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Showing 181 to 200 of 233 Records
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1987 (6) TMI 53 - HIGH COURT OF JUDICATURE ANDHRA PRADESH AT HYD.
Appeal - Penalty - Limitation ... ... ... ... ..... rty. Therefore, the learned Single Judge erred in arriving at the conclusion that the Board has no power to enhance the penalty. In this view the order is not sustainable. But, however, the learned counsel for the respondent seeks to sustain the order on the ground that the levy of penalty is barred by limitation. It must be stated that this ground has not been raised at any time before the hierarchy of authorities and it is also not raised in the writ petition. But, however, it is stated that a petition has been filed for raising the ground of limitation as an additional ground. This petition is not numbered and it is at the stage of SR only even now. The learned Judge also is not invited to consider this aspect. Therefore, we do not consider it appropriate to permit the petitioner to raise this ground at this belated stage, as it required investiation of facts. 2. In the circumstances the order of the learned Single Judge is set aside. The writ Appeal is allowed. No costs.
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1987 (6) TMI 52 - HIGH COURT, OF PUNJAB AND HARYANA AT CHANDIGARH
Motor Vehicles - Central Excise licence - Manufacture - Interpretation of Statute ... ... ... ... ..... me functional utility. The distinction drawn by the learned counsel between the two types of bodies mentioned above is without any merit and it simply does not exist. The large scale manufacturer who manufacturers a motor vehicle and a small scale entreperneurs with hardly a turnover of a million of rupees per year cannot be equated for the purposes of imposition of excise duty. 12. For the foregoing reasons, these writ petitions are allowed. The petitioners and other small scale manufacturers who only build or fabricate bodies for buses or trucks on the chassis supplied by their customers do not manufacture motor vehicles. They only manufacture bodies of motor vehicles and their cases are fully covered by Heading No. 87.07 and the notification exempting the goods, i.e., the bodies of the motor vehicles falling under this category. The petitioners whose annual turnover does not exceed Rs. 10 lakhs are not liable to pay excise duty or to get a licence under the Act. No costs.
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1987 (6) TMI 51 - HIGH COURT OF JUDICATURE AT BOMBAY
Writ jurisdiction - Proforma credit - Penalty and fine ... ... ... ... ..... nt aspects of the matter. 9. The last limb of Sri Setalwad s argument was that in any event on the facts of the case there was no scope for attributing intention on the part of the petitioners to evade excise duty. According to him, imposition of penalty and fine was certainly not valid without establishing mens rea. Firstly, the -question whether one had an intention to evade excise duty is a question of fact. Secondly, Clauses (a), (b) and (c) of sub-rule (1) of Rule 173Q do not admittedly use the expression with intent to evade payment of duty , which is found in clause (d) thereof. It can, therefore, be prima facie, assumed that the liability in terms of Rule 173Q(1) sub-clauses (a), (b) and (c) does not depend upon mens rea. Moreover, on merits also we would not like to interfere with the finding of fact arrived at by the Central Excise Authorities in writ jurisdiction. 10. Accordingly, Rule is partly made absolute as indicated above. There will be no order as to costs.
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1987 (6) TMI 50 - HIGH COURT OF JUDICATURE AT MADRAS
Customs - Imports - Taxable event - Estoppel - Promissory estoppel ... ... ... ... ..... be totally exempted from duty under the Act as per the Notification No. 129/76 and acting upon this promise only, the imports were made and the promise cannot be given a go-by to the prejudice of the petitioners before the pulses actually got imported. This line of submission was not pursued further in view of the pronouncement of the Bench in M. Jamal Company v. U.O.I. 1985 (21) E.L.T. 369 and hence I do not feel obliged to deal with this contention. For the above reasons, these writ petitions are dismissed. No costs. At this stage, learned counsel for the petitioners pray that the petitioners should be granted sufficient time to pay the duty under the Act on the pulses imported by them. I find that pending the writ petitions, the imported pulses have been cleared on the petitioners furnishing bank guarantees. The petitioners will have six months time from today to pay the requisite duty on the pulses imported by them provided they keep alive the bank guarantees furnished.
