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Showing 61 to 80 of 273 Records
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1990 (1) TMI 268
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... ... ..... o collect a nominal penalty for the blame-worthy conduct. But in doing so the third respondent has not considered the fact that the goods covered by misuse of C forms also subjected to levy of concessional rate of tax. If this matter was brought to the notice of the third respondent, counsel submitted, that the third respondent would have imposed a lesser penalty of 1 per cent alone. In the circumstances the prayer of the petitioner is to remand the case to consider the quantum of penalty alone. In the facts and circumstances of this case, this prayer can be allowed. I do so. In all other respects the finding of the authorities will stand confirmed. I, therefore, set aside exhibit P3 in so far as it relates to the quantum of penalty imposed and direct the third respondent to consider the same afresh after giving an opportunity to the petitioner to be heard. The original petition is allowed to that extent and dismissed in all other respects. No costs. Petition partly allowed.
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1990 (1) TMI 267
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... ... ..... ly treat and understand them as non-cotton yarn sweepings. The applicant also has canvassed in the same paragraph that the taxing authorities should adopt interpretation of this expression by the trade and popular meaning. That being so, we have no hesitation in holding that noncotton yarn waste is treated and understood in the trade circle or in common parlance as a commodity different from non-cotton yarn. 15.. In view of our foregoing conclusion, we have no reason to interfere with the finding of the West Bengal Commercial Taxes Tribunal in its order dated April 27, 1989. Our reasons are, of course, different from those of the Tribunal below. We hold that non-cotton yarn waste is clearly different from non-cotton yarn within the meaning of the notifications issued under section 25 of the 1954 Act. The application thus fails and is dismissed. No order is made as to costs. B.C. CHAKRABARTI (Chairman).-I agree. P.C. BANERJI (Technical Member).-I agree. Application dismissed.
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1990 (1) TMI 266
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... ... ..... irmed by order dated October 12, 1982, of the Assistant Commissioner and as modified by order dated February 2, 1989, of the West Bengal Commercial Taxes Tribunal, is hereby set aside. The matter is remitted back to the Commercial Tax Officer for fresh disposal. In the course of disposal, the Commercial Tax Officer shall consider the fresh declaration forms which were procured by the applicant after the assessment order was made. Such declaration forms will include those which were allowed by the Tribunal below and which were not so allowed. The facts that such declaration forms were procured after the assessment order was made or that the original purchase order was amended after a long period will not stand in the way of consideration of all these fresh declaration forms. The Commercial Tax Officer, however, is directed to complete the fresh assessment within one year, if not earlier. The case is thus disposed of. No order is made as to costs. Case disposed of accordingly.
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1990 (1) TMI 265
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... ... ..... that the registration certificate was granted under the Factories Act to the petitioners subsequently to the date on which the petitioners unit went into production. It may, however, be mentioned incidentally that the registration certificate granted to the petitioners under the Factories Act was subsequently amended whereby it was made effective from October 3, 1983. Thus on the findings recorded by the Divisional Level Committee itself the petitioners were entitled to the grant of the eligibility certificate. In the result, the petition succeeds and is allowed. The impugned order passed by the Divisional Level Committee dated August 27, 1986 (annexure 7 to the writ petition) is quashed. The Divisional Level Committee is directed to issue eligibility certificate to the petitioners within one month of the date on which a certified copy of the order is filed before the Joint Director of Industries, Meerut, the convener of the Divisional Level Committee. Writ petition allowed.
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1990 (1) TMI 264
Whether the Coal Mines Provident Fund Commissioner is a 'public officer' as defined in section 2(17) of the Code of Civil Procedure?
Held that:- Appeal allowed. In the present case, the Provident Fund Commissioner holds the office of Commissioner on appointment by Government by virtue of his office. His services are temporarily placed at the disposal of the Board. He does not, therefore, cease to be an officer in the service of the Government. The payment of his pay out of the Fund does not alter his status as Government employee. We are, therefore, of the opinion that the courts below have erred in holding that the Coal Mines Provident Fund Commisioner is not a public officer within the meaning of the term in section 2(17)(h) of the C.P.C.
