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Case Laws
Showing 121 to 140 of 190 Records
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1989 (10) TMI 70 - HIGH COURT OF JUDICATURE AT ALLAHABAD
Writ Jurisdiction - Existence of alternative remedy ... ... ... ... ..... illary and incidental power to recall an order, if it is satisfied that the absence was for the reasons beyond the control of the applicant. Such an application has not been moved. The petitioner may, if so advised, move now before the appellate authority. 2. The other alternative is to file an appeal under Section 129A of the Excise Act. 5 3. For what we have stated above, we do not consider it a fit case for interference. 4. The writ petition is rejected.
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1989 (10) TMI 69 - HIGH COURT OF GUJARAT AT AHMEDABAD
Writ Jurisdiction - Stay of predeposit of duty - Natural Justice ... ... ... ... ..... ed against them be reversed. As far as they are concerned, the judgment and decree passed by the lower authority becomes final. Similar is the case with regard to the petitioner herein. The petitioner did not fulfill the conditions of appeal being entertained and being decided on merits. Therefore, as far as the petitioner is concerned, the position is that the order passed against him by the original authority has become final. Since he did not avail of the alternative remedy provided under the statute and allowed the same to become infructuous he cannot be permitted to invoke the extraordinary jurisdiction of the High Court. Moreover, it may be noted that as to whether petitioner was afforded an opportunity of being heard or not is essentially a question of fact. In case of others it may be that they might not have been heard. Decision rendered in their appeal cannot be made applicable to the case of the petitioner. 9. There is no substance in the petition. Hence rejected.
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1989 (10) TMI 68 - HIGH COURT OF GUJARAT AT AHMEDABAD
Stay/predeposit of duty and penalty - Writ Jurisdiction ... ... ... ... ..... shall not be reduced to the extent of the amount of interest that may be paid by the petitioner. 10. Subject to the aforesaid condition, it is directed that the ad interim relief granted by this Court on January 24, 1989 shall remain in operation upto December 18, 1989. However, if the petitioner does not make payment of the amount of interest as indicated herein above, this direction by which the ad interim relief granted earlier by order dated January 24, 1989 is kept in abeyance upto December 18, 1989 shall stand automatically vacated. 11. Office is directed to send a copy of this order to respondent No. 2 herein, i.e., the Registrar, Customs, Excise and Gold (Control) Appellate Tribunal, Bombay. 12. Subject to the aforesaid observation and direction the petition stands rejected. Ad interim relief stands rejected. However, if the direction given herein above is complied with, order vacating ad interim relief shall remain in abeyance upto December 1989. Order accordingly.
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1989 (10) TMI 67 - SUPREME COURT
Interpretation of Notification Nos. 59/83 and 126/84 - Held that:- Considering the language of the notification the result of reading the First Schedule along with the relevant notifications is that imports of timber into India from most countries is charged to effective basic customs duty as per the tariff in the Schedule whereas in respect of imports from Burma, Nepal, Bhutan and Bangladesh, the rate of effective basic duty is nil. The position, therefore, is that the article in question is liable to two or more different rates of effective basic duty based on the country of origin for the import. It, therefore, follows that the auxiliary duty is to be determined with reference to the higher of the two effective rates of duty. Allow the appeals and restore the orders of the Assistant Collector rejecting the claims of refund filed by the assessees.
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1989 (10) TMI 66 - HIGH COURT OF MADHYA PRADESH, JABALPUR
COFEPOSA - Detention order - Evidence - Statement - Retraction of confession ... ... ... ... ..... en placed before the detaining authority in view of the fact that in the light of the circumstances of the case the impugned order appears to have been based mainly on the confessional statement of the detenu. Non-placing of such material facts before the detaining authority is a serious lapse on the part of the Department. Therefore, on this ground also the detention order passed against the detenu deserves to be quashed. 15. Other allegations have also been made by the detenu and arguments have been advanced by the learned counsel of the parties. But, we do not propose to go into this question in view of the fact that only on the aforesaid two grounds we hold that the detention of the detenu is not in accordance with law. The detention order deserves to be quashed and is accordingly quashed. The detenu shall be released from detention forthwith, if not required to be kept in custody in connection with any other offence. There shall be no order as to costs in this petition.
