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Showing 61 to 80 of 158 Records
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1986 (5) TMI 129
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... ... ..... incident to take place to foist a case against the appellant. The theory of enmity has been merely brought in by the appellant to extricate himself from the clutches of law. The plea of the learned S.D.R. that the appellant rsquo s son is in gold business and therefore, the appellant should have transferred the gold is not acceptable since the same is only in the nature of conjuncture or a surmise but, be that as it may, the evidence on record clearly establishes that the contraband gold under seizure was recovered from the possession of the appellant and this coupled with the inculpatory statement of appellant which I have held to be true, voluntary and acceptable would prove the charges against the appellant. Having regard to the value of the foreign gold under seizure namely Rs. 1 lakh, the penalty imposed on the appellant under the provisions of the Customs Act and the Gold (Control) Act cannot be said to be either harsh or excessive. The appeals are therefore, dismissed.
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1986 (5) TMI 128
Refund - Duty recovered without authority of law ... ... ... ... ..... nother difficulty and i.e. that the applications of the petitioners have been rejected only on the ground of limitation and none of the authorities have gone into the question whether the goods imported by the petitioners were covered by ruling 23 of 1965. In case the Authorities come to the conclusion that the goods imported were covered, the petitioners are certainly entitled to the refund in accordance with the said ruling. 7. emsp For the reasons recorded above, the rule is made absolute and the case is sent back to the Assistant Collector of Customs, Appraising Department, New Customs House, Bombay to determine whether the goods are covered by ruling 23 of 1965 and if so, to allow the refund forthwith. It is further directed that the Assistant Collector will take into consideration that the case is an old one and would decide the matter finally within four months from to-day. The petitioners will be entitled to their costs. Counsel rsquo s fee Rs. 500/- in each petition.
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1986 (5) TMI 127
Customs - Confiscation of ship valid and legal ... ... ... ... ..... the owners including the discharge of the liability under Section 116. No objection is taken in such circumstances and the agents have the necessary authority on behalf of the Master or the Owners in discharging the responsibility. The learned advocate has also chosen to forget this fact while arguing the appellant rsquo s case. Yet further legal objection taken by the advocate in the appeal is that the confiscation contravenes the requirement of Section 110(2) of the Customs Act. It is seen that the ship was not seized and retained by the Customs, but was allowed to go away. There is no application of Section 110(2) of the Customs Act. So far as the issue of the show cause notice is concerned, this is done under Section 124 of the Customs Act and no time limit is prescribed by this Section. The arguments of the learned advocate in this behalf are also mis-placed. In view of these circumstances, we find no merits in the appeal of M/s G.P. Volkart Ltd. and we reject the same.
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1986 (5) TMI 126
Whether refund claim admissible ... ... ... ... ..... rised by the taxing law, that is a matter between him and the purchaser and the Government cannot recover it unless the money so collected is due as tax. 5. emsp The Special Bench of the Tribunal in the case of Collector of Central Excise, Rajkot v. Decora Ceramics Private Ltd., Rajkot, reported in 1986 (24) E.L.T. 73 (Tribunal), to which one of us was a party has held that ldquo Central Excise law does not authorise denial of relief on the score of unjust enrichment nor does it make refund of duty conditional on the relief being passed on to the ultimateconsumer. rdquo 6. emsp Since the law as discussed above is well settled with reference to the applicability of doctrine or unjust enrichment in respect of a claim for refund under Section 11B of the Central Excises and Salt Act, 1944, the question of making any further reference in this regard would not arise. 7. In the result, the reference application is rejected. The memorandum of cross object is dismissed as not pressed.
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1986 (5) TMI 125
Countervailing duty ... ... ... ... ..... s do not figure in the Central Excise Tariff is not tenable. The goods which do not figure in any of the first 67 items of the Central Excise Tariff would fall under item ldquo 68-A11 other goods not elsewhere specified rdquo . Machines, when manufactured in India, fall under Tariff Item 68. Second hand machines do fall under Tariff Item 68 for the purpose of additional duty of Customs under Section 3(1) of the Customs Tariff Act. Therefore, this argument of the learned advocate is also rejected. 11. emsp In view of the above discussions, we hold that there is no doubt about the liability of the imported second hand machines to additional duty of Customs under Section 3(1) of the Customs Tariff Act, 1975. The cases before us are fully and squarely covered by the Supreme Court rsquo s judgment in the case of Khandelwal Metal and Engineering Works and Another etc. v. Union of India and others (Supra.) 12. In the result, we allow these appeals, and set aside the impugned orders.
