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Case Laws
Showing 81 to 100 of 386 Records
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1999 (5) TMI 520 - CEGAT, NEW DELHI
Demand - Limitation - Calendering of fabrics - Clandestine removal - Misdeclaration ... ... ... ... ..... s and description shown in packing lists, no allegation of mis-declaration or mis-statement could have been made against them. On these points, we find that the impugned order has not given any direct finding excepting the observation that under self-removal procedure (SRP) it is not feasible that the Officer would verify the machines installed in a licenced unit prior to approval of classification unless their bona fides is doubted. On the basis of the evidence on record and the submissions made on both sides, we are of the view that in this case the Department has not been able to substantiate the charges against the appellants with adequate material. As has been reiterated by the Tribunal in previous cases, suspicion however great, cannot be a substitute for proof. We are therefore inclined to give the appellants the benefit of doubt and allow the Appeal. 9. emsp Accordingly we set aside the impugned order and allow the Appeal with consequential benefits to the appellants.
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1999 (5) TMI 517 - CEGAT, NEW DELHI
Valuation - Packing ... ... ... ... ..... their price in the assessable value of the iron and steel products. He submits that such an arrangement cannot be treated as packing of the goods. It is only for the purpose of securing the goods during transport. Such tying is also done at the instance of the transporter, namely, Railways. It is not done when goods are despatched by trucks. He drew our attention to the decision of the CEGAT on identical issue in the case of CCE, Jamshedpur v. TISCO 1999 (108) E.L.T. 179 (Tri.) 1998 (27) RLT 499 (T) and submitted that Tribunal has held that the cost of such wire rope is not required to be included in the assessable value of the iron and steel products. 3. emsp Heard ld. SDR, Shri Parbhat Kumar for the Revenue. 4. emsp We have perused the records and have considered the rival submissions. As the issue remains covered in favour of the appellants by the aforesaid decision of the Tribunal, we allow these appeals following that decision with consequential relief to the appellants.
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1999 (5) TMI 516 - CEGAT, CALCUTTA
Smuggling - Evidence - Burden of proof ... ... ... ... ..... er of the goods and will not lead to shifting of onus to the appellant. If that be so, the fact of notifying the goods under Section 123 would lose its significance, inasmuch as in every case, the possessor would be required to produce the documentary evidence for possession of the goods. The minor contradiction in the statements of the two brothers have been explained by the learned Consultant on the ground that the two brothers had set up the small-scale factory only recently and were confused and terrified by the presence of the Anti-Evasion Officers. He clarifies that the total clearance of the factory is below Rs. 10.00 lakhs per annum and they were not even the declarants under the Central Excise Department. In the circumstances, I hold that the Department has not been able to place any evidence on record to show that the goods were smuggled ones, so as to justify their confiscation under the Customs Act. Accordingly, I set aside the impugned order and allow the appeal.
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1999 (5) TMI 498 - SUPREME COURT
What is the character of State lotteries?
If lotteries are gambling in nature, does it lose its character as such when it takes on the cloak of State lotteries?
Whether such cloak dissolves its character as res extra commercium?
Held that:- In view of the findings recorded holding lotteries organised by the State is also gambling in nature. Thus, State lotteries cannot be construed to be a “trade and business” within the meaning of articles 301 to 303 of the Constitution of India. We also hold that the impugned provisions are not violative of article 14 nor the delegation of power by the Parliament to the State Government could be said to be delegation of its any essential legislative power or a delegation, which is unguided or unbridled. Thus, we uphold section 5 and various sub-clauses of section 4 to be valid piece of legislation.
Accordingly, the decision of the Gauhati High Court which holds the provisions of the Ordinance to be ultra vires and consequently staying the provisions of the impugned Act cannot be sustained which is hereby quashed. Any decision of any court or any interim order contrary to the decision, as aforesaid, are hereby set aside. The various petitions which have been transferred and which are subject-matter of decision, as aforesaid, stand disposed of in terms of this decision.
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1999 (5) TMI 492 - CEGAT, MUMBAI
Classification ... ... ... ... ..... ion approved initially of the products in question under Chapter 3808.10 was correct. No duty was payable in addition to what had already been paid and hence penalty not imposable. rdquo 2. emsp We are of the view that we are bound by the said judgment. Following the said judgment, the arguments made by the departmental representative have to be rejected. In fact in Delhi High Court judgment in paragraph 31 onwards they have fully discussed about HSN Explanatory Notes. In para 32 they have held as follows - ldquo We are thus, unable to persuade ourselves to accept the contention of the Revenue/respondents that the Heading 38.08 covers only the insecticides/ pesticides etc. put up in the forms of packings for retail sale nor are they in the nature of an article of a preparation they would fall under Chapter 28 or 29 rdquo . 3. emsp We are therefore of the view that the impugned orders passed by the adjudicating authority are wrong and they are set aside. Appeals stand allowed.
