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Case Laws
Showing 201 to 220 of 270 Records
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1990 (2) TMI 72 - HIGH COURT OF KERALA AT ERNAKULAM
Refund - Limitation - Computation of ... ... ... ... ..... o questions Nos. 1 and 2, the only relevant question is, when was the application for refund made to the Assistant Collector, It was certainly before the expiry of six months from the date of payment of duty. The fact that the application, addressed to the Assistant Collector, was received in his office on a later date is of no consequence. The date on which the application was presented or submitted to the Superintendent of Central Excise should be taken as the date of receipt of the application by the proper authority, which, admittedly, in this case is within the time allowed by law. It is academic to answer question No. 3(a) and (b), since the practice at present seems to be to file the application directly before the Assistant Collector. 6. The Reference is answered as above. A copy of this judgment under the seal of this Court and the signature of the Registrar will be forwarded to the Customs, Excise and Gold (Control) Appellate Tribunal, South Regional Bench, Madras.
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1990 (2) TMI 70 - HIGH COURT AT CALCUTTA
Demand - Limitation - Duty Exemption Scheme - Estoppel ... ... ... ... ..... ake any payment of customs duty, on the contrary, if the petitioner fails to make the export, in that event, the petitioner would have to pay the customs duty in respect of which the exemption was granted. In view of the terms and conditions of the said undertaking, the respondents had no jurisdiction to contain that the petitioner is liable to pay the customs duty on the basis of that undertaking. The undertaking was for something else and the petitioner had fulfilled the undertaking. 28. Accordingly, I hold that the notice of demand in question had been issued by the respondents without jurisdiction and is liable to be set aside. 29. In the result, the writ petition succeeds. The notice of demand dated 10-6-1985 issued by the Assistant Collector of Customs for Group-7, DEEC Cell, is set aside. There will be no order as to costs. As prayed for by Mr. Dutta, learned Advocate for the respondents, let the operation of this order be stayed for a period of a fortnight from date.
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1990 (2) TMI 69 - HIGH COURT OF ORISSA AT CUTTACK
Writ Jurisdiction - Stay of recovery - Civil Court ... ... ... ... ..... since the matter can be considered by the Civil Court while considering liabilities of opposite party No. 6 for refund to petitioner and its right to demand unpaid amount on account of tax under Section 64-A of the Sale of Goods Act. Question is, accordingly, left open. 6. Apprehension of petitioner that supply may be discontinued if the demand by opposite party No. 6 which is subject matter of the writ application can be best mitigated if we direct opposite party No. 6 and its officers (opposite party Nos. 7 and 8) not to discontinue supply of ammonium nitrate melt, 80 concentrate to petitioner only because it has not paid the amount demanded by opposite party No. 6 until final decision in a suit. Present liability of the petitioner, if any, shall not be governed by this order. 7. In the result, writ application is allowed to this limited extent. No costs. Requisites for issue of writ to opposite party Nos. 6 to 8 only shall be filed by the petitioner on or before 7-2-1990.
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1990 (2) TMI 68 - HIGH COURT OF JUDICATURE AT BOMBAY
Refund - Condonation of delay - Unjust Enrichment ... ... ... ... ..... r that was sought to be given to the petitioner for having delayed the filing of the petition. The tax should have been refunded to the petitioner at least in the year 1982. They will receive it, hopefully, in the year 1990. The value of rupee has declined within these 8 years immeasurably. Justice demands that the department should pay interest to the petitioner at the rate of 12 p.a. from 1982 till the date of payment. 13. The petition, therefore, succeeds. The Rule earlier issued is made absolute. The respondents shall pay costs of the petition to the petitioner which are quantified at Rs. 5,000/-. The department shall also pay interest to the petitioner on the principal amount to be refunded at the rate of 12 per annum. The amount shall be deposited in this Court within 15 days from the date of this order irrespective of the question whether the respondents file an appeal against this order or not. 14. Mr. Desai applies for stay of the order. The application is rejected.
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1990 (2) TMI 67 - HIGH COURT OF JUDICATURE AT MADRAS
Export - Intensive Care Respirator System ... ... ... ... ..... late the export of certain commodities are contained in the Antiquities and Art Treasures Act, Indian Coffee Act, Tea Act, Foreign Exchange Regulation Act, etc. The fourth respondent was at pains to find out whether this item, Intensive Care Respirator System, would come under any of the appendices 1 to 6 of Schedule I, but he was not able to find a corresponding entry. He is also not able to place before this Court any law expressly made prohibiting the export of this item. Therefore, it would follow that this item, which has not been included in Schedule I and which is not prohibited under any law from being exported, can be shipped without any export licence freely by a person in India. The shipping bill filed by the petitioner should have been duly endorsed by the customs authorities and there was absolutely no justification for the delay. The petitioner is entitled to the relief as prayed for and the writ petition is allowed. However, there will be no order as to costs.
