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Case Laws
Showing 201 to 220 of 355 Records
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1995 (11) TMI 157
Stay/Dispensation of pre-deposit ... ... ... ... ..... that the stock position in the trading premises tallied with the register and duty payment documents by G.P.1s evidencing receipt of duty paid dyes were seized. No discrepancy was also noticed in the stock of raw materials and finished goods in the two manufacturing units. Against such a factual background, the balance of convenience seems to be in favour of the applicants. In the circumstances, we direct the applicants to furnish only a personal bond covering the duty and penalties within a period of 4 weeks from the date of receipt of this order and report compliance within 5 weeks, failing which their appeal is liable to be dismissed. On furnishing the personal bond, there shall be stay against recovery and waiver of pre-deposit of duty and penalty amounts from all the applicants including the Directors of the firms. The plant and machinery ordered confiscation from the two units should not be disposed of and the normal process of production should not be interfered with.
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1995 (11) TMI 156
Notification - Date of effect ... ... ... ... ..... e, therefore, assume for the sake of argument of the learned J.D.R., that the Notification dated 6-3-1976 is in force. However, having regard to the discretionary power given under Section 125 of the Customs Act, 1962 we feel that the suggestion made by the learned Advocate for the release of the books on taking the objectionable maps out of the books, will meet the objectionable facts and circumstances of the case, very squarely and fairly. Accordingly, while the books are liable for confiscation, we order to release them after the relevant objectionable maps are taken out by the Customs Authorities for destruction, in the present case of the appellant firm. Since no other objectionable material has been pointed out, we do not feel the need for imposing any fine in lieu of confiscation in releasing the books, in view of the fact that these books had been released earlier by a suitable endorsement in the light of 1994 Instruction. The appeal is disposed of in the above terms.
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1995 (11) TMI 155
Classification ... ... ... ... ..... d perused the record. We find that issue has been considered by the Bombay High Court in the aforesaid cases referred to by the learned counsel with reference to Item 26A which is analogous to Item 27(a). 26-A was concerned with copper scrap whereas 27(a) deals with aluminium in crude form. Since wordings are similar, and the issue has been dealt with by the High Court, following the ratio of the said decision we hold that aluminium scrap was excisable under Item 68 from 1-3-1975 and not under 27(a) as it was rightly argued by the learned counsel. Since prior to 1-3-1975 Item 68 was not there and in the absence of the specific entry with reference to aluminium scrap item was not dutiable. By introduction of item 68 from 1-3-1975 it was dutiable under Item 68. Furthermore introduction of amendment of 27(a) clarifies the position that waste and scrap was specifically dutiable under Tariff Item 27(aa). With these observations, the appeal is disposed of with consequential relief.
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1995 (11) TMI 154
Biris - Physical control - Effect ... ... ... ... ..... the gunny bags as already pointed out above. There is absolutely no evidence of clandestine removal. Here again, despite the Departmental representative rsquo s strenuous arguments, we have to agree with the appellants. 6. emsp The reason for imposition of penalty was also that there was some procedural contraventions such as failure to enter such biris in the RG-12B register, although it had already been entered in the RG-12A register cuttings and over-writings in the RG-12 register, and a discrepancy between the opening balance and closing balance. The Advocate admits to these lapses, but points out that these were only procedural in nature and do not suggest intent to evade duty. Having regard to the nature and extent of the contraventions, we agree with him although since contravention of the Rules has taken place, penalty was imposable. 7. emsp In the result, we set aside the confiscation and demand for duty and reduce the penalty imposed on the appellant to Rs. 1000/-.
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1995 (11) TMI 153
Demand - Penalty ... ... ... ... ..... roof for having manufactured so much quantity of Sodium silicate, reliance only on the figures furnished to the Department of Industries are insufficient to come to the conclusion that the appellants have manufactured so much quantity of Sodium Silicate as mentioned in their affidavits filed before the Department of Industries. At best it may be an inference but not substantial proof. The Tribunal in this case relied among others on the case of J.A. Naidu v. State of Maharashtra 1983 (13) E.L.T. 1611 and that of Madras High Court in case of State of Tamil Nadu v. Indian Crafts and Industries - 1970 (25) STC 466 where the Hon rsquo ble Court held that the morality or intention of an assessee does not enter into the field of adjudication in taxing law. Considering that there is total absence of corroborative or affirmative evidence and the fact that assessment order, on which the charges were based, has itself been set aside, I allow the appeal and set aside the impugned order.