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1989 (10) TMI 65 - HIGH COURT OF GUJARAT AT AHMEDABAD
Manufacture paper ... ... ... ... ..... erred to and relied upon. Be that as it may, we do not wish to enter into this controversy. On our own we have come to the conclusion that in converting kraft paper into bituminised water-proof paper there is manufacture and the ultimate product is liable to excise duty. Therefore, whether the exemption notification can be taken into consideration for determining the classification of an article or not is not relevant for deciding the present petition. Even without taking into consideration this exemption notification we have arrived at the aforesaid conclusion. 17. In above view of the matter, the petition is required to be rejected. Hence the same is rejected. Rule is discharged with no order as to costs. 18. At this stage, learned Counsel for the petitioners requests that Certificate for leave to appeal to the Supreme Court be granted. In our opinion, no question of law is involved in the matter which needs to be decided by the Supreme Court. Hence Certificate is refused.
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1989 (10) TMI 64 - SC ORDER
Appeal - Dismissal for default of non-appearance - Restoration - Negligence of the Counsel ... ... ... ... ..... l in question was one refusing to restore an appeal dismissed in default. It does appear that there was some negligence on behalf of the counsel who appeared before the Tribunal but we do not think that the appellant should be penalised for the default of the counsel. We set aside the order of the Tribunal and restore the appeals before it, being Appeal Nos. E.1282/83-D and 1542/83-D. The appeal is disposed of accordingly. There will be no order as to costs.
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1989 (10) TMI 63 - HIGH COURT OF DELHI
Export - Re-export of illegal imports when permissible ... ... ... ... ..... . Lahoty has stated that both Mr. Anil Malhotra and Mrs. Janak Malhotra give undertaking to this court that this property could be taken as security for payment of any amount of duty or other charges which may be found due to the respondents in the present writ petition. We accept this undertaking. Both Mr. Anil Malhotra and Mrs. Janak Malhotra shall remain bound by what they have stated in their respective affidavits. Mr. Aggarwal did say that a bank guarantee should be asked for, but in the circumstances of the present case we do not think that to be a proper course. Accordingly, we direct that the petitioner will be allowed to re-export the goods in question without payment of any duty and, of course, subject to the provisions of sub-section (1) of Section 69 of the Act which have been noted above. 8. We would like to add that the view which we have taken above is only a prima facie view and is subject to final determination in the petition. All the CMs stand disposed of.
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1989 (10) TMI 62 - HIGH COURT OF DELHI
Seized and contraband goods - Disposal of during prosecution ... ... ... ... ..... er, put on record that this does not mean that this Court endorses on merits, any of the points which Mr. Harjinder Singh stated as being open to an accused, in such a proceeding. These arc left for consideration, and decision, by the concerned magistrate, after notice, and on hearing. They have been noted in the judgment by way of illustration as to in what manner right of a given party could possibly be affected in the absence of notice and hearing. 23. In view of the foregoing discussion, I allow the petition and set aside the order dated 25th April, 1989 with direction that the application under Section 110 (1-A) of the Customs Act dated 20th April, 1989 be taken up afresh by the concerned court, after notice to the petitioner. 24. The file of the trial court be sent back immediately and the parties are directed to appear before the Metropolitan Magistrate on 18th October, 1989, who shall proceed further in the matter, in the light of the observations made in this order.
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1989 (10) TMI 61 - HIGH COURT OF KERALA AT ERNAKULAM
Prosecution - Bail ... ... ... ... ..... Authorities from arresting him after his release on bail .... . The said reasoning is ostensibly inept in view of the further allegation that the said notice was issued in respect of a person who jumped bail in 1974 and who has not surrendered to the court even till his arrest in connection with the present case. The other broad aspects such as the allegations that first respondent has connections with certain influential quarters in India and abroad cannot be lightly brushed aside. Learned Magistrate ought to have called for the file concerned and perused the same before deciding whether it is expedient to exercise the discretion in granting bail to the first respondent in the special nature of the allegations and circumstances involved. 6. Having considered various aspects involved, I am of the definite opinion that the time has not reached for releasing the first respondent on bail m this case. Accordingly, I quash the impugned order. Crl. M.C. is disposed of accordingly.
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1989 (10) TMI 60 - HIGH COURT OF DELHI AT NEW DELHI
Writ jurisdiction - Laches - Writ Jurisdiction - Challenge to Appellate Tribunal's order ... ... ... ... ..... ms manufactured by the petitioner fell under Item 19-I(b). The same controversy could not be raised in reply to the show cause notice dated 14-10-1985. In fact, this notice is consequential to the decision of the authorities regarding the classification matter. However, the show cause notice dated 14-10-1985 could be challenged by means of an appeal under Section 35-B of the Central Excises and Salt Act, 1944. Learned counsel for the petitioner was unable to tell us whether such an appeal had been filed. The fact that the petitioner could file appeal under the aforesaid provision is recited in the show cause notice itself. This is an additional ground for rejecting the writ petition praying for quashing the impugned show cause notice and the order of the Collector, Central Excise, Meerut dated 18-1-1988. For refusing to quash the order of the tribunal dated 22-7-1985 we have already given reasons above. Consequently, we find no merit in this petition and reject it summarily.
