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Case Laws
Showing 81 to 100 of 577 Records
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1998 (3) TMI 633
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... ... ..... s classic, The Wealth of Nations, observed that four main objectives should be borne in mind by the State in levying taxes. First, equity. Secondly, the convenience of the tax-payer. Thirdly economy, and fourthly, certainty and clarity. Arbitrary assessments not basked by sound principles of law and correct interpretation of factual and legal issues lead to disastrous results. Collection of tax may be made in respect of such assessments to boost up revenue collection of one financial year, presenting a rosy picture. But ultimately when refunds are required to be made, the picture becomes more dismal. 7.. The original assessment order be returned to the petitioner as attested xerox copies are available. A copy of the order be handed over to the learned Senior Standing Counsel (C.T.), for compliance. The writ application is disposed of. Urgent certified copy of the order on proper application shall be granted to petitioner. S.C. Datta, J.-I agree. Writ application disposed of.
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1998 (3) TMI 632
Section 138 of the Negotiable Instruments Act, 1981 - Held that:- On careful reading of Section 138 of the Act, we are unable to subscribe to the view that Section 138 of the Act draws presumption of dishonesty against drawer of the cheque if he without sufficient funds to his credit in his bank account to honor the cheque issues the same and, therefore, amounts to an offence under Section 138 of the Act.
It is needless to emphasize that the Court taking cognizance of the complaint under Section 138 of the Act is required to be satisfied as to whether a prima facie case is made out under the said provision. The drawer of the cheque undoubtedly gets an opportunity under Section 139 of the Act to rebut the presumption at the trial. It is for this reason we are of the considered opinion that the complaints of the appellant could not have been dismissed by the High Court at the threshold. Appeal allowed.
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1998 (3) TMI 631
Whether mere existence of a right to maintenance as 15.2. 1970 is sufficient?
Held that:- Neither under the customary Hindu law, nor under the Hindu Marriage Act, 1955 nor under the Hindu Succession Act, 1956 nor under the Hindu Adoptions and Maintenance Act, 1956 is there any provision which gives a share to a wife in the joint family property held her husband nor to a mother in the joint family property allotted to her son in a partition.
As already stated that a wife or a mother in a Hindu joint family does not basically have a share in the joint family property and she has on a right to maintenance and the mere existence of such a right against the joint family property as on 15.2.1970 could not, in law, be treated as being equivalent to ’holding’ a share in the joint family property, as on that date. The fact that land was reduced to the possession of the second appellant on 24.9.1970, could not be equated with her possession on 15.2.1970. Appeal failed.
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1998 (3) TMI 630
Detention order under Section 3(1) of the COFEPOSA Act - Held that:- The fact remains that the detention order dated 13th September, 1996 has still not been executed and the respondent has not surrendered. Under these circumstances, it will be appropriate to direct that the ad interim relief which is extended from time to time by the Division Bench of the High Court and which was continued all throughout, shall stand vacated
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1998 (3) TMI 629
Demand - Limitation ... ... ... ... ..... orm in which the slings were cleared, is totally incomprehensive inasmuch as the slings are always cleared by attachment of fitments and this is very clearly mentioned in the form, ldquo Bill-cum-challan-cum-despatch Advices rdquo by the following remarks namely - ldquo Excise Duty on the ropes involving in fabricating the slings. rdquo 7. emsp We are, therefore, of the view that no wilful misstatement or suppression of facts in contravention of any Rules with intent to evade payment of duty, can be alleged against the appellants herein. Hence the show cause notice dated 3-1-1986 for the period from 23-12-1980 to 23-8-1984 is wholly barred by time inasmuch as it has been issued well beyond the period of six months rsquo time-limit as stipulated under Section 11A. Therefore, without entering into the question regarding the valuation of wire rope slings, we hold the demand of duty to be barred by time. Payment of duty is, therefore, set aside. Appeal disposed of in above terms.
