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Case Laws
Showing 81 to 100 of 285 Records
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1993 (2) TMI 235
Unfair trade practices - Whether failure to mention circumstances of pendency of winding up petition and a suit instituted against company for recovery of a substantial amount of money in company's prospectus, amounted to an unfair trade practice - Held, yes
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1993 (2) TMI 228
Whether the time for making the payment should be curtailed?
Whether some interest should be directed to be paid by the purchaser?
Held that:- the interest of the financial institutions, the interest of the workers who have since been re-employed by the purchaser and the fact that the purchaser has already invested substantial amounts to revive the company, we are of the opinion that certain modifications should be made in the number of instalments in which the balance consideration shall be paid.
As after the payment of the aforesaid Rs. 52 lakhs due in the year 1992, the total balance consideration will be Rs. 5.80 crores. This amount shall be paid in full by the end of the year 1996 in equal bi-monthly instalments. The instalments shall be payable by the last day of February, April, June. August, October and December in each year. .This means that each instalment, excepting the last instalment, shall be in a sum of Rs. 24,16,000. The last instalment shall be in such sum as to make up the total shortfall payable on that date, i.e., Rs. 20,16,000. There shall be no other modification in the terms and conditions prescribed in the order under appeal including those relating to default and interest.
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1993 (2) TMI 220
Remission of duty for goods lost or pilferred before clearances for home consumption ... ... ... ... ..... to base my order on a presumption. All the same, since the goods are totally lost to the appellants because of the damage, the benefit of Section 23(1) of the Customs Act, would be available to them. 4. emsp Now coming to the order of the Collector (Appeals), the question of considering the provision of Section 23(2) of the Customs Act does not arise in this case, when the goods are a total loss to the appellants before clearance from the Customs CWC Warehouse and this fact is evident from the survey report. They have not chosen to clear it and incur further expense in transport. When it is established that the goods are lost to them before clearance for home consumption, Section 23 (1) itself would be available. In this view of the matter, I allow the appeal and remand the case back to the Assistant Collector to consider the refund claim before whom all the documents for facilitating sanction of refund may be produced by the appellants. 5. Appeal allowed in the above terms.
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1993 (2) TMI 219
Polyvinyl Alcohol - CLASSIFICATION ... ... ... ... ..... racted in our case, but our enquiry which was required to be extended in the above circumstances, goes to show that Item 68 covers alcohol all sorts including ethyl alcohol as well as alcoholic beverages, spirits and liquors for human consumption (classifiable under Chapter 22 of HSN), but it excludes items classifiable as organic chemicals (even though their molecules may contain OH group). Such chemicals (covered by Chapter 29 HSN) would be classifiable under the appropriate heading in the Central Excise Tariff And in so far as Polyvinyl alcohol is concerned it satisfies the ingredients of Tariff Item 15A as it stood at the relevant time. Hence, respectfully following the Tribunal rsquo s order in the case of Sun Export Corporation, Bombay and others v. CC, Bombay (supra) which is specifically about the classification of Polyvinyl alcohol and places it under Tariff Item 15A, we set aside the impugned order of the Collector (Appeals) and accept the department rsquo s appeal.
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1993 (2) TMI 218
Refund of duty on return of damaged goods ... ... ... ... ..... ortage all the same they would be entitled to refund of the duty paid second time on the balance quantity, in view of the clear endorsement made by the officer on the D-3 declaration that the goods were not in open condition and the tins were found to be damaged resulting in shortage. I am also unable to appreciate as to how not filing the police report could be a factor in rejecting the refund claim especially, when the department admits that all the 550 tins cleared under 4 gate passes have been returned back in damaged condition. Whatever be the cause for the damage, the fact that these 550 tins removed on payment of duty have been received back in damaged condition is not disputed. In view of this, I am not able to subscribe to the views held by the lower authorities. The appellants are entitled only to refund of the duty paid second time and not the duty originally paid in view of the provisions of Rule 173L proviso (iv). 5. I, therefore, allow the appeal to this extent.