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1999 (5) TMI 485 - HIGH COURT OF KERALA
Compromise & arrangements ... ... ... ... ..... stake, naturally, it shall be in terms of section 80(1) and not otherwise. An arrangement under section 80(1) shall be without the participation, knowledge and consent of the preferential shareholders. In this case, the meeting of the preferential shareholders was held and all of them including equity shareholders and the secured creditors have consented for the arrangement. The preferential shareholders who are if at all adversely affected, have no objection in the arrangement proposed by the company. In such circumstances, it is not to the prejudicial interest of such shareholders but it is as consented by them. Therefore, there is no reason to withhold the sanction in terms of section 391 (2). Accordingly, I order to sanction the scheme as proposed by the company and I issue an order in terms of rule 81 of the Company (Court) Rules, in tune with the scheme of arrangement. The company shall make payment to the preferential shareholders at the earliest. SCL q AUGUST 5, 1999
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1999 (5) TMI 484 - HIGH COURT OF ALLAHABAD
Winding up - Suits stayed on winding-up order ... ... ... ... ..... issolved on the death of the partner and the application having not been filed within a period of three years as provided under article 137 of the Limitation Act, 1963, it was barred by time. These cases have no application to the facts of the present case as in these cases the claims were made or the relief was sought for from the court. The bar of limitation is not applicable where an applicant is only seeking leave to continue any suit which was instituted prior to the order of winding up was passed by the court. The grant of leave to proceed with the suit does not affect any vested right of the parties and, therefore, the provisions of the Limitation Act do not apply to such a situation. In view of the above discussion, the submission of learned counsel for the applicant, that the application filed by the bank for grant of leave to continue with the suit or proceeding was barred by time is untenable. I do not find any merit in the application. It is accordingly dismissed.
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1999 (5) TMI 483 - HIGH COURT OF MADRAS
Wrongful withholding of property ... ... ... ... ..... titioner seeks the inherent jurisdiction of this Court under section 482. Inherent jurisdiction can be invoked only if there had been abuse of process of law. This Court cannot go into the merits of the matter and assess the evidence. It is not as if the learned Judicial Magistrate had not considered this aspect that is whether the petitioner is ceased to be a Director. The learned Judicial Magistrate has referred to documents under Exs. B4 to B6, the resolution passed by the company, which was contravened and held that the petitioner has not ceased to be a Director. The arguments of the learned counsel that the question whether the petitioner absented himself cones-cutively for three meetings has to be gone into by the Civil Court and it is a complicated question, which can be decided by the Civil Court only is not appealing to me. 12. In the result, both the petitions are dismissed. Consequently, Crl. M.P. Nos. 3564, 3014 and 5780 of 1998 are closed. SCL q SFPTFMBPR 5, 1999
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1999 (5) TMI 480 - HIGH COURT OF BOMBAY
Oppression and mismanagement ... ... ... ... ..... A and B will have 50 per cent shareholding and group A will have majority on the Board of Directors. It has, therefore, correctly come to the conclusion that if the actions of either of the group are contrary to the understanding it would be just and equitable to order the winding up of the company. This finding has not been arrived at on the ground that there is a deadlock between the two opposing groups. That was the limited sphere in which the High Court had examined the controversy between the two groups. In fact, the Petitioners had pleaded that they would not be able to get any relief from the CLB. As noticed earlier, the counsel appearing for group B at that stage had stated that this objection would not be raised before the CLB. Taking the aforesaid facts and circumstances in view. I am of the considered opinion that the order of the CLB calls for no interference. 10. In view of the above, all the three appeals and the applications are dismissed. SCL q AUGUST 5, 1999.