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1990 (1) TMI 263
Appeal - Evidence ... ... ... ... ..... re of the opinion that the additional evidence now sought to be produced before us can be taken on record. Hence the miscellaneous applications under Rule 23 are allowed. 8. Coming to the main appeals, we have perused the earlier orders of the Bench in Order Nos. 202 to 210/89-B2 dated 20-7-1989. The present appeals are clearly covered by the earlier orders where in the matters were remanded to the Asstt. Collector with the direction to consider the essentiality certificate and end-use affidavits on merits. Following the earlier order of the Tribunal in Order Nos. 202 to 210/89-B2 dated 4-7-1989 in respect of the same appellants, we set aside the impugned orders and remand the matters to the Asstt. Collector of Customs for de novo consideration on the basis of essentiality certificate and end use affidavits. If the imported goods are covered by these documents the appellants would be entitled to the benefit of Notification 179/80. 9. All 10 appeals are thus allowed by remand.
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1990 (1) TMI 262
Classification ... ... ... ... ..... question was classifiable under T.I. 18 while in the present case, the issue before the Tribunal was of classification itself and because of doctrine of merger any decision by the lower authorities gets merged into the decision of the Tribunal and so it takes the effect from the date of the decision of the lowest authority whose order has been sought to be challenged before the Tribunal. If the Tribunal grants any consequential relief and as a consequence thereof, any amount becomes refundable, then the Revenue cannot claim bar of limitation. The same would apply to the Revenue also. 9. Apart from this, as rightly contended by the Revenue in the final order itself, the Tribunal has directed as under ldquo The appellant rsquo s classification list shall be approved with consequential relief and adjustment as may be called for. rdquo This Tribunal cannot sit on appeal over its own decision. 10. We do not find any merits in this miscellaneous application, so it stands dismissed.
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1990 (1) TMI 261
Review Petition by assessee before Collector as well as Government of India in time ... ... ... ... ..... carriage of justice or in circumstances requiring interference, the Board/Court/Tribunal can call for records and reconsider the decision. It is admitted fact in the present case that the factory had been closed due to turmoil and agitation in Assam. The appellants have explained the reasons for non-appearance before the Asstt. Collector. They had also sought for adjournment on that ground. It is true that authority cannot endlessly wait but, however, the Collector should have reviewed the matter in the Review petition which has not been looked into at all and no order has been passed. The non-giving of reasons for rejecting the Review petition is sufficient for calling for our interference in this appeal. The appellants succeed in the appeal. The matter is remanded to the Asstt. Collector for de novo consideration. As the matter is very old, the Asstt. Collector shall dispose of the matter after giving notice to the appellants, within 4 months from the receipt of this order.
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1990 (1) TMI 260
Set-off of duty ... ... ... ... ..... y-paid chemicals falling under T.I. 68 were used in the manufacture of plastic laminated sheets falling under Item 15A(2). In the light of the ratio of the judgments discussed above, the chemicals in question used by the appellants in the manufacture of plastic laminated sheets were eligible to the set-off under Notification No. 201/79-C.E., dated 4-6-1979, as amended, although in the integrated process of manufacture, treated fabrics and treated paper came into existence in the intermediate stage. The decision relied on by the learned SDR, viz., 1984 (17) E.L.T. 590 (Tribunal) (supra) does not help the case of the Revenue as the same does not cover the issue for decision before us. Similarly, paragraph 9 of the judgment reported in 1989 (43) E.L.T. 804 does not help the revenue in view of the ratio laid down therein and also in the judgment reported in 1989 (43) E.L.T. 201. 5. In the light of the above discussions, we set aside the impugned order and allow these two appeals.
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1990 (1) TMI 259
Stay - Pre-deposit of duty ... ... ... ... ..... e matter is sub-judice. Keeping in view the overall position we dispense with the pre-deposit of the duty amount of Rs. 1,14,28,688/- on the condition of the applicants depositing Rs. 28,00,000/- in cash in four equal instalments as under (1) 1st instalment of Rs. 7,00,000/- on or before 15-3-1990 (2) 2nd instalment of Rs. 7,00,000/- on or before 15-4-1990 (3) 3rd instalment of Rs. 7,00,000/- on or before 15-5-1990 (4) 4th instalment of Rs. 7,00,000/- on or before 15-6-1990. The applicants shall intimate to the Registry the payment of each and every instalment by 30-3-1990, 30-4-1990, 30-5-1990 and 30-6-1990. In case there is default in the payment of any instalment the stay order shall stand automatically vacated. We further order that during the pendancy of the appeal the Revenue authority shall not pursue the recovery proceedings for the balance duty amount. In case the applicants fail to comply with the terms of this order the Stay order shall stand automatically vacated.
