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Central Excise - Case Laws
Showing 1 to 20 of 159 Records
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2019 (12) TMI 1675
Rectification of mistake - time limitation - application rejected on the ground that it is filed beyond six months of passing of the impugned final order - Section 35C(2) of the Central Excise Act - HELD THAT:- No doubt the Tribunal vide order in case of NATIONAL ENGG. INDS. LTD. VERSUS COMMISSIONER OF C. EX., JAIPUR [2001 (11) TMI 104 - CEGAT, COURT NO. I, NEW DELHI] and the final Order in case of M/S. RSPL LTD. VERSUS COMMISSIONER OF CUSTOMS, CENTRAL EXCISE, ALWAR [2019 (4) TMI 2151 - CESTAT NEW DELHI] has held that the ROM application can be entertained within six months from the date of the order. However, on the other hand, the learned Advocate has placed reliance on the decisions of Hon‟ble Gujarat High Court in case of LILADHAR T KHUSHLANI VERSUS COMMISSIONER OF CUSTOMS [2017 (2) TMI 200 - GUJARAT HIGH COURT] where it is held It is reported that the rectification application was submitted within the period of six months from the date of receipt of the order/dispatch order, and therefore, the impugned order passed by the learned CESTAT cannot be sustained and the same deserves to be quashed and set aside and the matter is required to be remanded to the learned Tribunal to consider the rectification application in accordance with law and on its own merits treating the same to have been filed within the period of limitation provided under the Act.
Further, reliance was placed on the decision of VADILAL INDUSTRIES LTD. VERSUS UNION OF INDIA [2005 (12) TMI 103 - HIGH COURT OF GUJARAT AT AHMEDABAD], wherein it is held that relevant date of six months for filing of ROM has to be reckoned from the date of receipt of the order by the appellant.
Thus, it is found that any person will notice error apparent in the order only when he receives the order and examine it. This aspect is based on the various decisions of the High Courts referred above - it is thus concluded that the relevant date for computation of six months, as envisaged in the provision of Section 35C(2) of the Central Excise Act, will be from date of receipt of the order by the appellant.
The Section 129 (B) (2) of the Customs Act, 1962 is parimateria to Section 35C(2) of Central Excise Act, 1944 and hence the decision of SUNITADEVI SINGHANIA HOSPITAL TRUST VERSUS UNION OF INDIA [2008 (11) TMI 249 - SUPREME COURT] will be applicable to Central Excise Act, as well.
Thus, it is found that all the submissions made by the appellant were not considered by the Tribunal except it got swayed by the admission on part of Shri Alok Aggaral, proprietor of the appellant accepting the clandestine removal. It is apparent from the record that the provision of Section 9D of the Central Excise Act, 1944 as mentioned to have been submitted by appellant, have not been considered while adjudicating the case rather reliance on the third party evidences for alleged clandestine removal of manufactured goods by the appellant - thus, vital aspect which are very much essential to be considered by the Tribunal could not have been considered in the said final order.
Thus, the errors as pointed out in the impugned order are errors apparent on record. Accordingly, ROM is allowed.
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2019 (12) TMI 1647
Valuation - cost of Pre-Delivery Inspection (PDI) and After Sales Service (ASS) charges required to be included in the assessable value of the motor vehicles sold by the appellant to the dealers or not - charges/expenditures are incurred by the dealers from their profit margin - HELD THAT:- Both sides fairly agree that the issue is covered by the judgment of Hon'ble Supreme Court in the case of COMMISSIONER OF CENTRAL EXCISE, MYSORE VERSUS M/S TVS MOTORS COMPANY LTD. [2015 (12) TMI 874 - SUPREME COURT]. Their Lordships considering the issue in the context of amended Section 4 of Central Excise Act, 1944 w.e.f. 1.7.2000 observed that PDI charges and free ASS charges would not be included in the assessable value under Section 4 of the Act for the purposes of paying excise duty.
The Pre Delivery Inspection (PDI) and After Sales Service (ASS) charges cannot be included in the assessable value of the motor vehicles - the appeals are allowed.
