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Central Excise - High Court - Case Laws
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1983 (1) TMI 87
Writ jurisdiction cannot be invoked if appellate decision acquiesced by the party - Precedent
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1983 (1) TMI 86
Rules 9 and 49 of Excise Rules' - Valid and Constitutional - Dutiability of intermediary products - Intermediary process - Dutiability - Yarn
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1982 (12) TMI 51
Short-levy and non-levy ... ... ... ... ..... ice clearly entails that in the absence of payment coercive steps will follow. Hence any payment made in pursuance of Ex. A1 cannot be said to be a voluntary payment. Further the conduct of the assessee in taking advantage of the trade notice Ex. B1 will not nullify the demand notice, and the remittance cannot be said to be voluntary. It has also been held in the decision reported in U.O.I. v. Elphinstone Spg. and Wvg. Mills Co. Ltd., 1978 E.L.T. (J 680) that the trade notice has no statutory effect. Under the circumstances the payment of one-third of the differential duty by the plaintiff cannot be said to be a voluntary payment and Section 72 of the Contract Act applies to the present case. Hence the respondent is entitled to recover the amount paid by him. The contention of the learned Counsel for the appellants in this regard will have to be negatived. 16. In the result the judgment and decree of the lower Court are confirmed. However, there will be no order as to costs.
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1982 (12) TMI 49
Valuation — Sales through `main dealer' and also to other independent purchasers within same territory
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1982 (11) TMI 171
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... ... ..... be seen is whether the article imported is liable to duty under the Excise Act and for that purpose, reference will have to be made to the provisions of the Excise Act alone. The learned single Judge has further held that if an article comes under the description of an item chargeable under the Excise Act, it will be liable to countervailing duty which shall be equal to the excise duty payable for it. We are in complete agreement with the reasoning given by the learned single Judge. The goods imported will definitely fall within the definition of ‘aluminium’ in Item 27 of the Excise Act and that would suffice for ascertainment of countervailing duty as contemplated under Sec. 2-A of the Tariff Act. The Central Government in its order in Review No. 4025 of 1972, has correctly applied the principles and has upheld the levy of countervailing duty on the goods imported by the appellant herein. 8. The writ appeal is dismissed. There will be no order as to costs.
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1982 (11) TMI 57
Civil suit — Limitation ... ... ... ... ..... can only be done if such a suit is open to him according to law. We do not think that the said observation would enable the plaintiff to get over the period of limitation or to challenge the findings of fact arrived at by the Central Excise authorities on a proper appreciation of the relevant evidence adduced before them. We are, therefore, inclined to hold that the plaintiff is not entitled to invoke the benefit of Section 14 of the Limitation Act and exclude the period during which the writ petition was pending for purposes of computation of the period of limitation for filing the present suit. If that period cannot be excluded, the suit would be clearly barred under Section 69 of the Limitation Act, which prescribes a period of three years for recovery of specific movable property, from the date when the property was wrongfully taken. We, therefore, hold that the suit is also barred by limitation. 21. For the foregoing reasons, the appeal fails and is dismissed with costs.
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1982 (11) TMI 55
Valuation — Drugs and medicines — Statutory provisions ... ... ... ... ..... per cent of the cost for the manufacturing expenses cannot be accepted. It is no doubt true that the claim made by the petitioner for deduction of as much as 88 per cent as manufacturing expenses cannot straightway be allowed and the second respondent can go into the question as to what is the actual manufacturing expenses in respect of particular items of drugs or medicines manufactured by the petitioner. For that purpose, the respondents can either take the retail price under the Drugs Price Control Order, 1979 and give deduction for the actual post-manufacturing expenses incurred or work out the cost of manufacture and the manufacturer s profits from the books of account maintained by the petitioner. 10. In this view of the matter, the order of the second respondent dated 27-12-1981 is quashed with a direction to the second respondent to determine the assessable value according to law and after excluding the post-manufacturing expenses. There will be no order as to costs.
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1982 (11) TMI 54
Appeal - Penalty ... ... ... ... ..... enue, but I must ultimately be able to base myself upon some language in the section to uphold the contention of Mr. K. Subrahmanya Reddy that the power of enhancement can be exercised even in a case like this where the Department has not filed an appeal. I do not find any such language. On the other hand, the wide words used in Section 128, clause. (1) conferring a right of appeal on any aggrieved person which I take, include even the department or at any rate the Government would belie by implication the argument of the learned counsel. 5. I accordingly hold that the appellate authority could not enhance the penalty in an appeal preferred by the party. Such a thing could have been done only when the Department or the Government of India had preferred an appeal. For the reasons alone, I allow this writ petition with costs, and set aside the order passed by the appellate authority as confirmed by the revisional authority, to the extent of enhancement. Advocate fee Rs. 150/-.
