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1983 (2) TMI 289
... ... ... ... ..... t a technical write-up was produced before him which stated that the glass plates were coated with about 1000 A thick chromium layer and that they were used for manufacture of masks required for the production of semi-conductor devices and integrated circuits. The masks are manufactured by coating a thick layer of photo resist on the chrome clad glass plates and exposing them to ultra-violet light. The required patterns are tows obtained by selective etching. It may thus be seen that the impugned goods are not ordinary glass plates. They are composite goods - glass plates coated with chromium and are used for a specific purpose. The proper classification of the goods under the Central Excise Tariff is, therefore, in our opinion, not under Item 23A but under Item 68. We order accordingly, allow the appeal and direct the Assistant Collector of Customs, Madras, to refund the consequential duty amount to the appellants within 60 days from the date of communication of this order.
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1983 (2) TMI 288
... ... ... ... ..... herefore, if we are to assume that under Section 147 of the Act, an Agent can file appeal in his own right in respect of imports or exports of his principal, we must also presume that the Custom (Appeals) Rules, 1982 are either redundant or are in direct conflict with Section 147 which presumption we are not prepared to make as redundancy cannot be attributed in respect of enactments and statutory rules made thereunder. 12. Repeating ourselves, we are not importing the Custom (Appeals) Rules of 1982 operative from 11th October, 1982, in respect of earlier proceedings and, therefore, are not questioning the validity of appeals where these are signed by Agents, but filing of appeals by agents in their own rights simply cannot be said to be contemplated by any of the provisions of the Act. Therefore, finding no locus standi of the Agents in respect of import by M/s. Accurate Engineering Co. Pvt. Ltd., Pune, we reject the appeal as being not maintainable. Appeal dismissed.
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1983 (2) TMI 287
... ... ... ... ..... Rules, 1944 was not sustainable for the reason that during the period under reference, namely, 1968 to 1972, there was no built-in limitation in rule 9(2) nor even by implication nor clause (1) of rule 9 speaks only of clandestine or surreptitious removal. The attack on the Notice of Demand and the orders of the Excise authorities confirming the same, is apparently based on some misconception on the part of appellants and is not sustainable. Reference to rule 10 also seems to be misconceived because that rule pertains to cases of “short levy”, and not those of “non-levy” which is in the present case. 14. No other point was urged before us during the hearing and no attempt was made to show as to how the computation of the price for the purpose of excise duty which has been questioned in the appeal, was wrong. 15. We, therefore, find it to be a case where the appeal has no merits and is liable to dismissal. The same is dismissed accordingly.
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1983 (2) TMI 286
... ... ... ... ..... rom Central Excise duty in terms of Notification No. 52/78-CE dated 1-3-1978. The interpretation of the Assistant Collector in this regard, which has been upheld by the Appellate Collector, is correct. We accordingly reject the revision application. Corrigendum to Order No. D. 17J1983 dated 7-1-1983 passed by the Customs, Excise and Gold (Control) Appellate Tribunal (Special Bench ‘D’) on Appeal No. ED(SB)(T) Appeal No. 355/80-D. In exercise of the powers conferred by sub-section 35C(2) of the Central Excises and Salt Act 1944, the Tribunal hereby makes the following amendment in the aforesaid Order - For the first sentence in the first paragraph of the Order, the following shall be substituted “This is a revision application to the Government of India under Section 36 of the Central Excises and Salt Act, 1944 (as then applicable) which, in accordance with Section 35P(2) ibid, is to be proceeded with as if it were an appeal filed before the Tribunal”.
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1983 (2) TMI 285
... ... ... ... ..... While it may be that, generally speaking, a plea of mere limitation as a bar for recovery of tax illegally levied may not commend itself to judicial conscience, once, however, limitation had been pleaded, it becomes absolutely necessary to decide it. Although, strictly speaking, it is not applicable, it may not be wire to recall in this context that Section 3 of the Limitation Act enjoins a Court to dismiss a suit or application if barred by efflux of time whether limitation has been pleaded or not. 24. In the facts and circumstances of the instant case, we have no hesitation to upheld the contention of the Revenue that the claims for refund are all barred under Section 27 of the Customs Act, 1962, having been preferred much after the expiry of the period of limitation prescribed therein and payment having been made without protest. 25. The second question, in the premises, does not arise for consideration. 26. In the result, all four appeals are dismissed.
