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1984 (2) TMI 326
... ... ... ... ..... ance, which enjoys the notification concession, should be used as an intermediate in the manufacture of a drug whatever the drug may be, and whatever the intermediate stage at which the substance enters the process by which the finished drug is made. To put a narrow interpretation on the expression is to shut our eyes to science and technology, and their ever widening scope because what is a finished article today can become a raw material for another product tomorrow and so on; one cannot visualize the end of the process. With better techniques and/or different procedures, processes can change not only the products and the raw materials and the system of production itself. 5. We accordingly allow the appeal and direct that relief be given without unnecessary delay. The Customs can make enquiries if they wish to satisfy themselves that the substance was indeed used as a drug intermediate as the factory is licensed for the manufacturing of drugs by the State government.
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1984 (2) TMI 325
... ... ... ... ..... n order. Perhaps he wants to suggest that the Government was unaware that it was doing something it did not have the power to do. If it did, then we are compelled to ask what was the object in issuing this exemption order when, as the learned Counsel holds, it cannot be implemented. We can see no satisfactory explanation and, in fact, there cannot be any other than that when the Government gave the ad hoc exemption, it knew that it could do so. 6. The ad hoc exemption in this case specifically identifies the consignment that it was meant to cover. We have seen that it was issued after the goods had been cleared. We think that the obvious and sensible step, therefore, is to.........implement it just as it was issued because that evidently was the wish of the exemption giving power. 7. We direct that the exemption should be extended to the consignment in question and whatever duty had been recovered in excess of the exemption should be refunded within three months.
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1984 (2) TMI 324
... ... ... ... ..... ection 81B clearly shows that Section 81B(2) of the Gold (Control) Act, 1968 vests power with this Court for disposing of cases sitting singly only where the value of the thing confiscated without option having been given to the owner thereof to pay a fine in lieu of confiscation under Section 73 or the amount of fine or penalty involved does not exceed ten thousand rupees. The instant case relates to a finding as to the appellant’s right for obtaining of a licence to work as a gold dealer. This case is not covered by the provisions of Section 81B and Hon’ble President’s order No. 137 of 1983 dated 19th September, 1983. In the circumstances any order passed by me sitting singly will be a nullity in the eyes of law and I transfer this case to a two-member bench and I hold that the jurisdiction of the case vests with the two-member bench. In the interests of justice I have recorded the arguments of both the sides and I am not going to the merit of the appeal.
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1984 (2) TMI 323
... ... ... ... ..... se. After all, if a casting and a machine part are to bear duty under Items 25/26AA as well as 68, it is incumbent on the Department to fix the stage when the casting ceases to be this and becomes a machine part. As stated earlier even the authorities ordering recovery of duty have not specified the basis. We were informed that in the case of these goods, duty would not be payable by the final customer-user after finishing since they would be used for captive consumption and were exempted being assessable under Item 68. Shri Kohli argued that this would not be sufficient reason for recovering duty under Item 68 from the appellants who manufacture castings falling under Item 25 or 26AA. 7. Nothing has, therefore, emerged during this hearing to warrant a finding different from that arrived at in the parallel appeal. For the reasons set out there and as above, we accept the contentions of the appellants and set aside the impugned order. The appeal is consequently allowed.
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1984 (2) TMI 322
... ... ... ... ..... the “family” moves as a whole the period of possession and use by the passenger, as well as of the family would coincide. But in this case certain special circumstances existed which separated the joinings of husband and wife. It is clear from the documents submitted that in this case the T.V. was purchased by the appellant for use of the family as a whole and it was in fact so used, as is evident from the licence for the set issued in the name of the husband as a householder. A strict reading of Rule 2(b) indicates that it is not necessary that the set should have been in the use of the passenger herself; it could be in the possession and use of her family. This was the case in the present instance; the set was in the use of the lady and/or her husband for over one year. Under the circumstances I allow the claim of the appellant and order that the T.V. set be extended the benefit of the Transfer of Residence Rules, 1978. The duty, if any, paid shall be refunded.