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1987 (6) TMI 49 - HIGH COURT OF CALCUTTA
Refund - Stay of - Refund arising out of Collector (Appeals') Order ... ... ... ... ..... led to interest on the refund from the date of the order of the Appellate Collector till the date of payment. 29. For the reasons aforesaid this application is allowed. The petitioner shall be granted the refund as may be due on the basis of the order of the Collector of Customs (Appeal) dated 15th May, 1985 with interest 12 per annum from the date of that order till the date of payment. The refund shall be allowed within six weeks from the date of communication of the operative part of this judgment and order. The petitioner however shall furnish a bond incorporating an undertaking to the effect that in the event the appeal is allowed by the Tribunal, the petitioner shall refund the entire sum inclusive of interest which shall be paid to the petitioner in terms of this order. Let a signed copy of the operative part of this judgment be handed over to the advocate for the petitioner upon his undertaking to apply for and obtain the certified copy of the judgment and the order.
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1987 (6) TMI 48 - HIGH COURT OF JUDICATURE AT BOMBAY
yarns - Dutiability - Alternative remedy ... ... ... ... ..... lector of Central Excise, the result would have been the same and in any event they could not have been able to avoid coming to this High Court. In my view, if the show cause notices were not per se maintainable, the entire exercise of issue of show cause notices by the department becomes an act without any authority. In any case the respondents have suffered no prejudice. I, therefore, pass the following order All the show cause notices being Exs. A, C, D, E, F, G and H stand quashed and set aside. It appears that during the pendency of the petition, the petitioners have given certain bank guarantees and personal bonds. The same also stand discharged, by virtue of this judgment of mine. At this stage Mr. Master applies that the latter portion of the order relating to the bank guarantees and bonds be stayed for a period of four weeks from today. Accordingly the operation of that part of the order stands stayed. Respondents to pay the costs of the petition to the petitioners.
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1987 (6) TMI 47 - HIGH COURT OF GUJARAT AT AHMEDABAD
Prosecution - Revision - Suo motu review ... ... ... ... ..... ed by the first respondent. On the peculiar facts of this case, therefore, it cannot be said that the show cause notice was issued by the first respondent beyond reasonable time. It has also to be kept in view that ultimately, the only order which has been passed against the petitioner by the first respondent is of restoring personal penalty of Rs. 1,000/- as imposed on him by the Assistant Collector of Customs on 1-1-1975. On the facts as found by the first respondent, the said order cannot be said to be unjustified or uncalled for from any angle. Consequently, no case is made out for our interference with the said order. The second contention also, therefore, has to be rejected. 11. There were the only contentions raised by Mr. Vyas in support of the petition and as they fail, the inevitable result is that the petition also fails. Rule is, therefore, discharged. In the facts of the case, there will be no order as to cost. Interim relief granted earlier shall stand vacated.
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1987 (6) TMI 46 - HIGH COURT OF JUDICATURE AT BOMBAY
Valuation - Sole selling agent ... ... ... ... ..... n and, therefore, their refund application should not have been rejected. 7. I make it clear that it is open to the respondents to assess, if they have not assessed earlier, the excise duty payable by the petitioners, but that shall be on the basis of the ex-factory prices of the products as fixed by the petitioners and not on the basis of the prices charged by the sole selling Agents. In the result, I pass the following order The impugned orders as contained in Ex. C, CI, C2 and also in Ex. F stand quashed and set aside. I direct that the respondents should consider the refund applications on the basis of the excise duty payable at the prices fixed by the petitioners ex-factory. The respondents must complete the assessment as per the directions given here and must pay the amount which the petitioners are entitled to on such assessment, within a period of three months from the date of the service of this order. The petitioners are also entitled to the costs of this petition.
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1987 (6) TMI 45 - HIGH COURT OF KARNATAKA AT BANGALORE
Classification List ... ... ... ... ..... ng as per Annexure-C, he has obviously ignored importance and scope of the provisions of Rule 173-B which contemplates an enquiry before the classification list is modified. 8. Suffice it to say that the enquiry contemplated under Rule 173-B is mandatory and the order made by Assistant Collector, as per Annexure-A, is liable to be set aside on this sole ground. This is also in consonance with the rules of natural justice. What is more, under the scheme of the Act which is a taxing statute, it is needless to state that this, opportunity of being heard is a condition, precedent, before a demand is made or the duty is quantified and any order which is likely to prejudice and affect the assessee, is made. In the result, writ petition is allowed and the order Annexure-A, is set aside. The matter is remanded to the Assistant Collector, 2nd respondent, to make a fresh order in accordance with law and after issuing show cause notice under Rule 173-B and after hearing the petitioner.
