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Case Laws
Showing 81 to 100 of 604 Records
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2005 (5) TMI 615 - SUPREME COURT
Whether the applicants concerned satisfied the eligibility conditions laid down in Rule 9 or not, as no information was required to be furnished in the format prescribed by the Commissioner of Excise in that behalf?
Held that:- All the parties participated in the selection process. Some of them became successful. They had not complied with the statutory requirements not because they were not willing to do so but because the statutory authorities were not correctly advised. The conduct of the statutory authorities although must be deprecated but that by itself, in our opinion, may not come in the way of the successful candidates in getting the just relief.
Keeping in view the peculiar facts and circumstances of this case, we intend to issue the following directions :
i) The Member Secretary shall scrutinize all the applications of the successful candidates afresh and prepare a summary report within one week from date.
ii) Irrespective of the format prescribed by the Commissioner of Excise, each of the selected candidates must file an appropriate affidavit, which would be in strict compliance of the requirement of Rule 9.
iii) Such affidavits must be filed before the respective committees within one week from date, the contents whereof would be verified in terms of Order 6 Rule 15 of the Civil Procedure Code. The said affidavits shall be scrutinized by the Committee so as to enable them to arrive at a finding as to whether the applicants fulfil the eligibility criteria and are otherwise suitable for grant of licence under the Act and the rules.
iv) The writ petitioners or any other person in the locality may file appropriate applications before the said Committee with a view to show that the selected candidates do not fulfill the eligibility criteria or are debarred or are otherwise unsuitable from obtaining a licence under the Act.
v) Such objections may also be filed within two weeks from date. The Committee may consider the said objections and, if necessary, may call for further or better particulars from the selected candidates so as to satisfy themselves about their eligibility etc.
vi) The respective District Level Committees shall strictly verify and scrutinize the affidavits as also other documents furnished by the said applicants so as to arrive at a decision that the statutory requirements have been complied with upon application of their mind.
vii) The members of the Committee are made personally liable to see that all statutory requirements are complied with. They would strictly apply the statutory provisions as regard eligibility and suitability of the candidates.
viii) The aforementioned exercise by the Committee should be completed within one month. In the event, any affidavit filed by a selected candidate either pursuant to this order or filed earlier in the format prescribed by the Commissioner of Excise is found to be incorrect, strict action in accordance with law shall be taken against him
ix) The Superintendent of Police of each district within whose jurisdiction the selected candidates ordinarily reside shall verify the antecedents and other relevant particulars of the selected candidates vis-‘-vis their eligibility/suitability to obtain a licence and submit a report to the Committee by 12.6.2005 which would be strictly in terms of sub-rule (3) of Rule 9. While issuing such a certificate in favour of the selected candidates by 12.6.2005, he shall also file a copy of the report before the Committee.
x) We direct the Chief Secretary of the State and Commissioner of Excise to act strictly in accordance with law and oversee the functioning of the Scrutiny Committees.
xi) If the State and the Commissioner of Excise come across misconduct on the part of any of the officers including the members of the Committee, strict action must be taken against the concerned officer.
xii) The selected candidates in the meanwhile may carry on the trade in liquor pursuant to the licence granted in their favour but the same shall be subject to this order as also the decision of the Scrutiny Committee.
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2005 (5) TMI 614 - SUPREME COURT
Whether the proceedings initiated on the basis of a complaint alleging infraction of Section 138 of the Negotiable Instrument Act, 1881 was not maintainable?
Held that:- One of the indispensable factors to form the cause of action envisaged in Section 138 of the Act is contained in clause (b) of the proviso to that section. It involves the making of a demand by giving a notice in writing to the drawer of the cheque "within fifteen days of the receipt of information by him from the bank regarding the return of the cheque as unpaid". If no such notice is given within the said period of 15 days, no cause of action could have been created at all.
Thus, it is well settled that if dishonour of a cheque has once snowballed into a cause of action it is not permissible for a payee to create another cause of action with the same cheque. Thus the impugned judgment does not suffer from any infirmity to warrant interference.Appeal dismissed.
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2005 (5) TMI 613 - ALLAHABAD HIGH COURT
... ...
