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1983 (5) TMI 232
... ... ... ... ..... or loader itself is a piece of machinery. The explosion proof lighting fixtures were just electrical fittings or fixtures to provide safe illumination in the factory area. The two Delhi High Court judgments relied on by the appellants are, therefore, distinguishable on facts because of the vast difference in the nature of goods involved. The anlogy drawn with special fire bricks is also not correct as these bricks are used for erection of a furnace which directly takes part in the production process in factory. The lighting fixture are used just for providing light. The fact that the DGTD included these lighting fixtures in the “Essentiality Certificate” issued by them does not mean that the competent customs officer was precluded from classifying the goods properly for the levy of customs duty. We find no merit in the appellants, arguments regarding explosion proof lighting fixtures and we reject their appeal on this point. The appeal is disposed of accordingly.
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1983 (5) TMI 231
... ... ... ... ..... erent in construction, design and use from fourdrinier wires. Just because both are endless, it is not correct to equate one with the other. Note 1(h) to Section XVI covers endless belts of metal wire or strip. Here again, the subject Dandy Roll Covers are quite different from endless belts. The analogy sought to be drawn by the Department is, therefore, not apt. The Department is not able to explain to us why the same Custom House has been assessing Dandy Roll Covers as parts of paper making machinery throughout except in the case now before us in appeal. Since the subject covers are specially designed to fit individual Dandy Rolls and have specific function to perform in the manufacture of paper, we hold that they are a component of paper making machinery falling under Heading 84.31 CTA; Heading 74.09/19 relating to miscellaneous articles of copper would not be appropriated for such a component. Accordingly, we allow this appeal with consequential relief to the appellants.
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1983 (5) TMI 230
... ... ... ... ..... or in changing the classification of these two products. The Appellate Collector, in his order in appeal, has also not tried to go deep into the matter and has summarily disposed of the plea of the appellant that their products had throughout been classified under T.I 26AA. We, therefore, find that this endorsement of the Assistant Collector’s view holding harrow discs and coal cutting picks not to be forged products, without any basis being indicated and finding no cogent reason for change of opinion by the Department, we hold that the authorities below have erred, now holding these two products to be falling under T.I. 68. In the view we have taken, the appeal has to be allowed on the point of classification, and the other issues regarding time bar etc. become redundant. We accordingly allow the appeal and set aside the orders of the authorities below. The appellant shall be entitled to consequential relief whatever may flow from the fact of the appeal being allowed.
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1983 (5) TMI 229
... ... ... ... ..... demanded by the Collector is called for. 8. Since we have already held that the appellants had suppressed the facts of their clearances wilfully and with the intention to evade payment of duty and worse still they deliberately concealed their books and records from the Department even after the seizure in their factory in November 1980 and left no choice for the Department except to proceed on the basis of the figures which they themselves chose to reveal to the Department by means of their letters, we find no justification to interfere with the fine in lieu of confiscation (Rs. 20,000/-) and the penalty (Rs. 6 lakhs) adjudged by the Collector. The penalty is even otherwise not excessive when viewed in the light of the amount of duty evaded and the numerous provisions of the Central Excise Rules violated. 9. Accordingly, except for the relief in respect of clearances of nickel scrap valued ₹ 18,875/- as already ordered in para 7 above, we reject this appeal.
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1983 (5) TMI 228
... ... ... ... ..... under Notification No. 1/ 72-Cus. and that the appellants were not entitled to change their claims later to a different notification. We find no force in this objection. In substance, the appellants’ claim remains the same, viz., re-assessment @ 40% customs duty. Citing of a wrong notification in the original claim and its subsequent correction by citing the correct notification do not convert the claim into a fresh claim. Wrong citation of the tariff item, notification, rule or section can be corrected at any stage so long as the nature and substance of the claim does not change and the appellants do not ask for any higher amount of refund than originally claimed. We find further in this case that the Appellate Collector had already considered the appellants’ claim under Notification No. 147/58-Cus. The Department’s objection being untenable and the claim being admissible on merits, we allow this appeal with consequential relief to the appellants.