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1995 (11) TMI 152
Modvat credit ... ... ... ... ..... were in possession of GP-1 No. 2337 in respect of 10 MT of PVC Resin on which Rs. 79,800/- had been paid as excise duty and that in respect of remaining 10 MT of PVC Resin they have not received GP-1 from the supplier and that as soon as it would be received the department would be informed. The Collector (Appeals) had pointed out that the Assistant Collector has not disputed the fact that 20 MT of PVC Resin was lying in the respondents rsquo factory immediately before 15-11-1989 and was available for verification before credit of duty could be allowed on the ground that Rule 57H(i) speaks only about permission to be obtained from the Assistant Collector to take credit on the stock of inputs lying with the assessee and the assessee had, in fact, also produced the gate-pass GP-1 in respect of the balance quantity of 10 MT. 5. emsp In view of the reasons given by the Collector (A) I see no infirmity in the impugned order. The appeal filed by the Revenue is, therefore, rejected.
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1995 (11) TMI 151
Modvat Credit - Input ... ... ... ... ..... is established by the existence of separate rates of duty for the sets with such Remote Control facility and for sets without such facility. The Remote Control unit is not treated as a separate product different from the VCR/VCP/Television sets themselves. The utility of the battery cells to activate the Remote Control unit and then the equipment itself will be akin to that of the battery in a motor vehicle. It cannot be said that the motor vehicle has already been manufactured without the battery. The battery in a motor vehicle or battery cell in a Remote Control unit supplied as part of such equipment at the time of removal from the factory would be eligible inputs for the purpose of Modvat credit. 9. emsp While coming to this conclusion, I direct that the Assistant Commissioner should verify that the credit is limited to the cells so supplied with the equipment and that the cost of the cells had been included in their price. 10. The appeals are allowed on the above terms.
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1995 (11) TMI 150
Import for export - Advance Licence ... ... ... ... ..... d DEEC number. Further at the time of export, use of furlining has been verified. The only omission is that the actual quantity of furlinings used was not indicated in the shipping bills. Even otherwise it is relevant to note that as per Appendix 13C of the Import Export Policy indicating the input-out norms the quantity of furlinings required for leather boot uppers of one pair is mentioned as 1/2 sq. metre. In this case, as may be seen from the copies of the shipping bills leather boot uppers only have been exported and for the quantity of 30,000 pairs exported, furlining required is only 15,000 sq. metres. There is suitable declaration on the reverse of the shipping bill also. In the circumstances, the quantity of furlining used for export i.e. 15,000 sq. metres may be accepted. 10. emsp In the result the impugned orders are set aside and the five appeals are remanded for de novo adjudication to the Commissioner of Customs, New Delhi in the light of the above observations.
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1995 (11) TMI 149
Abatement of duty on damaged goods ... ... ... ... ..... damaged goods on proportionate basis prescribed under sub-section (2) of Section 22. Apart from this, the record shows that the damage was not brought to the notice of the Assistant Collector at the Port on clearance before the goods were transhipped from Bombay to Bangalore. Thirdly, perusal of the survey report shows that it was done for insurance cover purposes and the report further indicated that the damage was by way of superficial tarnishing of copper wire rods due to the polythene cover being torn. The survey report was also not filed before the Assistant Collector of Customs at the Port of clearance before transit. With regard to the case law cited by the learned Consultant, we observe that all these cases relate to a situation under Section 116 and Section 23 thereof which are not pari materia with the provisions of Section 22. In these circumstances, we see no reason to interfere with the order passed by the Collector (Appeals). The appeal is, therefore, rejected.