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1989 (10) TMI 59 - HIGH COURT OF JUDICATURE AT BOMBAY
Strictures against Excise & Customs department - Appeal - Remand ... ... ... ... ..... . 7. Accordingly we make the Rule absolute in terms of prayer (a) to the extent of quashing the order dated 12th May 1989. It may be for the Department, if there is any competent officer, to allocate the matter to that officer to pass a proper order. However, it is clear that the department of excise is harassing the petitioner which may be compensated for by the respondents being directed to pay to the petitioner costs quantified at Rs. 1,000/-. Payment of costs will be condition precedent to the passing of a fresh order. Till the fresh order is passed the levy of excise duty will be as per classification 8546 which was the classification urged for orally by the assessee placing reliance on the decision of the Appellate Collector in the case of Borivli factory. Rule will also have to be made absolute in terms of prayer (b) as Exhibit-I is made part of the order of Shri Joshi which we have quashed. Application for refund of the assessee will have to be disposed of on merits.
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1989 (10) TMI 58 - HIGH COURT OF KARNATAKA AT BANGALORE
Dutiability - Marketability, an essential ingredient ... ... ... ... ..... t the stage of the decisions rendered by the adjudicating-authority. 30. I have to reject this contention since the facts are uncontroverted in this case and the Department failed to adduce evidence as to the marketability of the goods in question and did not utilise the opportunity granted by this Court by quashing the first order of adjudication and remanding the matter so that the Department might be in a position to adduce evidence to the contrary. 31. Having considered all the contentions of the learned Counsel for the petitioner and the Department, I am of the opinion that no useful purpose would be served by remanding the matter again to the adjudicating authority in the light of the view expressed above. 32. I, therefore, allow the writ petition and quash the impugned order and direct the Department to refund whatever duty was paid by the petitioner on the value of BMS . 33. The Central Government should pay the cost of the petitioner which is assessed at Rs. 1000/-.
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1989 (10) TMI 57 - HIGH COURT OF JUDICATURE AT ALLAHABAD
Valuation of branded tobacco ... ... ... ... ..... alue of the tobacco should be arrived at for notification purposes after abating there from the value of the polythene, gunny bags, cartons so that the value of the chewing tobacco in the primary packing bearing the brand is obtained. This value should be divided by the total weight of all the branded packets in which the tobacco is packed and value so arrived at should be taken as the value per kg. for the purposes of the notification. 6. For what we have found above, we direct the Assistant Collector Central Excise to determine the tax liability of the petitioner in accordance with the directions given in the judgment of the Tribunal dated 19-3-1989 and to also decide the refund entitlement of the petitioner on that basis. Earlier orders passed by the Assistant Collector Central Excise rejecting the refund application are set aside. The matter is since pending since the Assistant Collector may dispose of the cases expeditiously. 7. The writ petition is dismissed summarily.
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1989 (10) TMI 56 - SUPREME COURT
Orders of detention passed 'with a view to preventing the detenu from abetting the smuggling of goods and dealing in smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods'
Held that:- Taking into consideration the allegations made in the grounds of detention and in the counter-affidavit and it appears that in the names of the (said) two firms huge amount of export duty has been evaded and the imported goods, which have been allowed to be cleared, have been sold in the market. We are unable to accept the contention made on behalf of the detenu that the goods were cleared and sold under the orders of the High Court. It has been rightly observed in the impugned order of the High Court that, surely, the High Court did not permit the detenu to sell the goods in the market. It may be that a part of the imported goods has not been allowed to be cleared and stands forfeited to the Government, but that is no ground in favour of the detenu. The Government may realise a part of the duty by selling those goods, but that is neither here nor there. The fact remains that the detenu got the goods cleared and sold the same in the market. We find no reason not to accept the contention of the respondents that the licences were procured by the detenu with a view to importing the goods duty free and selling the same in the market and thereby making a huge profit to the loss and detriment of national economy.
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1989 (10) TMI 55 - SUPREME COURT
Whether the Collector of Customs had exceeded his jurisdiction in confiscating the goods and imposing penalty for the first time in exercise of his revisional jurisdiction under Section 130(2) of the Act?
