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Case Laws
Showing 101 to 120 of 310 Records
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1987 (2) TMI 333 - DELHI HIGH COURT
Detention order ... ... ... ... ..... t has been made in writing in the representation, there is no question of the detenu making an oral request in this regard. In that case the High Court had held that there was nothing on record to show that the detenu made an oral request before the Advisory Board. In the presence of a mention of this fact by the detenu in the written representation on the Supreme Court did not approve of this approach. In the present case the respondents have chosen not to contest and I take it that the Advisory Board despite a written request for examination of his witnesses in rebuttal has not examined the witnesses. In this manner the detenu have been deprived of his constitutional right which by itself is sufficient to vitiate the detention order. Since the petition is to be allowed on this ground, there is no need for me to go into the other contentions. The petition is allowed and the detention order is quashed. The detenu shall be released forthwith unless required in some other case.
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1987 (2) TMI 324 - BOMBAY HIGH COURT
Classification of goods ... ... ... ... ..... ut on the contrary, it is equal to lsquo means rsquo . 27. Petitioners seek, inter alia, a mandamus directing the respondents to refund the excess of Central and Local Sales Tax paid together with interest at the rate of 21 from the date of the collection of the amount to the date of the refund. Although we held that the petitioners are entitled to the refund of the excess tax paid, we are unable to grant the relief of interest as prayed by them. We direct that the refund of the duty collected without authority of law should be made within 3 months from today without any interest thereon. However, if the refund is not made within that time, the said amount will accrue interest at the rate of 6 per annum from the expiry of the said three months. 28. The result is that with the modification as regards the interest mentioned in the preceding paragraph, the rule is made absolute in terms of prayers (a) and (b). There will be no order as to costs, in the circumstances of the case.
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1987 (2) TMI 321 - CEGAT, NEW DELHI
Words and phrases ... ... ... ... ..... uo and rdquo would not lead to any absurd result. As regards the intention behind the issue of the notification nothing has been shown to us regarding the same in order to entitle us to assume that the intention was to benefit all bought leaf factories and not only such factories as were in existence in 1963-64 and also during the preceding and rsquo current year also. Therefore the argument, based on the alleged intention behind the notification, cannot be accepted. 10. We may in fact observe that it may properly lead to an absurd result only if the word ldquo and rdquo is read as ldquo or rdquo , because that would mean that a factory which bought not less than two/thirds of its green leaf from outside sellers during the financial year 1963-64 would be entitled to the benefit of this notification irrespective of whether it did so in any subsequent year. 11. In view of the above we hold that the orders of the lower authorities are correct and accordingly dismiss this appeal.
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1987 (2) TMI 318 - CEGAT, NEW DELHI
Import - Lining material ... ... ... ... ..... ave been established by evidence. 42. In the result, we allow the Appeals, set aside the order in adjudication of the Collector wholly, direct re-assessment of the goods on the basis of their appropriate assessable value in the light of such evidence as may be adduced by either side - excluding, however, the so-called copies of export declarations at Pages 67, 68 and 97 of Vol. III - within three months of the receipt of this order. No question of contravention of I.T.C., however, survives. In view of the decision of the majority, the Appeals are allowed, the order-in-adjudication of the Collector is set aside and re-assessment of the goods on the basis of their appropriate assessable value in the light of such evidence as may be adduced by either side excluding, however, the so-called copies of export declarations at pages 67, 68 and 97 of Vol.III of the Paper book, is directed within three months of the receipt of this order. No question of contravention of I.T.C. survives.
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1987 (2) TMI 317 - CEGAT, BOMBAY
Condonation of delay is discretionary ... ... ... ... ..... n an application before this Board for condonation of delay. The Board had however considered the oral plea. The Board, however, found that the appellant had not shown sufficient cause for condoning the delay. The Board rsquo s order in the circumstances can be challenged only if the appellants are able to establish that the exercise of its discretion is arbitrary or capricious or unjust. No such contention had been taken in the appeal memorandum. The satisfaction contemplated by law is the satisfaction of the authority which was vested with the discretion to condone the delay. If that authority was not satisfied that the delay should be condoned the Appellate Authority cannot interfere with such an order unless it is satisfied that that order is arbitrary or capricious. From the facts on record, it is difficult to come to the conclusion that the Board rsquo s order suffers from any infirmity. In the circumstances, I see no merit in the appeal and accordingly reject the same.