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1995 (11) TMI 148
Demand - Remission of duty ... ... ... ... ..... lty is very little, I do not see any reason to interfere with this quantum of penalty. In this case, duty of Rs. 15,669/- has been demanded and a penalty of Rs. 2,000/- had been imposed. The ld. Advocate submitted that in the first show cause notice dated 6-2-1979 there was no allegation for imposing any penalty. On the same facts, another show cause notice was issued on 26-6-1982 where it had been stated that as to why action should not be taken against them for illicit removal of the excisable goods. Shri Arora pleaded that as in the first show cause notice, there was no mention of imposition of penalty, the penalty should not have been imposed. However, a corrigendum had been issued on 18-5-1984 wherein the party was to show cause to the Additional Collector of Central Excise, Meerut and it was in this corrigendum that a specific mention had been made for imposition of penalty. Taking all the relevant considerations into account, we accept the appeal and order accordingly.
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1995 (11) TMI 147
Demand - Suppression - Limitation ... ... ... ... ..... d, therefore, it is to be construed strictly and the burden is on the Department to prove the same. Keeping the ratio of the ruling of the Supreme Court which is also re-affirmed in the later ruling in the case of Pushpam Pharmaceuticals Company v. Collector of Central Excise, cited supra and considering the factual background of this case and also the evidence available on record and taking all these factors in juxtaposition in the allegations set out in the show cause notice we are inclined to think that the intentional evasion of payment of duty cannot be attributed to the appellants in the above case. In other words, the situation does not indicate that the appellant was actuated by mala fides to suppress any relevant information from the purview of the Department with intent to evade payment of duty. In this view of the matter, we hold that the impugned order is not sustainable and in this view the same is set aside and the appeal is allowed on the grounds of limitation.
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1995 (11) TMI 146
Reference to High Court - Limitation for demand ... ... ... ... ..... ne by way of a further sanction. The subsequent letter dated 22-9-1987 was quite superfluous and served no purpose as refund had already become a hard reality in terms of the earlier letter which served a three-fold purpose of sanction of refund, adjustment against the refunds of amount due to the Government and issue of refund cheque for the balance amount due to the appellants. The issue of a subsequent letter purporting to be a refund sanction order which served no purpose in view of the matter having already been settled cannot have the eff- ect of giving an extended lease of time for computing the limitation. The Coll- ector (Appeals) had correctly held the notice of demand to be barred by limi- tations which had been upheld by the Tribunal in the order under reference. 4. emsp This being the factual position, no question of law, much less a question of law requiring a reference to the High Court has arisen out of the Tribunal rsquo s order. The application is dismissed.
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1995 (11) TMI 145
S.S.I. Exemption ... ... ... ... ..... must be given due consideration. However, in the instant case, we find that the facts are different, inasmuch as, the appellants are already a DGTD Unit, and status of the appellants can be said to have changed not from the date of application submitted by the appellants, but from the date or on the date when SSI Certificate was granted by the Director of Industries. In the instant case, admittedly, the SSI Certificate was granted on 18-10-1986. We also observe that the Director of Industries has not extended any benefit as to the retrospective application of the certificate, as there is no stipulation in this certificate itself that this certificate should be deemed to have been issued or shall be followed from 1-3-1986. Having regard to the above discussion, we hold that the concession under Notification No. 175/86, dated 1-3-1986 shall be available to the appellants only w.e.f. 18-10-1986. In this view of the matter, the impugned Order is upheld and the appeal is rejected.
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1995 (11) TMI 144
Issues Involved:
1. Whether the appellants purchased the goods on high seas sale basis.
2. Whether the assessable value should be based on the invoice of M/s. MMTC or the foreign seller.
3. Whether service charges should be added to the assessable value.
4. Whether the extended period for demand and penalties is applicable in the case of M/s. SAIL.
Summary:
1. High Seas Sale Basis:
The appellants contended that the sale was not on a high seas basis as both parties were Indian. However, the Tribunal found that the appellants purchased the goods from M/s. MMTC on high seas sale basis. The Bill of Entry presented by the appellants indicated high seas sale, and the transaction value was based on the final invoice from M/s. MMTC, not the provisional value. The Tribunal upheld the inclusion of service charges in the transaction value, rejecting the argument that M/s. MMTC acted as a buying agent.
