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Case Laws
Showing 21 to 40 of 273 Records
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1985 (7) TMI 365 - CEGAT CALCUTTA
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... ... ..... excusing delay is shown discretion is given to the Court to condone delay and admit the appeal. This discretion has been deliberately conferred on the Court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice. As has been observed by the Madras High Court in Krishna v. Chattappan, (1890) ILR 13 Mad 269, S. 5 gives the Court a discretion which in respect of jurisdiction is to be exercised in the way in which judicial power and discretion ought to be exercised upon principles which are well understood; the words ”sufficient cause" receiving a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fide is imputable to the appellant." 6. In view of the above discussion the appeal is dismissed being hit by limitation. Since the appeal is dismissed on the point of limitation I am not going into the merits of the appeal. 7. Announced in open court.
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1985 (7) TMI 364 - CEGAT CALCUTTA
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... ... ..... onduct of the party seeking condonation.” In the instant case, the appellant has not been able to prove that he was prevented by sufficient cause in the late submission of the appeal and we held that the appellant was not prevented by sufficient cause in the late filing of the appeal and it is not a fit case whether this court should exercise its discretion under sub-section (5) of Section 129A of the Customs Act, 1962. During the course of the arguments, we had also brought it to the notice of both. the parties that this Court has passed a number of judgments on the point of limitation and this Court has taken the view that the limitation can be condoned only in those cases where the appellant can explain each and every day’s delay and he was prevented by sufficient cause in the late filing of the appeal. The appeal is dismissed being hit by limitation. Since we are dismissing the appeal on the point of limitation, we are not going into the merits of the appeal.
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1985 (7) TMI 363 - CEGAT NEW DELHI
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... ... ..... -1969 were in force during the material period. 2. We have carefully considered the matter. The exemption Notifications No. 70/69-C.E. and 91/69-C.E., both dated 1-3-1969 gave total exemption to cotton fabrics of not more than 15 cms. in width, so far as the duty liable under Item 19 of the Central Excise Tariff is concerned. Exemption Notification No. 226/77-C.E., dated 15-7-1977 invoked by the lower authorities also relates to cotton fabrics and it gave a partial exemption from fabric duty. Since spindle tapes of width not more than 15 cms. manufactured and cleared by the appellants were totally exempted from duty under the two Notifications relied upon by them, without any further contention, the authorities are not justified in denying them this total exemption. One exemption Notification cannot take away the benefit given by another separate Notification. Accordingly, we set aside the impugned order and allow this appeal with consequential relief to the appellants.
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1985 (7) TMI 362 - CEGAT BOMBAY
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... ... ..... /80. As already stated, the show cause notice dated 12-8-1983 was issued more than six months after the period which it covered (the period ending in January, 1983). In the circumstances set out above, this would not be a case which would justify the invocation of the extended time-limit under Section 11A, as it cannot be said that there was any fraud or misstatement or suppression of facts by the appellants. (It is interesting that the Collector himself, in his finding, has held that the charges levelled against the appellants are conclusively proved “except with regard to committal of fraud”, which is tantamount to absolving them of misstatement, etc.). We accordingly hold that the demand for duty in this case was barred by limitation. We further hold, in the light of the circumstances set out above that there was no case for imposition of a penalty on the appellants. 16. In the result, we allow the appeal and set aside the penalty and the demand for duty.
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1985 (7) TMI 361 - CEGAT MADRAS
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... ... ..... hoever is the owner will have to establish his claim for the ornaments before the Department for purposes of redemption, (I note that I am dealing with an order of de nova adjudication, and the ornaments have in fact been cleared on payment of fine fixed by an earlier order, which was set aside by the Tribunal, much earlier to the date of the present order itself). 11. The quantum of gold ornaments involved is 2032 gms. Transgression of the Gold (Control) Act, particularly by certified goldsmiths; has to be visited with exemplary punishment so that the concessions granted to certified goldsmiths to enable genuine ones to earn a livelihood from the only trade that they know is not made use by unscrupulous elements from amongst them to flout the law. In this view of the matter I should think that the penalties are on the lower side. The fine in lieu of confiscation is not disproportionate to the value of the goods involved. In the result the appeals are dismissed in toto.
