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Case Laws
Showing 81 to 100 of 236 Records
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1985 (8) TMI 198
... ...
... ... ..... resent case, in respect of the goods originally cleared free of duty under Item 68 during 1981-82 there was such a short levy, as evidenced from subsequent development - the demand has to be issued within six months from the relevant date. In terms of Section 11A(3)(ii)(a)(A) in the present case that date will be the one on which the relevant R.T. 12 returns were filed. The finding of the Collector (Appeals) is on this basis that the demand in respect of clearances for January, 1982 will alone survive is correct in law and is based on facts. 6. emsp In passing we note that when the Rules/Act intended to modify an action already taken on the basis of changed circumstances arising at a later point of time, specific provisions has in fact been made e.g. the proviso to Rule 56A(2) Central Excise Rules. In the circumstances the absence of such a provision in Section 11 or Section 11 A should be considered to be a deliberate omission. 7. Accordingly the present appeal is dismissed.
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1985 (8) TMI 197
Penalty - Partnership firm - Personal penalty not imposable ... ... ... ... ..... of the business at the relevant time. In his statement recorded on 17-4-1976 he had stated that due to old age he was not looking after the business of the firm and his two sons were looking after the business. His first son Shri Ashok in his statement on 21-4-1976 also stated that his father had retired from the business. He and his brother were looking after all the transactions of the firm. The department had not placed any evidence to establish that the 1st appellant was in charge of and was responsible to the firm for the conduct of its business. In the absence of that evidence and having regard to the statements of the appellants 1 and 2 the Collector committed an error in law in imposing a personal penalty on the 1st appellant. I, therefore, set aside that part of the order of the Collector by which he imposed a personal penalty on the 1st appellant. The penalty if paid shall be refunded. 18. Subject to the above modification this appeal fails and the same is rejected.
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1985 (8) TMI 196
Motors - Import of Wiper motors ... ... ... ... ..... uo Generalia specialibus non derogant rdquo arises. 13. emsp Finally, we agree with the view that the only licence, the validity of which can be considered by the Department is the first one i.e. No.0353038 dated 27-1-1982 standing in the name of M/s. Muthuswamy Gounder and Co. against which the letter of credit was opened by the importers on 23-3-1982. Since in the meantime as per para 186(8) of AM-1982 Policy Book there was an amendment vide ITC Public Notice 51/16-10-1981, disallowing items figuring in Appendix 50, the said licence was no longer valid as the firm commitment was made after the amendment of this Policy on 23-5-1982. We agree with the finding of the Addl. Collector that, in the circumstances, it was not open to the appellants to offer an alternative licence from another Export House as such a licence would not be valid to cover the import of the goods in question. 14. In view of our findings, we uphold the order of the Addl. Collector and dismiss this appeal.
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1985 (8) TMI 190
Set-off of duty- ... ... ... ... ..... f fans as such. There is consequential violation of Rules 173 (B), (C), (F) and (G) of the Central Excise Rules, 1944. The demand for duty in respect of the period beginning 1-3-79 is maintainable by invoking the extended period under Rule 9(2). In so far as the demand for the year 1976-77 is concerned it falls well beyond the period of five years referable to Rule 9(2), calculating from the date of issue of the show cause notice and hence cannot be sustained. In respect of the year 1977-78 there is no reference to any intimation to the Department as the intimation on record is dated 21-9-78. The demand in respect of that year is sustainable. 6. In the result the order of the Collector is upheld subject to the above modification that set-off of duty in respect of motors claimed as a special one and utilised in the manufacture of blowers during the years 1977-78 and 1978-79, we allow the appeal by applying Notification No. 124/65 and no duty is demandable for the year 1976-77.
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1985 (8) TMI 189
Refund claim ... ... ... ... ..... um at the rate of 10o against one entry whereas the proper officer has shown as 40 . Section 154 of the Act reads ldquo Clerical or arithmetical mistakes in any decision or order passed by .... any officer of customs under this Act, or errors arising therein from accidental slip or omission may, at any time be corrected by .... such officer of customs or the successor in office of such officer ..... rdquo Obviously, what has happened in this case is a clerical mistake or an error arising from an accidental slip in calculating the rate of duty applicable by the clerk/comptist in that he has calculated it at 100 instead of the rate at 40 . In this view of the matter we think that the provisions of Section 154 of the Act would cover the facts of the case and a correction in the quantum of duty as shown in the Bill of Entry should be ordered. We do so. 5. emsp Thus we uphold the order of the Collector (Appeals) and dismiss the appeal with consequential benefit to the respondents.