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1990 (2) TMI 66 - HIGH COURT OF GUJARAT AT AHMEDABAD
Credit of duty - Vanaspati (Hydrogenated Vegetable Oil) and/or soap - Interpretation of Statute - Change in law - Retrospective effect
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1990 (2) TMI 65 - HIGH COURT OF JUDICATURE AT BOMBAY
Prosecution - Offence - Complaint - Jurisdiction ... ... ... ... ..... issibility of prosecutions being allowed to drag on for years together. A decision in point is the State of Bihar v. Uma Shankar Kotriwal and Others 1981 Cri. L.J. 159.I agree that prosecutions should not be allowed to linger on for years together. But in this case the facts are gross - if the complaint be any indication of what could have happened. A very large consignment was allowed to be exported apparently in violation of the Jaw. Next, there is the other side of the picture viz. the possibility of the complainant acting at the behest of Hanspa. Either way, justice, requires that the law be allowed to take its due course. 12A. The result of the foregoing discussion is that the appeal and the revision both fail. Confirming the order passed by the Magistrate, I dismiss the appeal and the revision. Complainant, accused Nos. 1 and 5 to put in appearance through their authorised representatives before the Magistrate on 2-3-1990 so that the case can be further proceeded with.
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1990 (2) TMI 64 - HIGH COURT OF JUDICATURE AT BOMBAY
Refund - Interest ... ... ... ... ..... ion from the Government of India of any proceedings, but on the other hand in the year 1988 the Assistant Collector passed order directing that the refund should be made and that fact conclusively establishes that there could be no proceedings pending before the Government of India in the year 1988. In my judgment, the claim of Shri Shah is without any foundation and cannot be entertained. 4. Accordingly, petition succeeds and the respondents are directed to refund amount of Rs. 1,477/- to the petitioners within four weeks from to-day. The respondents are also directed to pay to the petitioners interest on the amount of Rs. 3,25,000/- at the rate of 15 annum from November 29, 1985 till November 22, 1988, that is the date on which the amount was deposited in this Court. The respondents shall also pay interest at the rate of 15 per annum on the balance amount of Rs. 1,477/- from November 29, 1985 till the date of payment. The respondents shall pay the costs of the petitioners.
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1990 (2) TMI 63 - HIGH COURT OF JUDICATURE AT BOMBAY
Notification - Date of effect - Stay/pre-deposit of duty penalty - Dispensation of ... ... ... ... ..... er of the Collector of Customs (Appeals) must fail. 14. Shri Shah, the learned Government Pleader appearing for the Respondents, contended that I should protect the Customs Authorities by calling upon the Petitioners to deposit in Court the amount of the levy and the penalty to the tune of Rs. 2,12,866.82 Ps. Shri Shah relied on an order passed by a Division Bench of this Court in a Notice of Motion in Appeal No. 364 of 1988 in Writ Petition No. 143 of 1987 where a prayer for refund of the duty by the Customs Authorities had been stayed. It is pertinent to point out that this order was made by the Appeal Court at the time of admission of the appeal. Inasmuch as I have held that the demand for this amount by way of customs duty and penalty cannot be sustained in law, I do not see how I can call upon the Petitioners to deposit the said amount at this stage in these proceedings. 15. In the result, rule is made absolute in terms of prayer (a). Each party will bear its own costs.
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1990 (2) TMI 62 - HIGH COURT OF KARNATAKA AT BANGALORE
Refund - Duty paid under mistake of law ... ... ... ... ..... d as excise duty by mistake of law, from Union of India, even though such claim does not fall within Section 11-B of the Act. 12. Accordingly, we make the following order (i) The writ appeal is partly allowed. (ii) The order of the learned Single Judge in so far as there was a direction to the second appellant to consider the application of the petitioner for refund without reference to the period of limitation prescribed under Section 14-B of the Act is concerned, it is set aside. (iii) The direction issued in the writ petition to the first appellant - Union of India, to dispose of the application for refund made by the respondent without reference to the period of limitation prescribed under Section 11-B of the Act, is confirmed. (iv) The Government of India is directed to consider and dispose of the said application within a period of four months from today having due regard to Article 265 of the Constitution of India read with Section 72 of the Indian Contract Act, 1872.