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2019 (12) TMI 1496
CENVAT Credit - allegation is that input services received for use in or in relation to the final Products, cannot be utilized by the appellant for dis-charging its Service Tax liability - HELD THAT:- This Bench of the Tribunal in M/S VEDANTA ALUMINIUM LTD. VERSUS COMMR. OF CENTRAL EXCISE, CUSTOMS & S. TAX, BBSR II [2018 (5) TMI 2060 - CESTAT KOLKATA] had decided in favour of the appellant-assessee. The Tribunal held that appellant has availed cenvat credit on inputs, capital goods and also input services and maintained a common account/Register, while discharging excise duty on the clearance of finished goods also service tax on output service, they utilized the cenvat credit from the input common pool account. When the amount was utilized from the common pool account, then cenvat credit is eligible.
Appeal allowed - decided in favor of appellant.
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2019 (12) TMI 1494
Demand of duty forgone - remittance for the goods exported could not be shown to have received from Asian Development Bank in freely convertible currency in Indian rupee - N/N. 45/2001-CE (NT), dated 26.06.2001 - HELD THAT:- The said project was undertaken as per bilateral agreement India and Bhutan for generation of electricity. The impugned notification was also issued under Rule 19 of the Central Excise Rules, 2002, permitting export of the goods to the said specified project in Bhutan under bond with security. Bank certificates submitted by the appellant side also confirmed receipt of payment in freely convertible currency in Indian rupee as specified in the said notification.
The situation in the instant issue was not different from that or the said past exports. Once exports were admittedly made and received by the project authority, there cannot be any demand of Central Excise duties. The duty on the goods can be demanded only if the goods have not been exported out of India within the stipulated period but, there is no such allegation in the demand notices. In view of this, demand notices are not sustainable. Therefore, once the remittances of export proceeds were originated from Asian Development Bank, as certified by the Banks at the recipient end, the demand notices were unfounded.
Appeal allowed - decided in favor of appellant.
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2019 (12) TMI 1471
Non-payment of leave salary - financial crises - Settlement of surrender leave salary for 156 days from 2011 to 2018 - HELD THAT:- An identical issue came up for consideration before the Division Bench of this Court in W.A(MD) No.210 of 2019 and the Hon'ble Division Bench by judgment dated 04.09.2019 [2019 (9) TMI 1512 - MADRAS HIGH COURT] had upheld the view of the learned Single Judge against which the writ petition came to be filed and also rejected the Corporation plea that the employee had not claimed the encashment of the surrender leave within the stipulated time.
Although the petitioner has made a representation dated 25.11.2019, the petitioner is directed to make a fresh representation, enclosing a copy of this order, seeking for settlement of his surrendered leave salary and on receipt of the such representation, the respondents herein shall consider the same and disburse the eligible leave salary through four equated monthly installments in the light of the aforesaid Division Bench Judgment - Petition allowed.
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2019 (12) TMI 1387
Rebate Claim - export of Pump Set 10 H.P. (I.C. Engine with Centrifugal Pump - demand rasied on account of erroneous rebate resulting from excess duty paid on impugned export goods - Penalty - HELD THAT:- The applicant had willfully omitted the classification of the impugned export goods on the excise invoices and ARE-1s and chose to pay higher rate of duty from the CENVAT account so as to encash the available CENVAT credit by way of rebate under Rule 18 of Central Excise Rules, 2002 - It is pertinent to mention that the confirmed demands on account of erroneous rebates have been appropriated by the respondent from the subsequent rebate claims of the applicant.
Penalty - HELD THAT:- Since the applicant chose to omit the classification of the impugned export goods with an intention to encash the accumulated CENVAT credit by paying higher rate of duty than the applicable rate, the case merits imposition of penalty under Section 11AC of Central Excise Act, 1944 read with Rule 25 of Central Excise Rules, 2002 on the applicant. Hence the lower authorities have correctly imposed penalty of ₹ 3,89,603/- under Section 11AC of the Act read with Rule 25 of the Central Excise Rules, 2002.
Revision dismissed.