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1983 (5) TMI 227
... ... ... ... ..... ave the essential character to the goods. The notification, however, lays down a further condition that an aluminium manufacture to be covered thereunder should contain more than 97% of aluminium. The notification does not say that in the case of composite goods like laminates, the purity of the aluminium portion alone should be judged for the purpose of this condition. Going by the plain meaning of the wording used in the notification, aluminium content of the goods as a whole has to be taken into account and not the purity of the aluminium portion of the goods alone as contended by the appellants. There is nothing on record to show that in the laminated aluminium foils imported by the appellants, aluminium was more than 97% of the laminate as a whole. Since the condition for exemption laid down in Notification No. 173/77-Cus. is not satisfied, we hold that the appellants are not entitled to relief under this notification. 6. Accordingly, we reject this appeal.
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1983 (5) TMI 226
... ... ... ... ..... achine is an automatic film processing as well as paper processing machine and that the exemption is meant for a machine which is exclusively on automatic film processor. The same objection was reiterated by the Department’s representative before us. On referring to Notification No. 11/77-Cus., we find that there is no such stipulation therein that the automatic film processor covered thereunder should be exclusively for film processing only. We find that this notification lays down only two conditions - (1) it should be an automatic film processor falling under Heading No. 90.10 of the Customs Tariff Act, 1975, and (2) it should be imported for use in the printing industry. We find that both these conditions are fulfilled in the case before us. If, in addition to film processing the machine can perform the other function of paper processing as well, the exemption cannot be denied. Accordingly, we allow this appeal with consequential relief to the appellants.
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1983 (5) TMI 225
... ... ... ... ..... er any power on the appellate authority to condone delay in filing an appeal, which cases were all before the amendment of Section 35 whereby further period of three months had been given for extention, subject to the discretion of the Appellate Collector. The said authorities are 1978 E.L.T. ( J 61A) of Bombay High Court (DB) ; 1979 E.L.T. ( J 602) of Kerala High Court (DB); and 1981 E.L.T. 592 (Guj.) (DB) ; In view of the foregoing discussion, and the authorities cited above as well as the view the Tribunal has already taken as summed up in the Miles India Ltd. case reported in 1983 Excise and Customs Reporter P. 242, we are satisfied that the Appellate Collector did not act wrongly, in rejecting the appeal as time-barred, having been admittedly filed before him, beyond the expiry of period of three months, from the date of service of the order of the Assistant Collector on the appellants. We, therefore, hold the present appeal liable to dismissal, and dismiss accordingly.
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1983 (5) TMI 224
... ... ... ... ..... , as it stood prior to 1-10-1975, remains unchanged. The legal position in regard to tariff values, therefore, also remains the same as it was before 1-10-1975 except that insertion of sub-section (3) to Section 4 of the Act has placed the matter beyond doubt. We also find ourselves in agreement with the contention made by Shri Mahesh Kumar that Section 3 read with Rule 9-A provides full legal authority for levy of duty on such excisable goods with reference to tariff values where tariff values have been notified by the Central Government for them. We do not find substance in the contention of Smt. Sood that Section 4 is the only section for determination of value of excisable goods. In respect of goods for which tariff values have been fixed, there is a mutually exclusive alternative under the Act, namely, Section 3 of the Act read with Rule 9A of the Central Excise Rules. In the result we uphold the order of the Appellate Collector and reject the appeal in the above terms.
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1983 (5) TMI 223
... ... ... ... ..... t’s decision in the case of M/s. Madras Port Trust v. M/s. Hymansu International, we find that Supreme Court was dealing with the provisions of Section 110 of the Madras Port Trust Act and hence the judgment of the Supreme Court cannot be said to be fully applicable to the present case. Besides, the Supreme Court examined the matter by virtue of the powers vested in it under article 136 of the Constitution and revoked the Special Leave granted to the appellant and directed Madras Port Trust to pay the cost to the respondent. On the other hand, when the Tribunal considers the application for refund in terms of old Rule 11, the Tribunal has to function within the Central Excise Act and the Rules and cannot go beyond these limitations. The provisions of the Central Excise law are quite explicit as discussed above. In view of the foregoing facts, we find that the Appellate Collector’s order is quite legal and correct. The same is confirmed and the appeal is rejected.
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1983 (5) TMI 222
... ... ... ... ..... both the sides. At this stage of considering the stay, it is not necessary for us to go into the correctness, legality or propriety of the order of the Additional Collector of Customs as to whether it was necessary for him to allow the confiscated car to be redeemed on payment of a redemption fine. The law on the subject is quite clear. On confiscation the property of the confiscated car vested in Central Government in terms of Section 126 of the Customs Act and the Additional Collector adjudging confiscation is required to take and hold possession of the confiscated motor vehicle. In view of these provisions of law, it is the bounden duty of the local Customs officers to take possession of the car. In view of aforesaid provisions of law, we find that it would not be proper for us to prevent the local Customs officers from taking possession of the vehicle, the property in which is vested in the Central Government as mentioned above. Accordingly, we dismiss the stay petition.