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1983 (2) TMI 284
... ... ... ... ..... lastic which gave the goods their essential character was not produced before the earlier Departmental authorities. All that these authorities had before them was the composition then given by the appellants, namely, 60% asbestos and 40% resin. 5. While we hold that the subject goods are articles of plastic/synthetic resin falling under Heading 39.07 CTA, we do not consider it fair or correct to call upon the appellants to pay the higher duty leviable under that Heading in respect of the present importation. This is so because it has never been the Department’s case to re-classify the subject goods under Heading 39.07 and, therefore, any fresh plea to that effect is not entertainable now after 4 years of importation. We dispose of the present appeal on the short point that the appellants’ claim for the re-assessment of the.subject pipes and fittings as parts of machinery under heading 84.17(1) is not maintainable. The appeal is rejected accordingly.
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1983 (2) TMI 283
... ... ... ... ..... ” under Item 72(a) of the erstwhile Indian Customs Tariff. 3. On behalf of the Department, Shri Raghavan Iyer argued that classification of goods under the Customs Tariff was not relevant for countervailing duty purposes, that a part of the engine of a motor vehicle was also a part of that motor vehicle and that the question of predominant use could arise only if the tariff referred to end-use of the article. 4. We have carefully considered the matter. We hold that it could be incorrect to class an engine, the predominant use of which is for non-vehicular applications, as of vehicular type. By the same logic, components of such an engine can also not be called parts of motor vehicle. We, therefore, hold that the subject components, imported for the manufacture of non-vehicular type industrial engines, were not chargeable to C.V. duty as applicable to motor vehicle parts. 5. We allow this appeal accordingly, with consequential relief to the appellants.
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1983 (2) TMI 282
... ... ... ... ..... o the other within the factory area. We, therefore, hold that forklift trucks are transport vehicles within the meaning of Item 29(i) CET. As regards the appellants’ second argument, they themselves admitted during the hearing that earlier decisions could be re-opened if there were good and cogent reasons for doing so. It was also mentioned during the arguments that Item 34B was introduced in the Central Excise Tariff in May, 1971. We hold that this event, which provided for a Tariff definition of forklift trucks as work trucks used for short distance transport was an adequate justification for the Department to have a second look at the question whether forklift trucks could be considered transport vehicles for the purpose of Item 29(i) of the Tariff or not. We, therefore, agree with the lower authorities that I.C. engines designed for forklift trucks are correctly assessable under Item 29(i) of the Central Excise Tariff. 6. In the result, we reject this appeal.
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1983 (2) TMI 281
... ... ... ... ..... l Excise Tariff read with any exemption notification in force for the time being as is in excess of 75 per cent of such duty. In other words. Notification No. 198/76-CE itself requires that the incentive provided therein should be calculated with reference to the net effective duty actually payable on scooters. If one were to follow the method of calculation urged by the appellants, one would have to omit the words, figures and brackets “ read with any notification issued under sub-rule (1) of rule 8 of Central Excise Rules, 1944 as in force for the time being ” from Notification No. 198/76-CE for which there is no warrant. We, therefore, agree that the method of calculation followed by the Department is the correct one. We also agree with the argument of the Department that there is no discrimination against the appellants vis-a-vis another manufacturer similarly placed, that is, working under the set off procedure. 5. In the result, we reject this appeal.
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1983 (2) TMI 280
... ... ... ... ..... e definition of mine, it can only be stated that it is for the legislature to assign the necessary meaning, either restricted or extensive, to a particular term and it is not for us to go beyond the Act and assign a restricted meaning. 9. We hold that the low grade pyrites mined at Amjhore near Dehri-on-Sone in the State of Bihar remained pyrites even after undergoing the process of crushing and seiving and such process did not fall within the meaning of the expression “manufacture”. We also hold that the premises on which the whole process was being carried on was not a factory within the meaning of the Factories Act, 1948 but a part of mine within the meaning of section 2(1)(j) of the Mines Act, 1952. Hence, we uphold the order of the Central Board of Excise and Customs and drop the proceedings initiated by the Central Government with the issue of their show cause notice and as a result the stay issued by the Central Government gets vacated automatically.