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1990 (1) TMI 258
Refund of set-off of duty in cash ... ... ... ... ..... in this permission also, it has been stated that it would be effective from the date of issue i.e. 7-4-1978 which would suggest that the appellants would not be entitled to avail of any benefit for the period prior to that date and that would be causing injustice to the appellants in peculiar circumstances of the case. 16. So, in our view, the appellants would be entitled to claim refund in cash also. 17. The adjudicating authority has not considered whether the claims preferred are proper and in order in as far as the amounts claimed and has also not considered the point of limitation. Consequently, it has not been considered by the ld. Collector in the impugned order because the occasion did not arise. In absence of any material on record, it is not possible for us to express opinion on these aspects of the different claims. So, we allow this appeal by remand to the adjudicating authority to re-examine the refund claims in view of our findings and observations stated above.
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1990 (1) TMI 257
Manufacture ... ... ... ... ..... r each type of paper including a different specification for bituminised waterproof paper. The Tribunal had thereafter concluded that judged by the ratio of the decision laid down by the Supreme Court in the Empire Industries case, the process of bituminisation of kraft paper would also amount to manufacture of a new excisable commodity i.e. bituminised paper, the process of bituminisation being carried out in order to impart additional qualities such as strength and impermeability to water. It is further seen that the decision of the Larger Bench had not come up for consideration by the Bombay High Court in its decision in the case reported in 1988 (33) E.L.T. 292 relied upon by the respondents. Therefore, the issue having been decided by the Larger Bench, which decision we are bound to follow, and in the circumstances, we hold that the impugned order of the Collector (Appeals) is not maintainable which is, accordingly, set aside and the department rsquo s appeal is allowed.
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1990 (1) TMI 256
Classification ... ... ... ... ..... quo It is a matter of common experience that the identity of an article is associated with its primary function. It is only logical that it should be so. When a consumer buys an article he buys it because it performs a specific function for him. There is a mental association in the mind of the consumer between the article and the need it supplies in his life. It is the functional character of the article which identifies it in his mind rdquo hellip hellip . rdquo The Department has not placed any evidence to show that the imported Ceramic pythagoras tubes is a lsquo China-ware as understood in commercial sense. Applying the well laid rulings of the Hon rsquo ble Supreme Court noted supra, we are not inclined to accept the arguments of the Revenue in this appeal. The reasonings given in the impugned order-in-appeal by Collector of Customs (Appeals) Bombay are in conformity with the well laid down propositions and hence there is no merit in the appeal and the same is dismissed.
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1990 (1) TMI 255
Classification ... ... ... ... ..... materials and cellulose esters which are in any form, whether solid, liquid or pasty or as powder, granules or flakes or in the form of moulding powders, can be included under Item 15A(1). The admitted position of the imported product is that it is in film form. The Tariff Item 15A(2) clearly includes articles made of plastics, all sorts, including tubes, rods, sheets, foils, sticks etc. Therefore, the contention of the respondents that it is not in film form cannot be accepted and also their contention that the product is a solid form of resin has also to be rejected. 7. The contention of the Revenue has to be upheld. Therefore, it follows that the reasoning of the Collector (Appeals) is not correct and the same is liable to be set aside and the order-in-original passed by the Assistant Collector of Customs, Madras is restored. The appeal is allowed. 8. The Cross-objection filed by the respondents is not maintainable and also it is time-barred and therefore, it is rejected.
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1990 (1) TMI 254
Claim for refund ... ... ... ... ..... der Section 11B of the Central Excises and Salt Act, 1944, as the claim was preferred beyond six months. The appellants in that case made an application for referring the matter to the Hon rsquo ble High Court, which was also dismissed by the Tribunal. But the appellants approached the Hon rsquo ble High Court in a Writ Petition and the Hon rsquo ble High Court of Calcutta had directed the Tribunal to refer the matter to the Hon rsquo ble High Court on the aforesaid terms. Therefore, in view of this decision of the Hon rsquo ble High Court in a similar matter, we are of the opinion that a point of law has arisen in the present case and accordingly we refer the same to the Hon rsquo ble High Court of Calcutta for valued opinion, in the following terms ldquo Whether in the facts and circumstances of this case, the Tribunal was justified in holding that the claim of refund made by the assessee was barred by limitation ? rdquo The Reference Application is disposed of accordingly.