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2019 (12) TMI 1385
Rebate claim - rebate was allowed by partially restricting the rebate amount as per C.B.E. & C.’s Circular No. 129/40/95-CX., dated 29-5-1995 - rebate restricted on the material used in the manufacture of export goods - HELD THAT:- In N/N. 21/2004-C.E. (N.T.), dated 6-9-2004, it is clearly mentioned that the rebate of whole of duty shall be payable to the exporter subject to such conditions or limitations, if any, and fulfillment of such procedure, as may be specified in the notification. It is observed that the applicant removed the scrap generated during the manufacture of the export goods on payment of duty. The Notification further provides for the verification of input-output ratio by the jurisdictional Excise authorities - In the instant case, the required verification of the input-output has also been done and due permission was granted by the Excise authorities to manufacture and export the finished goods - The notification nowhere specifies that the entire quantum of duty paid inputs have to be physically contained in the export goods to be eligible for rebate. As per the notification, material should be used in manufacture or processing of export goods and the waste should be cleared on payment of duty.
Reliance of the adjudicating authority on C.B.E. & C. Circular No. 129/40/95-CX., dated 29-5-1995 pertaining to the erstwhile Central Excise Rules, 1944 is farfetched since these rules have been subsequently replaced by Central Excise Rules, 2002. Moreover, this circular pertains to Notification No. 42/94-C.E. (N.T.), dated 22-9-1994 and cannot be made applicable to Notification No. 21/2004-C.E. (N.T.), dated 6-9-2004 issued under the Central Excise Rules, 2002.
Revision application allowed.
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2019 (12) TMI 1373
Levy of Duty - Process amounting to manufacture - preparation of ‘printing paste’ - HELD THAT:- In the present case, the show-cause notice was issued to the appellant way back in 1990 alleging that the appellant had manufactured and captively consumed printing paste in their factory premises falling under Chapter sub-heading 3204.29 but failed to discharge duty on the same - the appellant had produced purchase invoice of dyes issued by M/s Jaysynth Dyes Stuff (I) Ltd., BPCL, India Chemicals indicating that the dyes purchased by them were standardized one. Also, SASMIRA’s certificate produced by the appellants reveals that printing paste prepared by the appellant are of short shelf life and cannot be marketable. Thus, in view of the overwhelming evidence and in absence of any contrary evidence produced by the Revenue to show that the printing paste manufactured by the appellant in their factory premises was from non-standardized, non-formulated or non-prepared dyes, the order confirming the duty holding that the printing paste prepared by the appellant resulted into ‘manufacture’ within definition of Section 2(f) of Central Excise Act, 1944 and accordingly dutiable under Chapter sub-heading 3204.29 of Central Excise Tariff Act, 1985, cannot be sustained.
Appeal allowed - decided in favor of appellant.
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2019 (12) TMI 1348
Refund Claim of CENVAT Credit lying unutilized - Doctrine of unjust enrichment has not been fulfilled - no provision under section 11B of the Central Excise Act, 1944/ Rule 5 of the CENVAT Credit Rules, 2004 to sanction Refund in cash of the unutilized CENVAT Credit lying in CENVAT account on closure of the unit - HELD THAT:- As per clause (c) to proviso of Section 11B (2) of the 1944 Act, refund of credit of duty paid on inputs is admissible and only condition is that inputs must be used in accordance with Rules and Notifications issued under the 1944 Act. As per scheme of the Act and Cenvat Credit Rules, 2004 credit of duty paid on inputs is permissible subject to various conditions like inputs must be used directly or indirectly in the manufacture of finished goods; finished goods should be dutiable; inputs must be accompanied with duty paying invoice etc. - In the case in hand, the Appellant-Revenue is not disputing entitlement of credit of duty paid on inputs and dispute is confined to refund of credit already availed and unutilized, thus Respondent-Assessee is entitled to refund of unutilised credit of duty paid on inputs.
The Assessee-Respondent has claimed refund of Cenvat Credit which could not be utilised. It is not case of refund of duty paid on finished goods; or duty paid on inputs which formed part of cost of purchase and party did not avail Cenvat Credit. Situation could be different, had it been a case where Assessee did not avail Credit and claimed refund on the ground that duty was paid by mistake. It is case where over the period Respondent took credit of duty paid on inputs but could not use at the time of sale of finished goods.
Appeal dismissed.
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2019 (12) TMI 1328
Reversal of CENVAT Credit - not availing benefit of exemption - absolute exemption or conditional exemption - reversal sought on the ground that the said amount was utilized for payment of duty on excisable goods - benefit of N/N. 30/2004-CE. - HELD THAT:- The adjudicating authority has ordered for reversal of the accumulated credit on the ground that the appellant was availing the exemption notification No. 30/2004-CE, therefore, required to reverse the credit in terms of Rule 11(3)(ii) - it is found that such condition for reversal is only in respect of the exemption notification, which is absolute exemption, whereas, in the present case notification No. 30/2004-CE contained condition of non availment of Cenvat Credit in respect of input, input service and capital goods, therefore, the exemption is not absolute exemption. Hence, as per rule 11 of Cenvat Credit is not required to be reversed.