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1985 (8) TMI 188
Dyeing of grey woollen yarn amounts to manufacture ... ... ... ... ..... nt came out with the argument that the aforesaid relaxation was the prerogative of the executive and that it was not open to this Tribunal to direct that it be exercised. 1 must repel this argument. Assessees take recourse to appellate remedies because they felt that they have suffered at the hands of the executive. If the redressal machinery is convinced that relief is merited under the law but cannot grant it, it would defeat the very purpose of setting up that. machinery. 1 find nothing in rule 56A which forbids this Tribunal from directing the executive to grant a benefit which is fully merited under the law. 30. emsp If rule 56A benefit is given to the appellants, the net duty payable would not be much different than what has already been paid by them in the past and of which l hey are not asking for refund. In this view of the matter also, the impugned demand for extra duty would no longer survive. 31.In the result, I allow this appeal and set aside the impugned demand.
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1985 (8) TMI 187
Sugar - Excess production rebate ... ... ... ... ..... laim. 15. emsp The appeals are dismissed with the direction that the Department will now determine whether the quantum of claim made by the petitioners is correct on the basis of the figures to be supplied by them. This the Department will do within a period of three months from today. The respondents will be entitled to costs in one set in respect of these appeals. Counsel rsquo s fee Rs. 1000/-. 16. emsp The learned Counsel for the appellants requests that since similar matters are pending before different High Courts, this is a fit case in which they should be granted leave to appeal to the Supreme Court. As we have already pointed out, we do not think that on a proper construction, any other view of the construction of the notification is possible. The construction did not pose any difficulty to us. We do not, therefore, think this is a matter in respect of which leave can properly be granted to appeal to the Supreme Court. The oral application for leave is thus rejected.
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1985 (8) TMI 186
Import Licence for components ... ... ... ... ..... iff Schedule, and hence the Import Trade Control schedule, would cover the near complete article imported by the appellant. In this view of the matter also, the importation is prohibited, because of Entry No. 77 in Appendix 4 of the Policy for the April-March, 1982-83. 7. emsp Though it was claimed on behalf of the appellants that the goods have merely been put together for purposes of convenience of transport and they are in SKD condition according to trade practice, no particular evidence regarding the latter has been submitted either to the Collector or before us. Putting together of various components in the finished product precisely in the same way as needed for the final operation of a typewriter is not an act of mere packing. In this view we reject the plea made on behalf of the appellant. 8. emsp In the result we find that the order of the Collector is maintainable on facts and in law. The fine in lieu of confiscation is not high. The appeal is accordingly dismissed.
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1985 (8) TMI 183
classification
... ... ... ... ..... p. 485) are described as lsquo a general name for several varieties of fibre us minerals rsquo , as lsquo obtained by a mixture of certain varieties of minerals rsquo and as lsquo a group of silicate minerals rsquo , respectively. 23. emsp Thus, the items expressly mentioned under Chapter Heading 68 are commonly regarded as minerals whereas lsquo carbon rsquo is not so understood This also fortifies the view that the expression lsquo articles of mineral substance rsquo , as occurring in T.I. 68.01/16 does not take within its ambit lsquo articles of carbon rsquo . 24. emsp In view of the foregoing, the subject goods being admittedly machinery-parts, and not falling within any of the specific items enumerated under T.I. 84, these have to be classified under T.I. 84.65. In that view of the matter, both the appeals deserve to be allowed, and I hold accordingly. In accordance with the judgment of the majority of the Members who have heard the matter, both the appeals are rejected.
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1985 (8) TMI 182
Dutiability - Articles attached to earth when not dutiable ... ... ... ... ..... manufacture, it is sufficient to say that after retrospective amendment of Rules 9 and 49 of Central Excise Rules, 1944, such a plea is not tenable and has to be rejected. As parties did not address any argument on the proper classification of panel boards under the Central Excise Tariff, that would have to be left for decision, after hearing parties, to the Collector of Central Excise, Hyderabad, who will rework out and determine the same. 11. emsp As a result, the demand of duty on the totalizator system is set aside. Instead, it is ordered that the demand of duty shall be restricted only to the panel boards fabricated by the appellants. The Tariff Item, classification and quantification of duty on the panel boards shall be worked out by the Collector of Central Excise, Hyderabad. Redemption fine of Rs. 10,000 imposed on the system is set aside and instead redemption fine of Rs. 1,000 is imposed on the panel boards. The appeal is thus partly allowed in the foregoing terms.