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1986 (5) TMI 124
Reference Application - Criterion for consideration ... ... ... ... ..... rly, Rule 49A also authorises the levy of interest at the rates mentioned therein. But where the duty on yarn payable is nil the interest payable also becomes nil because it is a percentage of the duty leviable on the yarn. This proposition was illustrated in the Tribunal rsquo s order with reference to the special excise duty levied under the provisions of the various Finance Acts and the Addl. Duty of Excises on Textiles and Textile Articles under the Additional Duties of Excise (Textiles and Textile Articles) Act, 1976. The Collector has failed to understand or appreciate the observations of the Tribunal in this behalf. Except for making an assertion, no arguments have been advanced by the Collector in support of his view. Accordingly, we find that no point arises out of the Tribunal rsquo s order dated 25-10-1985 which requires reference to the High Court for clarification of the same. The Collector rsquo s application is totally misconceived and is accordingly dismissed.
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1986 (5) TMI 121
Set-off of duty ... ... ... ... ..... ere entitled to the benefit of Notification No. 201/79 in respect of printed cartons on which duty under Item No. 68 had been paid, used in the manufacture of synthetic detergents marketed in such cartons. 6. emsp Again in the case of M/s. Universal Cables Ltd., Satna v. Collector of Central Excise, Indore 1984 ECR 1864, it was held by this Tribunal that wooden drums used in the packing of electric wires and cables were to be treated as inputs for the purpose of Notification 178/77-C.E. 7. emsp Shri A.S. Sundar Rajan has stated nothing which would indicate that all aspects of the issue were not fully examined before the above-cited orders of the Tribunal were passed. All he says is that the Department has gone in appeal. 8. emsp We fully concur with the view taken by the different Benches of the Tribunal in similar matters cited above. In accordance with the ratio of these decisions, we, therefore, allow the present appeal before us with consequential relief to the appellant.
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1986 (5) TMI 120
manufacture of finished petroleum products ... ... ... ... ..... e gasification, desulphurisation and decarbonation units of the fertilizer plant and these processes are essential stages preparatory to the commercial production of urea starting with furnace oil. In the Special Bench ruling I find that furnace oil was used for test and trial runs in respect of gasification, desulphurisation and decarbonation units of the fertilizer plant and such trial run did not actually result in the production or manufacture of any urea. In such a situation the Special Bench on a very considered reasoning, has taken the view that test or trial run is an essential stage preparatory to the production and in this view of the matter when LSHS is utilised for putting the boiler plant on a test run, it would well be construed as utilisation in the eventual manufacture or production of petroleum products within the meaning of the exemption notification stated supra. In this view of the matter I uphold the impugned order appealed against and dismiss the appeal.
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1986 (5) TMI 118
Customs - Additional duty (Customs) - Warehoused goods ... ... ... ... ..... ection 3(1) does not require that the imported article should be such as to be capable of being produced or manufactured in India. The assumption has to be that an article imported in India can be produced or manufactured in India and upon that basis, the duty has to be determined under section 3(1). In view of this decision of the Supreme Court, the plea as to the imported goods not conforming to definition in Tariff Item 68 at the material time would not help the appellants because in any case additional duty liability under section 3(1) of the Customs Tariff Act, 1975 on the goods could be worked out on the basis of class or description of the articles to which the imported article belong and it cannot be doubted that the like article would have fallen under Tariff Item 68. 9. emsp From the aforesaid reasoning, no infirmity could be found with the orders passed by the lower authorities rejecting the appellants claim for refund. Upholding the same, we dismiss these appeals.
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1986 (5) TMI 117
Confiscation ... ... ... ... ..... view that shortage found in banderole stock, shortage of matches found on physical verification, Bank statements showing lager production and also the matches affixed with spurious banderols in the facts and circumstances of this case, are indicative of clandestine removal of the matches. Therefore, Rule 9(2) of the Central Excise Rules was correctly invoked by the Collector. Fake banderols have been recovered from the units. The treasury does not issue any forged banderol. The seizure of matches affixed with fake banderols from the manufacturing units proves that forged banderols were used. In the light of the above discussions, none of the points raised by Shri Jagadeesan is sustainable. 9. emsp The various charges framed by the Department against the appellants were established before the Collector and he has passed a valid order. We do not find any justification to interfere with the order of the Collector. We, therefore, uphold the impugned order and dismiss the appeals.
