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Case Laws
Showing 61 to 80 of 386 Records
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1999 (5) TMI 576 - CEGAT, MUMBAI
Valuation - Cenvat/Modvat credit element ... ... ... ... ..... is that in the first case, it is the manufacturer of the inputs who captively consumed the goods and in the other it is not him but another one who utilized the goods for the manufacture of finished goods. In both cases, value has to be arrived at under Rule 6(b)(ii). In the case of a job worker, it is he who takes the Modvat credit, which is set off by him is against the duty paid. The principles in Dai Ichi Karkaria will equally apply being in the case of job worker. As long as credit is available to set off the payment of duty on the goods, it cannot be made use to it so that expenditure cost of the material will reduce. In fact, para 19 of the Dai Ichi Karkaria order makes it clear that credit should not form part of value inputs for purpose of valuing the product under Section 4(1)(b) and Rule 6(b) of its value. 5. emsp The appellant was therefore entitled not to include the excise duty element in the value of the goods. 6. emsp Appeal allowed. Impugned order set aside.
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1999 (5) TMI 575 - CEGAT, NEW DELHI
SSI Exemption ... ... ... ... ..... e. Thus we hold that the value of clearances during the year 1988-89 was less than 7.5 lakhs. Since the value of clearances during the year 1989-90 was less than Rs. 7.5 lacs, therefore, we have to examine whether they fall within the category of para 4 (a) or para 4 (b) of the same Notification No. 175/86. We note that the appellants would clearly fall under sub-para (a) of proviso to para 4 of the Notification No. 175/86. As this proviso is an exception carved out of para 4 stating that if the clearances in the year 1988-89 did not exceed Rs. 7.5 lacs then they would be eligible to the benefit of exemption under this proviso during the year 1989-90. In view of this clear position, we hold that during the financial year 1989-90, the appellants were entitled to the benefit of Notification No. 175/86. In this view of the matter, the appeal is allowed and the impugned order is set aside. Consequential relief, if any, shall be admissible to the appellants in accordance with law.
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1999 (5) TMI 574 - CALCUTTA HIGH COURT
TDS, Penalty, Levy Of Penalty ... ... ... ... ..... d not deposit that amount in time. The Assistant Commissioner has rightly pointed out that once the T.D.S. is deducted from the income of somebody, the assessee is merely a custodian of the T.D.S. amount. He cannot touch the amount. That amount is to be deposited within the time prescribed in the Central Government account and any loss or profit in the business of the assessee has nothing to do with deposit of the T.D.S. amount. In view of these aforesaid facts and relevant provisions discussed above, we do not find any merit in this appeal and no case is made out for interim order. However, it is made clear that the observations made by us will not prejudice the interest of either of the parties before the learned single judge, he may proceed in accordance with law. Consequently, the appeal as well as the applications are dismissed. Stay prayed for operation of this order is rejected. All parties are to act on a signed xerox copy of this dictated order on usual undertaking.
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1999 (5) TMI 573 - CEGAT, KOLKATA
Jurisdiction of Customs Department/Appellate Tribunal - Partnership firm - Dissolution - Customs House Agent Licence - Renewal of
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1999 (5) TMI 572 - CEGAT, NEW DELHI
... ...
... ... ..... ill not be proper in the facts and circumstances of this case. He, therefore, submits that penalty of Rs. 50,000/- imposed on the appellants is sustainable. Appeal therefore deserves to be rejected. 4. emsp We have heard the pleas advanced from both sides. We observe that the main manufacturer that is GAPL has already got the matter settled under KVS Scheme by paying the duty element determined in the present case. In view of the appeal of the main manufacturer having been settled, it would not be desirable holding the appellant herein, as guilty of contravening the provisions of Central Excise Law. The appellant herein was, obviously acting on the dictate and behest of the manufacturer and the entire duty liability has been taken upon himself by the main manufacturer. In that view, no penal liability devolves upon the present appellant. Consequently we set aside the penalty of Rs. 50,000/- imposed on the present appellant. To this extent we allow the appeal of the appellant.