On the identical issue this Tribunal in the case of M/S PATODIA FILAMENTS PVT. LTD., SHIVKARAN CHOUDHARY VERSUS C.C.E. & S.T., -VAPI (VICE-VERSA) [2019 (4) TMI 435 - CESTAT AHMEDABAD] has held that the Cenvat Credit was held to be admissible and the same was not required to be reversed.
Appeal allowed - decided in favor of appellant.
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2019 (12) TMI 1327
Application for withdrawal of the appeal - Sabha Vishwas (Legacy Dispute Resolution) Scheme, 2019 - HELD THAT:- Application for withdrawl of the appeal is allowed and consequently, the appeal is dismissed as withdrawn.
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2019 (12) TMI 1303
Eligibility for exemption under N/N. 6/2006-CE dated 1.3.2006 (Sl.No.19) - manufacture of bus bodies - buses cleared to M/s. Delhi Metro Railway Corporation (DMRC) - HELD THAT:- In view of the subsequent order by the Customs, Excise and Service Tax Appellate Tribunal granting exemption from Excise Duty to Tata Motors on whose chasis the applicant built bus-bodies and in view of the observations of the High Court arising in the suit filed by the applicant, we grant liberty to the applicant to move the Tribunal for fixation and quantification of the Excise Duty in accordance with law.
Application allowed.
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2019 (12) TMI 1217
Rejection of declaration under Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - cases involving confiscation and redemption fine - Designated Committee has held that the cases involving confiscation and redemption fine have not been covered under the Scheme and, therefore, the declarations cannot be accepted and no relief can be granted to the petitioners under the Scheme - HELD THAT:- On a plain reading of clauses (a) to (h) of section 125 of the Finance Act, it is abundantly clear that persons whose cases involve confiscation and fine in lieu of confiscation are not placed in the categories of persons who are not eligible to make declarations under the Scheme. Thus, persons who have been ordered to pay fine in lieu of confiscation or to whom show cause notices proposing confiscation of goods have been issued, have not been declared to be ineligible to make a declaration under the Scheme - while clause (a) of subsection (1) of section 129 of the Finance Act provides that the declarant shall not be liable to pay further duty, interest or penalty, it does not expressly provide that the declarant shall not be liable to pay fine/redemption fine; which is why the present controversy has arisen. It may be noted that while under the Scheme no express provision has been made discharging the declarant from the liability to pay fine, the Directorate General of Taxpayer Service, Central Board of Indirect Taxes and Customs has issued FAQs, flyers and press notes wherein it is specifically stated that the most attractive aspect of the Scheme is that it provides substantial relief in the tax dues for all categories of cases as well as full waiver of interest, fine and penalty. In all these cases, there would be no other liability of interest, fine or penalty. There is also complete amnesty from prosecution.
It is not the case of the Board that declarations involving redemption fine cannot be accepted. This court, however, is prima facie of the view that the stand of the Board that in case where redemption fine is imposed and quantified, discharge certificate can only be issued after settlement of redemption fine, is not in consonance with the Scheme which contemplates putting an end to the matter - this court is of the view that the matter requires consideration. Hence issue Rule, returnable on 23rd January, 2020. This court is further of the view that a prima facie case has been made out for grant of interim relief inasmuch as if the interim relief as prayed for is not granted, the petitioners would not be in a position to file fresh declarations before the last day for filing declarations under the Scheme, which may either create an irreversible situation or unnecessary complications.
Having regard to the fact that if all similarly situated declarants were to approach this court, the same would needlessly lead to multiplicity of proceedings, the court is of the view that the benefit of this order may be granted to even those declarants who have not approached this court, subject to the declarants filing an undertaking before the Designated Committee that in case the outcome of the present petition is against the petitioners, they would pay the redemption fine, failing which, the discharge certificate shall be revoked.
