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Showing 261 to 280 of 339 Records
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1997 (10) TMI 79 - HIGH COURT OF JUDICATURE AT BOMBAY
Writ jurisdiction - Alternative remedy ... ... ... ... ..... in such a situation, the High Court should not entertain the writ petition challenging the order against which appeal is provided only to Supreme Court because it would amount to usurping the powers of the Supreme Court in the guise of exercise of writ jurisdiction. In view of the above, we do not find any reason to entertain this writ petition of the petitioners. 4. So far as the contention of the learned Counsel for the petitioners that the petitioners should be allowed to challenge the order by way of writ petition because the appeal to Supreme Court under Section 35L is barred by limitation is concerned, we find the same to be totally misconceived. If the appeal is barred by limitation, the remedy available is to move the Supreme Court for condonation of delay if there are sufficient grounds to do so. Writ petition under Article 226 of the Constitution of India is not the appropriate remedy. 5. In view of the above, this writ petition is dismissed. No order as to costs.
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1997 (10) TMI 78 - SC ORDER
Appeal to Supreme Court ... ... ... ... ..... ks would be expiring. There was no response to this letter. There is also an office report dated 28-5-1997 saying that the time granted has expired on 14-5-1997 and the Civil Appeals are listed for formal disposal with this report. A copy of this report was served on the advocate-on-record for the appellants. No action was taken by the advocate for the appellants. There is the next office report of 24-7-1997 which is also served on the advocate for the appellants in which it is again stated that proof of payment of Rs. 10,000/- has not been filed. Despite this office report, nothing was done till 11-8-1997 when the order was passed dismissing the appeals. 2. If a cheque had been sent to the Accounts Department on or around 14-5-1997, we fail to see how despite several reminders nothing was done to make the payment. We do not find the explanation satisfactory and see no reason to review the order which we had passed on 11-8-1997. 3. The applications are accordingly dismissed.
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1997 (10) TMI 77 - HIGH COURT OF BOMBAY AT GOA
Detention order ... ... ... ... ..... nal Central Government Standing Counsel as to whether the applications under Section 35A under the said Act can be disposed of within a reasonable period of two to three weeks after hearing the petitioners, since the goods of the petitioners had been attached even in spite of the fact that the appeals had been heard on merits on 22nd April, 1997. Today, the Central Government Standing Counsel has placed before us a communication received from the Commissioner of Excise (Appeals), Mumbai, that it is not possible to hear the petitioners within three weeks on the applications under Section 35F of the said Act, but the matter will be heard and finally decided within three months. Under these circumstances, we are left with no alternative but to order the release of the goods of the petitioners which were attached under Detention Order dated 19th August, 1997. The respondent No. 1 is therefore, directed to release the said goods immediately on the receipt of a copy of this order.
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1997 (10) TMI 76 - HIGH COURT OF DELHI
Seizure of vehicle - Release of ... ... ... ... ..... all be prepared and signed jointly by an official of the Customs department and of the petitioner. 16.2The petitioner shall also be served with a show cause notice under Section 124(1) of the Customs Act and shall be afforded opportunity of making a representation and of hearing. 17.The petition stands disposed of accordingly and without any order as to the costs. However, by way of abundant caution we would like to place on record that the facts and the findings on the factual aspects stated and recorded in this judgment have been so made solely for the purpose of adjudicating upon the release of the car pending the finalisation of the confiscation proceedings. Whatever has been stated hereinabove is not in any manner intended to record any finding so as to pre-empt or prejudice the pending proceedings under the Customs Act and the officials of the Customs shall be free to arrive at their own findings unobsessed by anything recorded in this judgment wittingly or unwittingly.
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1997 (10) TMI 75 - HIGH COURT OF JUDICATURE AT BOMBAY
Bank guarantee - Release of ... ... ... ... ..... return the bank guarantee furnished by the petitioner. 7. Considering the aforesaid facts, in our view, there is no justifiable reason for withholding the bank guarantee furnished by the petitioner. Admittedly, the appeal filed by the petitioner is allowed and the Tribunal has refused to grant stay of the order. In this set of circumstances, the respondents are required to release the bank guarantee furnished by the petitioner. 8. In the result, the petition is allowed. The respondents are directed to release the bank guarantee furnished by the petitioner on the petitioner s executing a bond equal to the amount of the bank guarantee. 9. The learned Counsel for the petitioner states that the petitioner would execute the bond on or before 6th November, 1997. As soon as the petitioner executes the bond, the respondents are directed to release the bank guarantee. 10. Rule made absolute to the aforesaid extent with costs. 11. Issuance of certified copy of this order is expedited.