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1983 (2) TMI 279
... ... ... ... ..... le 9(2) whereas the power was exercised under Rule 10. Rule 9(2) was resorted to in the demand because there was suspicion that there had been suppression of the production in respect of which the demands were issued. However, as we have seen, the demands were enforced by exercising power under a different rule. It is not that the same power was exercised as had been proposed under the show cause notice but that a different power were employed under circumstances different from the ones in the mind of the issuer of the show cause notice. The quotation of Rule 9(2) was indicative of the circumstances in which he considered the short levy had arisen. Therefore, the issue of show cause notice under Rule 9(2) was incorrect and must be struck down. In the result the order of the Assistant Collector was not based on a show cause notice issued validly in accordance with the law. 9. For these reasons, the order of the Appellate Collector is set aside and the appeal is allowed.
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1983 (2) TMI 278
... ... ... ... ..... se is a fit one for exercising its revisional jurisdiction. As in the instant case the Commissioner has held that it is not a fit case in which the revisional powers vested in the Commissioner should be exercised suo motu in our opinion it is not a fit case for invoking of the extraordinary powers of this Court under article 226 of the Constitution. As regards the alternative relief of a direction to the respondents to refund the amount of tax paid by the petitioner, the learned counsel for the petitioner conceded before us that a remedy of a suit is available to the petitioner. In the circumstances considering the fact that the petitioner was assessed on the basis of returns voluntarily filed by him and the assessment of the petitioner were completed long back, in our opinion it is not a fit case for ordering refund of the amount of tax paid by the petitioner in a petition under article 226 of the Constitution. The petition is, therefore, dismissed summarily without notice.
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1983 (2) TMI 277
... ... ... ... ..... ion on the question as to whether the registration could or could not be cancelled in the circumstances of the case. The petitioners should raise all the contentions they want to urge in reply to the show cause notice before the authorities concerned. 6.. For all these reasons, this petition is partly allowed. The respondents are directed to issue a certificate of registration to the petitioners under the M.P. General Sales Tax Act, 1958. The show cause notice dated 16th April, 1982 (annexure R-1), issued to the petitioners, is, however, not quashed but the petitioners are granted three days time from the date of receipt of the certificate of registration, to prefer their objections in reply to the show cause notice and respondent No. 1 shall consider and decide those objections in accordance with law. The other reliefs claimed in the petition are rejected. Parties shall bear their own costs of this petition. The security amount, if any, shall be refunded to the petitioners.
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1983 (2) TMI 276
... ... ... ... ..... cannot be held to be a dealer in respect of such business, then the transactions connected with or ancillary to such business, though in the nature of sale, will not make the person concerned a dealer . 7.. As already observed, in the instant case, the assessee has not ceased to carry on its business of manufacture and sale of strawboards. The old plant and its accessories were acquired by the assessee for that business and therefore, though sale of plants and their accessories is not the business of the assessee, the transaction of sale of an old plant and its accessories is covered by the enlarged definition of business under the Act and such transaction has taken place in the course of the main business of the assessee. In our opinion therefore, the sale transactions in question are exigible to tax. 8.. For all these reasons, our answer to the two questions referred to us is in the negative and against the assessee. Parties shall bear their own costs of these references.
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1983 (2) TMI 275
... ... ... ... ..... or assessed at too low a rate by reason of its not being disclosed by the dealer Provided that before issuing any direction for the payment of any penalty under sub-section (2), sub-section (3) or sub-section (4), the assessing authority shall give the dealer a reasonable opportunity to explain the omission to disclose the information, and make such enquiry as he considers necessary. It must however be remembered that in determining the quantum of penalty, the conduct and the attitude of the assessee are relevant. The levy of penalty and that too, at the maximum rate is not automatic nor a matter of course. In view of the fact that there is no finding of wilfulness or contumaciousness on the part of the petitioner, we are of the opinion that the interests of justice would be served by reducing the penalty to half the amount of tax, viz., Rs. 1,333. T.R.C. Nos. 19 and 20 of 1980 are partly allowed. No costs. Advocate s fee Rs. 250 (Rupees two hundred and fifty only) in each.