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1987 (6) TMI 44 - HIGH COURT OF JUDICATURE AT BOMBAY
Customs - Penalty for short landing - Adjudication proceedings ... ... ... ... ..... ssistant Collector chose to disregard it and passed a mechanical order reciting that there had not been a satisfactory account for the shortage. The satisfaction prescribed by Section 116 has not been properly reached. For compliance with that section, it was necessary to assess or scrutinise the reason given by the respondents. An order passed mechanically does not comply with the requirement of Section 116. On this short ground, the orders penalising the respondents cannot be sustained. That apart, we must hold that the learned Single Judge was right in holding that the appellants acted unjustly. Having waited for 7 years, they should have acceded to the short request for an adjournment made by the respondents in their communication dated 7th December 1974. If they did not want to wait, the respondents should have been so intimated before the passing of the impugned order. 6. There is no merit in the appeal and it is hereby dismissed. 7. Parties shall bear their own costs.
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1987 (6) TMI 43 - HIGH COURT OF JUDICATURE AT BOMBAY
Manufacture - Yarn - Demand and Penalty ... ... ... ... ..... rn, with twists of only four to five per inch, no essential difference in identity had been brought about. No yarn had been consumed in the making of the weft yarn. Therefore, no new product came into existence and the process of giving these twists was not a process of manufacture. See Dy. Commissioner, Sales Tax v. M/s. Pio Food Packers, A.I.R. (1980) S.C. 1227 1980 E.L.T. 343 (S.C.) . 15. The respondents also placed before the adjudicating officer the affidavits of traders in textiles and yarns which stated that the weft yarn was not a product known to trade and was not available in the market. There is, again, no material on the record to suggest the contrary. If the weft yarn is not known to trade and is not available in the market it is not a new product and no process of manufacture is involved in its production. The test, in this behalf, also laid down in the case of Pio Food Packers, is not satisfied. 16. In the result, the appeal is dismissed. No order as to costs.
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1987 (6) TMI 42 - HIGH COURT AT MADRAS
Adjudication in departmental proceedings vis-a-vis prosecution in Criminal Court - Illegal import
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1987 (6) TMI 41 - HIGH COURT OF JUDICATURE AT BOMBAY
Central Excise - Dutiability ... ... ... ... ..... of deciding the matter which is before me. 15. Mr. Talyarkhan has laid great emphasis on the fact that the evidence of the Deputy Chief Chemist itself shows that without the addition of the stabilisers, this particular solution has no life at all and it gets spoiled. There is no other material before me to hold otherwise. If that is so, in my view, this item without any stability whatsoever has no shelf life at all, and, therefore, the material would be spoiled within a short time and, therefore, it cannot be considered as an item which would come under Item No. 15A(1). In any event, it is clear that this item is not marketable at all and if that is so having regard to the judgment of the Supreme Court, the same cannot attract any charge of excise under the Act. 16. In the result, the petitioner must succeed. I, therefore, pass the following order 17. Rule is made absolute in terms of prayer b . However, in the circumstances of the case, there would be no order as to costs.
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1987 (6) TMI 40 - KERALA HIGH COURT
Burden Of Proof For Levy Of Penalty, Penalty ... ... ... ... ..... bability, held on the facts, that the assessee has discharged the burden cast on him and has proved that the failure to return the correct income, did not arise from any act of omission or commission on his part, as envisaged by section 271(1)(c) of the Act. We are of the view that since the various facts stated by the Tribunal in the appellate order are not disputed by the Revenue, advertence to the facts stated in the, Tribunal that no penalty is exigible in this case. In the light of our above conclusions, we answer the questions referred to us in the following manner We answer question No. 1 in the negative, in favour of the assessee and against the Revenue. Question No. 2 is answered in the affirmative, against the Revenue and in favour of the assessee. Question No. 3 is answered in the affirmative, against the Revenue and in favour of the assessee. A copy of this judgment under the seal of this court and the signature of the Registrar will be forwarded to the Tribunal.
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1987 (6) TMI 39 - MADHYA PRADESH HIGH COURT
Banking Company, Income ... ... ... ... ..... in question. In our opinion, the clause contemplating resumption of possession by the lessor if the premises were required by it for its own use for a public purpose on the conditions stated in the said clause would also not make much of a difference. Firstly, that is a clause which normally finds place in such leases and, secondly, the contingency contemplated was such which may or may not happen. In the instant case, it is not the case of the assessee that the said contingency has happened and the lessor has resumed possession over the plot in question. In this view of the matter, the amount of premium paid by the assessee was obviously in the nature of capital expenditure and the Tribunal was not right in holding it to be revenue expenditure. In the result, the question referred to us in each of these two cases is answered in the negative, in favour of the Department and against the assessee. In the circumstances of the case, however, there shall be no order as to costs.