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1997 (10) TMI 74 - SUPREME COURT
Calcined Alumina ... ... ... ... ..... refore, the respondent was entitled to the benefit of concessional duty under the said notification. 2. Shri Bajpai has urged that spark plugs manufactured by the respondent are electrical insulators falling within Chapter 85 of the Customs Tariff and they are expressly excluded under Note 2(e) of Chapter 69 of the Tariff. On a perusal of Heading 69.03 in Chapter 69 of the Customs Tariff we find that plugs are expressly mentioned in the said Heading. Since plugs are expressly included in Heading 69.03, there is no scope for holding that spark plugs manufactured by the respondent are not refractory products in view of Note 2(e) of Chapter 69 of the Customs Tariff. The Tribunal has, therefore, rightly held that the benefit of concessional rate of duty under notification dated March 1, 1987 had to be given on the import of Calcined Alumina by the respondent. In the circumstances, we do not find any merit in the appeal and the same is accordingly dismissed. No order as to costs.
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1997 (10) TMI 73 - SC ORDER
Ultra Sonic ... ... ... ... ..... in the impugned judgment insofar as it hold that the Ultra Sonic Cleaning Machine imported by the respondent was classifiable under Heading 84.59(2) of the Customs Tariff Act, 1975. The appeals are, therefore, dismissed. No order as to costs.
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1997 (10) TMI 72 - SC ORDER
Printing plates ... ... ... ... ..... hey should be treated as coated paper falling under Heading 48.01/21 falling under Heading 48.01/21 (sic). We have carefully perused the reasons given by the Tribunal for holding that the off-set litho paper plates that have been imported by the respondent have to be classified as printing plates falling under Heading 84.34. We are in agreement with the view of the Tribunal. We do not find any merit in these appeals and the same are accordingly dismissed. No order as to costs.
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1997 (10) TMI 71 - SC ORDER
Refund of additional excise duty ... ... ... ... ..... refund has been claimed in respect of additional excise duty paid in respect of goods produced for captive-consumption and that the question of refund in such cases has not been considered in Mafatlal Industries (supra) and the matter is pending consideration before this Court. In the circumstances, the review petitions are allowed, the orders under review are set aside and the Civil Appeals are restored. List the Civil Appeals along with Civil Appeal number of which will be supplied by the Counsel for the review petitioners. No costs.
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1997 (10) TMI 70 - SC ORDER
Paper making machine parts ... ... ... ... ..... r Heading 84.64 as parts of the machinery. In Ballarpur Industries Ltd. v. Collector of Customs (Appeals), Customs House, Madras - 1995 (75) E.L.T. 6 (S.C.) 1995 Suppl. (1) SCC 466 this Court, while construing Heading 84.31 of the Customs Tariff has held that a Granite Press Rolls which had been imported by appellant in that case were classifiable as a part of machinery under Heading 84.31, keeping in view Note 2(a) and (b) of Chapter 84. In the present case it has been found that the stainless steel imported by the respondent were cut to specific size and bear part numbers which show that they were meant for lining of the Digesters and were parts of the paper making machinery. Having regard to the law laid down by this Court in Ballarpur Industries Ltd. (supra) it must be held that the said articles were rightly found to be classifiable under Heading 84.31 of the Customs Tariff by the Tribunal. The appeal, therefore, falls and is accordingly dismissed. No order as to costs.
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1997 (10) TMI 69 - SC ORDER
Photo-copier accessories ... ... ... ... ..... has rejected the claim of the appellant that it should be classified under Heading 84.79. 2. We have heard the learned Counsel for the appellant. On a perusal of the relevant headings we are in agreement with the view of the Tribunal that the part that has been imported by the appellant is an accessory of a photo-copier falling under Heading 90.09. The appeal is, therefore, dismissed. No order as to costs.
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1997 (10) TMI 68 - SUPREME COURT
Printing plate processor ... ... ... ... ..... 90.10 on the ground that where the plate processor unit is combined with exposure unit it has to be classified under Heading 90.10 since the principle of photography was involved in the exposure unit. The learned Counsel for the appellant has invited our attention to another decision of the Tribunal in M/s. Thomson Press (I) Ltd. v. Collector of Customs, Bombay, decided on August 28, 1995 by a three Member Bench of the Tribunal. In that case the functioning of the Plate Processor that had been imported was based on photographic principles and, therefore, it was held to be classifiable under Heading 99.10 (sic) of the Customs Tariff. The said decision has no application to the present case because the Plate Processor imported by the respondent does not incorporate in it a plate exposure unit as well wherein the photographic principle is used. 4. For the reasons aforementioned, we do not find any merit in this appeal and the same is accordingly dismissed. No order as to costs.