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1983 (2) TMI 274
... ... ... ... ..... ntext, the petitioner has relied upon the letter dated 8th June, 1979, which he has obtained from the Secretary, Karnataka State Khadi and Village Industries Board (produced as annexure A), clarifying that the brickmaking and baking by the clamp process and by the brick bhatta process comes under pottery industry as per the pattern of Khadi and Village Industries Commission. It may not be out of place to rely on this letter, since in the Act itself at entry 28 of the Fifth Schedule an indication is given that the Khadi and Village Industries Commission could be consulted in the matter. 18.. I am, therefore, of the view that the Commissioner was not justified in cancelling the certificate dated 23rd March, 1976 (annexure B) by his order dated 16th June, 1978 (annexure E). 19.. In the result, this writ petition is allowed to the extent the relief is confined and the order of the Commissioner dated 16th June, 1978 (annexure E) is quashed. Rule issued is made absolute. No costs.
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1983 (2) TMI 273
... ... ... ... ..... nover takes in every turnover , whether liable to tax or not, and that rule 5 cannot have any overriding effect on the provisions of section 2(q) of the Act. Therefore, agreeing with Padmanabhan, J., I am of the view, that there is no need to review the abovesaid two earlier Bench decisions, namely, Mohanlal v. Commissioner of Commercial Taxes 1979 43 STC 433 and Chennakesavalu v. Board of Revenue 1981 47 STC 403. Order The order of the Court was made by PADMANABHAN, J.-In view of the majority opinion, the tax revision case is allowed. The order of the Tribunal is set aside and the order of the Appellate Assistant Commissioner is restored. There will be no order as to costs. Learned counsel for the respondent seeks leave to appeal to the Supreme Court under article 133(1)(c) of the Constitution of India. We are satisfied that there is a substantial question of law of general importance, which needs to be decided by the Supreme Court in this case. Accordingly, we grant leave.
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1983 (2) TMI 272
... ... ... ... ..... de under section 5. This question came up for consideration before this Court for the first time in Sivamurugan v. Assistant Commercial Tax Officer 1970 26 STC 68 and this Court held that the levy of tax under section 5 is a separate and independent charge apart from the levy of tax under section 3(1), and the levy of tax under section 7 is only in lieu of the tax leviable under any other provision of the Act and that, therefore, the levy of tax under section 5 on a part of the turnover already subjected to levy of tax under section 7 is valid. The view taken in that case has been accepted by another Division Bench of this Court in Coimbatore District Central Co-operative Supply and Marketing Society Ltd. v. Deputy Commercial Tax Officer 1975 35 STC 226. Since the question arising in this revision is covered by the said decisions of this Court, the order of the Tribunal in this case has to be upheld. This revision is, therefore, dismissed. There will be no order as to costs.
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1983 (2) TMI 271
... ... ... ... ..... ill be lost. When the statute does not use the words new motor car , and uses the words motor car , we must understand that expression as covering both the new motor cars and the old motor cars. When the language used in item 3 is express and specific, so as to apply to all motor cars, we do not see how the Court can alter the statutory language so as to sustain the difference between the new cars and the second-hand cars. We are, therefore, clearly of the view that the expression motor vehicles including motor cars, motor taxi-cabs, motor cycles and cycle combinations, etc. occurring in item 3 of the First Schedule will embrace both the new and second-hand vehicles. As a matter of fact, in State of Tamil Nadu v. Chamundeswari Enterprises 1983 52 STC 124 which deals with the sale of second-hand lorry that item has been taken to be covered by item 3 of the First Schedule. There are no merits in the tax case, and it is, therefore, dismissed. There will be no order as to costs.
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1983 (2) TMI 270
... ... ... ... ..... yarelal Malhotra 1984 57 STC 215 and (T.C. No. 1284 of 1977 rendered on 15th April, 1982) State of Tamil Nadu v. Kutty Flush Doors and Furniture Co. (P.) Ltd. 1984 57 STC 217 and the decision in Deputy Commissioner of Commercial Taxes v. Panayappan Leather Industries 1981 47 STC 88. In view of the said decisions upholding the right of the Revenue to file a petition for enhancement in respect of a turnover which was not the subjectmatter of dispute before the Appellate Assistant Commissioner, this tax case has to be allowed and the matter remitted to the Tribunal for consideration of the Revenue s petition for enhancement on merits and ordered accordingly. There will be no order as to costs.
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