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Case Laws
Showing 61 to 80 of 235 Records
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1988 (12) TMI 218
Classification of goods ... ... ... ... ..... de that C.P. flush bends were known and traded as sanitary fittings and not as pipes and tubes. As regards the C.C.C.N. we observe that the erstwhile Central Excise Tariff was not based on the C.C.C.N. Scheme. In any case, in spite of our asking, the learned representative of the department was not able to show whether the C.C.C.N. categorised C.P. flush bends or sanitary fittings as pipes and tubes. All that he could show was the Explanatory Note which said that curved tubes were to be considered as tubes. But the question is whether, in the first instance, C.P. flush bends were tubes at all or were they sanitary fittings. We hold, on the basis of the available evidence of trade parlance, that they were sanitary fittings falling under Item 68 and they were not pipes and tubes falling under Item 26 A(3). 7. In the result, we set aside the impugned order-in-original as well as the impugned order-in-appeal and allow all the 7 appeals with consequential relief to the appellants.
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1988 (12) TMI 217
Proforma Credit ... ... ... ... ..... duty paid on their imported input and since the said imported input (Item 15-A) and their finished goods (Item 68) fell under two different Tariff Items, their case was hit by both the conditions of the Rule. These conditions formed a part of the basic scheme of the Rule. Before us, the appellants tried to read too much in absence of the article ldquo the rdquo before the word ldquo duty rdquo in clause (ii) (a) of the first proviso. Such absence cannot mean, as the appellants would have us believe, that while credit of excise duty on inputs was admissible only if paid under the same Tariff Item, credit of the corresponding countervailing duty on inputs could be had irrespective of the Tariff Item under which they fell. The Rule, read as a whole, provided for similarity of treatment between Central Excise duty and countervailing duty so far as the condition of same Tariff Item was concerned. The judgments cited by the learned advocate do not help him. The appeal is rejected.
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1988 (12) TMI 216
Adjudication ... ... ... ... ..... coverable under Section 11A. In both the show cause notices, there was no allegation of mis-representation or wilful suppression or violation of the provisions of the Central Excise Act or Rules with intent to evade duty. It is now well settled that in the absence of the allegation of mis-representation/wilful suppression/violation of the provisions of the Act or Rules with intent to evade central excise duty, the enlarged period of limitation cannot be invoked. In the instant case, enlarged period of limitation is invoked without alleging necessary ingredients required to be alleged. Therefore, the demands which are beyond the period of six months preceding show cause notices are clearly barred by limitation. In short, both the demands covered by both show cause notices are beyond the period of six months and was, therefore, barred by time. We, therefore, allow these appeals set aside the orders passed by the authorities below. The appellants be granted consequential relief.
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1988 (12) TMI 215
Proforma Credit ... ... ... ... ..... dit facility from 24-4-1986 onwards. This, as we have already seen, is also the conclusion arising from the wording of the sub-rule, and on the same interpretation, the appellants would be eligible for the credit from 1-3-1986 onwards because, they were covered by sub-rule (8) of Rule 56A immediately on rescinding of the Notification No. 201/79 the materials having been notified under Rule 56A. They were so eligible even if no declaration has been made because of the fact that the wording used at the beginning of the inserted sub-rule is ldquo Notwithstanding anything contained elsewhere in this rule rdquo . In the result, there is lot of force in the submission made by the appellants herein which is accepted, and the grounds in the cross-objection are not well-founded in view of the interpretation of the sub-rule as given above. In the circumstances, for the reasons stated above, appellants rsquo appeal is allowed, and the cross-objection filed by the Department is rejected.
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1988 (12) TMI 214
Cost of packing of durable nature and returnable ... ... ... ... ..... e point at issue. As an illustration, he cited paragraph 19 of the Larger Bench judgment of this Tribunal reported at 1987 (27) E.L.T. 746 (Tribunal) -Associated Cement Company and Ors. He also cited that the deptt. had taken the point in appeal before the Hon rsquo ble Supreme Court and hence the present appeals. 3. The Respondents cited a series of judgments of this Tribunal in other cases in which it had been held, on the authority of the High Court judgments mentioned therein, that the cost of durable and returnable packing belonging to the customer could not be included in the assessable value of the goods. The Respondents also cited that they had not claimed any further relief in the two Cross Objections filed by them and hence the Cross Objections were unnecessary. rdquo 3. In view of the earlier judgment of the Tribunal, the Appeal filed by the Appellants is allowed. The lower authorities are directed to allow the consequential relief. 4. Pronounced in the open Court.