... ... ..... Standing counsel that there being no provision for refund of tax in the Circular, therefore, no refund can be granted, is liable to be rejected on another ground. As stated, in the earlier part of judgment that the aforesaid Circular was issued on the representation made by such persons who had not deposited tax. On this basis the Government granted remission from deposit of tax. The observation made above by me should not be misconstrued, therefore by way ot clarification it is mentioned that a persons who has realized tax and deposited the same will not be entitled for refund under the aforesaid Circular. To put it differently only such person and who have not realized tax but deposited it out of their own resources, will be entitled for refund of tax. 19. In the result the order of the Tribunal cannot be sustained. The revision is allowed and the order of the Tribunal under revision is set aside. The order of first appellate authority is restored, with a cost of Rs. 1000/-
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2005 (5) TMI 612 - SUPREME COURT
Whether `social forestry' department of State, which is a welfare scheme undertaken for improvement of the environment, would be covered by the definition of ``Industry'' under S. 2(j) of the Industrial Disputes Act, 1947?
Held that:- This Court must, therefore, reconsider where the line should be drawn and what limitations can and should be reasonably implied in interpreting the wide words used in section 2(j). That no doubt is rather a difficult problem to resolve more so when both the legislature and executive are silent and have kept an important amended provision of law dormant on the statute book.
We do not consider it necessary to say anything more and leave it to the larger Bench to give such meaning and effect to the definition clause in the present context with the experience of all these years and keeping in view the amended definition of `industry' kept dormant for long 23 years. Pressing demands of the competing sectors of employers and employees and the helplessness of legislature and executive in bringing into force the Amendment Act compel us to make this reference.
Let the cases be now placed before Hon'ble Chief Justice of India for constituting a suitable larger Bench for reconsideration of the judgment of this Court in the case of Bangalore Water, (1978 (2) TMI 204 - SUPREME COURT).
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2005 (5) TMI 611 - ITAT MUMBAI
... ...
... ... ..... he Central sales tax authorities. The issue before the hon rsquo ble Bombay High Court at the time of deciding the case of CIT v. Fashion Prints Ltd. 1996 217 ITR 456, was whether the assessee engaged in the business of dyeing, printing and processing of textiles can be held as manufacturer of textiles as specified in item No.21 of IX Schedule for the purpose of section 32(1)(vi). The hon rsquo ble Bombay High Court held that the process of printing and dyeing of grey cloth which is admittedly manufactured by others, was not the business of the manufacturer as production within the meaning of section 32(1)(vi) of the Incometax Act. In our humble view the said decision is not relevant for the issue before us. We are of the view that the activity in which the assessee is engaged amounts to manufacturing as required under the provisions of section 80-I-A and as such we uphold the finding of the learned Commissioner of Income-tax (Appeals). The appeal of the Revenue is dismissed.
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2005 (5) TMI 610 - ITAT MUMBAI
Valuation cell u/s 55A - fair market value - Whether the reference made u/s 55A of the Income-tax Act by the Assessing Officer was a valid reference or not - HELD THAT:- The reference can be made under section 55A, clause (b) sub-clause (ii), by the Assessing Officer if he is of the opinion having regard to the nature of the asset and other relevant circumstances that it is necessary to do so. We are of the considered view that it is obligatory on the part of the Assessing Officer to record such other relevant circumstances on the basis of which he forms such opinion in order to refer the matter to the valuation cell under the said clause. The hon’ble Rajasthan High Court in the case of CIT v. Hotel Joshi [1999 (11) TMI 56 - RAJASTHAN HIGH COURT], has held that for invoking sub-clause (ii) of clause (b) of section 55A the Assessing Officer is required to form an opinion on the basis of the material on record that reference to the District Valuation Officer for ascertaining the fair market value of the asset is necessary having regard to the nature of the asset and other relevant circumstances. It is also necessary to record as to why it is necessary to adopt such a course.
Nothing has been shown to us by the Revenue to state that the reference was made under clause 55A(a) or 55A(b)(ii) and if it was made u/s 55A(b)(ii) then what circumstances were in existence on the basis of which the Assessing Officer had formed his opinion to make such reference. In the absence of the same we hold that the reference made to the Valuation Officer was invalid.
Since we are deciding the legal issue in favour of the assessee we do not find any need to go into the merits of the case and as such the other grounds of the assessee’s appeals are allowed for statistical purposes.
In the result, the appeals of the assessee are allowed.