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1998 (3) TMI 628
Notification No. 281/86-C.E. ... ... ... ... ..... which would not have been so playable if the said notification had been in force at all material times, shall not be required to be paid. (4) emsp Any person claiming refund of any duty of excise under sub-section (2) may make an application for refund of such duty to the Assistant Collector of Central Excise before the expiry of six months from the commencement of this Act. rdquo 7. emsp It is also made clear that in the Statement of Objects and Reasons that the Bill was introduced in the Parliament on 12-8-86. 8. emsp In view of the clear position in law, we consider that the Notification No. 281/86-C.E. had to be given effect from 1-3-86 itself. In view of the clear provisions of law, the appeal filed by the assessees M/s. Century Rayon merits acceptance. 9. emsp Taking all the relevant facts and considerations into account, we allow the appeal filed by M/s. Century Rayon and the appeal filed by the Revenue is rejected. Both the appeals are disposed of in the above terms.
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1998 (3) TMI 627
Benefit of Notification No. 281/86-C.E. ... ... ... ... ..... f the ld. JDR and the lower authorities that insofar as availability of the concession in terms of Notification No. 281/86 is concerned, the second part of the notification which is material is not complied with by the assessees and, therefore, the concession under that notification would not be available to the appellants. We agree with this contention and held accordingly. 6. emsp Insofar as Notification No. 217/86 is concerned, we find that this is for the first time that the benefit under this notification has been claimed by the assessees. Since this notification was not claimed by the assessees before the lower authorities, we consider it a fit case for remand. In the circumstances, we remand the case to the Assistant Collector for examination of the admissibility of exemption under Notification No. 217/86 and pass appropriate orders in accordance with law after giving the appellants an opportunity of being heard in person. In the result the appeal is allowed by remand.
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1998 (3) TMI 626
Dutiability - Marketability - Waste and scrap ... ... ... ... ..... le. I therefore agree with Hon rsquo ble Member (J) rsquo s views which are even otherwise based on the case law referred to by her. I may mention that the case law referred to by Hon rsquo ble Member (T) would advance the case of department only if the material could be shown as excisable whereas the case law relied upon by Hon rsquo ble Member (J) and in particular the judgment in the case of Universal Cables Ltd. - 1978 (2) E.L.T. (J 632) is directly on the point. 30. emsp In view of the above discussion I agree with the conclusion of Hon rsquo ble Member (J). 31. emsp I therefore consider that the impugned order is required to be set aside and the appeal is required to be allowed with consequential relief, if any, due. Sd/- (S.K. Bhatnagar) Vice-President MAJORITY ORDER 32. emsp Having regard to the majority view, the impugned order is set aside and the Appeal is allowed with consequential relief, if any, due. Sd/- (Archana Wadwa) Member (J) Sd/- (G.R. Sharma) Member (T)
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1998 (3) TMI 625
Rate of duty ... ... ... ... ..... ional rate under Notification 59/87. We find that the said judgment has been reversed in Appeal by a Two Member Bench of the Bombay High Court in Vishal Electronics Pvt. Ltd. v. Union of India 1993 (68) E.L.T. 557 referred to above in which it was held that when the rate of duty for goods falling under a heading is to be determined with reference to the rate applicable to goods falling under a different heading, exemption, if any, applicable to the latter should also be taken into account while determining the rate of duty of the former. It is not in dispute that in the instant case the machine to which the imported knives/blades were to be used were eligible for a concessional rate under Notification 59/87. 7. emsp Having regard to the aforesaid factual position we agree with the submissions made on behalf of the present appellants that the recovery of less charge of Rs. 25,617/- is not sustainable. 8. emsp Accordingly, the Appeal is allowed and the impugned order set aside.