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1988 (12) TMI 213
Destruction of excisable goods found unfit for marketing Cigarettes ... ... ... ... ..... llant has stated that goods for which he seeks permission to destroy are unfit for consumption or marketing Collector rsquo s refusal disentitles the appellant to non-liability of any duty under second proviso to Rule 49(1). In other words, he incurs the duty liability on such goods. Collector rsquo s decision therefore, is a quasi-judicial decision which should have preceded by a quasi-judicial enquiry involving principles of natural justice. 7. Accordingly, I hold that there has been a miscarriage of natural justice. Therefore, I remand the case to the Collector with a direction that he should re-adjudicate the case in accordance with the principles of natural justice. I also accept the learned advocate rsquo s plea for early re-adjudication on the ground of the appellants godowns are full by non-marketable goods. Accordingly, the Collector shall re-adjudicate the case within one month of the receipt of this order. 8. Operative part of the order announced in the open court.
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1988 (12) TMI 212
Refund - Limitations ... ... ... ... ..... sented by anybody on behalf of the appellants and the JDR relied on the judgment of Miles India Limited v. Assistant Collector of Customs, reported in 1987 (30) E.L.T. 641 (S.C.) 1985 ECR 289 (S.C.) was not brought to the notice of the Bench. The Hon rsquo ble Supreme Court in the case of Doaba Cooperative Sugar Mills, reported in 1988 (37) E.L.T. 478 (S.C.), has held that the authorities functioning under the Act are bound by the provision of the Act. If the proceedings are taken under the Act by the Department, the provisions of limitation, prescribed in the Act will prevail. The Hon rsquo ble Supreme Court dealt the issue of limitation at length. In view of the above discussions, we are of the view that the provision of Section 27 of the Customs Act, 1962 are mandatory. We are not inclined to agree with the judgment of the Western Regional Bench, Bombay cited by the learned advocate. Accordingly, we hold that the refund claim was hit by limitation. The appeal is dismissed.
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1988 (12) TMI 211
Medical and surgical equipments ... ... ... ... ..... ld serve the same need, the answer would certainly be in the affirmative. rdquo The learned representative of the department was frank enough in saying that even the opinions given by the Director General of Health Services to the Govt. of India, from time to time, were conflicting. There is, however, no denying the fact that the goods in question are life saving equipments. Therefore, in keeping with the declared intention of the exemption notification and the OGL and bearing in mind that quite a few medical experts have, from time to time, considered Scalp Vein Sets as coming within the relevant entry of the exemption notification and the Open General Licence, the Bench finds no reason to disagree with the earlier two judgments of this Tribunal on the issue. 6. Accordingly, we allow all the 14 appeals and set aside the lower orders. Consequential benefit by way of refund of duty as well as redemption fine in lieu of confiscation, if paid, shall be granted to the appellants.
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1988 (12) TMI 210
Interpretation of Statute ... ... ... ... ..... ranted for manufacturing. The wording of the Notification No. 6/80 is not identical to the wording of this Notification. As mentioned earlier we cannot ignore the phrase ldquo if leviable rdquo which referred to the levy of Central Excise duty. It is no body rsquo s case that Central Excise duty was leviable on the imported styrene. Reading the Notification as it is worded, it is clear that as Central Excise duty was not leviable on the imported styrene, the appellants are entitled to the concession granted by it as the conditions laid down in the Notification have been satisfied. In this view any discussion about the scope of the term ldquo levy rdquo is not necessary though we take note that in Assistant Collector v. National Tobacco Company (supra) the Hon rsquo ble Supreme Court has observed that the term levy appears to be wider in its connotation than the term assessment. This strengthens our finding and does not advance the case of the Revenue. 13. We allow the appeal.
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1988 (12) TMI 209
Proforma credit availed of on account of error, omission or misconstruction ... ... ... ... ..... e Collector rsquo s order demanding the amount on his own without issue of any notice as required under sub-rule 5 of Rule 56A is bad in law and the demand made in his order is required to be set aside. The department being aware of the fact that the credit has been taken before filing the application, should have issued a notice within the period simultaneously, even when the application for condonation was under consideration before the Collr. In any case, in the absence of any notice demanding the amount back, there is a clear violation of the procedure prescribed under sub-rule 5 of Rule 56A. If the appellants are held for non-compliance with a procedural requirement under sub-rule 2, the department cannot enforce recovery when they have not complied with the requirement of sub-rule 5 of Rule 56A. I, therefore, agree with Shri Koruthu on this point and hold that the demand made in the Collr rsquo s order is not sustainable. Accordingly, I allow this appeal on this ground.