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1985 (7) TMI 360 - CEGAT MADRAS
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... ... ..... regarding unjust enrichment. Be it as it may, that it is a factor being kept in view by the High Courts/Supreme Court in again in the context of tariff classification of another product viz. basic was exercising writ jurisdiction does not lead to an inference that such a consideration has a place in dealing with a claim for refund of duty under Section 11B of the Central Excises and Salt Act, 1944. In this view of the matter, the Collector (Appeals) was clearly wrong in allowing himself to be influenced by the decisions cited before him which were all relating to decisions in exercise of writ jurisdiction by the High Courts/Supreme Court. 4. In these circumstances the appeal of the Department is dismissed and order of the Assistant Collector sanctioning the refund as confirmed by the Collector (Appeals) is restored though not for the reason relied on by the Collector. The amount of refund due may be paid to the respondent within three months from the date of this order.
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1985 (7) TMI 359 - CEGAT NEW DELHI
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... ... ..... qualities, purity, etc. to make them excisable. If they do not conform to standards, they would be sub-standard or off-standard but that would not mean that they are not goods of the excisable description. This order does not advance the case of the Department in view of our finding that the fermentation gas in the present cases was not compressed gas. 25. There have been much arguments on other aspects of the case such as limitation, whether the issue of the corrigendum to the show cause notice in the Mohan Meakins case was time-barred, whether captive consumption of fermentation gas without removal from the factory premises would attract duty under Rules 9 and 49, the absence of mens rea and the quantum of penalty imposed, etc. In view of our finding that the fermentation gas was not compressed gas, we need not consider these aspects of the case. 26. In the result, we set aside the impugned orders and allow the appeals with consequential relief to the appellants.
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1985 (7) TMI 358 - COLLECTOR OF CENTRAL EXCISE (APPEALS), BOMBAY
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... ... ..... is to be taken in terms of Section 11B will be the date of which the appellants come to know of their total value of clearances (i.e. at the end of the close of the financial year). Therefore, the period of 6 months should be calculated from the end of the financial year and not from the date of actual payment. For the reasons stated above, I set aside the order of the Assistant Collector in holding that the limitation in such cases will be six months from the close of the financial year. In the result, both the appeals succeed and the impugned orders of the Assistant Collector are disposed of as below - (i) Order No. V(4 8) 18-4/78/6027-28, dated 7-6-1980 appealed against is set aside with consequential relief by way of refund to the appellants. Appeal File No. V. 2(49)1922/80 ; (ii) Order No. V(49) 18-2/79, dated 18-4-1980 appealed against is set aside with the direction to give full consequential relief by way of refund to the appellants. Appeal File No. V. 2(49)1690/80 .
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1985 (7) TMI 357 - CEGAT NEW DELHI
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... ... ..... me will have to be allowed for the period of one year preceding the dates on which the applications dated 21-10-1976 and 5-11-1976 had been respectively received in the office of the concerned Assistant Collector. The periods for which refund had been claimed in these two appeals are 17-7-1975 to 2-3-1976 and 1-7-1975 to 31-3-1977 respectively. The two refund applications for that period will have to be therefore disposed of by the Assistant Collector concerned in the light of the findings above. 6. Accordingly, both these appeals are allowed and the orders of the lower authorities are set aside. The matters are remitted to the Assistant Collectors concerned for grant of refund for the relevant period in terms of the findings earlier in this order. As the refunds relate to a period over seven years earlier it is directed that the orders regarding refund should be passed within three months after receipt of the records in the office of the concerned Assistant Collectors.
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1985 (7) TMI 356 - CEGAT NEW DELHI
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... ... ..... ants that the ‘Kajal’ manufactured by the appellants is a patent or proprietary medicine falling under Tariff Item 14E (CET) and excluded being exclusively Ayurvedic drug. 20. In view of the reasons given in our earlier Order Nos. 438 and 439/85-C passed in Appeal Nos. 248/82-C and 106/82-C and our discussion above, we confirm the findings of the Collector, Central Excise regarding the products ‘Dant Manjan and ‘Kajal’ by holding that both these products fall under item 68 CET and are not entitled to take the benefit under Notification No. 62/78, dated 1-3-1978 as they are neither drugs nor medicines. 21. We, however, set aside the findings of the Collector, Central Excise regarding the product ‘Surma’ and hold that the ‘Surma’ in dispute manufactured by the appellants is patent or proprietary medicine classifiable under item 14E (CET) but excluded being Ayurvedic medicine. We dispose of this appeal accordingly.