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1997 (10) TMI 67 - SUPREME COURT
Metallic Yarn - Classification of goods ... ... ... ... ..... iff with which we are concerned. The said decision of the Gujarat High Court cannot, therefore, have any application in the present case. 5.In the impugned judgment the Tribunal has taken note of the Encyclopaedia of Textiles wherein under the Section Metallic Yarns and the sub-section Metallic Yarns are Made it has been stated Today, the most commonly used process consists of a core of single ply polyester film that is metallized on one side by means of a vacuum deposit of aluminium. This gives a very thin aluminium deposit with a high shine silver colour. The film is then lacquered on both sides with clear or tinted colours to achieve the desired results. 6.This shows that the polyester film which is thus metallized is known as metallic yarn . We are, therefore, in agreement with the view of the Tribunal that the goods imported by the appellants have been rightly classified under Heading 52.01. There is thus no merit in the appeal and it is accordingly dismissed with costs.
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1997 (10) TMI 66 - SUPREME COURT
Whether the concessional rate of customs duty on the basis of Notification No. 49/F. No. Bud (Cus.)/78, dated March 1, 1978 can be held to be applicable in respect of the said Electronic Pitch Tester Attachment?
Held that:- The Tribunal was in error in construing the Notification dated March 1, 1978 to hold that since the Electronic Pitch Tester Attachment has not been expressly excluded in the said notification it must be treated to have been included therein. The said view of the Tribunal is not in consonance with the principle laid down by this Court in Novopan India Ltd., Hyderabad (1994 (9) TMI 67 - SUPREME COURT OF INDIA) for construing a notification granting exemption from duty. In accordance with the said principle it must be held when an accessory to a machine is imported with the machine unless the accessory has been expressly included in the exemption notification it would not be [enured] to the concessional rate of customs duty under the Notification dated March 1, 1978. Having regard to the finding recorded by the Tribunal, the Electronic Pitch Tester Attachment must be held to be an accessory of the Helix Tester imported by the respondent. In favour of assessee.
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1997 (10) TMI 65 - SUPREME COURT
Whether the defendants were the importers and/or owners of2. the goods mentioned in Para 4 of the plaint, as alleged in Para 6 of the plaint?
Whether the defendants are bound and liable to pay to the plaintiffs a sum of ₹ 1,58,545.10 as per exhibit `B' to the plaint or any part thereof either with interest at the rate of 12% per annum or at any other rate?
To what reliefs are the plaintiffs entitled?
Held that:- The witness went on to admit that the order of confiscation was also addressed to appellant No. 1 by the Customs authorities. Mr. Nariman, on the basis of the evidence of this witness and the documents on the record, submitted that appellant No. 1 was the "consignee" or the "owner" or the "agent" for the goods in question and, therefore, the Port Trust was justified in fastening the liability of recovering demurrage charges from it.
The obligation to pay the charges of the Port Trust, till the confiscation of the goods as already observed, that of the party which had the duty to remove/receive the goods and had failed to do so. In the instant case it was the appellants, who admittedly had acted as holders of the Letters of authority and were the licensee's agents for clearance of the consignment from the customs and entitled to receive the goods which they failed to receive and clear. They could therefore be fastened with the liability to pay charges by way of demurrage etc. to the Port Trust.
No merit in the submission of Mr. Tripathi that the Port Trust could have put the goods in question to sale to off-set the demurrage since they had a lien over those goods before making any claim on the appellants. The goods, as already noticed, stood confiscated by the Customs Authority vide order dated 28th February, 1976 under Section 111(d) of the Customs Act, 1962 read with Section 3(2) of the Import and Export (Control) Act, 1947. The option to redeem the goods on payment of fine/penalty of ₹ 2 lakhs in lieu of such confiscation under the provisions of Section 125 of the Customs Act, 1962 was to be exercised by the appellants, to whom notice was issued by the Customs Authority within a fortnight to redeem the goods. That option was never exercised. Since, the goods stood already confiscated, the submission that those goods could have been sold to off-set the demurrage charges is fallacious. The goods confiscated by the Customs Authority were not available to the Port Trust for appropriation towards their dues. Section 63 of the Major Port Trusts Act, 1963, in the facts and circumstances of this case, does not come into play at all.
Since, the obligation to clear the goods was that of the appellants and they had failed to clear those goods, they cannot escape their liability to pay the charges to the Port Trust including demurrage. The liability of the appellants in the facts and circumstances of the case, has been correctly fastened by the Division Bench of the High Court. Assessee appeal dismissed.
