|
Advanced Search Options
Case Laws
Showing 441 to 460 of 520 Records
-
2004 (5) TMI 81 - HIGH COURT AT CALCUTTA
Appellate Tribunal - Supervisory powers ... ... ... ... ..... interest itself has been adjudicated earlier. So, it was not open to negate the earlier order of the learned Tribunal. He was merely an implementing authority. The CEGAT has directed to do so. In my view what he cannot do directly, should not have done so in a circutious way. In essence he has defied the order of the CEGAT which he cannot do under the hierarchical system of the aforesaid Act. 7.Accordingly, I direct the Commissioner of Customs to pay interest at the rate fixed by the CEGAT and to be calculated on and from the date of expiry of one month as mentioned in the earlier order of the Tribunal and such calculation shall be made upto the date of payment of interest. 8.This application is thus allowed. 9.However, having regard to the persuasive argument of Mr. Banerjee, I refrain myself from awarding any cost. 10.Mr. Banerjee prays for stay of operation of this judgment and order. I have considered his submission and I grant stay till four weeks after summer vacation.
-
2004 (5) TMI 80 - HIGH COURT OF JUDICATURE AT MADRAS
Writ - Maintainability of ... ... ... ... ..... ritorial jurisdiction and not the second respondent. 6.In the circumstances, (a) the impugned proceedings are held to be illegal and without jurisdiction (b) the second respondent is directed to complete the transhipment of goods, whose ownership is claimed by the appellant, provided in the Bill of Entry and to the destination, i.e. Customs House, Bangalore, by taking such bonds from the appellant as contemplated under Goods Imported (Conditions of Transhipment) Regulations, 1995 (c) on receipt of the goods claimed by the appellants, the third respondent shall be entitled to verify the true nature of the goods imported, levy proper duty and to act in accordance with the legal provisions governing the situation and (d) as the goods are hauled up since about two years, time for compliance of this order is given by one week from the date of receipt of a copy of this order. The Writ Appeal is disposed of accordingly. Consequently, W.A.M.P. Nos. 5818 and 5819 of 2003 is dismissed.
-
2004 (5) TMI 79 - HIGH COURT AT CALCUTTA
Words and Phrases - Export Oriented Unit - DTA sale ... ... ... ... ..... g at a just decision. The respondent authority will be free to seek explanations from the petitioners as regards their mode of activity and the respondent authority will also be entitled to inspect the entire process of so called reconstruction. After considering all those matters, the respondent authority should arrive at a conclusion and if the authorities are of the view that the activity of the petitioners amounts to remaking or reconditioning of old engines, in such a case, rather detailed reasons should be given why the same is not a case of reconstruction . Be that as it may, the respondent authority must arrive at a fresh decision within one month from today after giving opportunity of hearing. This order, however, will not stand in the way of the petitioners in making export in terms of permission granted to them. 15. The writ application is, thus, disposed of with the above directions. 16. In the facts and circumstances, there will be, however, no order as to costs.
-
2004 (5) TMI 78 - SUPREME COURT
On misunderstanding of Dhiren Chemical's case - it was pointed out that during hearing of Dhiren Chemical's case that because of circulars of the Board in many cases the Department had granted benefits of exemption Notifications. To prevent the department to reopen cases.the Para 9 was incorporated to ensure that cases where benefits has been granted, cases should not be reopened. Otherwise Courts/Tribunals can not ignore a judgment of this Court and follow circulars of the Board.
-
2004 (5) TMI 77 - SUPREME COURT
Hydraulic Mudguns and Tap Hole Drilling machines - Dutiability of - Immovable property - Demand - Limitation - Suppression
-
2004 (5) TMI 76 - SUPREME COURT
Whether while repairing the defective compressors any part such as stators replaced by the appellant involves manufacturing activity attracting duty under the Central Excise Act?
Held that:- In the present case, what was looked into examined and found was the several steps taken in respect of the stator and so far as the stators were concerned, it has been rightly held by the Tribunal that separate activities were carried on by the appellants which were identical to the ones that was carried out in respect of new stator and, therefore, to the extent of the stator being made ready for the purpose of using in the repairing of compressor must be held to be an activity of manufacture and the Tribunal has confirmed the demand only in respect of "Stators".