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1983 (5) TMI 221
... ... ... ... ..... al Industries, the entry had not been amended and the machines were not entitled to the exemption. To extend an exemption because of the subsequent amendment would not be permissible because an exemption notification must be read strictly. Nor can an amending notification be given retrospective effect in order to cover or rectify a defect of the amended notification. It is true perhaps that as originally worded the notification was meaningless but the Tribunal cannot take upon itself the authority to read or interpret the notification in order to give it a meaning it should have had but does not have. To extend an exemption beyond its plain words cannot be done by anybody, not even by the exemption giving authority. If a wider exemption is to be given, it must be done so in specific terms but this will still not mean that the wider exemption would take the place of the narrower exemption before it (wider exemption) came into operation. In view of this the appeal is rejected.
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1983 (5) TMI 220
... ... ... ... ..... tative is right in pointing out that there is no material on this record in support of this contention nor the learned counsel for the appellants was in a position to vouchsafe for the fact that the Government of India, as one entity, was not operating in other States for manufacturing other excisable goods which might also fall in this Table, whose list runs up to 72 items. It is also a matter for almost judicial notice that wherever there was an intention to accord exemption to Government of India’s departmental undertakings, there are invariably separate Notifications, such as for Government Undertakings, Ordnance Factories, Technical Institutions, etc. and it is our firm view that appellants cannot take recourse on behalf of Government of India as a manufacturer to a general Notification of the type we have before us, namely, Notification No. 80/80, dated 19-6-1980. We, therefore, do not find any merit in the appeals, and both the appeals are dismissed accordingly.
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1983 (5) TMI 219
... ... ... ... ..... r steel products made out of duty-paid fresh unused re-rollable scrap. Since steel wires manufactured by the appellants were excisable goods, their value had to be added to the aggregate value of their clearances in the preceding financial year, thus making them ineligible to the benefit of Notification No. 80/80-C.E. 6. In the light of the above discussion, we find no force in any of the arguments of the appellants. Accordingly we uphold the impugned Order-in-Appeal in so far as it relates to the demand for duty. However, since the Appellate Board has held that the charge of clandestine removal was not established and that the circumstances were such as to merit the quashing of the major portion of the original demand on the ground of time-bar, and since the Department has accepted these findings, we find no adequate justification to maintain the penalty imposed by the adjudicating Collector. Accordingly, we set aside the penalty. The appeal is disposed of accordingly.
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1983 (5) TMI 218
Whether the sanctioning of the loan by the Corporation in favour of the respondent was conditional upon IDBI agreeing to and undertaking to re-finance the loan and as IDBI has declined, for the time being, to re-finance the loan, the Corporation cannot be compelled to undertake the onerous liability of financing a huge loan to one undertaking and therefore the appellant was discharged from performing its part of the contract?
Whether there was a concluded contract between the parties about grant and acceptance of loan, the failure of the Corporation to carry out its part of the obligation may amount to breach of contract for which a remedy lies elsewhere but a writ of mandamus cannot be issued compelling the Corporation to specifically perform the contract?
Held that:- The parties had envisaged a situation where the re-finance of the loan may not be available from IDBI. The obligation undertaken by the appellant to sanction the loan was independent of a re-financing of loan available from IDBI. In such situation, the first contention of Mr. Bhatt cannot be accepted.
The true principle of promissory estoppel, therefore seems to be that where one party has by his words of conduct made to the other a clear and unequivocal promise which is intended to create legal relations or affect a legal relationship to arise in the future, knowing or intending that it would be acted upon by the other party to whom the promise is made and it is in fact so acted upon by the other party, the promise would be binding on the party making it and he would not be entitled to go back upon it, if it would be inequitable to allow him to do so having regard to the dealings which have taken place between the parties, and this would be so irrespective whether there is any preexisting relationship between the parties or not. The High Court accordingly was fully justified in issuing a writ of mandamus to disburse the loan and therefore the appeal fails.