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1987 (6) TMI 38 - KERALA HIGH COURT
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... ... ..... pplication under section 256(2) on the ground that the decision of the High Court has been followed by the Tribunal. The learned Chief justice went on to state (p. 10) But, on principle, we do not think there is any difference because the mere fact that leave has been granted against the decision of this court would not automatically create any infirmity in the precedential value of the decision of this court or the value of the decision as laying down the law binding the assessee and the Revenue within the jurisdiction of this court. We are in respectful agreement with this statement. Since we are satisfied with the correctness of the decision of the Appellate Tribunal, we find no merit in this original petition. No referable question of law, therefore, arises out of the order of the Appellate Tribunal. We decline to direct the Appellate Tribunal to refer the questions of law for decision by this court. The original petition is without merit and it is accordingly dismissed.
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1987 (6) TMI 37 - KERALA HIGH COURT
Income, Mutual Association ... ... ... ... ..... ers and non-members for a fee. The assessee/respondent was held to be a mutual association. The said finding is a pure finding of fact. We answer the questions, referred to us, in the following manner 1. We answer question No. (1) In the affirmative, against the Revenue and in favour of the assessee. 2. We answer question No. (2) In the affirmative, against the Revenue and in favour of the assessee. 3. We answer question No. (3) In the affirmative, against the Revenue and in favour of the assessee. 4. We answer question No. (4) In the affirmative, against the Revenue and in favour of the assessee. We further hold that the Appellate Tribunal rightly stressed the word otherwise 5. We answer question No. (5) In the affirmative, against the Revenue and in favour of the assessee. The above income-tax referred cases are disposed of as above. A copy of this judgment under the seal of this court and the signature of the Registrar will be forwarded to the Tribunal as required by law.
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1987 (6) TMI 36 - KERALA HIGH COURT
Exemptions, Wealth Tax ... ... ... ... ..... We perused the said decision. We concur with the same. The Appellate Tribunal has referred to the said decision of the Karnataka High Court as also a few other decisions which have followed the said decision. We are of the view that the decision of the Appellate Tribunal holding that the respondents assessees, who are partners in a firm which owned agricultural lands, are entitled to exemption claimed under section 5(1)(iva) of the Wealth-tax Act in computing their net wealth, is correct. In this view of the matter, we answer the questions referred to us in ITR Nos. 20 to 23 of 1983 in the affirmative, in favour of the assessee and against the Revenue. We answer the question referred to us in ITR Nos. 212 to 214 of 1984 in the affirmative, in favour of the asses see and against the Revenue. The ITRs are disposed of as above. A copy of this judgment under the seal of this court and the signature of the Registrar shall be forwarded to the Appellate Tribunal as required by law.
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1987 (6) TMI 35 - KERALA HIGH COURT
Assessment, Limitation, Return ... ... ... ... ..... on 153(1) of the Act. It is in the nature of an Injunction, stating that no order of assessment under section 143 or section 144 can be made at any time after the expiry of the period prescribed therein. It is really a fetter upon the power of the Income-tax Officer to make the assessment. It is a question of jurisdiction. Vide the decision of the Supreme Court in S. S. Gadgil v. Lal and Co. 1964 53 ITR 231 at p. 239 . We hold that the Income-tax Officer has no jurisdiction to pass the order of assessment dated March 6, 1976. The assessment made on March 6, 1976, is illegal and without jurisdiction. In this view of the matter, we answer the question referred to us in the negative. The Tribunal was wrong in holding that the assessment is not barred by limitation. We answer the question against the Revenue and in favour of the assessee. A copy of this judgment under the seal of this court and the signature of the Registrar shall be forwarded to the Tribunal as required by law.
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1987 (6) TMI 34 - KERALA HIGH COURT
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... ... ..... e. It was also found that as regards Rs. 1, 50,000, it is only a case of unsatisfactory explanation of the nature and source of the amount and that there is nothing to show that the plea of the assessee is false or inherently impossible, or that the failure to return the correct income did arise from any fraud or gross or wilful neglect on his part. These are all findings of fact. On these findings, the conclusion of the Appellate Tribunal in cancelling the penalty of Rs. 2 lakhs was justified. In the light of the above, we answer question No. (1) in the affirmative, against the Revenue and in favour of the assessee. Since we have answered question No. (1) in the affirmative, no decision or answer is called for with regard to question No. (2). We decline to answer the said question. The income-tax referred case is disposed of as above. A copy of this judgment under the seal of this court and the signature of the Registrar will be forwarded to the Tribunal as required by law.
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