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2019 (12) TMI 1216
Clandestine removal - MS Ingots - allegation that the appellants were carrying out activities of clandestine clearances in a pre-mediated manner with sole objective of defrauding the Government of its legitimate revenue in the form of Central Excise Duty - demand based on the statement of Shri Pawan Bansal, Director of M/s. Shree Jagdambay Castings Pvt. Ltd. as was recorded on 29.07.2013 - denial of cross-examination - Onus of proof - HELD THAT:- It is found that the said statement got subsequently retracted by Shri Pawan Bansal. It is further apparent that though the appellants received the relied upon documents, but they have been aggrieved of those not being legible. Legible copies thereof were insisted but were never made available. Adjudicating Authority below is observed to have ignored the repeated requests of the assessees for the legible documents. Copies of documents though are on record but perusal makes it clear that many of them are not at all legible.
Denial of cross-examination - HELD THAT:- The denial of coss-examination in the given circumstances is opined to be unfair and unjustified. The order under challenge records that, “the case is mainly based on the record of M/s.BRMPL, which is duly corroborated by the statements of directors of BRMPL and the persons who were maintaining the records”. But no such record and the corroboration thereof has been specified by the adjudicating authority below.
Onus of proof - HELD THAT:- The law is well settled that in respect of any allegation of clandestine removal the onus is squarely and solely on the Revenue to prove what it alleges and that onus of the revenue cannot be shifted to the assessee. The assessee cannot be called upon to prove the negative. There is no investigation whatsoever or any proof brought on record by the revenue in regard to the alleged clandestine production and unaccounted removal of excisable goods by the assessee. Mere allegation by the Revenue cannot take the place of proof.
There is no iota of evidence apparent on record specifically to the corroboration of the software data recovered during search. There is no compliance of Section 36B of Central Excise Act Sub Clauses (2) & (4) prescribes very stringent conditions for Computer Printouts to be a piece of admissible evidence. Not even Section 45A has been resorted as there is no apparent opinion of examiner of electronic evidence - The law is also well settled that the adjudication in a quasi-judicial proceeding must be fair and objective and the authority concerned must act correctly in accordance with law. In the present case the adjudicating authority is opined to have acted solely to confirm demands mechanically with predetermined negative mind because of his bias and prejudice and no willingness to appreciate the facts and records and apply the law correctly.
Appeal allowed - decided in favor of appellant.
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2019 (12) TMI 1167
Maintainability of petition - appealable order or not - Section 35B of the Central Excise Act, 1944 and Section 129A of the Customs Act, 1962 - HELD THAT:- As other Writ Petitions have also been dismissed, the petitioner does have an equally efficacious alternative remedy, the admission is declined with liberty to the petitioner to avail the remedy available under the law.
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2019 (12) TMI 1166
Maintainability of appeal - appropriate forum - Section 35G read with section 35L(iii)(b) of the Central Excise Act - Extended period of limitation - Section 11A(1) of the Central Excise Act - suppression of value or not - HELD THAT:- The present appeal filed by the Assessee in this Court is not maintainable before this Court but as per the provisions of Sections 35G and 35L of the Act, the said appeal would lie only before the Hon'ble Supreme Court, as the matter pertains to valuation of goods in question.
The Assessee on merits of the case may contend that the requirement of affixing MRP would arise only when the actual sales takes place. But that question necessarily depends upon the valuation adopted by the Assessee for the said purpose: whether valuation would be adopted as per CAS-4 Costing Method, which is cost of manufacturing + 10%, or valuation as per Section 4A, which is MRP affixed as per the requirement of the Legal Meterology Act. Therefore, this contention of the Assessee on the merits of the case is a ground of appeal which can be raised before the Hon'ble Supreme Court - The objection raised by the Revenue before us is valid and well founded and we agree that the appeal is maintainable only before the Hon'ble Supreme Court as per the relevant provisions of the Act.
Present appeal is dismissed as not maintainable before this Court, with liberty to the Assessee to prefer such appeal before the Hon'ble Supreme Court of India.
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2019 (12) TMI 1165
Principles of natural justice - Demand of interest - credit availed stands reversed, without utilization - both sides submits that no detailed discussion of the judgments cited by them in the subject case nor has the later amendment of law in this regard been discussed by the learned Tribunal - HELD THAT:- We are inclined to set aside the order of the learned Tribunal with a direction to the Tribunal to pass a detailed and speaking order, on merits and in accordance with law, after hearing both the sides.