But, insofar as the application of extended period of limitation provided under Section 11A is concerned, we do not think that the Tribunal is justified because it was not clear as to whether if any part is used for the purpose of repairing a machinery would amount to manufacture. In fact, the Tribunal on a detailed analysis and after going into several processes carried out by the appellant, came to the conclusion that the stators which were used in the repairing of the compressors involved manufacturing activity. This circumstance itself shows that there was bona fide dispute between the parties in regard to the question whether stators made ready for the purpose of use of compressors involved any manufacturing activity or not. Therefore, to the extent the authorities invoked Section 11A of the Act and imposed penal interests and other penalties shall stand set aside and the order made by the Tribunal stands modified to that extent. Appeals are partly allowed
-
2004 (5) TMI 75 - SC ORDER
Duty demand - whether Electric Overhead Travelling (EOT) Cranes are liable to excise duty or not - Held that:- Following previous decision in assessee's own case - no excise duty is payable on the E.O.T. cranes as assembled - Matter remanded back - decided in favour of assessee.
-
2004 (5) TMI 74 - SUPREME COURT
Whether the appellant had wrongly availed of the benefit of the Notification No. 31/88, dated 1-3-1988?
Held that:- In the present cases, we will have to consider the expression "bulk drug" as specified under First Schedule to the Drugs (Prices Control) Order, 1987. In Explanation after the Table in the Notification No. 31/88-C.E. dated 1-3-1988 it is clearly set out that the expression "bulk drugs" shall have the same meaning assigned to it in the Drugs (Prices Control) Order, 1987. It is clear that substance has to be used as such, or as an ingredient in any formulation in terms of the Drugs (Prices Control) Order, 1987. Hence, expression "formulation" is only with reference to a medicine processed out of bulk drug. Therefore, when the ingredient used by the appellant, namely, Menthol IP, in the manufacture of tooth paste, powder and shaving cream is not in the use of any formulation which is a medicine processed out of, or containing one or more bulk drugs, the view taken by the Tribunal that assessee are not entitled for the benefit of Notification cannot be assailed.
However, so far as the application of Section 11 for the purpose of levy of penalty is concerned, it is not clear as to whether the law is absolutely clear on the matter or not and the authorities also had to issue clarifications from time to time. In the circumstances, we think, invoking of Section 11A is not called for and levy of penalty in the present case would not be appropriate and the application of extended period of limitation is not justified. The order of the Tribunal is modified to this extent. The appeal is partly allowed.
-
2004 (5) TMI 73 - SUPREME COURT
Fabrics - Appeal to Appellate Tribunal - Demand - Limitation - Suppression - Classification of goods
-
2004 (5) TMI 72 - SUPREME COURT
Whether bleached sheeting which is heavily sized and manufactured by each of the respondents falls under Heading 52.06 of the Central Excise Tariff Act, 1985 or under Heading 59.01?
Held that:- The Tribunal held that the Board by their instructions issued on 2-9-1988 had clarified that for classifying such products under Heading 59.03, the textile fabrics should have a continuous and adherent films or layer on one side of the fabric surface and the fabric should be impervious and should satisfy the conditions prescribed in Note 2 of Chapter 59. They also adverted to letter issued by the Ministry of Finance, Department of Revenue dated 7-12-1989 wherein it had been confirmed that bleached and sized cotton fabrics manufactured by them merit classification under Chapter 52 as these fabrics were neither coated nor impregnated but only sized with starch.
When the several ingredients have to be satisfied, even if one ingredient is not satisfied, namely, that the stiffness has to be of permanent and durable nature, we do not think that the view taken by the Tribunal calls for any interference on our hands. In addition, we may notice that in none of the cases presently involved, we have any heavily sized fabric. Therefore, that aspect need not detain us. Affirm the view taken by the Tribunal and dismiss these appeals.
-
2004 (5) TMI 71 - SUPREME COURT
What is the assessable value of silver which is used in the manufacture of silver oxide zinc batteries supplied to MOD?
Held that:- The supply of silver by MOD being one of the stipulation in the contract between MOD and the appellant, would constitute a 'normal practice' of the wholesale trade in such goods. As per the first proviso to Section 4(1)(b), where in accordance with the normal practice of the wholesale trade, goods are sold at different prices to different classes of buyers, each such price shall be deemed to be the normal price of such goods in relation to each such class of buyers. Therefore, the normal price of battery sold to MOD by the appellants is Rs. 33,393/- and the assessable value of silver used in the manufacture of such battery is at Rs. 2,500/- per kg. and cannot take the market value of silver.