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1988 (12) TMI 208
Valuation Trade discount not excludible when special discount already excluded ... ... ... ... ..... epair costs are notoriously disproportionate to the original cost of motor vehicle and, therefore, cannot constitute a rational basis for valuation of repaired vehicle. In both the accidents, which this car met, obviously, there was some damage only to the body of the vehicle. It is not shown that there was any damage to the engine. Considering the total bill for the body work, the expenditure on that account cannot be considered too large. The Customs observed that the car did not bear any evidence of such damage. Nevertheless, the Collector (Appeals) has allowed deduction of Rs. 2,000/-, which we hold is quite fair, considering the fact that, over and above this, depreciation of 16 for one year and 3 for each quarter for three quarters of use, totalling 25 in all was also allowed before arriving at the assessable value. 8. In view of the foregoing discussion, we see no reason to interfere with the orders of the lower authorities which are upheld and the appeal is dismissed.
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1988 (12) TMI 182
Manufacture when completes ... ... ... ... ..... very only after they had passed the prescribed quality control tests, and not before. Unless the goods reach a stage where they are fit for delivery, they cannot be considered as fully manufactured goods. The quality control test was a mandatory requirement before the goods produced could be considered as fully manufactured. We agree with the learned Collector (Appeals) that no Central Excise duty was payable on the Cement Concrete Poles which got destroyed in the course of mandatory quality control tests which were a part of the production process of the poles. 4. The necessity for an exemption notification would arise only after the goods have been fully manufactured and they are utilised thereafter. Here, the quality control test was done at a stage prior to the stage when the goods could be considered as fit for delivery and fully manufactured in that sense. 5. In the result, we find no substance in these appeals and dismiss all seven of them. Pronouncement in open Court.
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1988 (12) TMI 181
Exemption to captive consumption ... ... ... ... ..... of his availing the substantive benefit under statutory provisions, as long as he can satisfy the department, even at a later date, that he fulfilled the essential requirements to establish his entitlement to such benefits. 13. So far as the question of limitation is concerned, the learned advocate has pointed out that suppression of facts or fraud is not alleged in the show cause notices issued and therefore duty cannot be demanded for the extended period. In his response, the learned departmental representative has not made any submission to the contrary. In the circumstances, duty if at all be payable, has to be limited to the normal period available under the law and not the extended period. 14. In the light of these observations, this matter is remanded to the Assistant Collector who should give an opportunity to the appellants to satisfy the department as regards the quantity of steam actually used in the distillery or otherwise accounted for. Appeal allowed by remand.
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1988 (12) TMI 180
Quashing the said detention order - Held that:- In the instant case as we have said hereinbefore that the bank pass books are not vital and material documents in reaching subjective satisfaction of the detaining authority and as such the failure to furnish the bank pass books to the detenu has not infringed any right of the appellant and the order of detention cannot be questioned as illegal or vitiated on that score. Appeal dismissed.
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1988 (12) TMI 179
Proforma credit ... ... ... ... ..... tion that the term lsquo raw material rsquo has to be interpreted in the circumstances of each case in the absence of any acceptable or useful definition of the term either in the dictionary or in technical literature. In Seshasayee rsquo s case, Sodium sulphide lye, Sodium sulphate, Daicol (Guar gum) and Fluo solid lime used in the manufacture of paper or paper board were considered as raw materials as they served distinct and definite purpose in the normal and recognised process of manufacture of paper or paper board and were essential in the process of manufacture. The facts are similar in the present case. In the present case all the 7 inputs are essentially required for the manufacture of paper or paper board. We, therefore, hold that the benefit of Notification No. 201/79-C.E. as amended by Notification No. 105/82-C.E. is admissible in respect of the same. In the circumstances, we set aside the order of the Collector (Appeals) and allow the appeal filed by the assessee.