Appeal allowed by way of remand.
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2019 (12) TMI 1164
Permission for withdrawal of appeal - Declaration under Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - HELD THAT:- Taking note of the fact that the appellant has filed declaration under the said scheme, the appeal is dismissed as withdrawn with liberty for the appellant to approach the Tribunal to restore the appeal in case discharge certificate is not issue for the dispute pertaining to this appeal.
Appeal dismissed as withdrawn.
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2019 (12) TMI 1126
Valuation - related party transaction or not - Mutuality of interest - Section 4(3)(b)(iv) of Central Excise Act, 1944 - price at which the P&P medicines sold by them to sub-distributor be considered as the transaction value for the purpose of determination of duty or not? - HELD THAT:- It is not in dispute that the Appellants are manufacturing P&P medicaments on job work basis for M/s Adelphi Pharmaceuticals and M/s Heilen Lab under loan licence agreement. It is also not in dispute that the entire quantity of the goods manufactured on job work basis are sold to the Appellant being appointed as sole selling Agent of M/s Adelphi Pharmaceuticals and M/s Heilen Lab at a price 30% less than the price at which the Appellant M/s Sigma Laboratories sold to the sub-distributors. It is the responsibility of the Appellant M/s Sigma Laboratories, to arrive at and fix the MRP of the P&P medicines bearing the brand name of M/s Adelphi Pharmaceuticals and M/s Heilen Lab - Also, it is not in dispute that majority share holding in the Appellant’s company is held by Shri Dilip S. Coulagi in association with his family members and only minor portion is held by the Financial Institution i.e.IDBI.
In the present case, the mutuality of interest between the Appellant M/s Sigma Laboratories and other two proprietary-ship concerns viz. Adelphi Pharmaceuticals and M/s Heilen Laboratories is apparent inasmuch as the proprietors of these two companies are also the Managing Director and Director of the Appellant company, the family as a whole control the shareholding of the Appellant Company. Besides, the important factor to note is that the P&P medicine manufactured on job work basis using the brand names of loan licensors viz. M/s Adelphi Pharmaceuticals and M/s Heilen Laboratories are sold to the Appellant at a price which is fixed by the Appellantafter extending 30% discount from the said price. The said discounted price is considered in arriving at the transaction value between the Appellant and the loan licensors viz. M/s Adelphi Pharmaceuticals and M/s Heilen Laboratories. This itself shows that the quantum of profit and benefit had been mutually shared by the two companies viz. M/s Adelphi Pharmaceuticals and M/s Heilen Laboratories with that of the Appellant.
Therefore, the price at which the Appellant sold the manufactured goods to the subdistributor be considered as a transaction value as per Sec.4(1)(b) of CEA,1944 read with Rule 9 of The Central Excise Valuation Rules,2000. Therefore, the learned Commissioner has rightly confirmed the differential duty short paid by the Appellant.
Extended period of limitation - Penalty - HELD THAT:- The Appellant could not show that the agreement between them and M/s Adelphi Pharmaceuticals and M/s Heilen Laboratories had been disclosed to the Department indicating that the fixation of price for the sellers M/s Adelphi Pharmaceuticals and M/s Heilen Laboratories was within the domain of the Appellant. Thus, invoking of extended period in confirming duty is justified - the penalty imposed on the Managing Director is reduced to ₹ 25,000/-.
Appeal allowed in part.
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2019 (12) TMI 1125
CENVAT Credit - byproduct/ waste product - Bagasse/Pressmud - reversal of credit under Rule 6(3)(i) of the CENVAT Credit Rules, 2004 - HELD THAT:- The issue of applicability of Rule 6(1) of CENVAT Credit Rules, 2004 to bagasse/pressmud which emerges during the course of manufacture of sugar and molasses, has been settled taking note of the judgment of Hon'ble Supreme Court in the case of Union of India Vs. DSCL Sugar Ltd. UNION OF INDIA VERSUS DSCL SUGAR LTD. [2015 (10) TMI 566 - SUPREME COURT] in favour of the assessee.
The principle laid down in DSCL Sugar Limited’s case, has been accepted by the Department by issuance of Circular No. 1027/15/2016-CX dated 25.04.2016.
Appeal allowed - decided in favor of appellant.
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