The contract between the MOD and the assessee provided for supply of silver from the mint at a particular rate and had to be supplied by the MOD and in lieu thereof the appellants were allowed to retrieve silver from old used batteries, and their special feature cannot be ignored. Batteries of the nature in question are largely used only by MOD. Hence the view taken by the Tribunal down to adjudicating authority cannot be sustained. .Appeal allowed accordingly
-
2004 (5) TMI 70 - SUPREME COURT
Dutiability of Waste and scrap - Bar of Limitation - exemption under Notification No. 74/65-C.E. dated 1-5-1965 and under Notification No. 119/66-C.E. dated 16-7-1966 - Held that:- Unless the scrap and waste are goods that had been used can be demonstrated to have been a duty paid goods, it cannot be assumed that they are so, particularly when it cannot be said with certainty that all scrap and waste material used has been subject to excise duty earlier. The waste and scrap was dutiable only when it is a manufactured product and not otherwise. The object of exemption being to avoid cascading effect in the matter of payment of excise duty.
Classification list filed by the appellant dated 25-3-1983 was not approved and a show cause notice was issued on 23-7-1984. The approval was accorded only on 15-9-1984. As there was no approval of the classification list and there was no final assessment, we think, in the circumstances of the case the bar of limitation would apply only from the date of the finalization of the classification - Decided against assessee.
-
2004 (5) TMI 69 - SUPREME COURT
Whether the appellant was required to pay excise duty at ad valorem basis or at specific rates as provided in the relevant notification?
Held that:- From totality of the circumstances and the nature of transaction conducted by the appellant, the view taken by the Tribunal that the stock transfer from their factory to their depots would not amount to sale of goods and actual sale of goods took place from their depots and when the goods were sold they were having printed retail price on the packages and also that the sale price charged from the buyers was the sale transaction notwithstanding there were free gifts that had been offered thus stands to reason and does not call for our interference.
In the present case, earlier the appellant was paying duty at the rate of 18% ad valorem on the maximum retail price. It is only after 2-6-1998 change was sought by the appellant by not printing the price on the packed goods by removing the same to their depots from their factory in order to claim that the packed goods had not been priced at the time of their removal from the factory and gifts were offered by the appellant to indicate that the consideration in the sale transaction was not solely the price. These factors, we think, were rightly taken note of by the authorities and the penalty imposed need not be considered in the present proceedings.
In the result, the appeal is dismissed.
-
2004 (5) TMI 68 - SUPREME COURT
Whether Johnson's Prickly Heat Powder and Phipps Processed Talc are patent or proprietary medicines classifiable for the purposes of excise duty under the erstwhile Tariff Item 14E (as prior to 1-3-1986) and Heading 30.03 (subsequent to 1-3-1986) as claimed by the appellants or whether they are cosmetics or toilet preparations falling under the erstwhile Tariff Item 14F (prior to 1-3-1986) and Heading 33.04 (after 1-3-1986) as claimed by the Department?
Held that:- In the present case when throughout the meaning given to products in question not only by the department itself but also by other departments like Drug Controller and the Central Sales Tax authorities is that the product in question is a medicinal preparation should be accepted.
Applying the principles enunciated in BPL Pharmaceuticals Ltd., case [1995 (5) TMI 98 - SUPREME COURT OF INDIA] and taking into consideration various circumstances as to the manner in which the goods had been treated on the earlier occasions by the department and the product having been utilised with reference to the commercial parlance and understanding, that it had been treated as a drug it would not cease to be one notwithstanding the fact that new tariff act has come into force. What is to be seen in such cases is when in the common parlance, for purpose of the Drug Act, for purpose of Sales Tax Act and in various findings recorded on earlier occasions by the department itself having been noticed, the conclusion is inevitable that the products in question must be treated as medicinal preparations.
No hesitation in reversing the view of the Tribunal and restore that of the Collector that in view of the medicinal ingredients, namely, salicylic acid and boric acid which are meant to cure the disease called Milaria Rubra, prickly heat powder is a drug and, therefore, classifiable as a drug or a medicinal preparation. Appeal allowed of assessee.