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1999 (5) TMI 570 - CEGAT, NEW DELHI
Penalty - Mandatory penalty - Demand ... ... ... ... ..... is equal to the total amount of duty confirmed against the appellant. We also note that the period of demand in the instant case is before the date of introduction of Section 11AC in the statutes. The Tribunal has been consistently holding that only such demand as accrued after the introduction of Section 11AC shall be covered by the penal provisions of Section 11AC. In the instant case the demand is for an earlier period and therefore, the penal provisions under Section 11AC cannot be applied to the facts of the present case. Moreover, we find that in the instant case, the demand has been raised under Section 11D, the Hon rsquo ble Madras High Court has clearly held that in the absence of the machinery provision under Section 11D, the demands cannot be enforced nor can penalties be sustained in law. Looking to the above facts of the case, we find substance in the appeal. In this view of the matter, the appeal is allowed with consequential relief, if any, admissible under law
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1999 (5) TMI 569 - CEGAT, NEW DELHI
Manufacture ... ... ... ... ..... ed that though only 30 per cent boulders were crushed into stones of small sizes, duty has been demanded on the entire quantity of stones. This contention has not been substantiated by the Appellant No. 1 by adducing any evidence, documentary or otherwise. We observe that such a plea was not taken in the memorandum of appeal filed by the appellants No. 1. On the other hand in all the three show cause notices, issued to them, the duty has been demanded on crushed stones and the quantities have been taken on the basis of statement of Shri Dharuadhikari, Project Manager. In view of these facts, their contention remains unsubstantiated. However, we agree with the appellants that no penalty is imposable on them as the issue involved was one of interpretation and the question involved was whether the activity undertaken by them amounted to manufacture or not. We, therefore, set aside the penalty imposed on the appellants. But for this modification all the five appeals are rejected.
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1999 (5) TMI 568 - CEGAT, NEW DELHI
Adjudication - Remand ... ... ... ... ..... thorities has to be accepted. In that view, he prays for allowing the appeals. 5. emsp We have carefully considered the pleas advanced by both sides. We agree with the submission of the learned Advocate, Shri A.R. Madhav Rao that a very categorical factual plea had been taken by the appellants before the lower authorities but instead of dealing with the said plea either by way of rebuttal or confirming the same, the authorities below have gone for separate finding. The matters are old. There is no justification for remanding the matters at this stage. In the absence of any specific rebuttal given by the authorities below, we accept that the castings cleared by them were either unmachined or were machined only up to the proof machining stage. In that view, the judgments relied upon by the learned Advocate, mentioned supra, will apply squarely in the present matters. Consequently we set aside the impugned order and allow the appeals with consequential reliefs to the appellants.
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1999 (5) TMI 564 - CEGAT, NEW DELHI
Valuation - Goods transported to site for insulation of pipe ... ... ... ... ..... ce indicated even in the part-II price lists, we agree with the contention of the learned Advocate that in place of arriving at the assessable value on notional basis based on the differential between part-I and part-II price, the correct course would have been to determine the assessable value under the Central Excise Valuation Rule 6(b)(ii). We consider that the argument taken by the appellants has force and as with regard to the goods for which there were no prices available even in the part-II price list proforma, we remand the matter to the Jurisdictional Assistant Commissioner, Central Excise who should re-determine the assessable values with regard to such goods under Rule 6(b)(ii) of the Central Excise Valuation Rules, 1975. 6. emsp Before passing the order with regard to the above goods, the appellants may be given an opportunity to present their case and then pass a speaking appealable order as per law. 7. emsp The appeal is thus partly allowed. Ordered accordingly.
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1999 (5) TMI 562 - CEGAT, NEW DELHI
Evidence - Penalty ... ... ... ... ..... ant with the offence, in the absence of any identification of the appellant as the person on the trolley who ran away at the time of interception or as the person to whom the offending goods were to be delivered. The Fard Report also does not contain any details about the appellant and it only shows that one Babu Khan, resident of Nawab Ganj was present along with Iqbal and Gurpreet Singh when the tractor trolly was intercepted. The Fard Report does not mention Babu Khan rsquo s father rsquo s name. It is significant to note that Man Bahadur whom Iqbal named as the person who had employed him (Iqbal) to deliver the smuggled goods to Babu Khan, has also not identified the appellant as the person to whom the goods handed over to Iqbal Ahmed were to be delivered. The material on record is, therefore, totally insufficient to hold that the appellant was in any way concerned with the seized goods. We, therefore, set aside the penalty imposed upon the appellant and allow the appeal.