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1987 (2) TMI 312 - CEGAT, NEW DELHI
Valuation - After sales service charges ... ... ... ... ..... warranty for one year or for service in the subsequent years. The use of the word ldquo warranty rdquo suggests that the charge was for the initial warranty period. As already stated, in the appellants rsquo case in charge for the initial warranty period of twelve months does stand included in the price as well as the assessable value. 10. The appellants made a couple of other points also, namely, that the department went on loading the demand for duty even though the appellants had discontinued the practice of service contracts w.e.f. 3-9-1981 and that a part of the duty demand was hit by time bar. Since we have decided the main issue of merits in the appellants rsquo favour, we do not consider it necessary to go into these two points. 11. In the result, we allow all the seven appeals filed by the appellants with consequential relief to them. We reject the appeal (No. E-2864/ 83A) filed by the department. Cross objection No. E-99/-A filed by the department is also dismissed.
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1987 (2) TMI 309 - SUPREME COURT
Application for condonation of delay under Section 5 of the Limitation Act
Held that:- The Court while considering an application under Section 5 of the Limitation Act will consider the facts and circumstances not for taking too strict and pedantic stand which will cause injustice but to consider it from the point of taking a view which will advance the cause of justice. In this case admittedly the appellants are agriculturists living in villages and the applicant is also a very young person having little knowledge about the steps that are to be taken. Moreover, he has clearly stated that he came to know of the pendency of the appeal filed by his father as one of the appellants only recently that is on August 4, 1972 and the application was made on August 5, 1972. Considering all these facts and circumstances we feel that for the ends of justice and fair play the application under Section 5 of the Limitation Act should be allowed as in our opinion sufficient cause has been made out for the delay in filing the application for bringing on record the legal representative of the deceased Inder Singh. Of course, we also think it just and proper that the applicant must pay to the respondent a sum of ₹ 500/- in cash as costs. The appeal is thus allowed. The judgment of the High Court is set aside
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1987 (2) TMI 308 - CEGAT, NEW DELHI
Suo moto revision - Jurisdiction ... ... ... ... ..... is not otherwise provided for elsewhere. A misdeclaration in terms of Section 46(3) read with Section 111(m) is already penalised under Section 112. The two separate penalties do not, therefore, sustain. Again, he did not find that the goods were deserving of confiscation - which he ought to have directed in consequence of the misdeclaration. We are now helpless in the matter since the notice did not propose confiscation as well. Even so, the gravity of the offence of misdeclaration is not such that it did not warrant any reduction in the penalties. Accordingly, we restore the order of the Collector subject to the modification that the penalties may be reduced to Rs. 25,000/-. Any excess over the said amount, if realised, be refunded. If the amount of the penalties is already refunded, then an amount of Rs. 25,000/- be paid within three months of the communication of this order, by the Respondent to the Appellant, failing which it may be duly recovered. 6. Order accordingly.
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1987 (2) TMI 307 - DELHI HIGH COURT
Short landing ... ... ... ... ..... nd given in the import policy for rejecting the claim for revalidation. The settlement of the insurance claim only meant that the petitioners were not out of pocket. The payment of insurance claim did not mean that the petitioners could enjoy the fruits of the license, namely, to be able to import the items specified in the import licence, to sell those goods imported and to make profit from them. The insurance money paid was only by way of compensation for the foreign exchange lost. It did not make good the loss of profit. 20. No other contention has been raised before me. In my view, therefore, the reasons given by the respondents for rejecting the petitioners rsquo application for revalidation are not valid in law. 21. This writ petition is accordingly allowed. The impugned order are quashed. A writ of mandamus is issued directing the respondents to revalidate the licence of the petitioners within a period of six weeks from today. The petitioners will be entitled to costs.
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1987 (2) TMI 300 - CEGAT, NEW DELHI
Appeal by department not filed in prescribed form ... ... ... ... ..... thorised by him in this behalf to appeal on his behalf to the Appellate Tribunal. There is no such authorisation filed in the papers. The Dy. Collector, Central Excise, Calcutta has filed the appeal but there is nothing on record to show how he was authorised to file this appeal. We are constraint to point out that the proceedings have been taken in a casual manner and none of the rules regarding filing of the appeal have been followed either. The appeal by the department puts the other party to a disadvantage in that has to defend himself. In such circumstances, we desire to point out that greater care and circumspection should be taken by the concerned officers rather than just to transmit certain pieces of paper to the office of the Tribunal and rest content that they have filed an appeal. We have, therefore, no hesitation in rejecting this appeal for non-compliance of Section 35B(2) and Rule 8 of the Customs, Excise and Gold (Control) Appellate Tribunal (Procedure) Rules.