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1993 (2) TMI 217
Re-entry and retention of duty-paid goods in the factory ... ... ... ... ..... is condonable, since it is not a violation of any provisions of substantive law. As regards the other objection it is not quite clear as to whether in this case there is a re-manufacture of a transformer of 550 KVA to 800 KVA after the re-entry of the goods. The show cause notice as well as the adjudication order do not bring out the position clearly. If it is a case of re-manufacture, then obviously Rule 173H may not be applicable, in which case the goods have to be cleared on payment of duty as leviable at least on the value of the re-processing. I therefore allow the liberty to the Asstt. Collector to go into this aspect, since the show cause notice as well as the orders of the authorities below do not bring out this aspect clearly. If, however, the objection is only to the effect that the goods have not been cleared within 6 months from the date of re-entry, that objection cannot be sustained and the benefit has to be allowed. The appeal is disposed of in the above terms.
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1993 (2) TMI 216
Modvat Credit for transitional period ... ... ... ... ..... question were falling under T.I. 15A and they were eligible for availment of proforma credit under Rule 56A. This aspect is not challenged by the Ld. JDR. When the item was eligible for availment of credit under any other provisions, then by virtue of the exclusion clause incorporated in sub-rule (2) of Rule 57H, the bar provided thereunder would not stand attracted. If the duty is paid prior to 31-1-1986, the appellant would become eligible to take credit. Rejection of the credit therefore does not seem to be justified on the grounds mentioned by the authorities below. 7. emsp Under the circumstances, when vide Rule 57H(2) the appellants become eligible to credit, by virtue of the item being eligible for availment of proforma credit under Rule 56A, prior to 31-1-1986, the credit cannot be denied to them. The order denying the credit is therefore set aside. The appellants are held eligible to credit, and as such they should be given the same credit. 8. Appeal is thus allowed.
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1993 (2) TMI 215
Refund of pre-deposit made during the pendency of appeal ... ... ... ... ..... cation. The adjudication order was challenged before Collector (Appeals) and finally taken before the Tribunal. The Tribunal in its order dated 7-1-1985 allowed the appeal of the appellants. Hence, the question of applying any time bar in this case does not arise at all. The amounts have been paid as per the statutory requirement for hearing the appellant rsquo s appeal on merits. If these amounts have not been deposited, their appeals would have been rejected for non-deposit. Hence this is a case, where consequential refund has to be granted even without the appellants being required to file a refund claim. I, therefore, see no merit in the orders of the authorities below, which appear to have been passed without applying the mind to the facts before them. I allow the appeal and direct the Assistant Collector to give effect to the Tribunal rsquo s order by way of consequential refund of not only the duty amount but also the other dues paid in terms of the adjudication order.
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1993 (2) TMI 214
Modvat Credit - Transitional provisions ... ... ... ... ..... credit consequent on payment of any short levy subsequently. All the same, what was sought for by the appellant in this case is conferment of additional duty credit in the proforma account and such an application has been made as early as on 4-3-1986, even prior to their switching over to the Modvat scheme by filing the declaration on 31-3-1986. Hence, had the department acted on this application dated 4-3-1986, this amount would have been credited in the proforma account even prior to 31-3-1986 and this amount would automatically be available for transfer as the credit outstanding, as on the date of filing the declaration under Rule 57E. Hence the question of resort to the provisions of Rule 57E does not arise, in the facts and circumstances of the case. In the result, I find that the objection taken by both the authorities below is not sustainable. I, therefore, allow the appeal with direction to restore the credit disallowed by the lower authorities, in the Modvat account.
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1993 (2) TMI 213
Proforma Credit ... ... ... ... ..... ellant. However, in the present order of the Collector (Appeals), the Collector (Appeals) does not agree with the conclusion reached by his predecessor and holds that the material received as such are sought to be destroyed and hence sub-rule (3)(iii) of Rule 56A would be applicable. I am unable to agree with the contention of the Collector (Appeals) in the impugned order mainly because of the fact that it is not the case of the department that as soon as the capsules are received in the appellant rsquo s factory they sought for destruction of the goods, in which case there may be justification to refuse permission citing the Clause (3)(iii) of Rule 56A. In this case, the undisputed position is that they had taken up the capsules for testing and repacking and in that process of the capsules were found to be damaged and hence Clause (iv)(c) of sub-rule (3) of Rule 56A would be squarely applicable to the facts of the case. I therefore allow the appeal with consequential relief.