Held that:- When the Collector of Customs could confiscate the goods and impose penalties only in exercise of his original jurisdiction under Section 122 read with Section 124 of the Act, surely, the appellant had a right of appeal against such confiscation and imposition of penalty. At this stage, we may notice a very significant fact that in the impugned order of the Collector dated November 14,1979, it has been specifically stated at the very outset that an appeal against the order lies to the Central Board of Excise and Customs, New Delhi, within three months from the date of its despatch. It cannot, therefore, be said that the appellant was misled, as the order was purported to have been passed by the Collector of Customs in exercise of his revisional jurisdiction. The appellant, however, did not avail itself of its right of appeal under Section 128(a) of the Act and, accordingly, its complaint in that regard is not justified. Appeal dismissed.
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1989 (10) TMI 54 - SUPREME COURT
Whether the goods packed in the smaller cartons could be sold to the wholesale buyer in the course of wholesale trade at the factory gate without the outer carton in which the number of smaller cartons were packed?
Held that:- the correct position seems to be that the cost of that much of packings, be they primary or secondary, which are required to make the articles marketable would be includible in the value. How much packing is necessary to make the goods marketable is a question of fact to be determined by application of the correct approach. Packing, which is primarily done or mainly done for protecting the goods, and not for making the goods marketable should not be included.
In the instant case having considered the order of the Tribunal it can be concluded that the Tribunal was in error in approaching the problem before it by looking at the question whether the goods packed in the smaller cartons could be sold in a wholesale market in the course of wholesale trade at the factory gate without the outer cartons in which the smaller cartons are packed. The question is not whether these goods could be so sold, but the question is whether these goods are so sold usually and as such used to become marketable in such manner. In my opinion, there has been a misdirection by the Tribunal on this aspect of the matter. If the above be the true test, then the judgment and the order of the Tribunal must be set aside and the appeal must be allowed and the matter remanded back to the Tribunal to determine afresh this question from the stand point indicated above. Appeal allowed.
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1989 (10) TMI 53 - SUPREME COURT
Whether levy of cess on royalty is within the competence of the State Legislature?
Held that:- It is not in dispute that the cess which the Madras Village Panchayat Act proposes to levy is nothing but an additional tax and originally it was levied only on land revenue , apparently land revenue would fall within the scope of entry 49 but it could not be doubted that royalty which is a levy or tax on the extracted mineral is not a tax or a levy on land alone and if cess is charged on the royalty, it could not be said to be a levy or tax on land and, therefore, it could not be upheld as imposed in exercise of jurisdiction under entry 49 List II by the State Legislature.
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1989 (10) TMI 52 - SUPREME COURT
Whether section 13AA is in pith and substance, not levying tax on purchase but one levying tax on consignment?
Held that:- Imposition of a duty or tax in every case would not tantamount per se to any infringement of Article 301 of the Constitution. Only such restrictions or impediments which directly or immediately impede free flow of trade, commerce and intercourse fall within the prohibition imposed by Article 301. A tax in certain cases may directly and immediately restrict or hamper the flow of trade, but every imposition of tax does not do so. Every case must be judged on its own facts and its own setting of time and circumstances. Unless the court first comes to the finding on the available material whether or not there is an infringement of the guarantee under Article 301 the further question as to whether the Statute is saved under Article 304(b) does not arise. The goods taxed do not leave the State in the shape of raw material, which change their form in the State itself and there is no question of any direct, immediate or substantial hindrance to a free flow of trade. On the evidence adduced, we are in agreement with the High Court that the challenge to the imposition in the background of Article 301 cannot be sustained and, therefore, no question whether such imposition is saved under Article 304(b) of the Constitution arises.
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1989 (10) TMI 51 - MADHYA PRADESH HIGH COURT
Reference To Valuation Officer, Wealth Tax ... ... ... ... ..... el for the applicant, pointed out that the assessee has at no stage challenged the Commissioner s order. This again is a fallacious reasoning as has been pointed out by the Supreme Court in Raja Jagdambika Pratap Narain Singh s case 1975 100 ITR 698 (SC). If the order is without jurisdiction, and void ab initio, the same does not become legal or final merely because it was not challenged in appeal and the directions made by the Commissioner in the light of M. V. Kibe s case 1987 168 ITR 82, was without any jurisdiction and void. The question of jurisdiction can be raised at any stage and at any point of time as again pointed out by the Supreme Court in Kiran Singh v. Chaman Paswan, AIR 1954 SC 340. In the result, this reference application under section 27(3) of the Act deserves to be rejected as it does not raise any question of law to be decided by this court on reference. The questions raised are fully covered by M. V. Kibe s case 1987 168 ITR 82 (MP). Reference rejected.
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