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2005 (5) TMI 609 - ALLAHABAD HIGH COURT
Refund claim ... ... ... ... ..... e amount of interest which it should have paid to the assessee but has unjustifiably failed to do. In view of the foregoing discussions, the writ petition succeeds and is allowed in part. As the amount of refund had already been refunded, we issue a writ of mandamus commanding the respondents to pay the amount of interest on the amount of refund as also interest on the amount of interest unlawfully and unjustifiably withheld, as mentioned in the body of the judgment, within 30 days from today. Since the amount of refund as also the interest has unnecessarily been withheld by the respondents and the principal amount has only been refunded when the petitioners approached this Court by means of the present writ petition, the respondents have also exposed themselves with the liability for payment of exemplary cost which we assess at Rs.10,000/- payable to each of the petitioners. This amount of cost shall also be paid within 30 days while making payment of interest, as directed.
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2005 (5) TMI 606 - CESTAT, MUMBAI
Interest - Cenvat/Modvat ... ... ... ... ..... allowed to be taken or utilized, if the provisions of sub-section (1) had been in force at all material times, within a period of thirty days from the date on which the Finance Act, 2000 receives the assent of the President and in the event of non-payment of such credit of duty within this period, in addition to the amount of credit of such duty recoverable, interest at the rate of twenty-four percent per annum shall be payable from the date immediately after the expiry of the said period of thirty days till the date of payment. rdquo 3. emsp Since the credit in this case was availed during the period March to May, 1997 and reversed only in 2004, interest of Rs. 72,772/- 24 from 11-6-2000 i.e. the date on which Finance Act, 2000 received the assent of the President of India to 31-8-2004, is payable. 4. emsp In the result, appeal of the Revenue is allowed by upholding the claim for interest and impugned order is modified to the above extent. (Dictated and pronounced in Court)
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2005 (5) TMI 605 - SETTLEMENT COMMISSION, CUSTOMS AND CENTRAL EXCISE,
Settlement Commission - Jurisdiction - Waiver of interest ... ... ... ... ..... we see no objection for granting immunity from penalty and prosecution under Customs Act, 1962. 10. emsp In view of the foregoing position, the case is settled as per the terms and conditions mentioned below, under Section 127C(7) of Customs Act, 1962. (i) The duty is settled at Rs. 1,58,80,381/-. Since this amount has reportedly been paid, no further duty is payable. The applicant shall pay the interest due on the settled amount, as per notice, within 15 days from the date of its receipt and report compliance. (ii) Immunities from penalty proposed and prosecution under Customs Act, 1962, are granted. 11. emsp The aforesaid settlement shall be void if it is subsequently found by Settlement Commission that it has been obtained by fraud or mis shy representation of facts. The immunity/immunities is/are granted under Section 127H(1) of the Customs Act, 1962. Attention of the applicant is also drawn to the provisions of sub-Sections 2 and 3 of Section 127H, ibid, in this regard.
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2005 (5) TMI 604 - CESTAT, CHENNAI
Exemption - Export to Nepal - Proof - Appeal to Appellate Tribunal - Reference to Third Member
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2005 (5) TMI 603 - CESTAT, CHENNAI
Appeal to Appellate Tribunal - Additional grounds ... ... ... ... ..... ssible into evidence in support of actual production capacity of manufacturers of MS ingots. Relevancy of power factor in the determination of ACP of such manufacturers was underlined by the Karnataka High Court in the case cited by counsel. We are of the considered view that the Commissioner has to take into account all these materials and make a fresh decision on the ACP of the appellants in terms of Section 3A(4) of the Act as this provision stood during the period of dispute. 7. emsp For the aforesaid reasons, we set aside the impugned order and allow this appeal by way of remand directing the Commissioner of Central Excise to pass a fresh order of adjudication, after giving the party a reasonable opportunity to produce additional evidence and after examining all evidentiary materials on record. Needless to say that they should be given a reasonable opportunity of being heard also. 8. emsp The appeal stands allowed by way of remand. (Dictated and pronounced in open Court)
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2005 (5) TMI 602 - CESTAT, MUMBAI