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1982 (11) TMI 53
Patent or Proprietary medicines ... ... ... ... ..... headache, and pains. In the light of these facts, the learned Judge followed the decision in Writ App. No. 23 of 1964 and held that the product was liable to excise duty. We are of the opinion that the facts before the learned Judge were entirely different from the facts in this case. 8. To conclude, we agree with the learned single Judge that the symbol used by the respondent cannot be said to be distinctive enough to attract item 14-E read with Explanation 1 of the First Schedule to the Central Excises and Salt Act. It is also admitted that the said symbol or mark is not the registered trade mark of the respondent. It is equally admitted that this mark is being used by the respondent in respect of all their preparations. There is absolutely nothing in the mark to indicate a connection in the course of trade between the medicine and the respondent. We therefore confirm the order of the learned single Judge and dismiss the appeal. There will, however, be no order as to costs.
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1982 (11) TMI 51
Excise duty not payable till goods become marketable - Cotton fabrics - Revisionary order not appealed against
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1982 (11) TMI 50
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... ... ..... The order passed by the Assistant Collector of Central Excise comes into operation as soon as the same is signed and is not made dependent upon the communication of the same to the concerned party. In my judgment, the stand taken by the successor of Mr. Kullarwar is totally erroneous and his action in issuing fresh show cause notice to the petitioners and calling upon them to re-agitate the matter before him is contrary to the provisions of law. The petitioners, accordingly, are entitled to the reliefs sought in the petition. 7. Accordingly, the petition succeeds and the rule is made absolute in terms of prayer (b) of the petition. As the order passed by the Assistant Collector of Central Excise is in favour of the petitioners, the petitioners are at liberty to approach the Appeal Court for appropriate orders in regard to the refund of the amount deposited in this Court in pursuance of the order dated March 17, 1978. The respondent No. 1 shall pay the costs of the petition.
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1982 (11) TMI 49
Appeal - Whether can be entertained without depositing duty or penalty - Writ jurisdiction - Powers of Appellate Tribunal - Alternative remedy
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1982 (10) TMI 216
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... ... ..... , included in the valuation for the purpose of computation of the levy. 19. We may mention that we do not consider it necessary to refer to and consider the decision in Alembic Glass (supra) and every other judgment on the point of packing material as the reasoning reflected hereinabove, which is the fundamental basis of our decision, has not been considered therein. 20. The curtain cannot be dropped till we observe that in case we had sustained any of the contentions urged by Counsel for petitioners would have directed refund of the amount to the buyer or directed the same to be deposited in a Bank Account for the benefit of the consumers instead of allowing the petitioners to secure unjust enrichment. In the view we are taking, the question does not arise. 21. In the result, we see no substance in any of the contentions urged on behalf of the petitioners. The petitions are rejected. Rule is discharged and interim orders are vacated in each matter. No order regarding costs.
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1982 (10) TMI 46
Refund - Iron or Steel products ... ... ... ... ..... o claim or not to claim the exemption. If they chose not to claim it, it could not be said to be a recovery which was unlawful or in excess of jurisdiction. Such payment could only be said to have been made out of inadvertence or error or misconstruction and to such payment the provisions of Rule 11 and the period of limitation specified thereby would apply. 9. Where products are exempted from payment of excise duty, no recovery of excise duty which is exempt by the Excise Authorities is lawful. It is in excess of their jurisdiction. The principles enunciated in the judgments cited by me above, which in turn follow other authorities of this Court, squarely apply. Having regard to that, the orders passed on the petitioners application for refund and in the appeal there from and in revision must stand quashed and the respondents must be directed to refund to the petitioners the undisputed amount of Rs. 1,92,944/01 p. within three months from today. Rule accordingly with costs.
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1982 (10) TMI 45
Valuation (Central Excise) ... ... ... ... ..... at merely because, before the delivery of the goods to the wholesale buyer, the manufacturer put the labels of the wholesale buyer on the goods would not make the wholesale buyer the manufacturer thereof, nor could it be said for that reason that the goods were manufactured on behalf of the wholesale buyer. By reason of the label the goods did not change their identity. They remain the same. This, Mr. Dalal, did not dispute. 7. This discussion makes it clear, therefore, that the grounds taken by the second respondent and the Appellate Collector on the one hand and by the first responent in revision on the other cannot be sustained. The petition must, therefore, be made absolute in terms of prayers (a) and (b)-(ii) and (iii). The refund of Rs. 1,02,660.60/- to be made within 3 months from today. The bank guarantee given by the petitioners to the respondents in the sum of Rs. 2,33,488/- shall stand discharged. The respondents to pay to the petitioners the cost of the petition.
