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Showing 301 to 320 of 3459 Records
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1991 (11) TMI 149
Stay/Dispensation of pre-deposit of penalty ... ... ... ... ..... as no prima facie case. 3. We have considered the submissions of both sides. The detailed facts with reference to circumstances against the accused are to be ascertained while hearing the appeal proper. But at this juncture, the record shows that there was a demand made by the applicant to cross examine the Seizing Officer who had taken down the statement under Section 108 Cr. P.C. Such a cross-examination was not allowed and the Order does not show as to on what ground this cross-examination was denied. The Order also does not indicate about this request of applicant for cross-examination as could be seen from the reply filed by the applicant. In such circumstances, in view of the decision of the Calcutta High Court reported in 1986 (23) E.L.T. 14, the applicant appears to have aprima facie case. In the result, we grant absolute stay as prayed for and pre-deposit of the penalty during the pendency of the appeal is hereby waived. The appeal proper may be posted in due course.
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1991 (11) TMI 148
Modvat credit - Ramming Mass used for coating the bricks used for lining the furnace ... ... ... ... ..... red to be applied in the present case as we have to first see whether the material in question is used in or in relation to the manufacture of the final product. As has been explained in the appeal and as has been discussed in the orders of the lower authorities the Ramming Mass is used for coating the bricks which are used for lining the furnace. Thus, their use is in connection with or in relation to the furnace for its maintenance for lining its broken inner surface after each heat. Such use is not in the manufacturing process for the production of steel. Applying the test spelt out by the Supreme Court in the Ballarpur case, the utilisation of Ramming Mass is not in the manufacturing process but in relation to the apparatus, for its repair. Hence, as it is not used in or in relation to the manufacture of steel, it has been rightly held to be ineligible for the benefit under Rule 57A. 9. For the foregoing reasons, we see no merit in the appeal which we dismiss accordingly.
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1991 (11) TMI 147
MODVAT Credit ... ... ... ... ..... item. The other may be pre-treatment of the raw material which go into the manufacturing stream or the materials which may be used for making the end product ready for marketing. The use of the materials has to be such that they carry by their participation, in the manufacturing stream the process of manufacture a step further. 5. Therefore, following the ratio of the judgment of the Hon rsquo ble Supreme Court and of this Tribunal cited supra, we hold that both Hydrochloric and Sulphuric Acid would be eligible for the benefit of MODVAT Credit, as these are used for treatment of water as seen from the order of the lower appellate authority. So far as Hydrazene 100 is concerned, it is also used for treatment of water. Its use is for the generation of steam which is used in the manufacturing process and we hold that Hydrazene 100 is also eligible for the benefit of MODVAT Credit. In view of above, we find no merits in the appeal of the Revenue and therefore we reject the same.
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1991 (11) TMI 146
Reference to High Court - Import trade control ... ... ... ... ..... no other salt of Thiamine in it. In the same way, in lsquo Multivitaplex Forte rsquo capsules also the only component relatable to Vitamin B1 is Thiamine Mononitrate, again used as such. Thus, it is found that in practice Thiamine Mononitrate is used in India as a Vitamin ndash B1 by a recognised Pharmaceutical company to whom the goods are said to have been sold by the importer. 10. In the light of above, it is clear that Thiamine Mononitrate is a Vitamin-B1 whose importation is not permitted to an export house unless it is against licence linked to exports of Vitamin B1 tablets. 4. Following the ratio of the above decision, we uphold the findings of the Tribunal in the impugned order which are in appreciation of evidence. 5. The plea that by reason of prior practice of clearance allowed by the authorities a reference is called for on ground of estoppel is not acceptable since there is no estoppel against law or statute. In the result, the reference application is dismissed.
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1991 (11) TMI 145
MODVAT Credit Reversal of
... ... ... ... ..... nputs which were in stock prior to issue for being manufactured as amounting to Rs. 90,496.50. They have also relied upon a few decisions to bring home the point that the Trade Notices cannot be ignored by the quasi-judicial authorities. Accordingly, I hold that the appellant is entitled to utilise the modvat credit taken on the inputs which have actually been issued and were damaged in the fire accident while in the manufacturing process. However, they are not entitled for the credit of the amount on the inputs which have not even been issued for manufacture but which got damaged in the fire accident. I therefore set aside the impugned order and allow this appeal with the above directions. The appellant is required to reverse the modvat credit only to the extent of inputs not even been issued for manufacture and not the entire amount as demanded. The Asstt. Collector will determine the quantum of credit to be reversed on the inputs which have not been issued for manufacture.