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1990 (1) TMI 253
Classifiaction - Demand - Limitation ... ... ... ... ..... committed any fraud. So invoking larger period of limitation was not permissible. So demand for duty beyond 6 months from the date of service of notice was not proper. In the circumstances penalty was not warranted. 16. emsp In view of above discussion we pass the final order as under - (a) In appeal number E/2688/85-C preferred by the revenue the impugned order is modified to the extent that O.B.M oil would be classifiable under T.I. 12 during the relevant period but would not attract any Central Excise Duty. (b) Cross objections are partly upheld, and (i) Classification of E. Oil decided upon by the adjudicating authority is upheld but demand for the period beyond six months from the date of service of the show cause notice is declared time-barred. (ii) Penalty is set aside. (iii) The matter shall go back to the jurisdictional Collector for assessment of duty on E. Oil keeping in view the provisions of Notifications No. 71/78, 80/80 and 140/83 as amended from time to time.
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1990 (1) TMI 252
Appeal - Additional documents - Value of clearances - Clubbing of - Demand - Limitation ... ... ... ... ..... es and products bearing the monogram of M/s. K.L.N. make it clear that these are not independent units but have been clearing the goods on behalf of M/s. K.L.N. Products. 10. emsp As for the aspect of limitation, the Show Cause Notice does not mention the word suppression, but the details of removal of the oil filter cartridges clandestinely has been given in the Annexure to the Show Cause Notice which is sufficient to invoke the extended limit under Section 11A of the Central Excises and Salt Act. The ld. SDR has quoted the citation in M/s. H. Guru Instruments v. CCE, Calcutta reported in 1987 (27) E.L.T. 269 1986 (8) E.T.R. 665 which is applicable. The confiscation of the oil filters for payment of duty and penalties imposed are found to be reasonable and in order. In consequence, the appeal is dismissed. The appeal filed by M/s. Laxmi Enterprises has also been taken as the issues are common, and for the reasons stated above, the Appeal No. E/2548/1984-B2 is also dismissed.
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1990 (1) TMI 251
Court – Jurisdiction of, Directors - Right of person other than retiring director to stand for directorship
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1990 (1) TMI 250
Winding up - Suits stayed on winding-up order ... ... ... ... ..... on Commissioner, a Division Bench of this court confirmed the award of Rs. 18,816 as well as the direction to the Kerala State Electricity Board to indemnify the employer. In this case, only a rough and ready figure can be fixed for the pain and suffering of the second petitioner, the loss of earning capacity as well as the expenses for treatment. The petitioner was an inpatient from January 1, 1989, to February 14, 1989. He is aged 40 years. He will have to maintain himself and his family for the rest of his life. Taking into consideration all aspects of the case under all the heads, I fix an amount of Rs. 30,000 as compensation. The respondents are directed to pay this amount of Rs. 30,000 to the second petitioner within two months from this date. Failing such payment, the second petitioner will be entitled to realise from the respondents the amount of Rs. 30,000 together with 6 interest thereon from the date of filing of this petition, namely, June 27, 1989, till recovery.
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1990 (1) TMI 234
Classification ... ... ... ... ..... ich it is put to suggest that it would be covered by this description. Heading 38.01 reads as under ldquo Miscellaneous products of the chemical or allied industries (including those consisting of mixtures of natural products) not elsewhere specified or included rdquo Sub-heading 3801.90 covers ldquo Other rdquo . So, in our view, this would be the correct classification for the product in question. From 1st March, 1988, goods which will be covered under Chapter 38 are divided into several sub-headings and sub-heading 3816.00 reads as under - ldquo Refractory cements, mortars, concretes and similar compositions, other than products of heading No. 38.01. rdquo So, in our view, after 1st March, 1988, the correct classification will be under this heading. 7. emsp So we hold that the product should be classified under sub-heading 3801.90 for the relevant period and would be classifiable under 3816.00 after 1st March, 1988. So, we set aside the impugned order and allow the appeal.
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