-
2004 (5) TMI 67 - SUPREME COURT
Classification of goods - Rate of duty - Writ jurisdiction at show cause notice stage - whether Floor Coverings and Filter Fabrics are to be classified under sub-heading No. 5703.90 of the Tariff Item attracting duty at the rate of 30% ad valorem or whether it should be classified under sub-heading 5703.20 attracting duty at the rate of 5% ad valorem - Held that:- The matter relating to commodity classification whether it falls under one heading or the other or attracts higher or lower duty has to be decided on facts arising in each case. Even though, the decision may have been taken earlier at one point of time but on further investigation discover new fact or the law has changed, as is the stand in the present case, the matter has to be re-examined. It is not at all proper for the High Court to interfere in such matters at the stage of issue of the show cause notice. We, therefore, set aside the order made by the High Court and remit the matter to the concerned authority for adjudication. It shall be open to the respondent to file reply to the show cause notice as they deem fit, if not already filed within a period of one month from today or such further time as may be allowed by the Adjudicating Authority - Decided in favour of Revenue.
-
2004 (5) TMI 66 - SUPREME COURT
Whether the interest accruing on advances are deductible from the price or not, and as to deduction of the bank charges and collection charges?
Held that:- As it is clear that the decision in Commissioner of Central Excise, New Delhi v. Vikram Detergent Ltd. case (2001 (1) TMI 84 - SUPREME COURT OF INDIA) fully covers both the questions in this case and, therefore, we have no hesitation in modifying the order of the Tribunal to direct the authorities to whom the matters have been remanded to examine the question whether interest on receivables arises on account of time lapse between the delivery of goods and the realisation of monies is deductible from the assessable value of the goods at the time of removal from the factory of the assessee and also excludes the bank charges included in the price on account of clearance of outstation cheques.
The appeals stand allowed accordingly.
-
2004 (5) TMI 65 - SUPREME COURT
Whether the principles relating to promissory estoppel as culled out from these earlier cases still hold the field?
Held that:- The appellants have been unable to establish any overriding public interest which would make it inequitable to enforce the estoppel against the State Government. The representation was made by the highest authorities including the Finance Minister in his Budget Speech after considering the financial implications of the grant of the exemption to milk. It was found that the overall benefit to the State's economy and the public would be greater if the exemption were allowed. The respondents have passed on the benefit of that exemption by providing various facilities and concessions for the upliftment of the milk producers. This has not been denied. It would, in the circumstances, be inequitable to allow the State Government now to resile from its decision to exempt milk and demand the purchase tax with retrospective effect from April 1, 1996, so that the respondents cannot in any event readjust the expenditure already made. The High Court was also right when it held that the operation of the estoppel would come to an end with the 1987 decision of the Cabinet.
The power in the State Government to grant exemption under the Act is coupled with the word "may"-signifying the discretionary nature of the power. We are of the view that the State Government's refusal to exercise its discretion to issue the necessary notification "abolishing" or exempting the tax on milk was not reasonably exercised for the same reasons that we have upheld the plea of promissory estoppel raised by the respondents. We, therefore, have no hesitation in affirming the decision of the High Court and dismissing the appeals without costs.
-
2004 (5) TMI 63 - AUTHORITY FOR ADVANCE RULINGS
Applicant resigned from Morgan Stanley and left India to take up job in USA - applicant received being payment from Morgan Stanley Staff Superannuation Fund – held that amount received from superannuation fund in 2002-2003 for the services rendered in India is taxable in India as per the DTAA with USA - The amount received from superannuation fund on resignation before specified age is not eligible for exemption under section 10(13) of the Income-tax Act, 1961.
-
2004 (5) TMI 62 - AUTHORITY FOR ADVANCE RULINGS
Applicant a company incorporated in Switzerland proposes to open a branch office in India for dealing in "green coffee" - applicant have to stock huge inventory of green coffee for most part of the year – in view of Board's Circular No. 23D of September 12, 1960, held that forward transactions in respect of stock in which the applicant deals will be in the nature of hedging contracts – further, hedging contracts need not be of the identical quality/quantity of the goods held in stock.
-
2004 (5) TMI 61 - AUTHORITY FOR ADVANCE RULINGS
Applicant, Max Mueller Bhawan, was set up as a Cultural Institute in India under the control of the Government of Federal Republic of Germany - One of its functions is to teach German language in which preliminary and advance courses are being conducted by full time teachers - that the applicant is obliged to deduct tax at source from payment of honorarium to the honorary part timed teachers and that the tax is deductible under section 192
....
|