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1986 (5) TMI 95
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... ... ..... regarding quantification of tax in the case of registered firm when there is no reasonable cause. We also agree with the departmental representative that the principles applicable to construction of a provision when there are no guidelines from any High Court and are different from those when there are mdash guidelines the Tribunal is faced with conflict of precedent mdash High Courts other than Bombay High Court (sic). In such cases we have to apply our minds as held in Nardlala Sohanlal vs. CIT (1977) 110 ITR 170 (P and H). Examined from this point of view and taking into consideration the two Bombay High Court judgments in (1983) 143 (Bom), we see no reason to hold that penalty is leviable otherwise then in the manner mentioned in s. 271(2). As the assessee has not made out a case for showing existence of reasonable cause and as actual period of default is not in dispute, we see no reason to interfere with the decision of the AAC. 9. Accordingly the appeals are dismissed.
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1986 (5) TMI 94
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... ... ..... assessment on the trust cannot be quashed altogether but can only be modified. 8. We have examined the contentions. The main issue is already decided in ITA No. 613 dt, 18th Feb., 1986. Since reported in (1986) 18 ITD 451 Pune. Accordingly we hold that the trustees can not be assessed as a unit of assessment. The trustees however are liable to be assessed but tax demand is to be restricted to that payable as if the trustees are assessable in like manner, and to the same extent as the Individual beneficiaries would be assessable. There is no AOP/BOI of beneficiaries. About the option being exercised, as no point about correctness of the option exercised by ITO has been conversed by either. We do not wish to say anything further on the issue. We only hope that the ITO s assessing the individual beneficiaries would exclude the income in terms of CBDT Circular dt., 24th Sept., 1967 and to avoid possible hardship on account of double taxation. 9. Appeal is partly allowed as above.
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1986 (5) TMI 90
Deduction, Income Of Co-operative Societies, Deduction U/S 80P ... ... ... ... ..... y engaged in marketing produce of its members. Unless the person whose produce is market is a members, the exemption would not be available. We are, however, concerned with collective disposal of labour of the members of society. The words collective disposal exclude application of individual disposal. Similarly, U.P. Co-operative Cane Union Federation Ltd. s case deals with providing credit facility to members. The provisions are entirely different. Besides, we cannot say that the ratio of Tamil Nadu Co-operative Marketing Federation Ltd. s case does not apply. Regarding the voting rights too, in our opinion, the restriction clause applies only when there are individual labourers as members and not when primary societies representing individual labour are member. We, therefore, hold that the assessee fulfils all the conditions of section 80P(2)(a)(vi) including the proviso. The whole of such income is, therefore, deductible from the gross total income. 12. Appeal is allowed.
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1986 (5) TMI 87
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... ... ..... or other. That would mitigate against the concept of exemption being granted under s. 80P(2)(a)(i) in respect of income of the co-operative society. On this ground alone, the disallowances made by the ITO are liable to be deleted. Even assuming for the sake of argument but without admitting, the certain incomes of the co-operative society represented by income from reserve fund investment and gratuity fund investments, are not liable for exemption, it is our considered view that as the assessee s accounts deal with all categories of receipts from which outgoings or provisions are made, there is force in the plea of the assessee s counsel that there is no basis for pinpointing that these impugned disallowances have come out of taxable categories of income. On this ground also, the disallowance made by the ITO is liable to be quashed. For these reasons, we uphold the order of the CIT(A) in having deleted the disallowances. 9. In the result, the departmental appeal is dismissed.
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1986 (5) TMI 84
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... ... ..... ation articles issued on the occasion of the Silver Jubilee celebrations, r. 6B of the IT Rules apply and excess over Rs. 50 have been disallowed on which the assessee cannot have any grievance. On this issue, we are convinced that the action of the Department in disallowing part of the expenses is wholly justified as in the case of presentation articles what is allowable is only upto the value of Rs. 50 and any amount over and above Rs. 50 is rightly disallowable. We accordingly confirm the action of the parties concerned. 8. The last common issue is in respect of interest under s. 215 which according to the assessee should not have been levied at all. The prayer of the assessee before the CIT (A) was that the interest under s. 215 should have been reduced consequent to the relief that would be allowed to him. Therefore, this being a consequential ground to the above grounds, under s. 215 would have to be recalculated. The appeal is accordingly partly allowed on these terms.
