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Showing 421 to 440 of 534 Records
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2002 (9) TMI 114
Whether product manufactured by the appellant will be classified under Tariff Heading 24.04 viz., "Manufactured tobacco" ?
Held that:- In their appeal from the decision of the Tribunal before us the appellants have again raised the issue that the Tribunal should have considered the fact that the appellants and Chandulal K. Patel & Co's products were identical and were the outcome of an identical process, and that since the latter had been exempted from paying any central excise duty on the ground that their product was classifiable under Tariff Heading 24.04, the appellants should get the same benefit.
Since the matter had not been squarely dealt with on facts at any stage by any of the authorities below, it was not possible for learned Counsel to give us the reasons for drawing this distinction between the two manufacturers and differently classify what were alleged to be materially the same product. We deem it appropriate to set aside the order of the Tribunal and remand the matter back to the Tribunal for considering whether the product and process followed by M/s. Chandulal K. Patel & Co. is the same as that of the appellants.
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2002 (9) TMI 113
Whether galleries attached to the chambers of a hot air stenter are deemed to be one chamber of a hot air stenter?
Held that:- The Tribunal arrived at a conclusion that the Explanation to Rule 5 makes it clear that a float drying machine or any other equipments mentioned therein must be for aiding the process of heat setting or drying of fabrics. The Tribunal observed that a float drying machine is aiding the process of heat setting or drying of fabrics and other equipments contemplated by Explanation-I should also have like utility.
This part of the reasoning of the Tribunal cannot be said to be illegal or erroneous because the Explanation itself specifies that other equipment attached to a stenter should also be for aiding the process of heat setting or drying of the fabrics. The Tribunal found that a gallery, which is having no fan or radiator attached to it, cannot come within the purview of interpretation as contemplated by Explanation-I. Further, on the basis of the aforesaid amended Rules, the Tribunal negatived the contention raised by the Department that while counting number of chambers in each of the hot-air stenters, the galleries attached to it would be deemed to be one chamber of a stenter. Amended Rules clarify and remove the ambiguity particularly which arose because of the Trade Notice. Appeal dismissed.
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2002 (9) TMI 112
The Supreme Court dismissed Civil Appeal No. 686 of 1995 filed by the Collector of Central Excise, Bangalore, regarding the classification of 'Signal Conditioning Amplifiers' under the Central Excise Tariff Act, 1985. The Court upheld the decision of the Customs, Excise and Gold (Control) Appellate Tribunal that the product falls under Tariff Heading 90.30. Consequently, Civil Appeal No. 4851 of 2000 was also dismissed.
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2002 (9) TMI 111
The Supreme Court allowed the appeal, setting aside the High Court's order and remitting the matter for fresh examination. The High Court rejected a reference application on a question of law from the CEGAT order without proper examination.
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2002 (9) TMI 110
Whether the appellant is entitled to the benefit of Notification No. 234/86, dated April 3, 1986, granting exemption to bulk drugs falling under sub-heading 2913.00 of Chapter 29 of Schedule to the Central Excise Tariff Act, 1985 from the date of filing of classification lists?
Held that:- Denial of benefit of the notification to the appellant was unfair as the appellant became entitled to the benefit of Notification No. 234/86 from March 1, 1986. There can be no doubt that the authorities functioning under the Act must, as are in duty bound, protect the interest of the Revenue by levying and collecting the duty in accordance with law - no less and also no more. It is no part of their duty to deprive an assessee of the benefit available to him in law with a view to augment the quantum of duty for the benefit of the Revenue. They must act reasonably and fairly. In favour of assessee.
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2002 (9) TMI 109
Whether the cement manufactured by the appellant is entitled to the benefit of the exemption notification, No. 23/1989-C.E., dated 1st March, 1989, issued by the Central Government under sub-section (1) of Section 5A of the Central Excises and Salt Act, 1944?