Cenvat/Modvat - Appeal - Jurisdiction ... ... ... ... ..... e duty on Ship Rate and not as Fuel Rate and relies upon the decision in the case of Ghaziabad Ship Breakers 2003 (151) E.L.T. 636 (Tri.) and pleads that the order of the original authority, not granting the benefit of this decision and corresponding adjustment under Rule 57E on grounds of no jurisdiction before him in these proceedings, should be set aside and the benefit allowed. 3. emsp Considered. If the assessment as made on the BE was not as per the law on the subject, that assessment should have been challenged in appropriate proceedings under the Customs Act, 1962. That cannot be challenged that the proceedings initiated under the Central Excise Act, 1944 and Modvat Cenvat Rules framed there under. We find the present proceedings, as impugned, have nothing to do with the assessment on the B.E. made under the Customs Act, 1962. There is no merit in the appeal made, the orders of the lower authority are to be confirmed and thus appeal is dismissed. (Pronounced in Court)
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2005 (5) TMI 601 - CESTAT, MUMBAI
Cenvat/Modvat ... ... ... ... ..... nnot be considered as intermediate product in the manufacture of forging. The dyes and tools are only capital goods (tools) used in the process of forging to get the final product (forging). Therefore, rods, bars cannot be said to be input used in the manufacture of final product (forging). Therefore, they cannot be covered under Rule 57A and as such the credit has rightly been denied. 2. emsp I find that both the Lower Authorities have passed the reasoned order. I, therefore, reject the adjournment request. The appeal filed by the appellant is dismissed. (Pronounced in Court)
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2005 (5) TMI 600 - CESTAT, MUMBAI
Repairing/Reconditioning of returned goods ... ... ... ... ..... (107) E.L.T. 346 (Tribunals) (ii) Gujarat Transformers Pvt. Ltd - 1995 (75) E.L.T. 819 (Tribunals) 3. emsp After considering the provision of Rule 173H and Rule 233 under which the Collector has been granted powers to issue supplementary instruction, the fixation of six months time cannot be upheld as it is found to be not within the powers of the Collector to stipulate the same under Rule 233 when Rule 173H does not prescribe time limit. Following the settled position as in the Tribunal decisions (supra) on Rule 173H this appeal is to be allowed. 4. emsp Ordered accordingly. (Pronounced in Court)
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2005 (5) TMI 599 - CESTAT, MUMBAI
Adjudication - Remand order - Compliance thereof ... ... ... ... ..... ions of the remand - 1996 (84) E.L.T. 209, 1992 (58) E.L.T. 236, 1992 (63) E.L.T. 751 and 1989 (44) E.L.T. 343. The Asstt. Commissioner since has traversed beyond the scope of the show cause notice and has not complied with the directions contained in the remand order. His order is not legal and proper and therefore is not sustainable and as such set aside. The Asstt. Commissioner is again directed to comply with the directions contained in the earlier order in appeal dated. 29-4-05 and process the refund claim. The appeal is accordingly disposed off by setting aside the order-in-original and remanding the case back to the original authority for compliance. rdquo 4. emsp In my view, the above finding of the learned Commissioner (Appeals) are correct and within the ambit of settled law by the Tribunal and is a well reasoned one. Hence the Order-in Appeal is to be upheld, and does not require any interference. 5. emsp Appeal filed by the Revenue is rejected. (Dictated in Court)
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2005 (5) TMI 598 - SETTLEMENT COMMISSION, CUSTOMS AND CENTRAL EXCISE,
Settlement of case - Duty liability - Computation of ... ... ... ... ..... also granted. (d) The applicant company should pay the sales tax liability admitted by them and produce proof of payment thereof to the Revenue as well as to this Bench within six months. (e) In view of the immunities granted to the main applicant, immunity is also granted to co-applicants Shri J.V. Choudary, MD Shri G. Narender, GM, Finance and Company Secretary Shri M. Narashimha Rao, GM, Works Shri K. Ramakrishna, Asstt. Manager, Marketing Shri G. Srinivasa Rao, OS Shri K. Rama Rao, Mill Manager Shri Botla Venkata Swamy and Shri Jella Nagarjuna from penalties proposed and prosecution under the Central Excise Act, 1944. 8. emsp The above immunities are granted in terms of Section 32K(1) of the Central Excise Act, 1944. The attention of the applicant/s is also drawn to sub-sections (2) and (3) of Section 32K ibid, in this regard. The above settlement shall be void if it is subsequently found by the Commission that it has been obtained by fraud or mis-representation of facts.
