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Case Laws
Showing 61 to 80 of 310 Records
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1987 (2) TMI 448
Whether for purposes of limitation the date of the order of assessment for the year 1975-76 in the instant case should be the date of the original assessment order, i.e., February 7, 1979 or whether it should be the date of the order passed under section 21 of the Act, i.e., January 18, 1980?
Held that:- Appeal allowed. Order dated January 18, 1980 has to be treated as an order of assessment even though it is not in the form in which an order of assessment has to be passed and not as an order merely on the question whether the reassessment proceedings under section 21 of the Act should be proceeded with or not. The period of limitation for the application for rectification should, therefore, be calculated from the date of the order under section 21 of the Act. We cannot, therefore, subscribe to the view of the High Court expressed in its observation that since no fresh order of assessment had been passed after examining the accounts of the assessee the "original assessment order should be considered to remain intact as nothing is added or altered in pursuance of the order under section 21 of the Act".
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1987 (2) TMI 447
The question raised in this appeal stands concluded by the law laid down by this Court in Pournami Oil Mills v. State of Kerala [1986 (12) TMI 37 - SUPREME COURT OF INDIA] where the ratio laid down in Motilal Padampat Sugar Mills Company Limited v. State of Uttar Pradesh [1978 (12) TMI 45 - SUPREME Court] was affirmed. This is not disputed by learned counsel for the appellant. In the circumstances the appeal is dismissed but without any order as to costs.
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1987 (2) TMI 446
Whether insurance charges is a part of "turnover" under section 2(s) of the Andhra Pradesh General Sales Tax Act, 1957, for purposes of levy of sales tax?
Held that:- Appeal dismissed. The vires of the definition is not in issue and since the bill of sale included insurance charges and the assessee-appellant recovered the amount as part of the consideration for the transaction of sale there is no force in the challenge raised by the appellant against the demand. The explanation attached to the definition of "turnover" indicates what has to be excluded from it. After the exclusion what remains is clearly taxable.
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1987 (2) TMI 429
Winding up - Company when deemed unable to pay its debts ... ... ... ... ..... e Execution Court (First Additional District Judge, Meerut) after the winding up order had been passed and without disclosing the same in the compromise application or to the execution court. As a matter of fact, if this fact had been disclosed to the execution court, it would not have proceeded to pass any order on the compromise application. It is apparent, therefore, that the order on the compromise application has been obtained by concealing a material and relevant fact before the execution court. Having given the matter the consideration it deserves, I am clearly of the view that no case has been made out for recalling the order passed for winding up of the respondent company. The order on the compromise application was obtained without disclosing a relevant fact to the execution court and the order is ineffective after the passing of the winding up order for the reasons indicated earlier in this order. This application must, therefore, fail and is accordingly dismissed.
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1987 (2) TMI 428
Register of Members, Oppression and Mismanagement - Right to apply under section 397 and 398 ... ... ... ... ..... move this court for rectification of the defective entries in the prescribed register under section 155 of the Act. Section 155 of the Act is only an enabling provision and cannot be invoked in aid to defeat the rights of the petitioners to move this court for appropriate relief under sections 397 and 398 of the Act. Lastly, it is urged by learned counsel for the respondents, that no resolution of the board of directors was passed for allotment of any shares to petitioners Nos. 1 and 3 and for purchase of the shares by the second petitioner, as required under rule 4 of the Rules. The submission does not deserve to be countenanced as in the counter-affidavit filed on behalf of the respondents in the main company petition, it is admitted that share certificates to petitioners Nos. 1 and 3 were validly issued. The preliminary objection as to the maintainability of the company petition is, therefore, overruled. Post the company application for further orders on February 20, 1987.
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1987 (2) TMI 427
Restrictions on payments, Burden of proof ... ... ... ... ..... important branch of law and that it is a complex process involving intricate questions of fact and law, That being so, we are satisfied that the present appeals where the quantum of penalty and the exercise of judicial discretion are concerned involve questions of law and as such the appeals are entertainable by this court. Applying the said ratio, the penalty on the accused was reduced to a half. I am in entire agreement with the ratio decidendi of the judgment of the Division Bench of the Karnataka High Court. Learned counsel for the respondent has not been able to distinguish the same or cite any contra authority. Keeping in view the facts that very small amounts were given to numerous persons, under a bona fide belief, in my opinion, the interest of justice will be fully met if the amount of penalty is reduced by Rs. 1 lakh. With these observations, the appeal is partly accepted. The amount of penalty imposed by the Department on the appellant is reduced to Rs. 1,82,500.
