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Showing 261 to 280 of 577 Records
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2001 (3) TMI 498
... ... ... ... ..... only in few cases and not in all cases. 4. emsp We have considered the submissions and find, that the interest on delayed payments, cannot be added to the Assessable value to be determined under Section 4 of the Central Excise Act, 1944, on credit sales made at the factory gate, from the date of delivery of the goods till the realisation of price thereof. This was laid down by the decision of the G.O.I. v. Madras Rubber Factory Ltd (supra). Following the same we would set aside this order of the Commissioner (Appeals) and direct that no additions on account of interest on delayed payments could be made to the assessable value, if the same are credit sales. We clarify that the directions of the Supreme Court in Para 66 of G.O.I. v. Madras Rubber Factory Ltd., valuation is to be followed and assessable value determined in terms of this Order of Supreme Court. The Commissioner (Appeals) order requires to be modified to this effect. 5. emsp Appeal disposed of in the above terms.
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2001 (3) TMI 496
Jurisdiction - Confiscation ... ... ... ... ..... Master Link in contravention of the provisions of the Notification 159/86 for the reason that they had not been used in the manufacture of gem and jewellery, and for the further reason that the sale could have been made only with the written permission of the supervisory authority. 8. emsp Even if this is true (on which we express no opinion), the fact remains that these grounds, the basis for confiscation, are not cited in the notice. Apart from this, even if confiscation is sustainable on these grounds (on which we make no opinion) that would in consequence of acts or omission, which occurred after importation, the provisions of clause (d) of Section 111 could not have been contravened as a result of these acts or omissions. If at all any of the provisions of Section 111 of the Act would apply, it is clause (o). The confiscation ordered by the Commissioner under clause (d) of Section 111 cannot be upheld. 9. emsp This appeal is also allowed and the impugned order set aside.
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2001 (3) TMI 495
... ... ... ... ..... nts viz. GRs and the toll tax receipts which the appellants have reasonably explained to the departmental authorities that they cannot do, is not reasonable. They have produced a certificate from the transporter M/s. Transport Corporation of India to the effect that the impugned goods have duly been transported by them. There is no reason assigned by the Assistant Commissioner in his order as to why the evidence produced by the party is not acceptable to him. In this view of the matter, the orders passed by the lower authorities cannot be sustained and the same are accordingly set aside. The matter is remanded to the original authority to arrive at his satisfaction in terms of the concerned provisions with rules with regard to the admissibility of the Modvat credit by giving cogent reason in a de novo order. The party shall be afforded a reasonable opportunity of hearing before taking a final view in the matter. 7. emsp The appeal is thus allowed by remand in the above terms.
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2001 (3) TMI 494
Classification ... ... ... ... ..... decision in Moosa Haji Patrawala v. CCE. The question of referring that decision for reconsideration does not now arise in the light of the concession of the counsel regarding classification. However, the fact that a bench of the Tribunal has held the shafts to be classifiable, not as transmission shafts under heading 84.83 but as parts of fans, lends credence to the claim that the manufacturer could legitimately believe that these goods were parts of fans. The fact that the appellant had specifically described this as shafts for industrial fans independently supports its claim on limitation. From this description, the departmental officers would have known that the shafts were intended to transmit power to the fans, and hence were transmission shafts. These facts impel us to conclude that the assessee had no intention to evade duty. There was hence no scope for invoking the extended period. The demand is barred by limitation. 4. emsp Appeal allowed. Impugned order set aside.
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2001 (3) TMI 493
Production capacity based duty - Annual capacity of production ... ... ... ... ..... ld). The institute also renders consultancy services to the re-rolling and steel-melting units, foundries etc. Having regard to this position, ld. Commissioner availed the services of experts from the NISST. The authority or expertise of those experts is not contested before me, nor have the appellants any claim that their Chartered Engineers are better experts. The NISST experts certified that the furnaces were of the pusher type. That certificate was accepted by the Commissioner and he passed orders on that basis. Therefore, I see no reason to interfere with the orders. I have noted that the question now raised by ld. Counsel with reference to the speed of the rolling mills was not raised by the parties before the Commissioner at any stage before. Further there has not been any attempt on the part of the appellants to bring out any infirmity in the above certificate by examining the experts. 5. emsp For the reasons noted above, these appeals fail and the same are dismissed.