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1999 (5) TMI 479 - HIGH COURT OF MUMBAI
Regulation 14 of the SEBI ... ... ... ... ..... . It is necessary to ascertain whether the said MAS Services (P.) Ltd. had been authorised by the issuer company to enter into necessary agreement with the Banker to the Issue. Information on this point is necessary to reach at the correct conclusion. It appears that this aspect escaped attention. 11. For the reasons stated above, it is felt that matter requires examination of relevant specific documents relating to each public issue and not specimen letters/agreements, etc. The Adjudicating Officer should record specific findings in each case, which was subjected to enquiry and adjudication, instead of leaving the conclusion to be drawn by others. For the reasons, discussed above, it is felt that the matter requires further enquiry. I am, therefore, of the view that the matter is fit for remand. Accordingly I set aside the impugned order and remand the matter to the Adjudicating Officer for de novo adjudication. 12. The appeal is allowed by way of remand. SCL q JUNE 20, 1999
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1999 (5) TMI 459 - ITAT MUMBAI
Method of accounting ... ... ... ... ..... or I hold that the rate of 12 per cent should be applied both on accounted and unaccounted turnover of the assessee. Since I have not accepted the book results, I have to necessarily hold that the rate of 12 per cent should be applied both on accounted and unaccounted turnover of the assessee. Further no arguments appear to have been advanced before the learned Member as to what would be the reasonable percentage of profits, assuming that the book results cannot be accepted. The case would appear to have proceeded on the basis that either the book results are accepted or a rate of 12 per cent is adopted as the profits from the accounted business. Therefore, I am afraid that I am precluded from examining the question as to what would be the reasonable percentage of profit in respect of the accounted business. 30. I, therefore, agree with the order proposed by the learned JM. 31. The matter will now go before the Bench for passing orders in conformity with the majority opinion.
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1999 (5) TMI 453 - CEGAT, NEW DELHI
Benefit of Notification No. 341/76-Cus. not to be denied ... ... ... ... ..... ised in the case of Kamal Traders (supra) and the Tribunal held that the main characteristics of art board, as per its definition, is that it is coated on both sides. Coating on both sides can be even on paste board and multi-layered boards and no restriction has been provided in the definition of multi-layered paper board or paste boards that they cannot be coated on both sides. We find that the issue is squarely covered by the decision of the Tribunal in Kamal Traders case (supra). The Revenue has not produced any decision of the Supreme Court setting aside the order in Kamal Traders rsquo case. Following the same, we do not find any reason to interfere with the impugned orders. All the three appeals filed by the Revenue are rejected with the direction that the claim for refund will be finalised after considering the question of unjust enrichment as per the decision of the Supreme Court in the case of Mafatlal Industries Ltd. v. Union of India - 1997 (89) E.L.T. 247 (S.C.).
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1999 (5) TMI 452 - CEGAT, NEW DELHI
Show Cause Notice - Demand - Limitation - Penalty ... ... ... ... ..... High Court judgment in N.S.R. Krishna Prasad Rao case (supra), we find that the said case relates to criminal procedure. 10.1 emsp In the light of the foregoing, we find no infirmity as to the duty demand made on CRI. 10.2 emsp However, as regards imposition of penalties both on the Proprietor as well as the proprietary concern, following the settled principle of not imposing penalties on both, we set aside the penalty of Rs. 25,000/- on Shri Harish Mehra, Proprietor of CRI. 11. emsp As regards penalties on the two partners of DR, we find that no specific findings as to their role under Rule 209A have been brought in the impugned order against them. The same are therefore, set aside. 12. emsp In the result, while we confirm the duty demand of Rs. 4,68,547.75 and penalty of Rs. One lakh on M/s. Continental Rubber Industries, we set aside the penalties on the other appellants. The appeals are allowed to the said extent and the impugned order would stand modified to that extent.
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1999 (5) TMI 437 - CEGAT, NEW DELHI
... ...
... ... ..... e available (for U.P. and rest of India) the clearances should be assessed at the wholesale price applicable to the regions i.e. all removals to U.P. should be assessed at the wholesale price applicable to U.P. and all clearances to the rest of the country should be assessed on wholesale price as applicable to those sales. 3. emsp We have perused the records and have considered the rival submissions. We find that where wholesale price is available retail sales are also liable to be assessed at the wholesale prices. Further, regional prices are permissible while fixing assessable value. This being the correct legal position, the Revenue was right in holding that all removals to U.P. whether for wholesale sale or sale in retail, should be assessed at the wholesale price applicable to U.P. and clearances to rest of the country should be assessed at the wholesale price applicable to that region. The appeals, therefore, fail and are dismissed and the impugned orders are confirmed.
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1999 (5) TMI 436 - CEGAT, MUMBAI
Demand - Limitation - Delay in issue of show cause notice ... ... ... ... ..... use notice however, was issued in September, 1989. In this situation, although, the period of demand was within 5 years from the date of show cause notice, the Tribunal held the plea of limitation would sustain. In doing so, among other citations, the Tribunal relied upon the judgment in the case of Mopeds India Ltd. 1991 (56) E.L.T. 241 (Tribunal) in which the department had knowledge in October, 1975. The show cause notice was issued in January, 1977. The period of delay in the cited case is identical to the period of delay in the facts before us. Accepting the arguments that the fabrication was before the eyes of the general public and also following the ratio in the case of J.S.L. Industries, wherein, identical delay was noticed by the Tribunal, we hold that in the present case, the plea of limitation succeeds. Since we are deciding this issue on limitation, the merits are not considered. 5. emsp On the ground of limitation, we allow this appeal with consequential relief.