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1990 (2) TMI 61 - HIGH COURT OF KARNATAKA, BANGALORE
Refund - Unjust enrichment - Duty paid under mistake of law ... ... ... ... ..... e as to the law under which it was imposed to be paid and, therefore, the excess payment is resulted and it amounts to collecting excess duty under the Tariff Act. Therefore, the levy was unauthorised and it is liable to be refunded notwithstanding Section 11-B of the Act. In that view of the matter, the question of permitting only partial refund and refusing the remaining amounts for the different periods which have been extracted above cannot be sustained in law. 7. Learned counsel also contended that permitting refund to the petitioner would amount to allowing the amount which it has transferred to its buyers to be retained by it thereby unjustly allowing it to enrich itself. This aspect also is covered by the Supreme Court decision in Patel India s case. This contention must also be rejected. 8. Accordingly, rule issued is made absolute. The impugned orders are quashed. The refund as prayed for by the petitioner shall be made within one month from the date of this order.
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1990 (2) TMI 60 - HIGH COURT OF JUDICATURE AT BOMBAY
Drawing and mathematical instruments - Refund ... ... ... ... ..... y of additional duty was in violation of law. The petitioners are therefore entitled to the refund of the amount of additional duty paid at the rate of 15 ad valorem. 5. Accordingly, petition succeeds and the rule is made absolute and the Department is directed to refund the additional duty paid by the petitioners in respect of refund applications which were filed before the Assistant Collector of Customs. The Assistant Collector of Customs should calculate the amount of refund and make the payment within a period of three months from the date the petitioners tender the requisite documents. The petitioners would not be entitled to interest in case the amount is paid by the Department within three months from the date of tendering of the documents. In case amount is not paid, then the petitioners would be entitled to interest at the rate of 12 from the expiry of period of three months from the date of lodgment of the documents till payment. There will be no order as to costs.
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1990 (2) TMI 59 - HIGH COURT OF JUDICATURE AT BOMBAY
Writ Jurisdiction - Assessee not to prosecute two remedies simultaneously ... ... ... ... ..... he alternate prayer of Shri Doctor that the Petition be adjourned till after the disposal of the Appeal pending before the Tribunal, I see no reason for adjourning the matter after the same has been argued exhaustively by both learned Counsel. 12. Shri Doctor finally prayed that I should order the refund of duty paid by the Petitioners prior to 25th July, 1986 as no fraud was alleged prior to 1986. Once the Petition is dismissed on the ground of maintainability, I find it difficult to pass an Order with regard to the refund even if it be for the prior period when the firm s proprietor was P. Murarka. In any event, this question can also be agitated before the Tribunal by the Petitioners. I, therefore, see no need for passing any Order of refund at this stage. 13. In the result, rule stands discharged and the Petition dismissed. Each party will bear its own costs. 14. At the request of Shri Doctor, the ad-interim order in terms of prayer (d) is extended till 12th March, 1990.
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1990 (2) TMI 58 - HIGH COURT OF KARNATAKA AT BANGALORE
Detention Certificate (Customs) - Demurrage waiver certificate ... ... ... ... ..... ivasan appearing for respondents 3 and 4 submitted that somebody has to pay his charges, being the custodian in position of a bailee and having incurred expenditure to discharge his obligations as such bailee. That is a matter between him and the person who entrusted the goods to his custody. But certainly it cannot be said that petitioner should bear the expenditure for the goods detained for no fault of his. 6. In the circumstances, following the decision in Equipment Sales Corporation s case, I must reject the contention of learned Counsel for respondents 1 and 2 that it has no application to the facts of the case. This Writ Petition is allowed. Rule will issue directing respondents 1 and 2 to issue necessary demurrage waiver certificate and correspondingly on such certificate being produced, respondent 3 shall release the goods in favour of the petitioner without insisting upon any charges being paid by the petitioner. 7. Rule will accordingly issue and be made absolute.
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1990 (2) TMI 57 - HIGH COURT AT CALCUTTA
Writ jurisdiction - Alternative remedy - Appeal - Limitation - Condonation of delay ... ... ... ... ..... ould be taken by and on their behalf. Indeed, on the facts and in the circumstances of the case, no such objection can be validly taken and the Tribunal will condone the delay in the preferment of appeal upon an application being made by the appellant in that behalf. 8. The appeal is, therefore, dismissed, subject, however, to the directions hereinabove given with respect to the preferment of appeal within the time indicated above and the condonation of delay in the event of an application in that behalf being made by the appellant before the Tribunal. It would also be open to the appellant to urge upon the Tribunal that the appeal be heard and disposed of as early as possible. The Tribunal would endeavour to dispose of the appeal as expeditiously as possible. Needless to say that the appellant would be entitled to raise all points in the appeal which he intends to prefer. 9. All parties to act on a signed copy of the operative part of this judgment on the usual undertaking.