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1999 (5) TMI 561 - CEGAT, NEW DELHI
Valuation - Related persons ... ... ... ... ..... sement cost is not maintainable on the basis of the finding that the persons are related parties. This finding is, therefore, to be seen in the context of the relationship between the buyer and the seller. Nothing has been brought on record to show that the advertisement is being carried out by the buyer at the instance of or on behalf of the manufacturer. Both the parties are limited companies. The brand name which is popularised through advertisement by the buyer belongs to a third party which is Polar Fans. Therefore, a finding that the popularisation of the brand name Polar is for the benefit of the present appellants is also not sustainable. In the circumstances, we are of the opinion that there was no legal basis to the addition of the advertisement cost of the dealer to the assessable value of the goods. The appeal succeeds and is allowed with consequential relief to the appellant. We are not going into the other issue like time bar, as the appeal is allowed on merits.
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1999 (5) TMI 560 - CEGAT, MUMBAI
EXIM Policy - Duty Credit Pass Book Scheme ... ... ... ... ..... manufacture of the resultant product, the credit under the passbook scheme the credit shall be allowed for the item having lowest duty incidence. The example shown in this paragraph is of bars/billets. We are of the view that it is only in cases where against the same export item more than one possible alternative input is shown that this provision will apply. Examples at serial 41 against this input is acetone/isopropyl alcohol. The same paragraph 3 of the circular in fact provides that against export of any resultant product more than one input has been allowed under the standard input/output norms credit can be claimed in one or more of these inputs as may be specified by the exporter. Applying this principle one of the one or more sets of inputs can be claimed as input. 15. emsp As a result of this discussion, we are of the view that the appeal succeeds and the appellant was entitled to claim credit. 16. emsp We therefore allow the appeal and set aside the impugned order.
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1999 (5) TMI 559 - CEGAT, NEW DELHI
Natural justice - Personal hearing ... ... ... ... ..... cord to controvert their contentions. We also find that there is no indication in the impugned order itself that notices of personal hearing were issued and received by all the appellants above named. We also note the submissions of the learned Counsel representing M/s. Urvashi Enterprises, M/s. Shivani Locks, M/s. Karan Steel and M/s Duggar Fibres. What comes out from the submissions is that the order has been passed without hearing the appellants. Therefore, we are of the view that these cases are required to be remanded and therefore, after setting aside the impugned order, we remand the above cases for fresh decision on the issue of liability of the appellants to penalty, to the Jurisdictional Commissioner of Central Excise who shall hear the appellants after supplying of copies of the relied upon documents. He shall pass fresh orders in accordance with law after extending reasonable opportunity of hearing to the appellants. The appeals are disposed of in the above terms.
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1999 (5) TMI 558 - CEGAT, NEW DELHI
Valuation - Sheet cuttings and remnants - Assessable value ... ... ... ... ..... e further submitted that as the goods had been mis-declared as waste and scrap, the adjudicating authority was right in invoking the extended period in the Show Cause Notice. 4. emsp We have perused the records of the case and have considered the submissions made by both the sides. We observe that no allegation has been made in the Show Cause Notice or findings recorded in the impugned order that the relationship between the appellant and their buyers was not a commercial relationship or that, the price was not the sole consideration for the sale of the remnants. In such a situation, Section 4 of the Central Excise Act dictates that the assessable value shall be the sale price. Accordingly, we hold that the transaction value constituted the assessable value. As the duty has already been paid at the transaction value, the demands made are not justified or legal. The appeals are accordingly allowed with consequential relief to the appellants and the impugned order is set aside.
