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Case Laws
Showing 141 to 160 of 288 Records
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1993 (10) TMI 151 - CEGAT, CALCUTTA
Modvat - Declaration ... ... ... ... ..... ch an availment cannot be said to be due to any irregularity on their part attracting the longer period. It is not the case of the department that batons had not discharged duty while being cleared. This is also not a fact as the same had been cleared after mounting the Sleepers thereon, paying duty on the total value. There is no loss of duty also as the batons attract the same classification and rate of duty, as pointed out by the learned Consultant Shri Biswas during his argument. Even if the batons are held to be as distinct excisable product, their emergence as such in the course of manufacture of sleepers from steel wires and cement would not deprive them of the benefit of modvat credit availed of by them on the basis of the judgment of the Honourable Madras High Court in the Ponds case (supra). 15. For the foregoing reasons, the appeal succeeds both on merits and on time bar. We allow the appeal accordingly. The appellants will be entitled to the consequential reliefs.
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1993 (10) TMI 150 - CEGAT, NEW DELHI
Stay/Dispensation of pre-deposit ... ... ... ... ..... , the Tribunal by their Stay Order No. S/335/92-NRB and Final Order No. A/245/92-NRB dated 26-5-1992 has granted stay and allowed the appeal by remand for permitting the appellants to cross-examine the witnesses. 16. In view of these orders passed by the Tribunal, the opinion of Member (J) that ultimately the appeals are to be remanded on final hearing appears to me to be the correct view in the matter. The Tribunal has already set aside penalty proceedings against the appellants and the lower authorities have been directed to grant them opportunity of cross-examination. In view of order of the Tribunal, it is but proper that stay be granted and appeal also taken up for hearing. The papers are to be placed before the Original Bench for passing final order. ORDER In view of the majority opinion, pre-deposit of the amount in question is waived and its recovery stayed during the pendency of the appeal. Sd/- Sd/- (G.A. Brahma Deva) (S.K. Bhatnagar) Judicial Member Vice President
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1993 (10) TMI 149 - CEGAT, CALCUTTA
Modvat credit ... ... ... ... ..... re modvat credit can be availed of without being formally allowed, the provision to the effect that no Credit shall be allowed if the final product is exempt, can only mean that disallowing of the Credit already taken and recovery of the same if it had already been utilised is permissible under Rule 57C itself, de hors Rule 57-1. However, the requirement of notice, hearing etc. will be as in Section 11A as a case of short-levy, the actual fall-out of wrong availment of Credit. 13. Apart from the above question, the main issue for decision as to whether Rule 57C permits the recovery of Credit already taken and availed prior to the utilisation of the inputs themselves when the final products arising therefrom have become exempt is, as pointed out, the subject matter of conflicting decisions. The matter is accordingly referred to the Honourable President of the Customs Excise and Gold (Control) Appellate Tribunal to consider constituting a Larger Bench to resolve the difference.
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1993 (10) TMI 148 - CEGAT, NEW DELHI
Records of Daily Production - Accountal of goods ... ... ... ... ..... (J) in para 12 on issues 2 and 3 is correct and valid. I agree with this finding. ld. Vice President had also given a favourable finding in paras 20 to 25 and in para 28. In the light of these observations, the imposition of penalty of Rs. 25,000/- does not appear to be in conformity with the favourable finding recorded by ld. Vice President, as rightly pointed out by both the sides before me. Both the sides also favoured for a remand. In the result, I concur with the opinion of ld. Member (J). The papers shall be placed before the original bench for passing the final order. 24-9-1993 Sd/- (S.L. Peeran) Member Judicial FINAL ORDER 36. In view of the majority opinion, the matter is remanded for re-adjudication with the direction that the shortage and value of the goods found short should be re-determined and the case decided after giving an opportunity of personal hearing to the appellants. 6-10-1993 Sd/- (G.A. Brahma Deva) Judicial Member Sd/- (S.K. Bhatnagar) Vice President
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1993 (10) TMI 147 - CEGAT, BOMBAY
Stay/Dispensation of pre-deposit of duty ... ... ... ... ..... ded for the purpose of denying this small scale exemption. In this context, he referred to the decision of the Tribunal reported in 1993 (21) ETR 775 1993 (67) E.L.T. 134 to point out that in the case of parts of power driven pumps, stamping and lamination used in starters and rotors were also held to be parts, eligible for exemption. In other words he pleaded that parts of diesel engines are also covered by Notification No. 217/85. These prima facie grounds urged apart from any other consideration, appeal to us. We direct the applicants to furnish only a personal bond covering the duty amount within a period 4 weeks from the date of communication of this order and reporting compliance within 5 weeks failing which their appeal is liable to be dismissed. On furnishing the personal bond there shall be stay and waiver of the duty and penalty. The Plant and machinery ordered confiscation should not be disposed of and the normal process of production should not be interfered with.