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1985 (8) TMI 181
Stay of Refund ... ... ... ... ..... f duties and penalties in terms of the orders of the authorities below. This provision could be waived if such deposit would involve financial hardship, keeping in view the facts and circumstances of the case. When the appellant is Revenue, such a consideration will hardly arise. In no case, prior deposit by Revenue has to be made pending the appeal. 3. emsp There are inherent powers of the Tribunal to grant suspension of the orders of the appellate authority if the circumstances of a case so warrants. The respondent is a firm of good financial standing-it is a Government of India undertaking. One cannot say that the amount involved will be in jeopardy, should the Tribunal finally decide in favour of Revenue. In this view of the matter, the application for suspension of the order of the Collector (Appeals) pending the appeal before the Tribunal is rejected. 4. emsp In view of the orders above being passed to-day, the Miscellaneous Application becomes infructuous and is filed.
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1985 (8) TMI 180
Contract Carriage – stage carriage – Motor Vehicles Act, 1939 – Held that: (1) The definition of 'contract carriage' under section 2 (3) of the Act is plain and the language is not so elastic and wide so as to bring within its sweep a situation never intended by the Legislature. (2) The dominant factor under the definition that determines whether a transport vehicle is used as a contract carriage or as a stage carriage is whether the vehicle is hired as a whole for a fixed or agreed sum under a prior contract, express or implied, by a single person or party with the owner of the vehicle. . (3) If once a single contract is entered into expressly or impliedly for the use of the vehicle as a whole, from the mere fact that the leader of the contracting party or one of the persons in the party collected fares from the passengers, which is very often in vogue, the vehicle cannot be said to have been used as a stage carriage. . (4) If there was no single contract with the owner in respect of the vehicle and if no person or leader of the party could exercise full control over the vehicle and several passengers had separately contracted for the use of the vehicle and paid individual fares, the transport vehicle used in such manner falls within the definition of 'stage carriage' and not 'contract carriage', . (5) Tax is levied on the basis of the use of the transport vehicle and not on the nature of the permit held by the owner in respect of the vehicle and the power contained in section 3 read with section 4 of the Taxation Act is sufficient to enable the State Government to levy the tax from time to time when the nature of the use of the vehicle is changed and the class of the motor vehicle is thereby altered, and. (6) There is no prohibition in the Act for the levy and collection of tax as authorised under section 3 (1) of the Taxation Act in cases where action is taken for the breach of any of the conditions of the permit against the holder of the permit under section 60 of the Act. The two actions are quite different - one for the user of the vehicle and the other for the breach of the conditions of the permit. .
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1985 (8) TMI 176
Penalty and adjudication ... ... ... ... ..... of the business at the relevant time. In his statement recorded on 17-4-1976 he had stated that due to old age he was not looking after the business of the firm and his two sons were looking after the business. His first son Shri Ashok in his statement on 21-4-1976 also stated that his father had retired from the business. He and his brother were looking after all the transactions of the firm. The department had not placed any evidence to establish that the 1st appellant was in charge of and was responsible to the firm for the conduct of its business. In the absence of that evidence and having regard to the statements of the appellants 1 and 2 the Collector committed an error in law in imposing a personal penalty on the 1st appellant. I, therefore, set aside that part of the order of the Collector by which he imposed a personal penalty on the 1st appellant. The penalty if paid shall be refunded. 18.Subject to the above modification this appeal fails and the same is rejected.
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1985 (8) TMI 175
Demand - Retrospective Validation or imposition of duty ... ... ... ... ..... e Article 19 (1) (g) of the Constitution. In the premises the petition is dismissed with costs and the rule is discharged. 7. emsp In view of the above-said judgments of the two High Courts, and in the absence of any other judgment of any other High Court to the contrary, we respectfully follow the above decisions. We therefore hold that in enforcing the demand under the two Show Cause Notices the department was bound by the period of limitation prescribed under Section 11A of the Central Excises and Salt Act and could therefore enforce the demand only for the period mentioned in the said Section 11A. That would mean that the period of the demand could extend to the period of six months only preceding the dates of the Show Cause Notices after taking into consideration the ldquo relevant dates rdquo as defined in Section 11A of the Central Excises and Salt Act. The appeals are accordingly allowed to the extent of granting relief to the appellants in the manner indicated above.
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1985 (8) TMI 174
... ...