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1987 (2) TMI 406
Dutiability ... ... ... ... ..... on the printed containers by an amount of duty paid on the plain containers. This is a measure that has been frequently adopted but unfortunately it is not automatic, and this manufacturer has not been told in this case and the Assistant Collector and the Appellate Collector do not tell, that they would allow credit for the duty paid on the plain containers. Even when corrective notifications are in course of time issued, the shock has already been felt and it is only later clearances that may be relieved. But this is not always the case. 8. emsp The main reason for my inability to agree with the Department rsquo s action is, however, that the duty having been paid, the item heading being the same, that same duty can never be levied again as long as the article remains assessable within the same heading/item/sub-heading. For this reason I set aside the orders of the Appellate Collector and the Assistant Collector and direct the printed containers to be assessed free of duty.
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1987 (2) TMI 399
Yarn - Dutiability ... ... ... ... ..... tification No. 172/72-C.E., dated 24-7-1972 is not correct. When the manufacture of yarn was complete, it was in running length and not in cut pieces or in the condition specified in the said Notification. The exemption under that Notification is not, therefore, admissible to this yarn. Duty on yarn became leviable as soon as the manufacture was complete, but the collection thereof was postponed to the stage of clearance of fabrics under this special procedure. This does not alter the duty liability of yarn because the fabrics were treated as chindies. The exemption of duty on chindies cannot be applied to the yarn. As the count of the yarn content was not ascertainable, charging duty at the highest rate was justified. 5. In view of the above discussions, we do not find any force in the contentions of the appellants and the same are untenable. The orders of the lower authorities do not suffer from any infirmity. We, therefore, uphold the impugned order and dismiss the appeal.
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1987 (2) TMI 398
Impellers and Propellers, parts of blower ... ... ... ... ..... here was no removal of electric blower or fan in terms of Rules 9 and 49 of the Central Excise Rules, 1944. The learned representative of the department stated that the blower was removed inside the air-conditioner or the water cooler. We do not agree with him. What the respondents removed were only air conditioners and water coolers, the two articles known as such and having a distinct identity of their own. Though each of these machines had an electric blower fitted inside them, it could not be said that they were manufacturing and removing blowers as such. In the facts and circumstances of their case, there was no removal of electric blowers even for captive use because blowers as such never came into existence outside the air-conditioner or the water cooler. The respondents were also entitled to the benefit of promissory estoppel arising out of the Board rsquo s Tariff Advice. 6. In the circumstances, we discharge the Revision Show Cause Notice and dismissing this appeal.
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1987 (2) TMI 397
Appeal to Appellate Tribunal ... ... ... ... ..... led two appeals they would have involved common question of law and facts. In that event, if the principles enunciated in Order 1 Rule 1 of the Code of Civil Procedure is applied the Hindu Undivided Family and the Karta could jointly file an appeal. It is in respect of the same transaction entered into by the Hindu Undivided Family through its Karta the penalty came to be imposed. The challenge in the appeal is in regard to that transaction. The relief claimed by them would be common and the cause of action is also the same. And, therefore, the Hindu Undivided family and its Karta can join together as appellants and can file a single appeal paying a single set of fees. 11. In the above view of the matter, we hold that the preliminary objection raised by Shri Prabhu is not sustainable in law. The appeal filed by M/s. Kanta International (H.U.F.) and its Karta Shri M.L. Gupta is in order and is maintainable in law. 12. The stay application shall be listed for hearing on merits.