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1984 (2) TMI 321
... ... ... ... ..... 0/65-C.E., when this law appears on his order, it is only as a part of what the factory said in reply to the show-cause notice. For our part, we cannot quite see how Rule 56A can be utilized when the vegetable non-essential oil is given duty exemption for soap manufacture, which means it sets out free of duty for the soap factory. If it arrives there duty-less, what credit will the soap factory take ? If it arrives there bearing duty, it is not exempted, to say nothing of the fact that the producer of (V.N.E. oil) will not be the receiver of the bounty but the soap producer. There is no difficulty if both factories are owned by the same person but we cannot depend on this being always so. So much for the Rule 56A procedure to be followed. 12. In Vegetable Vitamin appeal, Notification No. 110/65 is mentioned, by the Asstt. Collector but only as an appendage of Notification No. 33/63-C.E. His conclusion was based entirely on Notification 181/71-C.E. We allow this appeal.
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1984 (2) TMI 320
... ... ... ... ..... r the applicant regarding the non-mention of R.G. 1 register discrepancy in the show cause notice of the Collector is without any substance. When the appeal was argued before me the learned Counsel never argued this point at all. As rightly pointed out by the Senior Departmental Representative, the applicant cannot raise new points neither pleaded in the appeal grounds nor argued before the Tribunal as they do not figures part of the order of the Tribunal. The scope of a reference application is restricted only to question or questions of law arising out of the order passed by the Tribunal. The applicant cannot supplement new points neither pleaded nor argued and seek reference of the same to the High Court. Apart from it, the order of the Tribunal is fairly comprehensive covering the various factual aspects of the case and in my opinion no question of law arises or flows out of the order meriting reference to the High Court. The reference application is therefore dismissed.
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1984 (2) TMI 319
... ... ... ... ..... liability only after the appellants had furnished the necessary particulars. In the circumstances it would appear that the extended period of 5 years would be applicable to the demand. Considering all this we do not accept Shri Khaitan’s argument about limitation. 17. As a result of the aforesaid discussion, we order that besides ₹ 33,773.72, which has already been excluded by the Collector of Central Excise, job work value of ₹ 1,69,215.63 representing the value of pipes and fittings would be excluded from the value of clearances of the appellants. Duty liability of the appellants would be restricted to the remaining amount. Benefit of Notification No. 89/79-C.E., dated 1-3-1979 shall be given to the appellants, i.e. clearances to the extent of ₹ 15 lakhs shall be duty free and on the balance duty shall be collected at the rate of 4%. Penalty is also set aside. Appeal is thus partly allowed. Respondents’ cross objection is dismissed.
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1984 (2) TMI 318
... ... ... ... ..... 4-1980 Appellate Collector of Central Excise, Bombay No. 603/79 (RCC Poles) dated 19-9-79 ACCE, Kurnool. 2. 133/82 19/82 dated 26-6-1982 CCE, Hyderabad. 3. 147/82 17/82, dated 8-6-1982 CCE, Hyderabad. 4. 149/82 6/82, dated 19-3-1982 CCE, Hyderabad. 5. 700/82 700/82 7-B/1922, dated 14-1-1982 Central Board of Excise and Customs 27/82, dated 13-8-1981 CCE, Hyderabad. 6. 745/82 22/82, dated 22-7-1982 CCE, Hyderabad 7. 227/83 24/82, dated 11-8-1982 Addl. CCE, Hyderabad. 8. 304/83 33/82, dated 30-9-1982 Addl. CCE, Hyderabad. 9. 2057/83 16/83, dated 8-4-1983 CCE, Hyderabad. 10. 2058/83 23/83(G), dated 22-3-1983 CCE (Appeals), Madras 31/82, dated 7-10-1982 ACCE, Eluru. 11. 2059/83 15/83 (G), dated 29-1-1983 CCE (Appeals), Madras 29/82, dated 24-6-1982 ACCE, Vijayawada. 12. 2060/83 2/83, dated 25-1-1983 Addl. CCE, Hyderabad. 13. 2061/83 14/83, dated 31-3-1983 CCE, Hyderabad. 14. 2063/83 1/83, dated 25-1-1983 Addl. CCE, Hyderabad. 15. 2082/83 8/83, dated 5-4-1983 Addl. CCE, Hyderabad.
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1984 (2) TMI 317
Whether the cognizance can be taken on a private complaint or not?
Held that:- Having examined the matter from all the different angles, it is satisfied that the conclusion reached both by the learned special Judge and Division Bench of the Bombay High Court that a private complaint filed by the complainant was clearly maintainable and that the cognizance, was properly taken, is correct. Accordingly, this appeal fails and is dismissed
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1984 (2) TMI 316
Whether order of detention is illegal, null and void ab initio and inoperative and be quashed?
