provisions of Section 129A of the Act, and invest the appellate powers in the Tribunal which are not statutorily invested. The ldquo orders rdquo therefore, mean only those passed during adjudication, and not in the executive functioning, and any order passed in relation to the provisions of Section 17 of the Customs Act, cannot be taken as an order under any adjudication proceedings. 13. emsp In the result, the prayer of the Ld. advocate for the appellants that the direction be given to issue a detention certificate cannot be entertained. The remedy, if any, would lie elsewhere. 14. emsp The order of the authority is therefore confirmed with the modification that personal penalty is reduced to Rs. 5000/- (Rupees Five thousand only). Appeal is accordingly disposed of. Consequential relief, if any, to follow.
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1994 (9) TMI 195 - CEGAT, BOMBAY
Yarn - 100% viscose rayon yarn - Smuggling ... ... ... ... ..... judgment referred to above. However, it cannot be overlooked that the word ldquo man-made fibre rdquo is also in vogue and has been frequently used and it cannot be expected that the line of distinction was not known. Further, when a specific type of prohibition is sought to be composed, the phraseology used ought to be strictly construed. Further, though synthetic yarn and metallic yarn fall within the non-cellulosic category, both of them have been separately and specifically mentioned, and this is contra indicative to the plea that the use of word ldquo synthetic yarn rdquo is loosely made to include all categories of man-made fibre, and there is also no challenge to the observation by the Collector (Appeals) that Viscose Rayon Yarn is not assessed as synthetic yarn for the purpose of Customs Tariff. 11. emsp This being the position, therefore, view taken by the Collector (Appeals) is correct and does not warrant any interference. 12. In the result, the appeal is rejected.
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1994 (9) TMI 194 - CEGAT, NEW DELHI
Valuation of trailers ... ... ... ... ..... on is extracted below - In the case of Jeypore Sugar Co. Ltd. v. CCE - 1991 (56) E.L.T. 104 (Trib.), the Tribunal had observed that non-disclosure of fact of receipt of excess payments from the customers being suppression of fact, extended period of limitation was invokable. 18. emsp Taking all the relevant considerations into account, we order that the value of (1) heavy duty axle, (2) show grill, (3) hooks, (4) rope tightening pipes, (5) tipping attachment, (6) hukka and (7) handles, shall be included in the assessable value of the trailer in case the trailer is fitted with any of these items. The value of the (1) hood, (2) tool box and (3) military hook is however, not so includible. The amount of the Central Excise duty demanded has to be re-worked out in terms of the above order. In the circumstances of the case the amount of penalty is reduced from Rs.50,000/- (Rupees fifty thousand) to Rs.10,000/-(Rupees ten thousand only). The appeal is disposed of in the above terms.
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1994 (9) TMI 193 - CEGAT, BOMBAY
Demand - Dutiability ... ... ... ... ..... in this appeal. 7. emsp We find that the Collector has over-ruled the objection that Rule 173Q is not applicable by reading only the provisions of Rule 173A(2) and pointing out that Rule 94 is not covered by Rule 173A(2). He seems to have missed reading Rule 173A(1) which makes it clear that self removal Chapter VIIA is applicable only in respect of such excisable goods notified in this behalf. Admittedly in this case, tobacco product excluded from the notification issued under Rule 173A(1). Hence the entire Chapter VIIA including Rule 173Q figuring in that Chapter would not be applicable for tobacco products. Hence penalty imposed under Rule 173Q is legally not sustainable even otherwise. 8. emsp In the result, the impinged order cannot be sustained, either on factual appreciation of evidences or on the basis of law. Appeal is, therefore, allowed and consequently the bank guarantee ordered by us as a pre-condition for hearing the appeal is to be discharged by the department.
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1994 (9) TMI 191 - CEGAT, NEW DELHI
Samples - Testing of ... ... ... ... ..... der the custody of the revenue authorities. For coming to the correct conclusion, we are of the view that fresh samples of the imported goods should be drawn and proper test from the Govt. laboratories or autonomous institutions should be done. With reference to the methods adopted by them for testing whether it is for edible or non-edible industrial purposes. It will be open to both the sides to adduce fresh evidence in accordance with law, if they so choose. Accordingly, we set aside the impugned order and remand the matter to the adjudicating authority having jurisdiction to readjudicate the matter after having fresh report and also after examining the Chemical Examiner, if necessary. Since we are remanding the matter to the adjudicating authority, we are not passing any order on the other merits of the matter. It will be open to the adjudicating authority to pass fresh order in accordance with law on other points too. In the result, the appeal is allowed by way of remand.
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