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1998 (3) TMI 624
Refund - Return of damaged goods for repairs - Manufacture ... ... ... ... ..... old steel structure of the board. This fact has not been disputed by the department. In view of this it cannot be said that the appellants had manufactured a new switch board. This question was considered by the Tribunal in the case of Shriram Refrigeration Industries Ltd., (supra), in which it was held that so long as the process applied was only that of reconditioning even inclusive of addition of new parts, the benefit of duty free removal under Rule 173H would be available. Similarly in the case of Modi Zerox Ltd. v. CCE, Meerut - 1997 (91) E.L.T. 116 (T), it was held that change of certain parts or recoating of a drum or a vessel removing the old coating does not amount to manufacture. In the instant case the appellants have paid the duty on the parts which were utilised in the repairs of the switch board. They are not required to pay the duty on the entire value of the switch board. Accordingly, the appeal filed by M/s. Siemens Ltd. is allowed with consequential relief.
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1998 (3) TMI 623
Exemption - Specific entry vis-a-vis general entry ... ... ... ... ..... provision must be read down and given a restricted meaning to protect it from a legal challenge as to its vires or validity. rdquo 14. emsp In the present cases, we find that the importers had described the goods as ldquo Optical Time Domain Reflectometer rdquo at the time of import. The goods were examined and were found to be lsquo Optical Time Domain Reflectometer rsquo . When there is a specific entry for the goods imported, we consider that their classification could not be taken to another general entry and in the facts and circumstances of the case, it could not be said that both the exemption entries were equally applicable to the goods in question. 15. emsp Taking all the relevant facts and considerations into account, we do not agree with the view taken by the Collector, Customs (Appeals) in both the cases. We set aside the same and restore the orders-in-original passed by the adjudicating authorities. As a result, both the appeals filed by the Revenue are allowed.
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1998 (3) TMI 622
Classification - Dutiability - Marketability ... ... ... ... ..... tion has been made from a Text Book to the effect that certain resins could be cooled and stored at low temperature for several weeks. An observation is also made in the appeal memorandum that the shelf-life of the solutions could be increased by adding preservatives, etc. or by addition of alcohol. It is also claimed that similar solutions are available in the market. We find that the various claims do not go to disprove the finding of the Collector. No report of any laboratory has been placed before us on the samples drawn from the manufacturers premises to show that the claim made by the respondents was not correct. Mere empirical ns or citations from a text book would not change the physical realities of the particular manufacturer rsquo s processing of a chemical. We find that Revenue has not adduced any evidence to negate the finding of the Collector. His order as to the non-excisability of the solutions is, therefore, upheld. 6. emsp The appeal is thus allowed in part.
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1998 (3) TMI 619
Valuation - Wholesale price not available ... ... ... ... ..... epartment against that decision had been dismissed by the Supreme Court. Modi Xerox case which dealt not with two wheelers but with photocopier machines cannot furnish a safeguide to enable us to arrive at the exact modality of converting retail price of two-wheelers to wholesale price. The decision in Escorts relates to two-wheelers and the Tribunal allowed deduction of 5 which in that case worked out to Rs. 550/-. We do not think that this can be followed in the present case since there is definite evidence that on 4-10-85, the assessee was giving wholesalers in U.P. State discount of only Rs. 325/-. We do not think anything more than such deduction can be granted for the purpose of converting the retail price into wholesale price. 8. emsp For the reasons indicated above, we modify the decision of the lower authorities and direct approval to be given to wholesale price by deducting Rs. 325/- per vehicle from declared retail price. Appeal E/4434/92-A is thus allowed in part.
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1998 (3) TMI 617
Dishonour of cheque ... ... ... ... ..... ce or order passed by a court of competent jurisdiction can be reversed or altered by a court of appeal or revision on account of any error, omission or irregularity in the complaint, etc. I fully concur with the submissions of learned counsel for the respondents. If the complaint or the Mukhatyarnama remain unsigned on account of the negligence of the counsel, it cannot be said that there was no complaint in writing in the eyes of law. There was a valid complaint in writing. The authorised representative of the company was present when it was presented at the first instance and when it was marked to the Magistrate for disposal according to law. No prejudice has been caused to the petitioners. The petitioners will get full opportunity to rebut the case of the opposite party. The present revision has been filed in order to delay the matter. Resultantly, I do not see any merit in the present revision and the same is hereby dismissed, leaving the parties to bear their own costs.