Held that:- Non- application of mind of the Detaining Authority to the material placed before him before he passed the impugned order of detention dated 19.12.1974 and the failure of the appellant to supply copies of the documents clearly and unmistakably relied upon for arriving at the subjective satisfaction that the respondent's detention under COFEPOSA is necessary and referred to in the grounds of detention served upon him for holding that the order of detention passed under s. 3(1) and declaration made under s. 5(1) of COFEPOSA is void ab initio and that the action taken under s, 6(1) and s. 7 of SAFEMA pursuant to that order of detention is liable to be struck down while holding that the petition under Art. 226 of the Constitution and s. 482 of the Code of Criminal Procedure is maintainable and that the effect of the order of detention dated 19.12.1974 could not said to be no longer in force after the respondent had been released from detention on 23.3.1977 inasmuch as action under s. 6(1) and s. 7 of SAFEMA has been taken only pursuant to that order of detention
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1984 (2) TMI 315
... ... ... ... ..... is recognised as a new and distinct article that a manufacture can be said to take place. In the instant case it cannot be said that the raw agarbathi still retained its original identity so as not to attract section 6 of the Karnataka Sales Tax Act, 1957. What has been marketed as agarbathi as a commercial commodity by the assessee is not the very same raw agarbathi by the assessee. What was purchased by the assessee was nothing but raw material and that raw material after being processed with addition of scent and other chemicals, would result in a different product, commercially known as agarbathi. It must, therefore, be concluded on facts, that the original goods purchased by the assessee have been consumed in the manufacture of agarbathi. We are therefore of the opinion that the authorities below have arrived at a correct conclusion. 5.. In the result, the petition fails and is dismissed. In the circumstances of the case we make no order as to costs. Petition dismissed.
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1984 (2) TMI 314
... ... ... ... ..... nt for further sale. The petitioner, in our opinion, cannot, therefore, be charged to tax merely on the basis that the difference in the quantity of the cotton purchased and the cotton and cotton seeds sold represents the purchase of kapas lost in the ginning. In the result, we allow the revision petition, set aside the orders of the authorities below and restore the original order of assessment. (March 8, 1984) K. JAGANNATHA SHETTY, J.-While dictating the order, we had directed that the matter should go back to the assessing officer with a direction to dispose of the matter in accordance with law in the light of the observations made. But now we find that the remand is totally unnecessary having regard to the finding recorded in the order. In the result, we allow the revision petition, set aside the orders of the authorities below and restore the original order of assessment. This operative part of the order shall be incorporated in the original dictation. Petition allowed.
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1984 (2) TMI 313
... ... ... ... ..... ation of payment of the freight charges separately. Therefore the said expression is not consistent with the original contract. When the actual contract of sale is for the supply of bamboos at the mill site for a consolidated price of Rs. 115 per ton, there is no obligation on the part of the purchaser to incur any freight charges and there is no question of the seller spending at the purchaser s account. As a matter of fact, the contract of sale provides for inspection and rejection of the unapproved goods which will mean that the property in the bamboos do not pass unless the goods are delivered at the mill site after inspection or approval. Therefore the expression freight charges paid on our account occurring in the same documents cannot have any significance. In this view of the matter, we are of the view that the Tribunal is not right in excluding the turnover of Rs. 2,38,379.67 from the taxable turnover. The tax case is, therefore, allowed. No costs. Petition allowed.
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1984 (2) TMI 312
... ... ... ... ..... assessee are distinguishable and even if they were to be read to mean that they were applicable to the facts of the present case, still we are inclined to follow the two decisions relied upon on behalf of the State of Haryana instead of the two decisions relied upon by the assessee. Firstly, we are in agreement with the reasons given by the two Chief justices, and secondly, both those decisions are by larger benches. For the aforesaid reasons, we answer both the questions in favour of the State of Haryana and against the assessee and hold that the movement of chicks from the State of Haryana to Delhi was in pursuance of and incidental to the orders received by the head office in Delhi and it did not matter in which State the property in goods passed. The references are, therefore, answered in the aforesaid terms. In view of the answer given in the references, the writ petition is devoid of merit and is hereby dismissed. However, the parties are left to bear their own costs.