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1983 (5) TMI 217
... ... ... ... ..... on Mulakh Raj Nand Lal v. Excise and Taxation Commissioner, Punjab 1974 33 STC 42 1973 RLR 789 is totally misconceived. In that case, the manufacturers of vegetable ghee had sold the commodity to unregistered dealers. The goods had suffered tax at the hands of the manufacturer who was a registered dealer. The assessee purchased vegetable ghee from the unregistered dealers. The question arose whether the assessee was liable to pay sales tax on the sale of these goods which had been purchased by him from the unregistered dealers. In this context it was held that the assessee was not liable to pay tax on his sales, because the tax on vegetable ghee had been paid by the manufacturer at the first stage. In the present case, it is established on the record that the selling dealer who is the first dealer in the State of Haryana had not paid the tax. For the foregoing reasons, I find no merit in these writ petitions (Nos. 1355 and 1774 of 1982) and the same are dismissed. No costs.
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1983 (5) TMI 216
... ... ... ... ..... ner. The second appeal against his order can be preferred before the Sales Tax Tribunal. Even thereafter an application under section 42 of the Haryana General Sales Tax Act, 1973 (for short the Act ), can be presented to the Sales Tax Tribunal requesting it to refer any question of law to the High Court for decision. The petitioner-firm has not given any cogent reasons for not availing of the efficacious alternative remedies provided by the statute. This writ petition is liable to be dismissed on this score alone and I order accordingly. However, it will be open to the petitionerfirm to file the statutory appeal. The plea of Mr. D.S. Bali, the learned counsel for the petitioner-firm, that the appeal will not be entertained because it has now become time-barred is without any basis. It is well-settled that the time spent by a litigant in pursuing a remedy, under a misconception of law, in an inappropriate forum, is excluded while computing the period of limitation. No costs.
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1983 (5) TMI 215
Contempt of Court - Held that:- he conduct of the contemner constitutes serious interference with the course of justice. He has exhibited a dogged determination to pursue the four Judges of the High Court, come what may. He is not sorry for his ways. He is sorry that he was even apparently sorry. Perhaps, having charged his price, he has to play to the tune of his masters. Very often, contemners are so contemptible that it is useless to take any serious notice of their conduct. We are compelled to take action in this case because nothing else will stop this systematic campaign of vilification against the defenceless Judges of the High Court.
Thus convict the contemner under section 12 of the Contempt of Courts Act, 1971 and sentence him to suffer simple imprisonment for three months and to pay a fine of Rs. 2,000. He shall be taken in custody forthwith.
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1983 (5) TMI 214
Constitutional validity of sub-section (1) of section 5 of the Bihar Finance Act, 1981 which provides for the levy of a surcharge on every dealer whose gross turnover during a year exceeds Rs. 5 lakhs, in addition to the tax payable by him, at such rate not exceeding 10 per centum of the total amount of the tax, and of sub-section (3) of section 5 of the Act which prohibits such dealer from collecting the amount of surcharge payable by him from the purchasers challenged
Held that:- Appeal dismissed. As so far as sales of coconut oil outside the State were concerned, they were, as it were, by reason of section 26 of the Act read in conjunction with article 286, taken out of the purview of the Act, and that they had the effect of setting at naught and obliterating in regard thereto the provisions contained in the Act relating to the imposition of tax on the sale or purchase of such goods and in particular the provision contained in the charging section, section 3, and the provisions contained in rule 20(2) and other provisions which were incidental to the process of levying such tax. The aforementioned passage relied upon cannot be read out of context in which it appears and if so read, it is hardly of any assistance to the appellants.
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1983 (5) TMI 206
Filing of accounts of receivers ... ... ... ... ..... 1 of the Companies Act, 1956, is found to be rightly taken by the trial court within six months of the commission of the offence, in accordance with section 468(2)(a) of the Code of Criminal Procedure, 1973 and the trial court is found to have acted erroneously in taking cognizance of the said offence in the rest of the 18 cases. In the result, the present Miscellaneous Petition No. 778 of 1981 and the connected ones, viz., Miscellaneous Petitions Nos. 747 of 1981, 779 of 1981, 751 of 1981, 726 of 1981, 756 of 1981, 755 of 1981, 748 of 1981, 780 of 1981, 749 of 1981, 754 of 1981, 634 of 1981, 746 of 1981, 753 of 1981 and 752 of 1981 and Criminal Revision Nos. 26 of 1981 and 93 of 1981 are allowed. Cognizance of the offences as taken in all these cases is quashed and the applicants-accused are, accordingly, discharged. However, Miscellaneous Case No. 750 of 1981 is alone dismissed and the impugned order passed by the trial court in Criminal Case No. 1869 of 1977 is maintained.
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