2. Assessable Value:
The appellants argued that the assessable value should be based on the invoice from the foreign seller to M/s. MMTC (US $ 386 per metric tonne) and not the final invoice from M/s. MMTC to the appellants (Rs. 8098 per metric tonne). The Tribunal held that the transaction value should be based on the final invoice from M/s. MMTC, as the initial invoice was provisional. The sale was considered on a high seas basis, and the revised invoice value was accepted for assessment.
3. Service Charges:
The appellants claimed that the service charges paid to M/s. MMTC should be excluded as buying commission u/s 9(1)(a)(i) of the Customs Valuation Rules, 1988. The Tribunal rejected this argument, stating that M/s. MMTC did not act as a buying agent but as a canalising agent. The service charges were not buying commission and were rightly included in the assessable value.
4. Extended Period and Penalties (M/s. SAIL):
In the case of M/s. SAIL, the Tribunal upheld the extended period for demand and penalties. The show cause notices issued to M/s. SAIL included allegations of mis-declaration and suppression of facts. M/s. SAIL did not declare the high seas sale or the final invoice value from M/s. MMTC, which was revealed during investigation. The Tribunal found that M/s. SAIL violated Section 46 of the Customs Act, 1962, and upheld the penalties and confiscation of goods u/s 112 and 111(m) of the Customs Act, 1962.
Conclusion:
All appeals were rejected, and the Tribunal upheld the orders of the lower authorities, confirming the assessable value based on M/s. MMTC's final invoice and the inclusion of service charges. The penalties and extended period for demand were also upheld in the case of M/s. SAIL.
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1995 (11) TMI 143
Dutiability - Intermediate product ... ... ... ... ..... Court has been consistently taking the view that marketability of a product is a pre-requisite or sine qua non for levy of duty starting from Bhor Industries and even in the recent cases including the cases referred to be the ld. counsel for the party. It is well settled position that burden lies on the department to prove excisability as well as classification of the product and similarly burden lies on the assessee to prove exemption. Mere fact that goods do find place in the tariff or described as such in the Chemical dictionary and technical dictionary or in Drawback Rules with reference to different context it cannot be presumed that it was a marketable commodity unless it was proved. Since the department has not produced any evidence in this case to show that the above items as such were marketed or marketable, department rsquo s case remains unsubstantiated. Accordingly the appeal filed by the party is allowed and the appeal filed by the department is hereby dismissed.
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1995 (11) TMI 142
Appeal - Condonation of delay ... ... ... ... ..... on 52(2) of the Act. The question need not detain us any further because there is a direct judgment of this Court reported in State of Tamil Nadu v. Hindustan Motors Ltd. (95 S.T.C. 533) which arose under the Tamil Nadu General Sales Tax Act under identical circumstances. The very question of vested right was pleaded before the Division Bench of this Court and this Court has rejected the same on the ground that the law relating to condonation of delay in filing the application or appeal relates only to procedure and therefore, the law as on the date when the order was passed, alone should be taken into consideration and not the law as prevailed when the action was initiated by the issue of a show cause notice. We are in respectful agreement with the judgment of the Division Bench above quoted and consequently the order of the Appellate Board has to be upheld and is accordingly upheld. This appeal, therefore, fails and is dismissed. There will however, be no order as to costs.
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1995 (11) TMI 141
Valuation - Spare parts of used diesel engines imported ... ... ... ... ..... ate that any specific enquiries were made in this regard by the authority. The same is the position in regard to order passed by the Deputy Collector. It is, therefore, clear that the order of the Dy. Collector is based entirely on assumption and supposition, not supported by reasons or materials. 8. emsp We may not be understood to imply that the depreciation method cannot be adopted in case of import of used goods. The proper method to be adopted in a case will depend on the facts and circumstances of the case and the reasons that the authority may find in the case. On the facts of the present case, it cannot be said that transaction value cannot be adopted. The Collector (Appeals) came to the conclusion that transaction value has to be adopted though the matter has not been considered in proper prespective. However, for the reasons indicated above, the order of the Collector of Customs deserves to be confirmed and is hereby confirmed. The appeal is, accordingly, dismissed.