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1999 (5) TMI 557 - CEGAT, KOLKATA
Smuggling - Evidence - Onus - Evidence ... ... ... ... ..... mes clear that the items were not in commercial quantity. The remarks column shows marks of origin erased. There is no report that the marks of origin were of foreign country. The Commissioner also moves only on this ground and by attributing mala fide to the appellant arrives at a finding that the goods were smuggled item. I find a lot of force in the appellant rsquo s submission that the goods were neither notified item under Chapter IVA nor specified goods under Section 123. As such the onus is on the department to prove that the goods recovered from the said shop were smuggled goods. Merely because the country of origin was erased the same will not lead to inevitable conclusion that the goods in question were of tainted character. Though a doubt can be raised against the appellant, but the doubt, howsoever strong, cannot take the place of legal evidence. In view of this I set aside the impugned order and allow the appeal with consequential relief to the appellant, if any.
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1999 (5) TMI 538 - HIGH COURT OF DELHI
Detention order - Validity of ... ... ... ... ..... shable from the facts of the present case inasmuch as in that case representation of the petitioner was not at all considered by the detaining authority. Shakil Ahmed Ansari rsquo s case (supra) also has no applicability to this case as in that case representation of the petitioner dated 7-7-1995 was not considered by the detaining authority indepen-dently of the opinion of Advisory Board. 10. On the ratio of the decisions in Smt. Asha Keshavrao Bhosale rsquo s case (supra) and Jamal Haji Jakaria rsquo s case (supra) delay in disposing of the representation dated 24-3-1999. Which did not disclose any new ground, by the detaining authority, who did not receive the copy of the representation from the Secretary to the Government of India, Ministry of Finance, to whom the said representation was addressed, cannot be legally made the basis for quashing the detention order in question and the petition, therefore, deserves to be dismissed. 11. Resultantly, the petition is dismissed.
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1999 (5) TMI 537 - HIGH COURT OF RAJASTHAN
Share certificate, issue of - Limitation of time ... ... ... ... ..... has territorial jurisdiction to take cognisance against the present petitioners for the offence under section 113(2). Whether cognisance against the present petitioner can be taken or not is to be decided by the trial court. 15. It has also been held in the case of Hardilia Unimers Ltd. (supra) that offence under section 113 of the Companies Act is a continuing offence , whether cognisance against the present petitioner can be taken or not under the present circumstances is a matter to be decided by the trial court considering the material placed before it during trial. It would not be proper for this Court to express any opinion on it at this stage. 16. Therefore, looking through all the controversy raised before me, I am of the view that it is not a fit case in which the power under section 482 of the Code could be exercised to quash the complaint and proceedings pending in the Court of Special Judicial Magistrate, Rajasthan, Jaipur. This petition is accordingly dismissed.
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1999 (5) TMI 536 - SUPREME COURT
Application under section 11 of the Arbitration and Conciliation Act, 1996 for the appointment of an arbitrator - Held that:- The present proceedings, however, for the appointment of an arbitrator under section 11 of the Arbitration and Conciliation Act, have a very narrow scope and the same are not covered by section 22 of the Sick Industrial Companies (Special Provisions) Act. If, however, the respondents desire that the arbitration proceedings should not be proceeded with, it is open to them to take appropriate legal steps in that connection under the provisions of the Act and in accordance with law.
In the premises, by consent of both parties, Justice S. Ranganathan, retired judge of the Supreme Court of India is appointed as sole arbitrator, as prayed for in the arbitration petition.
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1999 (5) TMI 535 - HIGH COURT OF GUJARAT
Winding up – Debts of all descriptions to be admitted to proof, Overriding preferential payments
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1999 (5) TMI 534 - HIGH COURT OF DELHI
Enforcement of award ... ... ... ... ..... of the Arbitral Tribunal, I hold that interest 9 per cent per annum is payable by the respondent to the applicant with effect from 27-12-1995 till 31-3-1998. 8. The counsel for the respondent states that application for payment of the awarded amount along with interest to the applicant in foreign currency has already been made to the Reserve Bank of India seeking for their permission and that another 15 days rsquo time may be given to the respondent to make the said payment, within which period there is likelihood of obtaining such permission. In that view of the matter I grant 15 days rsquo time to the respondent to make payment of the entire awarded amount along with interest, in foreign currency, to the applicant which is also agreed to by the learned counsel appearing for the petitioner. In terms of the aforesaid order, both the execution petitions stand disposed of with costs to the decree holder. Consequently, the OMP seeking for interim order, also stands disposed of.
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