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1991 (11) TMI 144
Proforma Credit ... ... ... ... ..... ce is led, storage thereof in the BSR was a patent violation of the statutory provisions. The letter dated 9-4-1983 does not seek permissible to store the goods in BSR without entry in RG-1. It only seeks permission to defer making entry in RG-1, till testing was done. Such a permission even if presumed to have been granted, such items ought to have been stored at the place other than BSR. Entry in RG-1 register before storage in BSR being a must, non-compliance thereof renders the goods liable to confiscation, and the appellants are liable to imposition of penalty. 8. However, considering the circumstances prevailing, we deem it proper to show some leniency and while upholding the order of confiscation and imposition of penalty, reduce the quantum of fine in lieu of confiscation to Rs. 10,000/- (Rupees Ten thousand only) and personal penalty to Rs. 5000/- (Rupees Five thousand only). 9. Appeal is disposed of in the above terms, with consequential relief, wherever called for,
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1991 (11) TMI 143
Confiscation ... ... ... ... ..... ent, a reply should have been given to the appellant in this regard. In such circumstances, no useful purpose will be served by remanding the case merely on the ground that the arguments of the appellant were not fully dealt with in the Order. Since the Order is passed merely on the visual examination of the learned Additional Collector, the same could not be upheld to hold that the timber in question is not a processed one. Under the circumstances, it is the fit case where the benefit of doubt should be given to the appellant. The arguments advanced by the learned S.D.R., Shri Biswas that it is not question of extending the benefit of doubt cannot be accepted by me. Accordingly, the appeal is allowed, and the confiscation of the goods in question under Section 113(b) Should be ldquo Section 113(d) rdquo - Ed. and (i) of the Customs Act is hereby set aside. The penalty imposed on the appellant is also set aside. The appellant is, thus, entitled for the consequential benefits.
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1991 (11) TMI 142
Classification ... ... ... ... ..... mand under Rule 10A was not sustainable because Rule 10A was deleted on 6-8-1977 by Notification 267/77-C.E., we observe that when Rule 10A was deleted, its provisions were incorporated in a modified form in amended Rule 10 which simultaneously came into force. We also note that Collector (Appeals) has, by accepting this to be a demand under Rule 10, restricted it to a period of six months. The Tribunal, while relying on the decision of the Supreme Court in. the case of M/s. J.K. Steel Ltd. held in the case of Verma Industrials Ltd. v. Collector of Central Excise, Bangalore 1984 (18) E.L.T. 403 that, if a mistake is made in mentioning Rule 10A instead of Rule 10, the demand is not vitiated. Since Collector (Appeals) has already decided to limit the demand for a period of six months prior to the service of the show cause notice, there is no justification for interfering with the orders of the lower authorities which have been validly made. 11. The appeal is therefore rejected.
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1991 (11) TMI 141
Remission of duty ... ... ... ... ..... ken as approximate. The said fact has been incorporated in the original survey to the effect that the survey is conducted in the heavy swell. It is, therefore, not understood as to what was the purpose of issuing the addendum as late as on 14-8-1980 i.e. after a period of about nine months when all procedures of receipt delivery were completed, is also relevant. We find that in respect of the goods in question there is no evidence of any survey having been carried out by any recognised agency or firm of surveyors either in the port or shortly after clearance to determine the actual weight of goods cleared by the appellants. Under these circumstances, we do not find any justification in remanding the matter to the lower authorities to consider the issue with reference to the certificate issued by the Regional Iron and Steel Controller and other evidences, as urged by the appellants rsquo counsel. 11. In the view we have taken, the appeal filed by the party is hereby dismissed.
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1991 (11) TMI 140
Demand - Classification of goods ... ... ... ... ..... ould be held enforceable only with effect from the date of issue of show cause notice. The learned Senior Counsel however fairly stated that for the purpose of this case it would be sufficient if the demand covered by the show cause notice is held to be time barred. Following the ratio of the Tribunal rsquo s decisions supra, we hold that the demand for the period upto 1-3-1986 is barred by limitation. However, in view of the change in the Tariff from 1-3-1986 and in view of the fact that the assessees were put on notice regarding classification for the post March 86 period by provisional approval of the classification list for the period subsequent to 1-3-1986 and further, in view of the fact that the appellants have not challenged the impugned order on merits, we hold that duty is payable for the period from 1-3-1986 to 14-4-1986. 6. We make it clear that we are not expressing any opinion on the classification of the product. 7. The appeal is disposed of in the above terms.