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1993 (10) TMI 146 - CEGAT, NEW DELHI
... ...
... ... ..... ut an order directing the appellants to file the requisite sets of documents such as (a) order of the lower appellate authority (b) revisional order, etc. and in that case no plea was raised by the appellant whose revision petition was transferred to the Tribunal under Section 131B(2) that the documents were not available with them. 8. Further we find that it appears at this stage, that it is possible to proceed to hear and dispose of the appeals with the available papers. Therefore, in the peculiar facts and circumstances of these cases, we hold that these appeals are maintainable. Accordingly we dismiss misc. applications No. C/708/91 and C/512/92-B2 (filed by M/s. Ruby Advertisers) and allow C/Misc./817/92-B2 in C/1521/82-B2 and C/1554/82-B2. The miscellaneous applications are disposed of in the above terms. 9. We wish to emphasise that the above order is applicable only to the above cases and is not to be treated as an precedent. The appeals may now be listed for hearing.
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1993 (10) TMI 145 - CEGAT, NEW DELHI
Stay/Dispensation of pre-deposit when granted on humanitarian grounds ... ... ... ... ..... such duress could not be relied upon. 7. We have considered the above submissions of both the sides. We feel that prima facie, there does not appear any violation of principles of natural justice as sufficient opportunities had been granted to the appellant. So far as the merits of the case are concerned, an appreciation of the evidence could appropriately be considered at the time of hearing of the main appeal. We however, note that the gold in question as well as the foreign currency including the Indian currency of Rs. 3,29,000/- claimed by the appellant have been absolutely confiscated and are in the custody of the department. We also take note of the tragic circumstances in which the appellant and his family find themselves at present. Looking to the totality of the facts and circumstances and in particular the need for humanitarian consideration, we waive the pre-deposit of the penalty imposed under both the Acts and stay its recovery during the pendency of the appeal.
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1993 (10) TMI 144 - CEGAT, CALCUTTA
Modvat Credit ... ... ... ... ..... terpretation of the said entry which is in keeping with the decisions of High Courts as already discussed in the foregoing paragraphs. 24. The third and final issue for the larger Bench is whether the ratio of the decision of this Bench in the case of Straw Products could be accepted. This is the crucial one for decision by the larger Bench. 25. The West Regional Bench has, in the concluding paragraph of their order referred to the Order No. 447/93-WRB passed by them in Divecha Glass Industries where identical issues had already been referred to the larger Bench and suggested that that case also may be listed accordingly. We have not analysed the said case in this essay as the issues involved have been more comprehensively dealt with in and with reference to B.K. Paper Mills appeals. 26. We are referring these two Appeals to the Hon rsquo ble President of the Tribunal for having these also heard by the larger Bench to be constituted at the instance of the West Regional Bench.
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1993 (10) TMI 143 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... pite of the fact that decision of the Principal Collector was brought to the notice of the concerned Authorities. 6. On a careful consideration of the submissions made by both the sides with reference to the facts of the case and on perusal of the records, we are not inclined to remand the matter on the issue with reference to classification of the products viz. switch fuses and fuse switches as requested by the Departmental Representative. We find that this issue was well considered by the Principal Collector in his respective orders. Accordingly, concurring with that view we hold that switch fuses and fuse switches are appropriately classifiable under Heading 85.37 even in Appeal Nos. 5438/92 and 5439/92 as it was rightly argued by the Appellants rsquo Counsel . 6. We follow the Tribunal rsquo s decision quoted above and hold that lsquo fuse switches rsquo manufactured by the Appellants are classifiable under Heading 85.37. 7. The appeals are disposed of in the above terms.
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1993 (10) TMI 142 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... following items which have been specified therein - ldquo Camel back rdquo strip tread rubber, cushion compound, cushion gum, tread gum, tread packing strips for resoling or repairing or retreading rubber tyres. It is evident that all other forms of unvulcanised rubber falling under Heading 40.06 which are not specifically covered by sub-heading 4006.10 would fall under the residuary sub-heading 4006.90 which reads as ldquo Others rdquo . Hence, in our view ldquo Vaculug rdquo which is not one of the items specified under sub-heading 4006.10 would be classifiable under sub-heading 4006.90 irrespective of its use in the repairing or retreading of rubber tyres. Since, it is possible to classify the disputed product in terms of the wordings of the relevant heading and sub-headings, we are of the view that Rule 4 of the Interpretative Rules, invoked by the Collector (Appeals) is not relevant. 7. In view of the above discussion we set aside the impugned order and allow the appeal.