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1988 (12) TMI 178
Clandestine removal ... ... ... ... ..... . In view of the fact that many of the entries are not authenticated by the signature of anybody, there is overwriting in the entries without proper attestation and note book was maintained by the labourers and not by Shri Desh Raj, contractor, personally, I am of the view that this is not a dependable record to establish clandestine removal of vegetable products manufactured by the appellants unless the same is supported by other evidence, such as, raw material consumed, goods actually manufactured and packed etc. There is no such evidence on record. There is also no co-relation between the consumption of raw materials, vegetable product manufactured, packed and cleared. In the circumstances, it cannot be held that 956 tins of vegetable products were actually manufactured by the appellants and clandestinely removed from the factory without payment of duty. 5. In view of the above discussions, the impugned order has to be set aside and the appeal allowed. I order accordingly.
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1988 (12) TMI 167
... ...
... ... ..... of the year and for this purpose he has set aside the order on the limited issue of allowability of Rs. 21,09,012 for asst. yr. 1981-82. In asmuch as the matter is before the ITO, the Department is not really aggrieved. There is no point, in our opinion, in adjudicating on the question raised by the Department about admissibility of fresh evidence because, in our opinion, s. 46A(4) authorises the AAC the CIT(A) to direct the production of any document or the examination of any witness to enable him to dispose of the appeal. If the claim for bad debt that was discussed for the asst. yr. 1978-79 is the same as the one that came for consideration before the CIT(A) for the asst. yr. 1981-82, in our opinion, the appeal of the Revenue will have to be dismissed as redundant, since we have already given a decision on merits about the admissibility of the claim in our order for the asst. yr. 1978-79. 21. The departmental appeal for the asst. yr. 1981-82 is also consequently dismissed.
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1988 (12) TMI 164
Reference To Valuation Officer, Individual ... ... ... ... ..... t for the purposes of framing of the assessment and it has to be considered in accordance with law by the appellate authorities along with the assessee s registered valuer s report. 13. The impugned order of the learned first appellate authority stands set aside and the appeal stands restored to his file for fresh decision in accordance with law. Assessee as also the Assessing Officer shall be heard. District Valuation Officer s report as also assessee s registered valuer s report shall be taken note of and considered in full in all aspects. District Valuation Officer shall be heard as provided for under sub-section (3) of section 23 of the Act. If the assessee so chooses, her right of representation through her registered valuer shall also be allowed to her. Our answers above, should serve as answers to all the questions posed by us in para 5 of our order. 14. Assessee fails for statistical purposes, since we have answered the question posed to the Special Bench against her.
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1988 (12) TMI 161
Assessment Year, House Property, Profit On Sale, Purchase Price ... ... ... ... ..... 44 (Mad.) (b) Smt. Vijayalakshmi v. CIT 1975 100 ITR 648 (Kar.) (c) CED v. K. Hilal 1981 130 ITR 781 (Mad.). In none of these cases the facts are similar nor do we consider it necessary to discuss the cases relied on by the learned counsel for the assessee in CIT v. Natu Hansraj 1976 105 ITR 43 (Guj.) and CIT v. Kodandas Chanchlomal 1985 23 Taxman 579 (Guj.), because those cases deal with pro rata exemption, which also does not arise for consideration in the present case, though it was sought to be urged by the learned departmental representative that if the pro rata method was followed based on the Annual Letting Value, which, according to the assessee, was almost equal, only 50 per cent should be exempt as against the claim of the learned counsel for the assessee based on the square foot occupancy of 800 sq. ft. in upstairs with kitchen against 2,400 sq. ft. of the whole house, i.e., only 1/3rd of the capital gains could be taxed. 10. In the result, the appeal is dismissed.
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1988 (12) TMI 159
Assessment Year, Export Business ... ... ... ... ..... ditional deduction should be given as an incentive on the increased turnover without reference to the commodity exported. The section also states that the deduction of amount equal to 5 per cent of the amount by which export turnover of such goods exceeds the export of such goods during the immediately preceding year will be granted. The expression such goods refers to the main clause of sec. 80HHC, viz., the goods to which the section applies, i.e., qualifying goods and not to particular goods exported in this particular assessment year. The meaning of the section is self-evident and is in no way ambiguous. We, therefore, accept the claim of the assessee for the additional deduction also. We accordingly direct the ITO to grant both the deductions under section 80HHC and recompute the total income. He is also authorised to amend the assessments of the partners as a consequence. 7. In the result, the appeal of the assessee is allowed and the appeal of the revenue is dismissed.
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