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1993 (2) TMI 212
Zip Fastener - Parts - Chain scoops ... ... ... ... ..... ide fastners consist of two narrow strips of textile material one edge of each strip being fitted with scoops (of metal, plastics, etc.) which can be made to interlock by means of a slider or runner. rdquo And again, ldquo Parts of slide fastners e.g. chain scoops, sliders or runners, and pieces and narrow strips of any length mounted with chain scoops. rdquo From the above, it is evident that chain scoops by themselves which are not stitched on to side tapes cannot be considered as zip coils. Therefore, chain scoops cannot be considered as zip coil and as one of the items excluded from the scope of entry against Sl. No. (4) of the Table to the Notification 190/90, and in this view of the matter, the conclusion of the lower authorities is not sustainable. Accordingly it is held that the chain scoops imported without being attached to side tapes are eligible for exemption against Sl. No. (4) of the Table to Notification 190/90. The appeal is, therefore, allowed on these terms.
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1993 (2) TMI 211
... ...
... ... ..... force of sub-sec. (2) to Sec. 11C from 1-7-1988, and even before the issue of notification under Sec. 11C on 21-12-1988 in respect of their goods, the appellants have sought to show that the duty incidence passed on had been remedied by issue of credit notes to customers. It is not possible to interpret sub-sec. (2) of Sec. 11C to accommodate such situations and to say that even when duty has been passed on to the customers at the time of clearance the assessee can still claim refund under Sec. 11C(2) of Central Excises and Salt Act by issuing credit notes. The Tribunal decision in the case of Collector of Central Excise v. Mahavir Spg. Mills (supra) does not also advance the case of the appellants as it was a decision relating to a demand of duty and not a refund claim rendered in the context of Sec. 11C prior to introduction of sub-sec. (2) thereto. In the result, there is no reason to interfere with the order passed by the Collector (Appeals) and the appeals are rejected.
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1993 (2) TMI 210
Adjudication - Adjournment of hearing ... ... ... ... ..... hin 5 days of issue of the said letter dated 30-5-1991 and 2 days thereafter for appearing for personal hearing is adequate or not in the facts and circumstances of this case. We are of the view that these opportunities are totally inadequate. A matter which took six months for department to issue show cause notice and then thereafter over six months to supply copy of the documents relied upon, it does not speak well of the ways the department has functioned in this case. Accordingly, we are of the view that the matter requires to be remanded to the Additional Collector for fresh adjudication after giving of adequate opportunities in terms of time for personal hearing in the said case. We also note that reply of the appellant is already on record. The adjudicating authority would no doubt take that reply as well into consideration before arriving at de novo decision. 5. Appeal is thus allowed by remand. 6. Operative part of the order pronounced in the open Court on 17-2-1993.
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1993 (2) TMI 209
Chapter X Procedure - Demand ... ... ... ... ..... ed lower appellate authority. We observe that after the goods have been despatched the consignor, the manufacturer in this case, has no control over the goods thereafter and there is no provision in law holding him responsible for ensuring that the goods ultimately reach the consignee rsquo s end. All that a manufacturer is to ensure is that the goods are sent out to a consignee who holds a valid L 6 licence. The Revenue in such a situation is secured by execution of the bond by the L 6 license holder for due accountal of the goods for the specified use and if he is not able to do that it is he alone who should be called upon to pay the duty due unless it is shown that the consignor i.e. the manufacturer is bound himself by a bond in this regard. There is no plea from the Revenue that the goods actually moved under the consignor rsquo s bond. In view of the above we hold that there is no merit in the plea of the Revenue and the appeal has to be dismissed. Ordered accordingly.
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1993 (2) TMI 208
SSI Exemption ... ... ... ... ..... slation or Notification. In the present case admittedly the Production Unit comprising of sheds A rsquo , B rsquo , C rsquo and D rsquo was functioning as one entity for long period in the year and Shed C rsquo which was started as a separate entity as a result of expiry of the lease agreement has to be considered as continuation of the erstwhile unit of production partaking of the character of the factory as it existed till September 1986. Admittedly taking aggregate clearances as above the limit set out in the Notification supra had been exceeded and for that reason the respondents cannot be held to be eligible for the benefit of Notification during the year 1986-87. So far as the clearances during 1987-88 are concerned in terms of Para 3, since the aggregate clearances during the year 1986-87 exceeded Rs. 150 lakhs the respondents would not be eligible for the benefit of Notification during this year also. Accordingly the impugned order is set aside and the appeal allowed.