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1987 (2) TMI 396
Writ Jurisdiction ... ... ... ... ..... ill is introduced in the Parliament to repeal the Cess Act so as to abolish all levy upon the vegetable oil because such a levy was to the detriment of the small producers of vegetable oil in the country. 18. In the result, the instant writ petitions are partly allowed. As regards the question of oil derived from the oilseeds and rice bran the petitioners in these writ petitions shall raise their contentions before the competent authorities which had issued the show cause notices to them and pursue their statutory remedies in that regard. However, as regards the question of levy of oil derived from oil-cakes the show cause notices issued to them in that regard are quashed in both these writ petitions and it is declared that the petitioners are not liable to pay any cess under Section 3 of the Cess Act upon the oil derived by them from the oil cakes through the technical process of solvent extraction plant. Rule in the above terms. No order as to costs in these writ petitions,
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1987 (2) TMI 395
... ...
... ... ..... n respect of delay in preferring the appeal to the Tribunal. She therefore stated that taking into consideration the circumstances detailed in the memorandum of appeal the delay if any should be condoned. The fallacy of this argument is that it presumes that the appellant-Collector had a right to prefer an appeal to this Tribunal but had not preferred the appeal within the time-limit stipulated. As earlier mentioned the right of review which alone was available as on 12-1-1981 had come to an end by 12-1-1982. This Tribunal came into being on 11-10-1982 only. Therefore, there was no question of the appellant-Collector having been entitled to file an appeal to this Tribunal but not having preferred it within the time stipulated. Therefore, there is no question of the Tribunal exercising its powers for condonation of the delay in preferring the appeals. 3. In this view we hold that these appeals are not maintainable at all and accordingly reject both appeals as not maintainable.
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1987 (2) TMI 394
Rate of duty ... ... ... ... ..... 13. In the aforesaid circumstances, we uphold the Board rsquo s order to the effect that in terms of Rule 9A(1) (ii), the rate of duty applicable in this case would be as applicable on the date of actual removal of the excisable and dutiable goods from the factory of manufacture. 14. In so far as confiscation and redemption fine are concerned, we do not find any extenuating circumstances. The appellants ought to have followed the prescribed procedures. As the Board has correctly observed, if the so-called ldquo practice rdquo was within the knowledge of, and not objected to, by the Central Excise department, there would have been no case for confiscation of goods. As we have seen, however, the appellants have not established the knowledge of the ldquo practice rdquo and acquiescence thereto, on the part of the Central Excise department. As such we do not see any reason to interfere with the orders of the lower authorities. 15. The result is both appeals fail and are rejected.
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1987 (2) TMI 390
Classification ... ... ... ... ..... ery little merit in the Central Excise case that the transformer coil must pay duty again under Item 68 even though the coil wire has already paid duty as an electrical conductor. 8. The demand by the department itself is time-barred except for a period of about one month. The notice is dated 28-10-1980 and in all likelihood was received by the manufacturers two or three weeks later. The period covered is 1-6-1976 to 31-5-1980 since the Collector does not say there has been any fraudulance, he cannot require payment of duty beyond six months from the date of his notice even taking the notice was received on its date. The learned Collector does not impose a penalty this is another sign that he did not see any fraud or clandestine removal. Had he done so, he would have given a penalty to deter the manufacture from repeating a violation that caused a duty loss of over four lakhs of rupees. 9. For these reasons, the orders of the Board and the Collector are quashed and set aside.
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1987 (2) TMI 389
Classification ... ... ... ... ..... . In Order No. D-28 to 30/1986, dated 15-1-1986 in Appeals Nos. ED/404/81-D, 2861/85-D and 2862/85-D, the issue was discussed at length and it was held that blended yarn having the aforesaid composition would fall under the residuary Item No. 68 of the CET. 6. Following the aforesaid decision, we hold that, in the present instance also, the subject blended yarn would fall under Item No. 68 CET. The two appeals are accordingly allowed and the Assistant Collector is directed to re-assess the goods under Item 68 CET and modify the demands accordingly. If this results in an amount lower than what has been confirmed in the lower authorities rsquo orders, the recovery shall be limited to the re-worked amount. If, on the other hand, the result of re-working leads to a higher amount than the one confirmed by the orders of the lower authorities, then, the recovery shall be limited to the amounts confirmed by the lower authorities. The appeals are disposed of with the above directions.