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1986 (5) TMI 83
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... ... ..... ecifically pointed out by the assessee s representatively that the assessing authority has wholly misconstrued the position. The proportionate coast of chemical this year could not to be said to be excessive. In this behalf he referred to the comparative chart filed before the CIT (A) in which the cost is shown at Rs. 34,54,728 in the year 1977-78 which comes to 19.80 per cent of the total expenditure as against 19.68 per cent incurred in this year. The decrease in gross profit is due to the higher amount of wages paid in this year. This certainly appears to have a very important bearing on the point of dispute. But unfortunately nobody appear to have looked into this aspect of the matter. Accordingly we accept the appeal, set aside the order of the CIT (A) and restore the matter back to him for fresh decision in the light of our aforesaid observations and the new argument noted above. 5. In the result, the appeal shall be deemed to have been allowed for statistical purposes.
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1986 (5) TMI 82
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... ... ..... r year the exports though made by a firm is only a manner of sharing of profits and should be held to mean or equated with export made by an individual ? Even in general terms, this proposition could no doubt be accepted, as it is not only a matter of convenience of working as any individual partner can claim it as his own except where he is the main and major partner, and other partners are only sleeping partners. But this proposition cannot be stretched any further, when it comes to applying the status or a particular law where the firm has been given a recognition as an assessable unit. The entire emphasis, in this section, is on an assessable unit as such and since the present assessee before us and the firm are two separate and distinct entities, comparing the turnover of the firm with that of the individual assessee is not permissible. Since both conditions, as is envisaged above, are not satisfied, the claim of the assessee is not tenable, and is, therefore, dismissed.
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1986 (5) TMI 81
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... ... ..... pointed out by Shri Vohra the dictionary meaning of the word as the Payment of Gratuity Act clearly points out that the word retirement also takes into its fold cases of resignation of employees who join a new employment. Thus in our opinion, the exemption under s. 10(10AA) will be allowable not in cases of retirement on superannuation but also to cases where an employee retires or withdraws for his employment either by resignation or otherwise and takes up another employment. This decision of ours is also supported by the decisions of other Benches in Delhi which have been referred to above in which it was held that the benefit of is. 10(10AA) will be available even interest the cases of persons who receive such cash equivalent to earned leave after resignation from service. In this view of the matter we hold that the AAC is not correct in rejecting the assessee s claim for exemption under s. 10(10AA) in respect of the sum of Rs. 11,000. 7. The appeal is accordingly allowed.
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1986 (5) TMI 80
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... ... ..... er dt. 2nd June, 1981 for which he has no powers under the Act and also which finding has been accepted even by the assessee. We, therefore, set aside the order of the AAC and direct him to value the property in accordance with the rule 1BB as was decided by the order dt. 20th June, 1981. We draw support from the ratio laid down by the Supreme Court of India in the case of Kapoorchand Shrimal vs. CIT. Their Lordships have clearly laid down that it would be the duty of the appellate authorities to correct all errors in the proceedings under appeal and especially when a particular procedure prescribed by law had not been followed then it would be all the more necessary for the appellate authority to direct the assessing authority to pass a fresh order in accordance with the law but also give specific directions and the manner of making of the assessment which directions have to be in accordance with the law. 6. In the result, the Departmental appeals are allowed on these terms.
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1986 (5) TMI 79
Revision Of Order, Orders Prejudicial To Revenue, Purchase Of Land And Building ... ... ... ... ..... habad High Court judgment it would be wrong to say that the servant quarters or the guard room are not contiguous to the main house. We are, therefore, of the view that the Commissioner has not been able to establish any error which is prejudicial to the interests of the revenue in the order of the WTO. It would be the paramount duty of the Commissioner while invoking his powers under section 25(2) to bring on record the error that has been committed and further explain the extent of prejudice that has been caused to the interest of the revenue. In the instant case, as already explained above, there was no error in the order of the WTO in allowing the assessee for adoption of section 7(4) and freezing the value of the property as was purchased to the extent of cost added to the purchase value. When there is no error, there can be no prejudice caused to the revenue. 5. For the above reasons, we quash the order of the Commissioner (Appeals) and allow the appeal of the assessee.
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