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1987 (2) TMI 299 - CEGAT, NEW DELHI
Exemption from cess ... ... ... ... ..... are also of no help to the appellants. 24. ensp In the result our conclusions are - (a) The demand for Cess on jute yarn captively consumed for the manufacture of sacking cloth during the period prior to 1-10-1984 was correctly made. The confirmation of this demand by the Assistant Collector and, later, the Collector (Appeals) was also correct. The orders of the lower authorities are upheld in this respect. (b) The demand for Cess on sacking cloth captively consumed by the appellants for the manufacture of sacking bags during the period prior to 1-10-1984 is not sustainable and is set aside. This part of the impugned orders is also, in consequence, set aside. (c) The demand for differential Cess on sacking bags for the period prior to 1-10-1984 cannot also be sustained and is set aside. The orders of the lower authorities in this behalf are also set aside. 25. ensp The appeals are disposed of in the light of the above conclusions, with consequential relief to the appellants.
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1987 (2) TMI 298 - CEGAT, NEW DELHI
Ad hoc exemption order can be passed at any time ... ... ... ... ..... if the duty had already been collected, it is open to the Government to exercise power, under Section 25(2) of the Customs Act, to grant exemption, and (that) the consequential refund would necessarily follow. 15. ensp We referred to the Revenue rsquo s arguments in these two cases as Shri J. Gopinath, the learned SDR, referred to the arguments and they were treated as repeated here. 16. ensp Taking into consideration the case-law cited by the learned Counsel of the Appellants, we do agree with his submission that the case-law is overwhelmingly in favour of the appellants to the effect that, in this case, the ad hoc Exemption Order - though issued after the importation of the goods and payment of duty thereon - should be applied and refund granted. We reject the arguments of the learned SDR for the reasons we have recorded above. 17. ensp In the result, the appeal is allowed. In view of this, we are not going into the other arguments of the learned Counsel for the appellants.
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1987 (2) TMI 297 - CEGAT, CALCUTTA
Demand - Clandestine removal ... ... ... ... ..... clearly wrong. Furthermore, as the above discussion shows, in the ordinary course, even Rule 210 need not be invoked and for imposing a penalty it is necessary to show a case of deliberate defiance of law, negligence or criminal intent, which the department has clearly failed to do in the instant case. 28. ensp Looking to the facts and circumstances of the case as a whole, I find that the department has not plausible to establish any of the charges framed against the appellant. The show cause memo (read as a whole) is vague, inconsistent and self-contradictory and so are the Collector rsquo s findings with reference to the same. On the other hand, the appellants have submitted a plausible explanation and looking to the facts and circumstances as a whole, there was no reason to doubt the same. The order of the learned Collector is, therefore, set aside and the appeal is accepted. 29. ensp This also disposes of the Cross Objection filed by the department. ANNEXURE NOT PRINTED .
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1987 (2) TMI 296 - BEFORE THE COLLECTOR OF CENTRAL EXCISE (APPEALS),
Raw material not necessarily to be used directly in manufacture of finished product ... ... ... ... ..... ted 30-10-1984 as amended by Notification No. 356/77, dated 16-12-1977. It is not necessary that the input should remain physically in the finished product. It is also not necessary that input should be directly used in the manufacture of final product. The similar view has been held by the following higher authorities in their decisions as mentioned below 1) Central Board of Excise and Customs in the case of Fertilizer Corporation of India 1982 (10) E.L.T. 421 . 2) Tribunal rsquo s order in the case of Collector of Central Excise, Bhubaneswar v. Titaghur Paper Mills 1985 (21) E.L.T. 901 and 3) Indian Oil Corporation, Barauni v. Collector of Central Excise, Patna which is squarely applicable to the present case of the appellant appearing in 1985 (19) E.L.T. 115 (Tribunal). 4. ensp In view of the foregoing facts and the decisions of the higher authorities, I set aside the impugned order passed by lower authority and allow the appeal with consequential relief to the appellants.