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2005 (5) TMI 597 - CESTAT, MUMBAI
Manufacture - SSI Exemption - Value of clearances - SSI Exemption - Penalty ... ... ... ... ..... ces and duty liability that arose after September 1996. (d) emsp Duty demand on M/s DCI be recalculated after according the benefit of Notification No. 16/97 to them. (e) emsp Penalty under Rule 173Q is reduced to Rs. 2,000/-. (f) emsp Penalty on Mr. Rajesh K. Baheti is set aside. We may make it clear that while retaining a part of the penalty on the two firms we have taken into consideration that the appellant firms are not required to pay the duty to the extent indicated in the impugned order. The two units however contravened various provisions of the Central Excise Act and Rules and that is why penalty is imposable. (g) emsp Confiscation of the unaccounted goods is upheld. 24. emsp The appeal thus, is partly allowed in so far as penalties are concerned. The appeals are remanded for the purpose of determining the duty liability after according the benefit of Notification Nos. 1/93 and 16/97-C.E. to the appellant units, M/s. Maheshwari and M/s. Durrent Chemicals Industries.
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2005 (5) TMI 596 - SETTLEMENT COMMISSION, CUSTOMS AND CENTRAL EXCISE,
Settlement of case - Interest - Export Oriented Unit, 100% EOU ... ... ... ... ..... ity from penalties and prosecution under other enactments, since no specific mention has been made. 4. emsp In view of the foregoing position, the case is settled as per the terms and conditions mentioned below under Section 127C(7) of the Customs Act, 1962 - (a) The duty is settled at Rs. 57,56,956/-. Since this amount has reportedly been paid, no further duty is payable. The applicant shall pay the interest due on the settled amount as per the notice within 15 days from the date of receipt of this order and report compliance. (b) Immunity from penalties proposed and prosecution under the Customs Act, 1962 is granted. 5. emsp The aforesaid settlement shall be void if it is subsequently found by Settlement Commission that it has been obtained by fraud or mis-representation of facts. The immunity is granted under Section 127H(1) of the Customs Act, 1962. Attention of the applicant is also drawn to the provisions of sub-sections (2) and (3) of Section 127H ibid, in this regard.
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2005 (5) TMI 595 - COMMISSIONER OF CUSTOMS AND CENTRAL EXCISE (APPEAL
Footwear - Exemption Notification - Strict interpretation - Interpretation of statute ... ... ... ... ..... bject and purpose of notification. I observe that the primary purpose of the exemption Notification No. 6/2002-C.E., dated 1-3-2002, as amended (Sl. No. 157) is to provide exemption from duty to the footwear having retail sale price net exceeding Rs. 250/- per pair. Insertion of Condition No. 35A vide Notification No. 23/2004-C.E., dated 9-7-2004 is only to doubly ensure that no other category gets the benefit. 13. emsp Further, I feel that the view taken by the Adjudicating Authority that indelible marking should be on the body of the footwear itself is a very narrow interpretation. As long as the same is available on footwear, it meet the condition of notification. It is on record that sticker with indelible marking is affixed on the footwear along with Retail Sale Price marked on the footwear. 14. emsp In light of the foregoing discussions and findings, I set aside the impugned Order-in-Original No. 10/Joint Commissioner/Demand/2005, dated 29-11-2005 and allow the appeals.
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2005 (5) TMI 594 - CESTAT, MUMBAI
Cenvat/Modvat - Recredit/refund of credit reversed earlier - Unjust enrichment ... ... ... ... ..... sed/debited the credit in RG 23C Pt II and RG 23A Pt II they were not eligible for refund in cash under Rule 57Q or under Rule 57F(13). 2.1 emsp The order of the CCE(A) has travelled beyond the issues involved. On examining the provisions of Section 11B and Explanation of Refund and considering the decision in case of Raghuvar India 2000 (118) E.L.T. 3 (S.C.), re-credit of the debit entry made pursuant to notice dated 29-11-1996, which I were not required as per CCE(A) order dated 10-10-1997, the same was required to be effected as debit/refund as debits uncalled for to the appellants. The denial on basis of unjust enrichment and other formulations as arrived at by the lower authorities cannot be upheld. The re-credit entry, eligible as per CCE(A) order dated 10-10-1997, need not await the grant by the Assistant Commissioner. The same could be availed as that order of CCE(A) is not shown/held to be under challenge. 3.1 emsp Appeal allowed in above terms. (Pronounced in Court)
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