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2001 (3) TMI 492
Rubber - Compounded rubber - Excisability - Marketability ... ... ... ... ..... or is therefore not upheld. The finding of the Adjudicator that lsquo irregular shaped compounded rubber sheets rsquo are not intermediates, as such and parts of stationary battery is not upheld. The downward integration, cannot be limited to only the penultimate part i.e. hardened sheet/containers, but would also apply to the prior stage and would cover unvulcanised rubber. We therefore, find no reason in the order to sustain exigibility, and even if held exigible, the disallowing of benefit of Notification No. 71/68. Therefore, demands as determined cannot be sustained. (e) emsp When demands cannot be sustained, for captive consumption or otherwise, the lsquo irregular compounded rubber sheets rsquo are found to be exempt on reversal of credit, we find no violation of Rule 9 as read with Rule 49 and therefore any liability to arise for penalty under Rule 173Q(1). Penalty is thus not sustainable. 6. emsp In view of our findings, the order is set aside, the appeal is allowed.
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2001 (3) TMI 491
Penalty - Valuation ... ... ... ... ..... confined only to the allegation as to why the CHA licence should not be suspended as seen from para 9, Even in para 7 of the show cause notice, there is no allegation to proceed to impose penalty. The allegation made in para 7 is also that by their action they have made themselves unfit to transact business in the Custom House. There are separate provisions under the CHA on which the authorities can proceed on this allegation. There is no allegation for penalty. Ld. Counsel relies on the Apex Court judgment of GTC Industries and other citations already noted which would apply to the facts of this case. In that view of the matter, the penalty imposed on Hari and Co. is set aside. 12. emsp In the net result, the impugned order is modified to the extent that penalty on Siddhartha Tubes Ltd. is reduced to Rs. 5,00,000/- (Rupees Five lakhs only) and on Steel Tubes of India Ltd. to Rs. 2,00,000/- (Rupees Two lakhs only) and penalty on Hari and Co. is set aside. Ordered accordingly
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2001 (3) TMI 490
Show cause notice - Show cause notice ... ... ... ... ..... n the importer. (c) emsp On merits we find that the appellants have no case. Since they have failed to produce the contract, we are not able to appreciate the fine differentiation of the Supreme Court Decision in the case of M/s Bombay Dyeing and Manufacturing Co. Ltd., - 1997 (90) E.L.T. 276 (S.C.) being made by the learned Advocate. This decision would be applicable since all cost incurred for the goods outside India, on behalf of the importer rsquo s requirements for the imported goods will be required to be added to the value. (d) emsp Even though the Revenue has a good case on merits, we cannot uphold such slipshod handling of the invocation of the extended period found by us to be without application of mind. The benefit of the same has to go to appellants, as we are not convinced about the suppression of facts and the existence of any reason for invocation of the larger period by the Collector. 5. emsp In view of our findings, the order is set aside and appeal allowed.
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2001 (3) TMI 489
Order - Appellate order ... ... ... ... ..... occurred in the ld. Commissioner rsquo s mind leading him to pass this judgment. But as an appellate authority it was expected that the deliberations, which led him to uphold the lower order, should have been set out on paper. His order narrates only what the Assistant Commissioner said and not what the assessee said. Such an order does not give any insight to the further appellate authority as to the correctness of the findings. It is for this reason that the principles of natural justice require that any order made in adjudication or in appeal, should be a ldquo speaking rdquo order. Unless an officer ldquo speaks rdquo , the assessees before him and the appellate authorities above him would not be able to ldquo hear rdquo his mind. On this count I find that this order is defective. The appeal is allowed. The order is set aside. The proceedings are remanded back to the Commissioner (Appeals). He shall allow the assessees to appeal before him and if they desire to have their
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2001 (3) TMI 488
Modvat - Transfer of credit ... ... ... ... ..... therein. In such a situation the manufacturer who had secured the credit is required to approach the Commissioner for permission to transfer such credit. The Commissioner would examine the records to ensure that the credit was correctly taken. He might also check the arithmetical accuracy. In the case of capital goods credit he may cause verification of the existence and the installation of the machinery. The verification is to ensure that no unwarranted credit is being taken when the ownership is changed or factory is relocated. The situation in the present appeal is different. The manufacturer continues to be the same. There is neither change in the ownership nor in the site of factory. All that happened was the merger of the registration certificate and not of the units. 8. emsp In this situation we find that the sub-rule does not come into play at all. The proceedings instituted under this belief therefore do not survive. This appeal is allowed with consequential relief.