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1987 (2) TMI 384
Power - Use of Power ... ... ... ... ..... which no process is ordinarily carried on with the aid of power. In other words, the manufacture of the goods, the process in relation to the manufacture and the carrying on of any such operation with the aid of power should all be done for the same manufacture. In this case as the appellants have purchased merely the components from the 3rd parties on a principal-to-principal basis and have no financial interest in the other manufactures, the benefit of the notification cannot be denied to them. It is significant to note that the 3rd parties are independent manufacturers and no action has been taken against them. 14. emsp In the above circumstances, we are of the view that the orders of the Collector (Appeals) do not call for any modification. We do not agree with the orders of the Addl. Collector in concerned Appeal No. 259/82-B-I. 15. emsp In the result. Appeal No. 259/82-B-I is allowed and other appeal Nos. 2161/83/1839/85 and 385/84 filed by the department are rejected.
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1987 (2) TMI 383
Webbing - Elastic webbing ... ... ... ... ..... llants in spite of service of notice. We have accordingly heard Shri K.C. Sachar for the Department and have perused the records. 3. The question whether elastic webbing would be entitled to exemption in terms of Notification No. 29/79-Cus., dated 10-2-1979 came up for consideration before this Tribunal in the case of M/s. Chhaganlal and Sons and it was held in the said appeal (C/Appeal No. 610/81-D and connected appeals) under Order No. 724 to 726/86-D and 726A/86-D dated 10-9-1986 that no such exemption was available under the said notification. Following the said decision, we hold that in the present instance also the rejection of the claim of the appellants by the lower authorities was correct. This appeal is, accordingly, dismissed.
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1987 (2) TMI 382
Import of rabbit skin raw ... ... ... ... ..... t a straight exemption but one hedged with conditions precedent. In so far as the goods had been manufactured abroad there is certainly no evidence that either of the said conditions would be fulfilled apart from the question whether the factory mentioned in the notification would include a factory in the foreign country also since the factory has been defined in the notification in accordance with the definition in the Factories Act. A bare assertion in ground No. 3 in memorandum of appeal in appeal No. 141/83 that the rabbit skins, raw, were neither produced in a factory for manufactured with the aid of power would not suffice as proof of such assertions. 7. emsp In the circumstances, we hold that the claim for exemption from payment of countervailing duty in view of the two Central Excise notifications referred to above was rightly rejected by the lower authorities. In view of the said conclusion we uphold the orders of the lower authorities and dismiss both these appeals.
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1987 (2) TMI 381
Classification ... ... ... ... ..... work-fellows to work it. The auto track has none of the versatility of the true tractors, and is severely limited in its utility. It is similar to the articulated buses that we see on the roads, the front hauling four-wheeled unit having two axles, the driver cabin and the power plant, and a rear body joined to it by articulation, in which passengers are carried. Usually this rear unit has a single axle. The two units because of the articulated jointing, can move relative to one another, allowing a freedom of turning that is denied to a single unitized body vehicle of the same size. Those articulated buses are assessed not as a tractor and trailer but as a motor vehicle. The auto track and its trailer has the features of these articulated vehicles. It is, therefore, not correct to say that auto track is a tractor, and not a motor vehicle, and that the assessment made by the Assistant Collector and the Appellate Collector was wrong. 11. ensp The appeal is, therefore, rejected.
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1987 (2) TMI 380
... ...
... ... ..... diagnostic aid in dealing with patients who complain of chest pain. If the result of E.C.G. test so warrants, we would imagine, the patients would get referred to the appropriate doctor or specialist for further necessary treatment. In this view of the matter, we would consider that, in the present instance, the E.C.G. equipment falls within the four corners of the requirements of Rule 4. Accordingly, we set aside the impugned order and allow the appeal with consequential relief to the appellant. 6. ensp The appellant had, at the conclusion of her submissions, requested for an order waiving the demurrage charges accruing on the E.C.G. machine. If the demurrage charges are leviable under the Customs Act, we feel that this is a fit case where the demurrage charges ought to be waived and we order accordingly. If, on the other hand, the demurrage charges are levied by the Air Port Authorities, the course open to the appellant would be to approach those authorities in the matter.
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