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1984 (2) TMI 311
... ... ... ... ..... three Judges decided Porritts and Spencer s case 1978 42 STC 433 (SC) and the judgment has also been written by him. In Yasin Bone Mills case 1980 46 STC 112, it was held that crushed bones of size 3/8 x frac34 manufactured and exported by the assessee were held to be taxable as bones. They were not treated to be bone-meal. So this authority does not help Mr. Gupta. So we are of the considered view that it was not incumbent upon the assessee to prove and establish that the bone-meal sold by it was in fact used as a fertilizer. Law does not require any such proof. If a commodity is included in entry Schedule B of the State Act then it stands exempted from the levy of sales tax irrespective of the use to which that commodity is to be put by the purchaser after it has been sold by the dealer. We answer question No. (3) in affirmative, in favour of the assessee and against the Revenue. In view of our answer to question No. (3), no answer is needed for question No. (4). No costs.
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1984 (2) TMI 310
... ... ... ... ..... Tribunal does not suffer from any error of law. In State of Andhra Pradesh v. Sri Durga Hardware Stores 1973 32 STC 322 it was held that both corrugation and galvanisation improve the utility of the raw material. By the process of galvanisation and corrugation the iron and steel do not lose their essential character as iron and steel. Following the aforesaid decision a Division Bench of this Court in Commissioner of Sales Tax, U.P. v. Tata Iron and Steel Co. Ltd. 1976 38 STC 10 1975 UPTC 104 held that notwithstanding galvanisation and corrugation the essential character of iron and steel is not changed and plain corrugated sheet made from iron remain iron and steel and fall within the category of hardware. In view of these decisions it is not possible to make any distinction between corrugated cardboard boxes on the one hand and cardboard boxes on the other. In the result I find no merit in this revision. It is accordingly dismissed with costs which are assessed at Rs. 200.
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1984 (2) TMI 309
... ... ... ... ..... instant case. The question for consideration here is not whether ginning of kapas amounts or does not amount to a manufacturing process, what has to be considered is whether after ginning the resultant cotton could be deemed to have remained in the same form and condition in which the unginned kapas was. The words in the same form and condition are to be taken in their natural and normal meaning. The test of manufacture spelt out in the decision Dehradun Tea Company 1980 UPTC 459 is not to be applied for ascertaining the meaning of this expression. In my view, after ginning, the resultant cotton does not remain in the same form and condition in which the unginned cotton was. In this view of the matter the authorities were right in holding that the dealer was liable to pay purchase tax on this quantity of kapas. My answer to the questions of law raised is as above. There is no merit in this revision and it is accordingly dismissed. However, there will be no order as to costs.
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1984 (2) TMI 308
... ... ... ... ..... by the Tribunal and without a finding on the point it would not be possible to determine the liability of the assessee under the Act in respect of the sales in the workers canteen. 5.. Our answer to the question therefore would be On the facts and in the circumstances of the case, sales in the workers canteen would be liable to be included in the gross and taxable turnovers of the assessee during the year 1968-69 for the purpose of assessment of sales tax only if it is established upon the facts that the substance of the transaction in the supply of food, drinks, snacks, tea, coffee, etc., in the workers canteen, evidenced by its dominant object, is a sale of food and the rendering of services is merely incidental. The Tribunal shall now dispose of the case according to law keeping in view the guidelines appearing in the judgments of the Supreme Court referred to above and the decision of this Court herein contained. There would be no order as to costs. MOHANTY, J.-I agree.
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1984 (2) TMI 307
... ... ... ... ..... sessment is that the taxable turnover is determined at Rs. 1,05,000. The order of assessment does not refer to any material whatsoever on which the estimate is based. It is thus clear that the assessing authority made an assessment based on pure guess without reference to any evidence or material at all. Under the circumstances the order of assessment passed by respondent No. 1 and the order dismissing the revision petition passed by respondent No. 2 are vitiated by an error apparent on the face of record and deserve to be quashed. 6.. For all these reasons this petition is allowed. The orders (annexures A and C) passed by respondents Nos. 1 and 2 respectively are quashed. Respondent No. 1 may proceed to make best judgment assessment afresh, in accordance with law after hearing the petitioner in that behalf. In the circumstances of the case, parties shall bear their own costs of this petition. The outstanding amount of security deposit, if any, be refunded to the petitioner.
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