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Case Laws
Showing 81 to 100 of 233 Records
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1987 (6) TMI 220
No question of law arises for reference ... ... ... ... ..... grievance is not against the order of the Tribunal but against the other authorities probably the adjudicating authority and the Board and therefore it cannot be said that this question arises from the order of the Tribunal. 17. During the hearing of the appeal on behalf of the appellant it was contended that conscious knowledge of the package is necessary to bring home the guilt of the appellant. This aspect was considered by the Tribunal in paras 9, 10 and 11 and the finding is found at para 12 and the finding was that the present applicant knew or had reason to believe the contents of the package in question and therefore penalty could be legally levied on him. Here again the finding is based on the appreciation of various circumstances and oral evidence in the form of statements. It is a finding of fact and therefore no question of law arises requiring reference to the High Court. 18. In the result and for the reasons stated above, this reference application is rejected.
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1987 (6) TMI 219
Rectification of mistake ... ... ... ... ..... res the Tribunal to review its earlier order which power has not been conferred on the Tribunal under the Act or the Rules made thereunder. I, therefore, reject the plea of the Collector that Question No. 3 should be referred to the Hon rsquo ble High Court, 17. By Question No. 4 the Collector again is questioning the correctness of the order passed by the Tribunal. It is so general in nature. To answer that question, it would be necessary to re-hear the appeal which is outside the scope of reference application. Shri Pal was not able to point out the facts or the circumstances which were brushed aside by the Tribunal as alleged in this question. If the Tribunal had not considered material evidence or had taken irrelevant matters into consideration there would have been some scope to make a reference. But there is no such proof and as such this question also would not arise for reference. 18. In the result and for the reasons stated above, I reject this reference application.
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1987 (6) TMI 218
Stay/Dispensation ... ... ... ... ..... w cause notice is also bad in law. On this ground along the applicants are entitled to the grant of an unconditional stay. Since we grant an unconditional stay on this ground itself we consider it unnecessary to go into the other contentions of Shri Hidayuttallah. 5. In the result we grant an unconditional stay both with regard to pre-deposit as well as recovery of the duty and penalty amounts. 6. Shri Hidayuttallah appearing for the applicants had brought to our notice that even though the stay application had been filed and pending before the Tribunal the Central Excise Officers have chosen to detain the goods as a result the functioning of the factory had stopped. If the applicant had brought to the notice of the Central Excise Officers regarding the pendency of the stay application in fairness the Central Excise Officers should not have proceeded to detain the goods. The conduct appears reprehensible. This aspect would be noted by the department for their future guidance.
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1987 (6) TMI 217
Spares of machine tools ... ... ... ... ..... ort spares in excess of 5 of the value of the main equipment. The interpretation of the policy by the C.C.I. and E. is correct. The importers of the capital goods falling under Appendix 2 are entitled to import under OGL not only the capital goods but also permissible spares without any value restriction or other restrictions under Appendix 10(4) as well as under Appendix 10(42). Just because the appellants imported the spares along with the main machine they cannot be denied the benefit of import of spares either under Appendix 10(4) or under 10(42). The view to the contrary taken by the Board is unreasonable and opposed to the clear provisions of the policy rdquo . The ratio of the decision in M/s. Vakil and Sons Ltd. applies in all fours to the present appeal. Following our decision in M/s. Vakil and Sons Ltd., Bombay, I allow this appeal, set aside the order of confiscation as well as the fine levied in lieu of confiscation. The appellants be granted consequential relief.
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1987 (6) TMI 216
Redemption fine ... ... ... ... ..... ctor had allowed redemption he was duty bound under law to determine the market price of the imported goods. The order of the Dy. Collector nowhere indicates as to the market price of the imported goods at the relevant time. Even though a contention had been taken before the Appellate Collector he did not consider that aspect of the case. Thus, there is hardly any evidence as to the market price of the imported goods at the relevant time. In the circumstances, I allow this appeal, set aside the impugned orders. The matter is remanded to Dy. Collector for fresh determination of the quantum of fine in the light of the observations contained in this order. 6. The parties are at liberty to adduce fresh evidence before the Dy. Collector as to the market price of the goods in question at the relevant time. 7. As this is a matter of 1982 the Dy. Collector shall dispose of this matter within a period of four months from the date of receipt of records from the Tribunal rsquo s office.