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1997 (10) TMI 64 - ALLAHABAD HIGH COURT
Reduction Or Waiver, Search And Seizure, Voluntary Disclosure Of Income, Wealth Tax Act ... ... ... ... ..... traint. (ii) As a principle of law it cannot be held that the disclosure of the concealed income after the raid or search cannot be voluntary. It is a question which has to be decided by the Department in each case on the basis of the material available on the record. The criteria for deciding this question is to find out as to whether the Department has any incriminating material with regard to the disclosed income. If the answer is in the affirmative, the disclosure cannot be said to be voluntary. But if the Department has no incriminating material with regard to the income disclosed, the disclosure is liable to be treated as voluntary even if it was made after raid/search. The same principle will apply to disclosure made under section 18B of the Wealth-tax Act, 1957, because under the said section also the disclosure must be made voluntarily and in good faith. Let the papers of these petitions be placed before the appropriate Bench for deciding them in accordance with law.
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1997 (10) TMI 63 - ALLAHABAD HIGH COURT
Failure To File Estimate, Question Of Fact ... ... ... ... ..... ording to its opinion believing bona fide that the said sum of Rs. 25,27,000 did not form part of its income. As such, we are of the opinion that penalty in terms of section 273(c) should not be imposed on the assessee. From the above reproduced finding of the Appellate Tribunal, it is clear that the penalty was not affirmed as the Tribunal was of the view that the conduct of the assessee was not dishonest and contumacious in not having filed the estimate under section 212(3A) of the Act. The question whether the conduct of the assessee was dishonest and contumacious, is essentially a question of fact. The finding of the Appellate Tribunal on such a question is a pure finding of fact and there is nothing on record to indicate that that finding was perverse or per se illegal in any way. We, therefore, affirm the finding of the Appellate Tribunal. The aforementioned question is, therefore, answered in the affirmative, that is, against the Revenue and in favour of the assessee.
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1997 (10) TMI 62 - KERALA HIGH COURT
Earlier Decision, Income Of HUF, Individual Income, Supreme Court ... ... ... ... ..... p agreement was not in conflict with the provisions of the Act and its validity cannot be questioned. In the present case, even the terms of the agreement would make it clear that the intention of the parties was to treat the licence to be obtained in the name of one of its partners as property of the partnership and the partnership to do the business on the basis of the above licence with all rights and liabilities arising therefrom. Under these circumstances, without any hesitation, we would hold that the partnership was hit by the provisions contained under section 23 of the Indian Contract Act. The assessing authority was, therefore, fully justified in refusing to grant registration. In the light of the above discussion, we answer all the questions in the negative, against the assessee and in favour of the Revenue. A copy of this judgment under the seal of this court and the signature of the Registrar shall be forwarded to the Income-tax Appellate Tribunal, Cochin Bench.
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1997 (10) TMI 61 - KARNATAKA HIGH COURT
Article 14 Of The Constitution, In The Nature ... ... ... ... ..... inst him, they must stay their hands to permit such a tax evader to contravene the provisions of the Act with impunity. Such an interpretation or contention, if accepted, would result in travesty of justice and would have the effect of frustrating the provisions of the Act. Therefore, I am unable to accept the submission of Sri Bhat. I am also unable to accede to the submission of Sri Bhat that the power to search the premises also results in discrimination and violation of the right guaranteed to the petitioner under article 14 of the Constitution. The introduction of the scheme will not make any difference in so far as the power conferred on the authorities under section 132 of the Act is concerned. As stated earlier, the power conferred on the authorities under section 132 is an independent power. In view of my above conclusion, I do not find any merit in this petition and this petition is liable to be rejected without issuing rule. Accordingly, this petition is rejected.
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1997 (10) TMI 60 - PATNA HIGH COURT
Offences And Prosecution, Wilful Attempt To Evade Tax ... ... ... ... ..... ell-settled that in the case of the prosecution under the Act with regard to offence alleged to have been committed by the firm or company there should be specific averment in the complaint that the directors or the partners were in charge of and responsible for the conduct of the business of the firm or the company at the time of the alleged offence. In the absence of such averment their prosecution is not sustainable in law. In this case, petitioner No. 1 was the firm and there is no legal bar in prosecuting the firm in view of the allegations made in the complaint petition. So far as petitioner No. 2, Lakhan Lal Sao, is concerned, it is admitted that he is a partner and as such in view of the said settled law, his prosecution is not sustainable. Accordingly, his prosecution is quashed. The prosecution against petitioner No.1, the firm, shall continue. In the result, this application on behalf of petitioner No. 2 is allowed and as against petitioner No. 1, it is dismissed.
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