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1985 (7) TMI 355 - CEGAT NEW DELHI
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... ... ..... n (1) of section 22 requires that the damaged goods “shall” be chargeable to duty in accordance with the provisions of sub-section (2). The section leaves no option to the Customs except to assess the damaged goods on the basis of the reduced value arrived at according to sub-sections (2) and (3). We hold that once the appellants had informed the Customs that their goods had suffered damage, it was incumbent on the Department to assess the value as per the provisions of sub-section (3) of section 22 and charge duty on such assessed value. If the procedure devised by the Department in this behalf required any survey to be conducted or the examination report to be recorded in some detail, it was the duty of the Department to have these things done. The appellants cannot be blamed for inaction on the part of the Department. 3. In the light of our above discussion, we set aside the impugned order and allow this appeal with consequential relief to the appellants.
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1985 (7) TMI 354 - CEGAT NEW DELHI
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... ... ..... 984, with the result that proceedings transferred pursuant thereto are not touched by it, regardless of whether they were proceedings initiated to revise the orders of the Appellate Collector even in the classes of cases adverted to in the amendments made to Section. 35(B). 9. In the result, we hold that the Tribunal continues to have the requisite jurisdiction in the matters transferred to the Tribunal to be heard as if they were Appeals in terms of Section 35P even in those classes of cases where the jurisdiction of the Tribunal was excluded pursuant to the amendments made in Section 35B by the Finance Act, 1984. 10. Since, however, the matters do not involve a determination of any question having a relation to the rate of duty of excise or the value of goods for purposes of assessment, a Regional Bench, in this case the South Regional Bench, can hear and decide these matters. 11. Accordingly, they may be transferred to the South Regional Bench for disposal.
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1985 (7) TMI 353 - CEGAT NEW DELHI
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... ... ..... t help the appellants in the present case. In that case, the Board found the product ‘Selsum’ as a drug/medicine because it was recommended by physicians only for its medical effectiveness. Here there is nothing on record to show that this product ‘Marylon Medicated Shampoo’ is being recommended by physicians only for its medical effectiveness. A distinction was drawn between a ‘medicated shampoo’ and the product ‘Selsum’ manufactured by Abbot Laboratories and it was observed that medicated shampoo are recommended mainly for the conditioning of the hair with subsidiary medicinal effect but ‘Selsum’ is being recommended by physicians only for its medical effectiveness (emphasis provided). In this case we are concerned with ‘medicated shampoo’ which as per the Board’s observations cannot be a drug/medicine. 15. We, therefore, confirm the findings of the authorities below and dismiss this appeal.
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1985 (7) TMI 352 - CEGAT NEW DELHI
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... ... ..... 1-1979. The right to enforce recovery, of the differential duty thus having arisen on 3-11-1979 the action for enforcement thereof should be taken within six months from 3-11-1979. The show cause notice having been issued on 2-4-1980 there can be no doubt that the right had been exercised within the six months period. In the circumstances there can be no doubt that the claim for the recovery of differential duty was not barred with reference to any portion of the period for which the claim was made. Shri Sachar pointed out that the decision of this Tribunal in M/s. General Traders, Firozabad v. Collector of Central Excise, Kanpur (Order No. 367/84-D, dated 27-6-1984 in Excise Appeal No. 2343/83-D) would also support the above conclusion. 10. As earlier mentioned the above were the only two points urged by Shri Arora during the hearing of the appeal. Both the points being found against the appellants we confirm the orders of the lower authorities and dismiss this appeal.
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1985 (7) TMI 351 - CEGAT NEW DELHI
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... ... ..... on inserted in sub-clause 4(4)(d)(ii) of Section 4 in 1982 itself lays down the scope of that Explanation, which is “for the purposes of this sub-clause”. The definition of “effective duty” given in this Explanation is for the purposes of calculation of the amount of duty which is required to be deducted from cum-duty value in order to arrive at the net assessable value. It has nothing to do with the manner of calculation of the further duty reduction under Notification No. 142/78-C.E. Here, the sequence of application of various notifications is specifically laid down in the notification itself which gives the duty reduction and the appellants are bound by that sequence. 7. The third argument of the appellants does not arise. Since the interpretation canvassed by them is legally not tenable, there is no question of giving them the benefit of that interpretation. 8. In the result, we find no merit in this appeal and, accordingly, dismiss it.