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1999 (5) TMI 420 - CEGAT, NEW DELHI
SSI Exemption ... ... ... ... ..... htly decided by the Collector (Appeals) in the impugned order. Similar views were held by the Appellate Tribunal in the case of Jai Industries, referred to above, wherein it was held that nowhere in the notification it is provided that if the manufacturer paid the excess duty, the benefit of the notification would be denied. The nature of the notification is such that it is the option of the assessee either to avail of the benefit of Modvat facility or not and the mere fact that they filed the declaration to avail Modvat facility while they actually did not avail, it cannot stand in the way of extension of the benefit of notification to them. We also find that the provisions in Rule 57E exist in the Central Excise Rules which empowers the department to vary the Modvat credit availed of by the manufacturer. In the light of these facts and circumstances, we do not find any reason to interfere with the impugned order and as such all the appeals filed by the Revenue are rejected.
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1999 (5) TMI 411 - CEGAT, MUMBAI
Modvat - Declaration - Money credit - Demand ... ... ... ... ..... fter the date of publication. There is no failure by Sunrise, in that it did not wait for the procedure given by the Collector to establish the identity of the oil for which process of oil has been made. The trade notice 150/89, dated 24-7-1989 of the Collectorate communicated to the trade that money credit could not be denied from the date in the notification till issue of trade notice because of the time lag in issuing the trade notice, if the Collector was satisfied from the private record of the assessee that the minor oil has been utilised for the purpose of hydrogenation. This trade notice accord sanction to the assessee without waiting for the procedure. There is no finding in the order or in the notice that minor oil has not been utilised in the manufacture. The demands for duty are therefore not sustainable. Consequently penalties are not imposable either on the assessees or on their employees. 12. emsp Appeals allowed. Impugned order set aside. Consequential relief.
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1999 (5) TMI 403 - CEGAT, NEW DELHI
Demand - Limitation - P & P medicines - Samples ... ... ... ... ..... ns consciously or deliberately amount to an attempt to mislead the Department. 16. emsp Now, even at this stage, there is no denial of the charge on merit with reference to the aspect of distinctly different packing and mere assertion that they had stamped the trade packing with the words noted above was not sufficient. In these circumstances, in my opinion, the demand was not time barred. Appellants have relied upon the Tribunal decision in the case of Indian Drugs and Pharmaceuticals Ltd. (supra) in support of their case. However, it is noteworthy that in the said case samples had been submitted but the show cause notice was issued more than one year after such submission and, therefore, it is not surprising that the Tribunal held the demand as time barred. In the present case, there is no such evidence or even averment whether the samples were submitted at any stage. Therefore I uphold the order passed by the Collector and reject the appeal. Sd/- (S.K. Bhatnagar) President
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1999 (5) TMI 402 - CEGAT, NEW DELHI
Pittal pat - Manufacture ... ... ... ... ..... asis of description of the goods in the invoices, on the basis of which the demand of duty has been originally quantified, look into each invoice and take into account those invoices which describe the goods sold as peetal pat, or brass ingots or bross rods and then determine the duty. Keeping in view the aforesaid direction the demand of duty on ldquo pittal pat rdquo shall be re-quantified and the question of imposition of penalty will be open before the said authority. Appeal is thus allowed by remand. If the description in the Invoices is pittal pat/ ingots, then only the duty liability would arise on the appellants. In case the description in the Invoices is brass dross or refined brass dross or ravali no duty liability would be imposed. Impugned order is, therefore, set aside and the matter is remanded for re-adjudication for the purpose of quantifying the demand on lsquo pittal pat rsquo and for imposing a suitable penalty, if any, in the light of the above directions.
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1999 (5) TMI 388 - CEGAT, MUMBAI
Appeal - Additional ground - Words and phrases ... ... ... ... ..... as per shore out turn, which did not exist at all. As per 1987 (31) E.L.T. 440 in the case of J.M. Baxi and Co. v. Collector of Customs, Bombay. Measurement of shore storage tank is only acceptable method of finding out the unloaded quantity, when there is short landing and goods are unaccounted, under Section 116 of Customs Act, 1962. In view of the position, the case of the appellant has to be upheld. Demand of differential customs duty under clause (d) of Notification No. 158/76-Cus. and 102/90-C.E., dated 11-5-1990 when condition in clause (a) to (c) are complied by the appellant, is not proper and correct. As already discussed and held above, there is no dispute between the department and appellant in this regard. The contention of the appellant is accepted. Point raised is answered in the affirmative. We pass the following order ORDER For the reasons indicated above, the appeal is allowed with consequential relief according to law if any and impugned order is set aside.
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