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1991 (11) TMI 139
Paper - Concession for new factories for 5 years ... ... ... ... ..... germane to the dispute and has no bearing thereon. 8. The judgment of the Hon rsquo ble Supreme Court in the case of Union of India v. Suksha International reported in 1989 (39) E.L.T. 503 does not advance the appellants rsquo case - the Court held therein that an interpretation that unduly restricts the scope of a beneficial construction is to be avoided so that it may not take away with one hand what the Import-Export Policy gives with the other. In the present appeal, however, such a situation does not exist. The appellants are not denied the benefit of concession and in fact they have been availing of it from 19-8-1979 i.e. from the date of first clearance of kraft paper till 23-4-1986 i.e. till the end of the period of 5 years from the date of issue of Notification 108/81 dated 24-4-1981. 9. In the light of the above discussions we hold that the respondents are eligible for concession only upto 23-4-1986. We, therefore, set aside the impugned order and allow the appeal.
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1991 (11) TMI 138
Classification ... ... ... ... ..... ause this is a machinery item, a complete unit by itself specially designed and for the specific function of burning the hydrogen with chlorine and thereby make hydrochloric acid in liquid form and since this carbide chamber is a complete unit, the classification should not go on the basis of material of which it is made but the function it does. We have also taken note of the fact that similar parts of combustion chambers made of graphite which were imported in 1964 by the respondents for their caustic soda plant were assessed under Chapter 84 by the Customs House and the licensing authority had also considered the present imported parts as classifiable under Heading 84.59 in consultation with DGTD. 10. In the view we have taken, we uphold the findings of the Collector (Appeals) that the imported items are correctly assessable to customs duty under Heading 84.17(1) and not under Heading 68.01/16(1) of CTA, 1975 and accordingly the appeal filed by the Department is dismissed.
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1991 (11) TMI 137
Stay - Predeposit of penalty ... ... ... ... ..... od of limitation. 6. The learned DR, however, would contend that suppression is established as the declarations do not indicate the Heading No. of the Schedule to the Central Excise Tariff Act under which the goods are classifiable. 7. We have perused the Collector rsquo s order dated 7-8-1986 holding identical goods manufactured by M/s. Crystal Plast to be non-excisable as they are not ldquo goods rdquo . We have also gone through the declarations filed by the applicants. Against Sl. No. 4 of the declaration the full description of the goods has been stated by the applicants PVC Portfolio, PVC Partition PVC Hinge Flaps PVC Pouch Elastic Belts etc. 8. In this background the applicants have made out a prima facie on the limitation aspect and therefore, we waive the predeposit of the duty and penalty and stay the recovery of the same during the pendency of the appeal in E/Stay/2361/91-C in E/4033/91-C. 9. In the result all the 3 stay applications are allowed in the above terms.
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1991 (11) TMI 136
Interpretation of Statute ... ... ... ... ..... quo aforesaid period rdquo contained in Notification 124/87 should be read to mean only the commencement date i.e. 1st January, 1982, in a harmonious construction of Notification 124/87 and 36/87 wherein the same words ldquo aforesaid period rdquo figure in relation only to one date, namely 1st April, 1986. Such a construction is not permissible, as it would result in violence to the plain language of the Notification. The rule of harmonious construction is to be applied only in the event of ambiguity in a notification or if the ordinary interpretation of the notification results in an absurd construction. This is not the case, here. The language of the Notification 124/87 is clear, admits of no ambiguity and the ordinary interpretation of the words ldquo aforesaid period rdquo does not give room to absurdity. We, therefore, see no force in the appellants rsquo submissions. 7. We see no reason to interfere with the impugned order and confirm the same. The appeal is dismissed.
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1991 (11) TMI 135
... ... ... ... ..... Assistant Collector is directed to allow cost of transportation and delivery charges, turnover tax and octroi-duty as deductions from assessable value. rdquo 4. In view of the above observations, we are of the view that turnover tax is allowable as a deduction from the assessable value. Accordingly, we set aside the impugned order and remand the matter to the Assistant Collector having jurisdiction to readjudicate the same in the light of the Supreme Court decision in the case of Union of India and Others v. Bombay Tyres International Ltd. reported in 1984 (17) E.L.T. 329 and the decision of the Tribunal in the case of Associated Pigments Ltd. v. Collector of Central Excise reported in 1989 (40) E.L.T. 186 following the Supreme Court decision. We further order that while readjudicating the matter, the adjudicating authority shall observe principles of natural justice and shall grant an opportunity of personal hearing. 5. In the result, the appeal is allowed by way of remand.
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1991 (11) TMI 134
... ... ... ... ..... some other matter but even now they have not explained as to how it is connected and in any case it was for them to have taken the precaution properly and obtained the orders of the Bench in case the matter was connected with another. Similarly their contention that they have taken the question of non-appearance of their counsel with the Ministry of Law and Justice is by itself not sufficient. Again merely sending an Assistant without any letter of authority or power of attorney shows that the appellants were not careful or cautious. Furthermore the Bench had taken into account their past conduct and noted past several adjournments and the fact that they had been cautioned on 22-1-1991 that no further adjournment may be given. Therefore their contention that they were under the impression that they may be granted adjournment was incorrect. In the above circumstances we are of the opinion that sufficient cause has not been shown. As such we dismiss the restoration application.