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2001 (3) TMI 487
Stay/Dispensation of pre-deposit ... ... ... ... ..... tay order, the other appellants, M/s. Vistar Electronics Pvt. Ltd. also suffers the same fate as compliance by M/s. Inventa Electronics Pvt. Ltd. was the condition for stay granted to this appellants also. Therefore, the appeal filed by M/s. Vistar Electronics Pvt. Ltd. is also dismissed for non-compliance under Section 35F of the Act rdquo . 2. emsp The present application is against this order. The claim made in the application and also orally is that the Tribunal was wrong in dismissing the appeal of the applicant on failure of the burden cast upon another company. It is the submission that these two units were not related persons and that the case of the present applicant should have been judged entirely independently from the beginning. 3. emsp On perusal of the records, we find merit in this submission. We accordingly restore the appeal filed by M/s. Vistar Electronics Pvt. Ltd. and direct that their application for waiver of pre-deposit be posted for immediate hearing.
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2001 (3) TMI 486
Refund of Foreign Travel Tax ... ... ... ... ..... ect matter of litigation. The view earlier held by the Bombay High Court was that in such cases the general law of limitation would apply. The controversy was settled by the judgment of the Supreme Court in the case of Collector of Central Excise v. Doaba Co-operative Sugar Mills 1988 (37) E.L.T. 478 (S.C.) . The Supreme Court held as under - ldquo But in making claims for refund before the departmental authority, an assessee is bound within four corners of the statute and the period of limitation prescribed in the Central Excise Act and the Rules framed there-under must be adhered to. The Authorities functioning under the Act are bound by the provisions of the Act rdquo . 4. emsp This judgment has been followed by the Supreme Court in the later judgment in the case of Porcelain Electrical Mfg. Co. v. Collector of Central Excise 1998 (98) E.L.T. 583 (S.C.) . 5. emsp Following the law so laid down, the order of the Commissioner (Appeals) is upheld and this appeal is dismissed.
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2001 (3) TMI 485
Settlement of cases ... ... ... ... ..... entertained by them even if proceedings for the prosecution for any offence under the Central Excise Act (with reference to this case) have been instituted before the date of receipt of the application under Section 32E. 11. emsp In the above view of the matter the Commission finds it a suitable case and, therefore, allows the application to be proceeded with under Section 32F(1). The Applicant shall pay the admitted duty liability of Rs. 14,95,834/- within 30 days of receipt of this order as provided in sub-section (3) of Section 32F of Central Excise Act, 1944. However, the Applicant has requested for payment of duty in instalments. The Commission has considered this and allow the applicant to pay Rs. 4,98,610/- within 30 days of receipt of this order and the balance amount in two equal instalments at the interval of one month. 12. emsp Attention of all concerned is drawn to sub-section (2) of Section 32-I of Central Excise Act, 1944. All concerned are informed accordingly.
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2001 (3) TMI 483
Classification ... ... ... ... ..... rding of the sub-heading and wording of the sub-note bring out the alignment between these two. 8. emsp We find that the Commissioner (Appeals) was correct in approving the classification under Heading 9504.10. 9. emsp The Appendix XXXV, in entry at serial No. 15 reads as under ldquo Electronic games/toys under Customs Heading 9503.20 and 9504.10. rdquo 10. emsp In the face of a licence covering these goods in terms of this annexure, the goods are permissible imports even though they are consumer goods. 11. emsp The proceedings also indicated the existence of a letter No. DRO095-96/PRO Policy, dated 29-6-1995 from the DGFT to the effect that the assessees rsquo claim as to the importability was correct. Copy of this letter has not been furnished by the appellants. 12. emsp In the result we find that the classification as adopted by the Commissioner was correct and consequently the finding as to the importability cannot be faulted. The appeal does not succeed and is dismissed.
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2001 (3) TMI 482
Adjudication - Perishable goods ... ... ... ... ..... tural justice in passing the impugned order and, therefore, without addressing any of the issues on merits, we should send the matter back to the adjudicating authority for fresh disposal in accordance with law and principles of natural justice. 4. emsp We, therefore, set aside the impugned order and allow the present appeal by way of remand, directing ld. Commissioner of Customs to decide the matter afresh in accordance with law as well as principles of natural justice. Ld. Commissioner shall pass a speaking order in the matter. 5. emsp At this stage, it is pointed out by ld. Advocate that the seized goods are perishable in nature and are likely to lose its value and, therefore, in the interest of justice, a direction may be given to the adjudicating authority for early adjudication of the matter. We appreciate this position and direct the Commissioner to finally dispose of the matter within a period of three months from the date of receipt of a certified copy of this order.