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1998 (3) TMI 613
Stay/Dispensation of pre-deposit ... ... ... ... ..... note that the earlier Counsel for the applicants had indicated that the case may be decided by the Collector. In this view, we do not see that there was any denial of natural justice. Coming to the financial hardship, we note that the applicant in addition pleaded that because of the items manufactured by them having high incidence of duty, their factory was closed for the last three months. Looking to the facts and circumstances as also the submissions made before us as also the plea that the applicants have current assets for the year of rupees one crore or more. We direct the applicant to deposit a sum of Rs. 15,00,000/- on or before 9-6-1998 and report compliance by 16-6-1998. 7. emsp On compliance of this order, deposit/recovery of the balance amount of duty and penalty shall remand stayed. 8. emsp It should be clearly noted that non-compliance of the order shall lead to dismissal of the appeal without any further notice. Stay petition is disposed of in the above terms.
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1998 (3) TMI 608
Offences and prosecution ... ... ... ... ..... r before the Enforcement Officer within the specified time in pursuance of the summons. The petitioner, thereupon filed W.A. No. 1476 of 1997 against the orders in WPMP No. 23011 of 1997 and batch, and the said writ appeal was dismissed on 18-12-1997 granting time to the petitioner to appear before the concerned officer on 29-12-1997. As the petitioner failed to appear before the respondent by the said specified date, the respondent appears to have issued summons on 3-2-1998 and 17-2-1998 requiring the petitioner to appear before him, and such summons were disobeyed. Under those circumstances, the respondent filed a complaint before the lower Court under section 56 read with section 40 and the lower Court rightly took cognizance of the case as there is prima facie material to do so. In view of these circumstances, it is not a fit case where proceedings in C.C. No. 17 of 1998 can be quashed under section 482 at this stage. 20. In the result, the criminal petition is dismissed.
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1998 (3) TMI 603
Winding up - Circumstances in which a company may be wound up ... ... ... ... ..... ie supported by specific averments of disputes and not by a mere imaginative denial of debt. The expression debt has been given a wider meaning and would obviously include a claim by a creditor based on documents. This would become even an admitted debt once documents showing such admissions are placed on record. Inability on the part of the company to pay such debt and its avoidance would normally fall within the mischief of the provisions of sections 433 and 434. 8. In view of the aforestated discussion and settled position of law I am of the considered opinion that the respondent company has failed to pay its admitted liability and in fact has intentionally avoided even to clear its liability. Consequently, I direct that this petition for winding up be admitted. Notice of admission be published in the Tribune, Jan Satta and official gazette of the State of Punjab in accordance with rule. The respondent shall be given at least 14 days notice before the next date of hearing.
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1998 (3) TMI 595
Whether the amount realised by way of sales tax can be included in the turnover for the purpose of levy of sales tax under the provisions of the Andhra Pradesh General Sales Tax Act and Rules, 1957?
Held that:- Appeal dismissed. This is not a case where any relief can be granted to the appellant in these proceedings arising out of a writ petition under article 226 of the Constitution of India. We, therefore, do not propose to go into the question which has been raised and which has necessitated the reference to a large Bench by the order dated February 6, 1997. The appeal is, therefore, dismissed but the question raised is left open
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1998 (3) TMI 594
Whether chillies and chilli powder are different products, both exigible to sales tax?
Held that:- Appeal dismissed. The sales tax authorities should have placed such material to establish that the chillies underwent some process or manufacture and that the end-product, namely, chilli powder, was recognised by those who dealt in it as being distinct from chillies. They did not do so. Upon this ground alone, therefore, we decline to interfere with the judgments under appeal.
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1998 (3) TMI 585
DEEMED SALE — TRANSFER OF RIGHT TO USE GOODS — PORT TRUST PERMITTING IMPORTERS AND EXPORTERS TO USE CERTAIN MACHINERY
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