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1990 (2) TMI 56 - HIGH COURT OF JUDICATURE AT BOMBAY
Penalty on Directors or Senior Officers when not imposable ... ... ... ... ..... e can be attributed to them that the duty was not paid by claiming exemption under the notification. The learned counsel urged that petitioners Nos. 1, 2 and 4 are not concerned with the working of the factory at Mauje Talegaon in Igatpuri Taluka and are working in main office in Bombay as Directors or Senior Officers. As regards, petitioner No. 3, the show cause notice does not make any averment that this petitioner was concerned with alleged evasion of duty. In these circumstances, Shri Setalwad is right in claiming that the show cause notice was totally uncalled for against these Officers of the Company. In my judgment, the show cause notice is, therefore, required to be quashed. 4. Accordingly, rule is made absolute and the impugned show cause notice dated September 14, 1989 is quashed only as regards the petitioners and the respondents are restrained from proceeding further with the show cause notice. In the circumstances of the case, there will be no order as to costs.
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1990 (2) TMI 55 - HIGH COURT OF JUDICATURE AT BOMBAY
Short landing (Customs) ... ... ... ... ..... ector has no material whatsoever to dispute the accuracy of the statement made in the certificate. Shri Gomes is, therefore, right in claiming that the assessment of penalty has to be on the basis that the value of short landed goods was 564. Once this fact is accepted, then maximum penalty at the rate of 220 should not exceed Rs. 20,556 and the Assistant Collector was in error in imposing penalty of Rs. 76,098/- and the Collector in confirming the same and the orders are required to be modified and the penalty imposed in respect of Item No. 133 is required to be reduced from Rs. 76,098/- to Rs. 20,556/-. 4. Accordingly, rule is made absolute and the order of Collector in so far as imposition of penalty in respect of Item No. 133 is modified and the penalty imposed is Rs. 20,556/-. The petitioners shall pay the penalty amount of Rs. 20,556/- instead of Rs. 76,098/- within a period of four weeks from today. In the circumstances of the case, there will be no order as to costs.
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1990 (2) TMI 54 - HIGH COURT OF JUDICATURE AT BOMBAY
Prosecution ... ... ... ... ..... om the retracted confession of the co-accused, the complainant does not rely on any other evidence to establish the involvement of the Petitioner accused No. 1. As staled above, on this very material, the Additional Collector of Customs (Prev.), Bombay has fully exonerated the Petitioner and I am fully satisfied with the said finding. 10. There is no reasonable ground, not even a prima facie case, made out in the complaint to proceed against the Petitioner - acused No. 1 and to issue process against him. To allow such prosecution against the Petitioner to continue would surely mean the abuse of the process of law and it is, therefore, necessary to meet the ends of justice to quash the same. 11. In the result, therefore, the petition is allowed. The order dated 16-12-1982 of the learned Chief Metropolitan Magistrate, Esplanade, Bombay in Case No. 824/CW of 1988 issuing process against the Petitioner - accused No. 1 is hereby quashed and set aside. Rule made absolute as above.
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1990 (2) TMI 53 - SUPREME COURT
COFEPOSA - Preventive detention ... ... ... ... ..... gling of goods and/or abetting the smuggling of goods or for engaging in transporting and concealing smuggled goods and/or dealing in smuggled goods. Besides the English version of the detention order was only for abetting the smuggling of goods. The satisfaction recorded in the Gurmukhi version of the grounds for detention is not consistent with the purpose for detention found in the detention order. It left the detenu confused whether he should represent against the grounds in the detention order or the satisfaction recorded in the grounds of detention. We are, therefore, of the opinion that because of this variance the detenu was unable to make an effective representation against his detention and was thereby denied his right under Article 22(5) of the Constitution. 4. In the above view that we take, we cannot allow the impugned detention order to stand. We, therefore, allow this appeal, quash the detention order and direct that the detenu shall be set at liberty at once.
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1990 (2) TMI 52 - SUPREME COURT
Whether the discount allowed to the Indentors in respect of some of the sales might have been described as service charge discount that name could not govern the real nature of the transaction and the discount was really a trade discount?
Held that:- No case has ever been made out right upto the Tribunal and even before the Tribunal that in respect of any particular invoice although the name of the purchaser was other than that of the Indentor, it was really the Indentor who was the purchaser and he in turn has solds the goods to the third party whose name was shown as purchaser or even that the Indentor had entered into the transaction as the agent of the purchaser. If such a contention had been raised, the factual position could have been examined and different considerations might have been applied. But it is certainly not open to the appellant to raise this contention at this stage, in this appeal, particularly keeping in mind that the Tribunal is the final fact-finding authority. Appeal dismissed.
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