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1987 (6) TMI 205
Review by Collector ... ... ... ... ..... ne, who under Section 35A(2) could have formed the tentative view that the A.C. rsquo s order was not legal, proper or correct. But even if it was, as seen again from the said letter, this notice was made answerable to the Assistant Collector and not the Collector who alone was competent to adjudicate on review proceedings under Section 35A(2). May be the A.C. could have proceeded to adjudicate upon this matter himself in exercise of his own powers but the Collector chose to take upon himself the adjudication of the proceedings initiated by this notice also. The Collector rsquo s order passed on the conclusion of the proceedings initiated by a defective show cause notice cannot be sustained. In this view of the matter, the Collector rsquo s order has to be set aside as invalid and we order accordingly. In consequence, the impugned order-in-appeal has also to be, and is, set aside. The Section 36(2) notice issued by the Central Government also gets, in consequence, discharged.
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1987 (6) TMI 204
confiscation - Declaration by a minor ... ... ... ... ..... firms the decision of the Asstt. Collector of Central Excise, under which the articles in question have been confiscated and a fine of Rs. 1,000/- which has been imposed under Section 74-of the Act. We accordingly hold, in the light of the foregoing discussion, that the gold articles in question are not liable to be confiscated in this case, for the reason that the minor is the owner of the said articles. We also hold that the imposition of penalty of Rs. 1,000/- under Section 74 is also misplaced in the sense that, under Section 14, penalty is imposed on a person who, by his illegal action, renders the gold in his possession liable for confiscation. The penalty of Rs. 1,000/- imposed by the authorities is sustained under Section 75 of the Gold (Control) Act, 1968 to which a reference has already been made. This amount of penalty shall be recovered from the guardian, as the minor has nothing to do with the matter as such. 8. The writ petition is allowed accordingly. No costs.
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1987 (6) TMI 199
Aluminium dross and skimmings ... ... ... ... ..... he event of manufacture rdquo . The conclusion, as succinctly stated by the Hon rsquo ble Delhi High Court, is that ldquo if the intention of the Legislature is to cover lsquo waste or scrap rsquo arising in or in relation to a manufacture, then it has been specifically provided in the tariff items rdquo . This judgment is of special interest in view of the fact that it is subsequent to the judgment of the Hon rsquo ble Supreme Court in the case of Khandelwal Metal Engineering Works, and also that it has been delivered by the Delhi High Court, which at the High Court level had decided the case of Khandelwal Metal Engineering Works. 62. ensp In the result, having regard to the present state of the law, I would answer in the negative the question posed to me, namely, whether aluminium dross and skimmings were ldquo goods rdquo or not. 63. ensp These two cases should now go back to the original Bench for final orders in the light of the above decision on the point of difference.
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1987 (6) TMI 198
Ad hoc exemption valid with retrospective effect ... ... ... ... ..... . It was further observed that Section 25(2) of the Customs Act does not put any restriction on the Central Government as to the time at which it should grant exemption. In 1986 (7) ECR 54, this Tribunal held that special exemption order is an executive or administrative order and not in exercise of legislative power. Therefore, considerations of retrospectivity are irrelevant. In a similar case like the present one, in Appeal No. CD(SB)(T) 769/79-B-2 (Collector of Customs, Bombay v. Indian Red Cross Society, New Delhi), this Tribunal, in Order No. 812/86-B-2, dated 22-8-1986, following the judgment of two High Courts held that refund of Customs duty in respect of a consignment covered by ad hoc exemption should be granted although the goods were cleared before the exemption order was issued. We do not find any justification in holding a different view in the present case. In the result, following the aforesaid decisions, we set aside the impugned order and allow this appeal.
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1987 (6) TMI 197
Valuation - Related person - Two partnership firms with some common partners ... ... ... ... ..... of actual transportation from the appellants premises to the lsquo related person rsquo and also actual transportation expenses, if any, incurred and included in the lsquo related persons rsquo prices are eligible for deduction for the purpose of determining the assessable value. Similarly, amount of duty of excise, sales tax and other taxes such as octroi etc., if any, incurred in relation to these goods whether by the appellants or the lsquo related person rsquo has to be excluded while computing the assessable value. 10. ensp Accordingly, in conclusion I. Appeal No. 1171 of 1982-A filed by the appellants M/s. Rakesh Bulb Industries is dismissed, being devoid of any merits. II. Appeal No. 1449 of 1982-A of the Collector is allowed. III. Appeal No. 417/85-A filed by the Collector of Central Excise is allowed. The impugned order passed by the Collector (Appeals) is set aside and the Order dated 23-11-1983 passed by the Assistant Collector of Central Excise, Pune is restored.