... ... ..... heir reply dated 14-1-1978, the appellants had agreed to this price of US 356 ton c.i.f. 38. emsp The copies of the whole correspondence have been placed on record. They appear at pages 61 to 67 of the paper book (Vol. II). It is clear from the correspondence that the invoice price was the contractual price. The lower authorities have not assigned any reason to hold that this correspondence was false or fabricated. We accept the authenticity of the correspondence relating to the contract and see no reason to hold the same as false or fabricated. 39. emsp After considering all aspects of the case, we are of the firm view that the Revenue has failed to substantiate the allegation of under-invoicing of the imported goods and, therefore, no case stands proved against the appellants. Accordingly, the appeal deserves to be allowed. 40. emsp In the result, we accept this appeal and set aside the impugned order. Consequential relief flowing from this order be given to the appellants.
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1985 (8) TMI 173
Electricity - Entire benefit of exemption not deniable when generating unit basically put up for industrial requirements and only some portion utilised for other purposes
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1985 (8) TMI 172
Appeal relating to valuation ... ... ... ... ..... mination of the question having relation to the value of the goods for the purposes of assessment rdquo . 6. emsp In the decision reported in 1984(18) E.L.T. 449 (Tribunal) 1984 E.C.R. 1634 (CEGAT) (M/s. Union Carbide India Ltd., Calcutta v. Collector of Customs, Calcutta) an identical question arose under Section 130 of the Customs Act, 1962. It was held that an order made by any judicial tribunal is on the case before it. It does not exist in the void being one, necessarily, made in relation to the case decided by the Tribunal. It may be that the case could be decided on a preliminary issue. That does not mean the order, is, any the less, an order in relation to the case. 7. emsp In view of the above discussion we do not accept the contention of Shri Rakesh Bhatia that Section 35G would be attracted. No reference to the High Court would lie since the order in this case relates to the value of the goods for the purposes of assessment. This application is therefore dismissed.
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1985 (8) TMI 171
Smuggled goods - Circumstantial evidence ... ... ... ... ..... t an appointed place pursuant to a telephonic conversation. We are therefore, inclined to place reliance on the statement of Hava which clearly implicates the appellant and we hold the statement of Hava as voluntary and true. This statement of Hava has been well corroborated by certain clinching circumstances like the appellant meeting the said Hava at the appointed time at a specified place and conversing with him. The appellant has also not chosen to cross-examine the said Hava. Therefore, we are convinced that the appellant is concerned with the watches under seizure. We are not going into the acceptability or otherwise of the alleged unsigned statement of the appellant dated 3-10-1983 since de hors the statement we find from the materials on record that the charge has been proved against the appellant. Having regard to the value of the watches, the quantum of penalty imposed on the appellant cannot be said to be either harsh or excessive. We therefore, dismiss the appeal.
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1985 (8) TMI 170
Issue of show cause notice, ... ... ... ... ..... n 35E, ever contended that the communication of the Superintendent referred to supra is an appealable order and was not appealed against and therefore reached a stage of finality disentitling the Assistant Collector to sanction any refund. The lower appellate authority would appear to have taken up the stand that the communication of the Superintendent is in the nature of an appealable order without putting either of the party on notice of this issue and suo motu taking up the stand or affording them an opportunity of being heard. The appellate authority has also not considered under the impugned order the plea made on behalf of the Department that the letter of protest relied upon by the appellants is not a valid protest under the provisions of the Act and Rules. I therefore for the above reasons, set aside the impugned order and remand the matter to the lower appellate authority for fresh disposal of the case after affording the parties herein an opportunity of being heard.
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1985 (8) TMI 152
Revision, Of Orders Prejudicial To Interests Of Revenue ... ... ... ... ..... 83. When we examined the reasons given by the ITO for filing the proceedings, it is clear that the ITO has not applied his mind to the assessment proceedings which were reopened by the predecessor ITO under section 146. Further the last sentence in the order sheet clearly indicates that the ITO has filed the proceedings merely to give a handle to the Commissioner to take action under section 263. Since the ITO has not applied his mind before filing the proceedings, the order sheet entry made by the ITO on 31-3-1983 which is the last day of limitation for the assessment to be made in this case, cannot be treated as an order passed by the ITO. When once we held that the order sheet made by the ITO is not an order, the Commissioner has no power to exercise jurisdiction under section 263 as the same is not an order much less an assessment order. We, therefore, quash the order of the Commissioner passed under section 263 and the appeal filed by the assessee is accordingly allowed.
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