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1993 (2) TMI 207
Credit of Duty - Cancellation of Gate-passes ... ... ... ... ..... because of the fact that this is a case where a specific provision is made in the Rule, viz. Rule 173G(2) to the effect that credit can be taken in respect of cancelled Gate-passes and the only requirement is that intimation should be sent to the proper officer immediately after cancellation of the Gate-passes and thereupon the credit can be taken by the assessee himself without making a refund claim or making a specific request on the RT-12 return. Only for complying with the provisions of the Trade Notice they have indicated this position in the RT-12 returns. Hence, the duty credit has to be given and if the Supdt. has not given the credit at the time of assessment, the respondents are at liberty to take credit on their own, because the legal requirement specified under Rule 173G(2) proviso (vii) has been complied with. In this view of the matter, I see no reasons to interfere with the order of the Collector (Appeals) and the appeal from the Revenue is therefore dismissed.
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1993 (2) TMI 206
Classification ... ... ... ... ..... d as broken glazed tiles. Even if they fetch small value, broken glazed tiles belong to a category distinctly apart from the category of glazed tiles which have a distinct identity. In the absence of any specific heading for broken glazed tiles as waste material, and opposed to the metals like copper scrap etc., it would not be appropriate to equate them with glazed tiles or to take them to the residuary entry of Item 68. The distinction between broken glazed tiles and broken glass is that while latter can be melted and re-cycled, former cannot be treated in the same manner. If they cannot be sold as waste material for a nominal price, they would have to be discarded or thrown away as waste material. 3. emsp In view of the above precedent decision of the Tribunal, it has to be held that broken glazed tiles are not excisable goods and in this view of the matter, we see no reason to interfere with the order of the learned Collector (Appeals). The appeal is accordingly rejected.
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1993 (2) TMI 205
Evidence - Statement ... ... ... ... ..... er and, therefore, we have no hesitation to hold that the statements relied on by the department are not voluntary and true. 9. Even otherwise, the proceedings under the Gold (Control) Act are not maintainable against the appellants in view of the fact that there was no seizure of these gold pieces under Section 66 of the Gold (Control) Act as could be seen from the inventory list as well as the allegations in the show cause notice. These documents clearly show that the gold pieces were seized under Section 110 of the Customs Act, 1962. In view of the above discussions and in view of the fact that the appellants are not claiming the gold, it is not established that they were found in possession of these seven pieces of gold while they were transporting the same from Nepal to India. Accordingly, we allow these Appeals and penalty imposed on these appellants are hereby set aside. The confiscation of the 7 pieces of gold are confirmed as the appellants are not claiming the same.
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1993 (2) TMI 204
Sugar - Incentive rebate ... ... ... ... ..... upport of her contention that brown sugar becomes gur only after it was reprocessed. 4. emsp Considered. The main issue is whether brown sugar could be regarded as fully manufactured sugar for the purpose of computing excess production. 5. emsp As seen from the decision of the Andhra Pradesh High Court in the case of CCE, Hyderabad v. Nizam Sugar Factory relied upon by the Asstt. Collector and the Patna High Court decision above, relied upon by learned SDR, it has been held that brown sugar is not sugar since it was not marketable in that form. 6. emsp Thus, the order of the Asstt. Collector denying the rebate on said brown sugar is correct in law. In this view of the matter, it is not necessary to go into the other issue, namely, whether the word lsquo payable rsquo used in the proviso to the notification was correctly held to mean lsquo paid rsquo by the Asstt. Collector. 7. As the orders are correct in law and are based upon the facts of the case, the appeals are rejected.
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1993 (2) TMI 203
Seizure and confiscation ... ... ... ... ..... ods are the same goods which he had purchased from one Shri Narayan Chandra Biswas. Further when the appellant was issued with a summons, he did not attend before the Adjudicating Authority to give his statement on 30-11-1989. But the defence of the appellant is that he had sent a letter under Certificate of Posting stating that he received the summons only on the 30th. In the ordinary course, even if a person received the summons on 30-11-1989, he would have approached the officers in his eagerness to get the goods at the earliest, personally, and not by sending letter under certificate of posting. This conduct of the appellant also establishes the fact that the goods claimed by him are not the same goods which he had purchased from one Shri Narayan Ch. Biswas. In view of all the above reasons, we hold that the confiscation of the goods in question is in accordance with law. As the appellant has failed to establish the ownership of the goods claimed, the appeal is dismissed.
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