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1987 (6) TMI 196
Words and Phrases ... ... ... ... ..... m the refund. To a similar effect is a decision of the Calcutta High Court reported in 1977 E.L.T. (J65) Akhil Bandhav Chemicals Ltd. v. Union of India. The Appellants sought support for their contentions relying on a decision reported in 1981 E.L.T. P. 78. In that case the Madras High Court Madras Aluminium Company Ltd. and Another v. Union of India has held that the ultimate customer was the person entitled to the refund. But the facts of that case are totally different. The manufacturer who had already collected the duty applied for refund and the Court observed that instead of directing the refund to the appellants, the amount could be retained by the State for payment of duty to the ultimate customers as and when the claims are made and established by them. The facts of the present case are totally different. The Appellants have not followed the procedure set out in the notification and they cannot hence sustain their claim for refund. The Appeal is, therefore, rejected.
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1987 (6) TMI 195
Notified goods ... ... ... ... ..... istor, Model No. 1760 4, Made in Japan 2 2,400/- 3. Sanyo cassette recorder with three Band Transistor, Model No. 1760H of foreign origin 1 1,200/- 4. Great-on Speaker, Model M.S.518 SN, Made in Japan, each set of 2 ps. 2 sets 500/- We feel that keeping in view the facts and circumstances of the case the absolute confiscation was not justified. To meet the ends of justice we order release of the above mentioned items after payment of fine in lieu of confiscation at Rs. 2,000/- (Rupees two thousand only). The Additional Collector had imposed a personal penalty of Rs. 30,000/-. Since the offence committed by the appellant is in the nature of technical offence, there does not appear to be any element of mens rea. To meet the ends of justice we reduce the same to Rs. 5,000/- (Rupees five thousand only) on account of technical default committed by the appellant. In the result the appeal is partly allowed. Revenue authorities are directed to give consequential effect to this order.
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1987 (6) TMI 194
... ...
... ... ..... at precisely has been done by the Tribunal as is evidenced by para 5 of the impugned order. In the instant case it is not the contention of the Department that the Tribunal under the impugned order has placed reliance on any irrelevant piece of evidence in reaching the conclusion with it has reached nor it is the case of the Department that any relevant piece of evidence available on record has not been considered. The reference of the learned SDR to the letters of the Director of the Company, Shri A.C. Muthanna and another letter of a shareholder, adverted to by the Collector of Customs in the original order and referred to supra have no relevance at all with reference to the consideration of the charge as against the respondent. 4. ensp Therefore, on a careful consideration of the entire materials before us, we are inclined to hold that no question of law would, arise out of the impugned order of the Tribunal. In this view of the matter, we reject the reference application.
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1987 (6) TMI 193
Condonation of delay ... ... ... ... ..... everely circumscribed and controlled by statute, which confers them powers. The statutory bodies cannot act outside the limits of statute which creates them. There is always a distinction between inherent power on the one hand, which is a rule of substance and an ancillary or implied power on the other hand which is derived from the rules of statutory construction. The Tribunal being a creature of statute is bound by the inbuilt period of limitation and the proviso to Section 130(1) is restrictive in nature and prohibitive in character in not conferring any right or authority or jurisdiction on the Tribunal to condone the delay in filing an application beyond the condonable period of 30 days provided for under the proviso. We, therefore, hold that the Reference Application which admittedly has been filed beyond the condonable period of limitation, is not sustainable in law and the same is, therefore, rejected in terms of the proviso to Section 130(1) of the Customs Act, 1962.
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1987 (6) TMI 192
Adjudicating authority liable for so-called double payment ... ... ... ... ..... He was not permitted the exemption so he had no means of clearing his goods without paying the duty. 4. The payment of duty, therefore, was a compulsion which the factory did not have the power to resist. It is, therefore, a surprise that the same Assistant Collector would say that he would not pay the refund since the duty had been recovered from the customers. If the factory recovered duty from the customers, and if it then comes forward with a refund claim, the ldquo double payment rdquo that may result is a creation of the Assistant Collector. It was he who compelled the party to clear the motors on payment of duty, producing a protest from the party, according to the Collector (Appeals), but nothing seemed to work, and it all fell on deaf ears. If after all this, the manufacturers are going to be told that they cannot get the refund, it would be heaping injury on injury, and we would not like to stand idly by. 5. Refund shall be paid. The law is in favour of this action.