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1982 (10) TMI 44
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... ... ..... T. (J 177) AIR (1973) S.C. 225 before all the three authorities. All three authorities have found ways of getting over the decision which I have found unintelligible. There is no one before me on behalf of the respondents who can make them intelligible. It must follow, then that the petitioners application for refund of excise duty in exess of the manufacturing cost and the manufacturing profit should have been allowed. 4. The petition is made absolute in terms of prayers (a) and (b). The amount of Rs. 5,45,371.07 to be refunded to the petitioners within 3 months from today. The respondents to pay to the petitioners the cost of the petition.
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1982 (10) TMI 43
Khandsari sugar - Unauthorised centrifugal ... ... ... ... ..... etermine on facts as to what was the date on which the petitioner commenced production and what was his unauthorised production of Khandsari sugar. The amount of duty will now, of course, have to be worked out on the standard rate, and the concessions available under the special procedure will not be available to the petitioner. Learned counsel for the petitioner has not challenged the confiscation of Khandsari sugar and levy of penalty for unauthorised production. 7. In the situation, we allow the writ petition and quash the orders of the Collector as well as the appellate and revisional orders in so far as duty has been demanded from the petitioner on the unauthorised centrifugal. We, however, send the matter back to the Collector. It will be open to the Collector to take fresh proceedings in accordance with law against the petitioner in respect of production of Khandsari sugar by unauthorised means. In the circumstances of the case, the parties shall bear their own costs.
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1982 (10) TMI 40
Contempt of court ... ... ... ... ..... uring expenses. He was bound to follow that law. He did not do so. He is, prima facie, in contempt. 6. The petition is made absolute in terms of prayer (a). The respondents shall within 4 weeks from today determine what deductions the petitioners are entitled to on account of post-manufacturing expenses and shall refund to the petitioners the amount of excise duty collected by the respondents thereon within a further 2 weeks. The petitioners shall be permitted to clear their products until it is determined what deductions on account of post-manufacturing expenses they are entitled to upon the basis of their statements as to post-manufacturing expenses. The respondents shall pay to the petitioners the costs of the petition. Rule accordingly. 7. Notice shall issue to the second respondent to show cause why he should not be proceeded against for contempt of the court in that he knowingly failed to follow the law laid down by this Court when he passed the orders impugned herein.
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1982 (10) TMI 39
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... ... ..... any opinion on the other two points raised in the writ petition. 7. Learned Counsel for the respondents, however, brought to our notice a decision of the Patna High Court in Civil Writ Jurisdiction Case No. 865 of 1966 wherein while interpreting similar provision, the Patna High Court had held that in a case where there was nil production in the corresponding period, the exemption in respect of excess production would not be admissible. The decision of the Patna High Court has been noticed by the Punjab and Haryana High Court as well as by the Andhra Pradesh High Court in the decisions cited above. Both the courts have disagreed with the view of the Patna High Court. We are in respectful agreement with the view expressed by the Andhra Pradesh and Punjab and Haryana High Courts. 8. The petition, therefore, succeeds and is allowed. The demand notice dated 25-1-1978 and the orders dated 10-3-1981 and 2-4-1981 are quashed. Petitioner shall be entitled to costs in this petition.
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1982 (10) TMI 38
Wrapping paper - Liability to duty - Post-manufacturing operations ... ... ... ... ..... etition is allowed and a writ of mandamus will issue directing the respondents to allow the Mills to clear the excisable goods manufactured by them without insisting on payment of duty on wrapping paper used internally for packing reams and reels, provided the Mills has paid excise duty on the value of the wrapper paper in accordance with the tariff rate applicable thereto. The writ petition is allowed accordingly, but in the circumstances, without costs. 19. Shri K. Subrahmanya Reddy, the learned Central Government Standing Counsel makes an oral request for grant of leave to the Supreme Court of India. The proposed appeal involves a substantial question of public or general importance which in our opinion requires to be decided by the Supreme Court of India. Hence leave granted. 20. Shri Subrahmanya Reddy prays that the operation of our judgment may be stayed. But we do not think any prima facie grounds are made out for grant of stay. Hence, the request for stay is rejected.
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