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1995 (11) TMI 140
Modvat Credit ... ... ... ... ..... s to have taken the view that with entitlement of the Respondents to avail Modvat Credit having not been challenged, they appear to have received the balance of the entire quantity. He has felt that the same would be falling under the category of remnants. When entitlement of Respondents is not challenged, the factual appreciation made by him in relation to these consignments cannot be ignored so as to deny the Modvat Credit to the Respondents. Though agreeing with the legal proposition that when endorsement on the duty paying documents by itself is not enough, when part consignment is transferred, with the specific case brought under appeal, there appears to have been a satisfaction of the Collector (Appeals) about the transfer of only part of remnants which are permissible under Trade Notices referred to above, there does not appear to be any justifiable reason to interfere the finding of fact as given by the Collector (Appeals) and on that ground, the appeals are rejected.
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1995 (11) TMI 139
Issues involved: Classification of GIC SILO Systems under different headings and rate of duty applicable.
Classification under Heading 84.36:
- Appellants argued that the product falls under Heading 84.36 as "Other agricultural machinery" for storage of grains and oil seeds, with features for grain handling and preservation.
- Contention supported by classification of agricultural machinery into different types, including post-harvesting machinery under Heading 84.36.
- Emphasized the product's use by farmers and agricultural cooperatives, with additional accessories like temperature sensing devices and grain cleaners.
Alternative Classification under Heading 84.37:
- Appellants also proposed classification under Heading 84.37 for agricultural machines used in milling industry, citing the complex system for grain preservation and handling.
- Listed main customers as various mills in the milling industry, supporting the argument for classification under Heading 84.37.
- Stated that the product is usable by both farmers and industrial units, making it eligible for classification under Heading 84.37 or 84.36.
Department's Opposition and Residuary Entries:
- Department opposed the classification under Heading 84.36 or 84.37, arguing that the product is a storage system not covered by specific headings for agricultural machinery.
- Contended that the product's high cost and industrial use make it ineligible for classification as agricultural machinery.
- Asserted that the product should be classified under Heading 84.38 as machinery not specified elsewhere or under Heading 84.79 for machines with individual functions.
Tribunal's Decision:
- Tribunal observed the product's complex system with multiple functions beyond simple grain storage, suitable for use by agriculturists and the milling industry.
- Classified the product under Heading 84.37 for machinery used in the milling industry, considering its principal use and customer base.
- Rejected the Department's contentions, stating that Heading 84.36 or 84.37 was appropriate, rendering residuary entries 84.78 and 84.79 irrelevant.
- Affirmed the appellants' entitlement to exemption under Notification No. 111/88 based on the classification decision.
- Disposed of the appeals in favor of the appellants based on the classification under Heading 84.37.
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1995 (11) TMI 138
Radio/Transistor sets ... ... ... ... ..... upon by the ld. Advocate. Even in the HSN, it is seen that under Chapter 85.27, Clause A covers radio television or radio telegraphy in Clause B, domestic radio receivers of all kinds which include whether or not combined in the same housing of sound recording or reproducing apparatus or clock is included. On the same analogy, the goods fall within the purview of Sl. No. 10A, of the Notification No. 57/93, dated 28-2-1993. In that view of the matter, on an interpretation of the notification, goods of the appellants come within the purview of Sl. No. 10A of the exemption notification. Further, the ld. Counsel also produced the literature pertaining to the appellants rsquo goods which also justifies the claim of the appellants that these goods are known in Trade Parlance as radio sets. In that view of the matter, the appellants are entitled for the benefit of the abovesaid notification. Hence, the appeals are, accordingly, allowed with consequential benefits to the appellants.
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9911796707