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1993 (10) TMI 141 - CEGAT, NEW DELHI
Stay/Dispensation of pre-deposit ... ... ... ... ..... ny. If the approval is not granted, the remedy is not extinguished. It is only postponed. Sub-section (5) of Section 22 provides for exclusion of the period during which the remedy is suspended while computing the period of limitation for recovering the dues. 4. In view of the above discussion and keeping in view the fact that the appellant rsquo s unit is a sick unit, we are of the view that in case the appellants are desired to deposit the duty amount of Rs. 26,13,964/- and penalty of rupees three lakhs, it will amount to undue hardship. We dispense with the pre-deposit of the same. It is open to revenue authorities to pursue with the recovery proceedings for the amount due in accordance with law, if they so choose. 5. During the course of arguments, the learned Senior Departmental Representative had made a prayer for grant of out of turn hearing. It is open to the respondent to move an application for out of turn hearing in accordance with law if the respondent so chooses.
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1993 (10) TMI 140 - CEGAT, NEW DELHI
Demand - Limitation ... ... ... ... ..... they had furnished all the information which was sought by department and the revised classification list claiming exemption under Notification No. 144/82 was returned to them for making some minor correction. They have, however, not been able to establish that the classification list was re-submitted after carrying out the corrections. 8. We are inclined to agree with the Collector (Appeals) that the failure on the part of the appellants to file the revised classification list in terms of Rule 173C claiming exemption under Notification No. 144/82 and to furnish the information sought by the Superintendent in the numerous letters addressed by him to the appellants amounted to suppression of facts. Under these circumstances we are inclined to uphold the findings in the impugned order that the extended period of 5 years was invokable under the proviso to Section 11A. Hence, we answer the second question in the negative. 9. In view of the above discussion the appeal is rejected.
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1993 (10) TMI 139 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... but even embossing and corrugating. Such being the scope of surface work, there can be no doubt that ldquo coating rdquo would also be covered in its purview. The learned Departmental Representative too had taken this stand during the hearing and we notice that the examples given in the Explanatory Notes support such a view. Thus coated plastic film fall under Heading 39.20 and the appellants rsquo claim for classification 96.12 as typewriter or similar ribbons is not borne out by a detailed study of the competing headings. The appeal, therefore, fails and is rejected. 22. While replying, Shri Nankani had also referred to Note 2 (d) to Chapter 39 relating to exclusion of stamping foils of Heading 32.12 and taken the argument that since stamping foils and typewriter ribbons were performing similar functions the subject goods would be excluded from the purview of Chapter 39. This argument is fallacious because what is being classified under Chapter 39 is not typewriter ribbons.
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1993 (10) TMI 138 - ITAT MADRAS-C
Reassessment ... ... ... ... ..... , after the original assessment was made on 13-8-1984, the Assessing Officer discovered that an error had been committed by him in not disallowing, under the Explanation 2 to section 37(2A), the foreign buyers entertainment expenses. It cannot be called a mere change of opinion on the same facts. A mistake apparent on the face of the order of assessment would itself constitute information . Even though all the facts were in the original records, the case was covered under section 147(b) and the reassessment is not invalid and this was not a case of mere change of opinion on the same facts but a case of getting information that income has escaped assessment --- See Rathinasabapathy Mudaliar s case. This led to the issue of notice under section 148 dated 25-3-1987 which resulted in the reassessment order dated 25-3-1988. In these facts and circumstances of the case, we uphold the reassessment and reverse the impugned order of the CIT(A). 8. In the result, the appeal is allowed.
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1993 (10) TMI 137 - ITAT MADRAS-C
Capital Receipt ... ... ... ... ..... a particular purpose, they do not constitute part of the trading receipt notwithstanding the fact that they are collected in the course of the business. Hence, we are convinced that from any point of view the amounts received took the nature of capital receipt by reason of the incentive scheme and could also be regarded as a diversion for the stated purpose, and hence, cannot be treated as part of the income of the assessee. 11. Applying this principle to the facts of this case we find that there is also on record a certificate issued by the statutory auditor asserting that these receipts were wholly utilised for repayment of the long term loans due to the financial institutions. Thus the condition prescribed in the incentive scheme has been demonstrated to be fully satisfied. 12. We, accordingly, set aside the orders of the authorities below on this point and direct the Assessing Officer to exclude these amounts from the total income of the assessee. The appeals are allowed.