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1991 (11) TMI 133
Classification ... ... ... ... ..... ad not only it must be identifiable as being suitable for use solely and it must be principally with such vehicle and not part of the part of such article. Next, it was contended that brake lining is not excluded from Item 87 as per Para 2 of Notes to Section XVII of the Customs Tariff. The question of considering the issue of exclusion under this head does not arise since we are holding that it does not fall under this head but under the general category Item 68.01/16. Though the Explanatory notes have no legal force but only persuasive value since only mounted linings has been specifically included for claim under the Heading 87.06 but not under the general description item, the observations made by the Collector (Appeals) in the impugned order are relevant and strengthened our view. Accordingly, we hold that imported items are correctly classifiable under Heading 68.01/16. 6. In the view we have taken, we uphold the impugned order and, accordingly, the appeal is dismissed.
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1991 (11) TMI 132
Valuation - Related person ... ... ... ... ..... the prices have fallen down in Feb. 1990. Therefore, the Collector is justified in determining the assessable value on the basis of the appellants rsquo own imports in Nov. 1989. We, therefore, agree with the Collector and confirm the order in so far as the valuation in respect of two bills of entry. 16. As regards the 3rd bill of entry, the Collector himself on physical examination found that the part of the goods are coloured variety. There is no evidence produced by the Department as to the value of ldquo Mixed rdquo variety. Therefore, the transaction value is to be accepted at US 2500. 17. As regards the penalty, since we are accepting the invoice value in respect of the one Bill of Entry, we reduce the penalty to Rs. 2.5,000/-. The question now is confiscation. We found that in respect of two bills of entry there is mis-declaration and we have also confirmed higher valuation. However, we reduce the redemption fine to Rs. 1 lakh. The appeal is, therefore, partly allowed.
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1991 (11) TMI 131
Issues Involved: 1. Whether the proceedings can be construed as adjudication proceedings. 2. Whether the appeal lies to the Tribunal or the Collector (Appeals).
Summary:
Issue 1: Adjudication Proceedings The primary issue was whether the proceedings initiated by the Assistant Collector of Customs could be considered as adjudication proceedings. The Tribunal noted that the communication from the Assistant Collector indicated a clear decision that "contract benefit is not available for the goods imported under cover of REP Licence." This was deemed a determination, making it an appealable order. The Tribunal referenced earlier decisions, emphasizing that any order or decision passed under the Act and Rules is considered an order by the Adjudicating Authority and hence appealable.
Issue 2: Appropriate Appellate Authority The second issue was whether the appeal should be filed with the Tribunal or the Collector (Appeals). The Tribunal highlighted that u/s 128 of the Act, appeals against decisions by officers lower in rank than a Collector should be made to the Collector (Appeals). The appellants argued that since the impugned order was directed by the Collector, it should be treated as an order by the Collector, making the Tribunal the appropriate appellate body. However, the Tribunal concluded that the Assistant Collector, who signed the order, was the adjudicating authority. Therefore, the appeal should be filed with the Collector (Appeals).
Separate Judgment by Technical Member: The Technical Member disagreed on the second issue, asserting that the order was effectively that of the Collector, as the Assistant Collector merely communicated the Collector's decision. Therefore, the appeal should lie with the Tribunal. The Technical Member also noted that the order lacked reasons and violated principles of natural justice, recommending a remand for de novo consideration by the Collector.
Final Order: In view of the majority opinion, the impugned order was set aside, and the matter was remanded to the Collector of Customs, Calcutta, for de novo adjudication in accordance with the law and principles of natural justice.
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1991 (11) TMI 130
Appeal - Restoration of ... ... ... ... ..... on 21-9-1984. Though he has taken a lot of time to comply with the directions but in view of the explanation given by him that the file containing the papers was somehow detached from the case file and it remained untraced in spite of persistent efforts made by the Department is sufficient enough to restore the Appeal to its original number. 13. Under the circumstances, we hereby restore this appeal to its original number. The date of hearing be communicated to the parties as per the availability of the date in the working diary of the Bench keeping in view the fact that this appeal is of the year 1978. Hon rsquo ble Supreme Court in the case of ITO v. Mohd. Kunhi reported in 1969 SC 430 had held that the Tribunal has got inherent powers. We are of the view that it is a fit case where we should exercise our inherent powers. We recall the earlier order passed by the Tribunal and restore the appeal to its original number. The appeal to be heard on merits on 18th November, 1991.
............
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