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1987 (6) TMI 191
Confiscation ... ... ... ... ..... goods should have been permitted for export. The authorities could have also directed the appellant to impress the goods with the stamp ldquo Seconds rdquo in terms of the Regulation under the Textiles Act referred to above, since the export of goods earns valuable foreign exchange to the country. Be that as it may any contravention under the provisions of the Textile Committee Act, 1963 or the regulations made thereunder would not invest the Customs authorities with any jurisdiction to effect confiscation under the provisions of the Act, in terms of Section 113(d) of the Act. We, therefore, hold that the order of confiscation of the goods under the impugned order is without jurisdiction under the Act. In this view of the matter, we set aside the order of confiscation of the goods under the impugned order and consequently the penalty imposed on appellant in Customs Appeal No. 262/87. In the result, the impugned order appealed against is set aside and the appeals are allowed.
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1987 (6) TMI 190
Appealable Order ... ... ... ... ..... e various pleas of the appellants and therefore, on the facts and circumstances of the case it would be proper to treat this communication as an appealable order a concept well understood in revenue and computing limitation from this date the present appeal presented on 26-5-1979 would be within limitation. We hold that the Collector should not have rejected the appeal on the ground of limitation. 4. There is no dispute that no show cause notice as required under law preceding the demand notice was served on the appellants. In the absence of this show cause notice demands of duty vide letter dated 22-12-1978 for Rs. 7,419.47 and by letter dated 11-1-1979 for Rs. 2,022.77 totalling Rs. 9,442.24 cannot be sustained and would have to be set aside. We do the same. 5. It is now more than 5 years since the demands were raised against the appellants. No useful purpose would be served by remanding the matter to the lower authority. 6. The appeal is disposed of in the foregoing terms.
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1987 (6) TMI 189
No question of inheritance of seized gold by claimants ... ... ... ... ..... red. We order accordingly. Consequently, the appeal filed by the Collector of Central Excise is allowed and the appeal and cross-objection filed by S/Shri Suresh Chand Agnihotri and Mahesh Chand Agnihotri are dismissed. rdquo 7. ensp As would be seen from the facts stated in the impugned order dated 4-2-1987 and from the above, the applicants herein were neither owner of the gold nor ldquo other person concerned rdquo . According to the view of this Tribunal, late Shri Ram Jiwan Agnihotri was not the owner of the seized gold. There is no question of inheriting the property by the applicants herein. In the circumstances, two questions raised by the applicants do not arise out of Order No. A/67-68/87-NRB, dated 4-2-1987 passed by this Tribunal. In the circumstances, prayer of the applicants to refer these two questions to the Hon rsquo ble High Court under Section 82B(1) of the Gold (Control) Act, 1968 cannot be accepted. In the result, the Reference Applications are dismissed.
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1987 (6) TMI 188
Words and phrases ... ... ... ... ..... e fair to conclude that the appellant alone has exclusive custody or possession or the ownership of the ornaments so as to fasten on him an obligation under law to make a declaration thereof. Even in the statement given by the appellant on 13-2-1985 immediately on rsquo seizure the appellant had stated that the ornaments belonged to the family and that his son Shri Venkatachalam got married on 9-9-1984 and got by way of gifts, presents gold ornaments and daughter-in-law also brought gold ornaments. Therefore, on consideration of the entire facts on record we are inclined to hold that there is no evidence to warrant a conclusion that the appellant was in possession or custody or control or ownership of ornaments in excess of the statutory quantity of 4000 gms. In this view of the matter, following the ratio of the Tribunal in the ruling referred to supra and considering all the relevant facts set out above, we set aside the impugned order appealed against and allow the appeal.
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1987 (6) TMI 187
Patent or Proprietary Medicines ... ... ... ... ..... articular product. These facts and the related evidence cannot apply in the present case where the product is quite different. 31. ensp We are not inclined at all to go into the question of the ingredients of the impugned products or to weigh the arguments in terms of therapeutic value of the different contents. We are of the view that decision in such cases must rest on consideration of the basic issue as to what are the products known in the market as and how are they treated in the medical profession. We have noted that the products are being prescribed by doctors for specific ailments and diseases and supplied for use in various hospitals. Considering all the facts and evidence produced before us, it is clear that these are not items which are brought and sold in the market or used as items of toilet preparations or cosmetics 32. ensp In view of the foregoing the orders of the lower authorities in respect of products other than Histacalamine are set aside. Appeal allowed.
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