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1993 (10) TMI 134 - ITAT JAIPUR
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... ... ..... ieved. It may be pointed out that the very report of the Inspector which was made the basis for making an addition of Rs. 50,000 at the time of framing assessment under s. 144 and subsequently at Rs. 1 lac at the time of assessment under s. 143(3)/146 was not at all placed on our record. On such facts we are clearly of the opinion that there was no iota of evidence with the Assessing Officer to assume or presume that Smt. Anoki Devi was benami owner of the house in question and the real ownership thereof vested in the assessee and that it was the assessee who had made investment in the construction of the said house. In our opinion, the advancement of Rs. 30,000 by him to his wife for the purpose of carrying on construction of her residential house stands fully explained and thus there was no good reason to make any addition on this count. We accordingly, delete the addition of Rs. 1 lac made to the total income of the assessee. 9. In the result, the appeal is partly allowed.
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1993 (10) TMI 132 - ITAT JAIPUR
Business Disallowance, Interest/Salary, etc. Paid To Partner Of Firm ... ... ... ... ..... , CIT v. Pannalal Hiralal and Co. 1984 146 ITR 549 (Bom.), Chhotalal and Co. v. CIT 1984 150 ITR 276 (Guj.) (FB), Venkatesh Emporium v. CIT 1982 137 ITR 593 (Mad.) and N.T.R. Estate v. CIT 1986 157 ITR 285 (AP) are not relevant firstly because they do not deal with the question of commission and secondly, because after the insertion of 3 Explanations after section 40(b) they may not apply to even cases of interest payments to the extent interest payment is not allowable. 3. We, therefore, reverse the order of the ld. CIT (A) and hold that Rs. 11,959 paid as commission to the partner Shri Rajmal Paliwal by the firm has to be disallowed while computing the income of the firm despite the fact that he represented his HUF as a partner in the firm. 4. The Cross-objection filed by the assessee only supports the order of the CIT (Appeals) and is, therefore, dismissed. 5. Accordingly, while appeal filed by the revenue is allowed, the Cross-objection filed by the assessee is dismissed.
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1993 (10) TMI 131 - ITAT JAIPUR
Business Income, Business Of Exploration etc. Of Mineral Oils ... ... ... ... ..... that the items of income or deemed income mentioned in clauses (i) to (v) of section 28 of the Income-tax Act are not in conformity with the deemed income under section 44BB(1) and hence all such items of income or deemed income have to be ignored when computing income under the special provisions for computing profits and gains under section 44BB of the Income-tax Act. This would mean that 10 per cent of the sums received by the CGG, which would also include the amount of corporate taxes which are deemed to be received in India by the non-resident company shall be included according to provisions of sub-section (2) of section 44BB and irrespective, of the logic whether any profits can be derived from such payments of taxes, by virtue of the deeming provisions of section 44BB(1), shall be deemed to be profits and gains of the assessee. 5. We, therefore, uphold the order of the learned CIT (Appeals) for all the four years and dismiss all the four appeals filed by the revenue.
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1993 (10) TMI 130 - ITAT JAIPUR
Business Expenditure, Allowable As, Assessee ... ... ... ... ..... ar Kotda rock phosphate deposit, in consideration of annual payment of Rs. 6 crores. The assessee-company, was thus to obtain stock-intrade for a consideration of yearly licence fee of Rs. 6 crores. That amount was not paid by the assessee-company for acquiring a right of enduring nature to extract and remove the rock phosphate for a specified period. The fees paid by it was towards obtaining the licence or in other words, the concessions and privileges for taking out the raw-material which was the stock-in-trade for the assessee-company. We are, therefore, clearly of the view that the expenditure incurred in the instant case was a revenue expenditure and should have been allowed to the assessee-company accordingly. In arriving at that conclusion, we have considered the cases relied upon on behalf of the parties. We accordingly direct the Assessing Officer to allow the sum of Rs. 6 crores as business expenditure to the assessee. 18. In the result the appeal is partly allowed.
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1993 (10) TMI 129 - ITAT INDORE
... ...
... ... ..... addition by applying the provisions of s. 68 of the IT Act. The assessee has explained the sources of the cash credit. The law does not require him to explain the source of the source. Under these circumstances, we accept the assessee s contention and allow the assessee s ground on the issue relating to addition under s. 68 of the Act and also relating to any interest disallowed in respect of the addition made under s. 68 of the IT Act. 9. ITA No. 516 and 517/Ind/91 mdash The only issue in these appeals relates to the addition on account of low GP. The AO has not discussed any defects in the books of accounts so as to enable the Department to reject the books disclosed. We, therefore, after hearing the parties, find no merit in the case of the Department. The addition stands deleted. 10. In the result, all the assessee s appeals except ITA No. 515/Ind/91 are allowed and the cross objections filed by the Department and the assessee s appeal in ITA No. 515/Ind/91 are dismissed.
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