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2001 (3) TMI 481
SSI exemption - Brand Name ... ... ... ... ..... ar indication existed of an agreement between the present appellants and their manufacturers. Before approving the classification lists the Assistant Collector could have asked for the agreement to ascertain whether the brand name used by the assessees belonged to their collaborators or not. 11. emsp We also observe that for some time as shown by the interim orders (of South Regional Bench) of the Tribunal 1993 (65) E.L.T. 119 and 1995 (80) E.L.T. 735 there existed an impression or opinion that the benefit of notification 175/86 was available where a manufacturer was using a trade mark of a foreign manufacturer. On this ground also it cannot be held that in putting the brand name at the material time the assessees had contravened the provisions of that notification. 12. emsp Thus, on the twin grounds of limitation and also lack of substantiation of the allegations made in the show cause notice, the two appeals succeed and are allowed. Consequential relief, if any, is ordered.
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2001 (3) TMI 480
HSD Oil and Barrel of Lube procured by Appellants ... ... ... ... ..... e 100 EOU engaged in aqua culture from the ambit of this Notification. Similarly, Notification No. 10/95 does not restrict or prescribe a condition that this Notification would be applicable to the appellants, who will not be availing the benefit of Notification No. 1/95-C.E. Therefore, we cannot agree with the findings of the Commissioner. The impugned order is therefore, required to be set aside. The appeal is, therefore, allowed, as we are of the considered opinion that these judgments cited above are applicable and the issue being covered, benefit of Notification No. 10/95 cannot be forced on 100 EOU aqua culture farms during the relevant period. Ordered accordingly rdquo . 4. emsp On a perusal of the above ruling of this bench, we are of the considered opinion that the same applies to the facts of the present case also as the issue is identical. In that view of the matter, applying the ratio of the above noted judgment, the impugned order is set aside and appeal allowed.
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2001 (3) TMI 446
Modvat on capital goods ... ... ... ... ..... ext of Rule 57Q of the Central Excise Rules wherein it has been held that the expression ldquo used for producing or processing of any goods for the manufacture of the final products rdquo occurring in the first leg of clause 1(a) of the Explanation to Rule 57Q is not synonymous with the expression ldquo used for bringing about any change in any substance for the manufacture of the final products rdquo occurring in the second leg of the clause, and that the expression ldquo used for producing or processing rdquo is not limited to the ingredients or commodities used in the process or those directly and actually needed for turning out, or creation of goods. In view of the fact that material handling equipment has been held in the earlier decisions of the Tribunal to be used for producing or processing of goods and hence eligible to capital goods credit, they cannot be considered to be inputs for the purpose of Notification 217/86. We, therefore, allow the appeal of the Revenue.
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2001 (3) TMI 445
Appeal to Appellate Tribunal - Transfer of appeal ... ... ... ... ..... to have his office in Mumbai. In such a situation he cannot also contend that he will be put to difficulty by compelling him to move to Delhi to defend himself. 7. emsp On behalf of three Respondents, namely, K.V. Gopalkrishnan, Shri Radhakrishna Shipping (P) Ltd. and M/s. Trinity Shipping and Allied Services (P) Ltd. prayer has been made before this Tribunal to have all the appeals arising out of the adjudication order heard in Delhi. 8. emsp Taking into consideration the entire circumstances as detailed above, I feel that in the interest of justice appeals filed by the Revenue before the West Zonal Bench, Mumbai have to be transferred to Delhi Bench. They are accordingly transferred to Delhi. These appeals will be posted along with the appeal filed by Shri Solly Perumal for final hearing. 9. emsp Appeals are posted for final hearing to 25-4-2001. Issue notice to parties by registered post acknowledgement due forthwith and also through the officers of the Customs Department.
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2001 (3) TMI 444
Stay/Dispensation of pre-deposit ... ... ... ... ..... nd imposing penalty for clearing excisable goods in contravention of the Rules. 2. emsp On hearing both sides and noting the decision of the Hon rsquo ble Gujarat High Court in the case of Ahmedabad Electricity Company Ltd. and Another v. Union of India reported in 2001 (131) E.L.T. 535 (Guj.) 2000 (39) RLT 902 (Guj.), in which it has been held that coal ash cinder, which is a residue or waste of coal burnt in boiler is not a manufactured product and hence not excisable, we dispense with the pre-deposit of duty and penalty and stay recovery thereof pending the appeal.
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