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1987 (2) TMI 295 - CEGAT, CALCUTTA
Adjudication - Clandestine removal ... ... ... ... ..... . On payment of duty 6 mm MS Rounds T.I. 26A(a) 2376.921 G.P.I. Of the converter at Nil duty under Notification No. 159/76, dated 9-4-1979 M/s. Golden Forging Pvt. Ltd. Liuah, Howrah (Exepted) Steel Ingots T.I. 26. 37.830 Under G.O.I. On payment of duty. 25 mm M.S. Round Bar T.I. 26AA(ia) 125.595 Under Private Challan of the converter. 28. Looking to the facts and circumstances of the case as a whole I find that the department has not been able to establish any of the charge framed against the appellant. The show cause memo. (read as a whole) is vague, inconsistent and self-contradictory and so are the Collector rsquo s findings with reference to the same. On the other hand, the appellants have submitted a plausible explanation and looking to the facts and circumstances as a whole, there was no reason to doubt the same. The order of the learned Collector is, therefore, set aside and the appeal is accepted. 29. This also disposes of the Cross Objection filed by the department.
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1987 (2) TMI 294 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... his contentions. The classification groups several cotton items under Group 263. 263.1 Raw cotton, other than linters, sweepings, yellow pickings and other unspinnable fibres - 263.3 reads Cotton waste not carded or combed. Under the above sub-heading are several minor sub-headings of which 263.32 reads Cotton, Sweepings, yellow pickings and other unspinnable fibres excluding linters - 263.3203 reads Yellow pickings. It will be seen from the above extracts that the Revised Indian Trade Classification lists yellow pickings under the broad category of cotton waste (263.3). This piece of evidence goes to show that in trade parlance yellow pickings are considered as cotton waste. 7. ensp In the light of the foregoing discussion we do not see any reason to differ from the conclusion in Order No. 1013/86-D passed in the Shree Vyankateshwar case. Accordingly, we discharge the show cause notice by the Government of India against the present three respondents and dismiss the appeals.
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1987 (2) TMI 272 - CEGAT, NEW DELHI
Import - Articles or components imported as replacement of defective articles or components ... ... ... ... ..... p In view of the above, we hold that the benefit of notification in terms of the first proviso in the Notification No. 80/70 would be available only if the goods are imported as replacement of those which are the individual rsquo s private personal property and not of a firm. The case-law cited by the appellants in support of their plea that the notification should be so interpreted as to advance the intention of the framers of the notification does not help the appellants inasmuch as in the cases cited it has been clearly held that while interpreting the notification, there is no room for intendment and unless meanings flow from the clear language of notification the benefit cannot be given by reading the intention into it. The words used in the notification do not lend themselves to the interpretation as placed by the appellants on the wording of the notification. The lower authority rsquo s order, hold in view of the above is maintainable in law and the appeal is rejected.
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1987 (2) TMI 271 - CEGAT, NEW DELHI
Seizure and confiscation ... ... ... ... ..... sell rdquo as an offence. Section 27(1) states that ldquo no person shall commence or carry on business as a dealer unless he holds a valid licence ...................... rdquo . As rightly relied upon by the learned Advocate for the respondent the real incidence of business is the selling of gold and the selling would obviously mean actual selling so far as this Section is concerned. It is only by Section 71 of the Gold Control Act that even an lsquo attempt rsquo at contravention of any provisions of the Act, or any Rule or order made thereunder in respect of any gold makes such a gold liable to confiscation but as held by the learned lower appellate authority and to which, I agree that the act of lsquo attempt rsquo on the part of the appellant (respondent ?) cannot be said to have been made in the instant case because he was found passively sitting in the shop when was detected by the Gold Control Officers. 8. In view of the foregoing discussion, the appeal is dismissed.
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1987 (2) TMI 270 - CEGAT, NEW DELHI
... ...
... ... ..... judgment of any other High Court on this point. Respectfully following this judgment, we hold that the price of Rs. 3.2,5 per m3 (and similar higher price for subsequent years) was an acceptable basis for valuation of the appellants rsquo Oxygen Gas for assessment of central excise duty, once the transaction as between the appellants and Rishi Gases is ignored. The price of Rs. 3.25 was quite reasonable when compared with Asiatic Oxygen rsquo s own sale price of Rs. 4.665 to Rs. 5.701, after due allowance is made for the cylinder cost, transport and handling expenses and Asiatic Oxygen rsquo s profits. 4. emsp In the light of our above discussion, we modify the impugned orders to the extent that instead of Asiatic Oxygen rsquo s sale price, their purchase price of the Oxygen Gas manufactured in the appellants rsquo factory should form the basis of valuation and assessment of central excise duty. Except for this modification, we uphold the lower orders and reject this appeal.
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1987 (2) TMI 269 - CEGAT, NEW DELHI
Manufacture - Chilling of water is not a process incidental or ancillary to the manufacture of aerated waters
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