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1985 (7) TMI 350 - CEGAT NEW DELHI
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... ... ..... n that the charges towards retention and holding of the cylinders is directly relatable to, or is influencing, the price at the point of delivery of the gas. This is because, admittedly, no such charges are collected if the cylinders are returned within the free period. As has been explained by the Respondents, the retention charges are mainly collected for ensuring prompt return of the cylinders and to minimize delay. Therefore, it is clear that the retention charges accrues to the manufacturer after the delivery of the goods. The Department has also not shown that these are directly relatable to the cost to manufacture and form an integral element of selling price. In the circumstances, there is a lot of force in the contentions of the Respondents which have to be accepted. In the circumstances, we see no reason to interfere with the orders passed by the Collector (Appeals), New Delhi. The appeal preferred by the Collector of Central Excise, Indore is, therefore, rejected.
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1985 (7) TMI 349 - CEGAT NEW DELHI
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... ... ..... which existed, and .which have been set out by us in para 10 above, the assessees were clearly entitled to the benefit of the notification, and their appeal was correctly allowed by the Collector (Appeals). We accordingly confirm the order of the Collector (Appeals) and reject this appeal. 14. There is one another point which we feel necessary to mention before parting with this matter. At the end of the Collector’s order under Section 35B(2) authorising the Assistant Collector to file this appeal, he has stated “The Assistant Collector, Central Excise, Rampur is also directed to stay the operation of the Order-in-Appeal under reference”. With all respect to the learned Collector, we must point out that the power to stay the operation of the Order-in-Appeal did not vest either with the Collector or with the Assistant Collector. Such a direction, which lacks legal basis, and which has no place in an order under Section 35B(2), should have been avoided.
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1985 (7) TMI 348 - CEGAT NEW DELHI
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... ... ..... gh Court in rendering our decision. The course suggested by Shri Tiwari, that we should accept the finding of the High Court in paragraph 6 of their judgment but not follow the ultimate decision (because the reasonings given in the subsequent paragraphs of the judgment of the High Court are not correct) would not be the proper course for us to follow. Therefore, even without reference to the earlier judgment of this Tribunal we are bound to follow the Punjab and Haryana High Court and hold that Lamp Holders would be classifiable under Tariff Item 61, Central Excise Tariff. In arriving at this classification we derive further strength from the earlier judgment of this Tribunal which was also to the same effect. 8. Accordingly, we hold that the Lamp Holders manufactured by the respondents are classifiable under Tariff Item 61 Central Excise Tariff. We accordingly allow this appeal, set aside the order of the Collector (Appeals) and restore the order of the Assistant Collector.
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1985 (7) TMI 347 - SUPREME COURT
Whether the provisions of section 5 of the Limitation Act, 1963 can be invoked for condoning the delay in the filing of an appeal before the Collector under section 90 of the Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act, 1950 - Act 21 of 1950?
Held that:- The provisions relating to computation of the period of limitation are contained in sections 12 to 24 included in Part III of the Limitation Act, 1963. Section 5 is not a provision dealing with computation of the period of limitation. It is only after the process of computation is completed and it is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under section 5 can arise. We are, therefore, in complete agreement with the view that section 93 of the Act did not have the effect of rendering the provision of section 5 of the Limitation Act, 1963 applicable to the proceedings before the Collector. Appeal dismissed.
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1985 (7) TMI 346 - RAJASTHAN HIGH COURT]
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... ... ..... assed by the Sales Tax Tribunal on a rectification application under section 23A cannot be made subject-matter of a reference to the High Court and that a reference on questions arising out of an order passed by the Tribunal on a rectification application is incompetent and the High Court has no jurisdiction to entertain such an application for reference. We are in agreement with the two earlier decisions of this Court referred to above and as the reference application in the present case arises out of an application for rectification filed before the Board of Revenue under section 17 of the Act, the same was not maintainable under section 15(3A) of the Act, as they existed prior to the amendment of 1984. Therefore, the application filed in the present case by the assessing authority cannot be treated as a revision petition under section 15(1) of the amended provisions of the Act. The reference application is consequently dismissed as not maintainable. Application dismissed.
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