Held that:- A reading of Notification No. 175/1986-C.E. shows that it relates to small scale industry, as is evident from paragraph (4) thereof. From the certificate issued by the Development Commissioner, it is evident that S.S.I. units are not required to take industrial licence, therefore, the question of certifying licenced capacity does not arise. So far as the production capacity of the S.S.I. unit is concerned, the certificate issued by the Director mentions that the production capacity of the appellant is 40 tonnes per day, which is far less than 200 metric tonnes per day. It is gainsaying that the licenced capacity will always be less than the production capacity. It has never been the case of the Revenue that the notification does not apply to cement manufactured by S.S.I. It cannot also be disputed that an S.S.I. unit, being exempt under the Industries (Development and Regulation) Act, 1951, is not required to have licenced production capacity. There being no controversy about the fulfilment of the other requirements of the notification by the appellant, we are of the view that Portland cement manufactured by the appellant is entitled to the benefit of the notification.
The authorities are directed to extend the benefit of the exemption Notification No. 23/1989-C.E. to the cement manufactured by the appellant. In favour of assessee.
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2002 (9) TMI 108
Whether the respondent is covered by the proviso inserted in the notification No. 109/1986-C.E., dated 27th February, 1986, as amended by Notification No. 3/1988-C.E., dated 19th January, 1988 ?
Held that:- Even accepting the Tribunal's finding that the process does not strictly amount to stentering, it cannot be disputed that the process adopted by the respondent is analogous to stentering, as admittedly, the respondent is drying the fabric by passing through the hot air stenter.
In this view of the matter, the proviso clearly applies and the respondent, therefore, is not entitled to the benefit of the notification. The order under appeal is set aside.
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2002 (9) TMI 107
Exemption under Notification No. 208/83, dated 1st August, 1983 claimed - Held that:- To claim exemption under the Notification No. 208/83 the Appellants have to show under what Sub-Item the inputs used by them fall. The Appellants have claimed benefit of the Notification on the ground that input falls under Sub-Item 8. In our view the ends of flats cannot be pieces which are roughly shaped by rolling or forging. Sub-Item 8 deals with pieces of iron and steel which are given a rough shape by the process of rolling or forging. Sub-Item 8 would not cover pieces of bars, rods, flats etc. which are cut off from the main item.
The Appellants have purchased from scrap dealers is not denied. In our view this also indicates that ends of Flats do not fall under Sub-Item 8. As the inputs do not fall under Sub-Item 8, the Appellant would not be entitled to exemption under the Notification. Against assessee.
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2002 (9) TMI 106
Whether the respondent and M/s. International are related persons?
Whether, on the facts and in the circumstances, it is open to the Revenue to invoke the provisions of Section 11A of the Act?
Held that:- It was found that the respondent and M/s. International were having common Directors and that they were relatives of one another; a further finding was also noted that both the companies were family concerns and were beneficiaries of their ventures and that the benefit of both the concerns are shared by members of one and the same family. From these findings, it is difficult to resist the conclusion that the respondent and M/s. International have a direct interest, in the business of each other and that the mutuality of interest between the two is apparent. Once the findings are accepted, the conclusion that there is mutuality of interest between the two concerns is inevitable. In this view of the matter, we set aside the finding of the Tribunal that the respondent and M/s. International are not related persons.
As it is clear that the respondent had disclosed the correct facts including the price at which the goods were sold to related person and the difference in the price. In view of this declaration, it is futile to contend that there was any suppression of fact on the part of the respondent. The learned Attorney General does not seriously dispute this position. It follows that the larger period of limitation provided in Section 11A of the Excise Act is not available to the Revenue. We, therefore, confirm the conclusion arrived at by the Tribunal on this aspect. For the period April 11, 1978 to September 29, 1979 the show cause notice was issued on April 13, 1982 which is far beyond the period of six months, therefore, the Revenue is not entitled to claim any difference of duty.
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2002 (9) TMI 105
Issues involved: Classification of 'Kum-Kum pencil' u/s Heading 3304.00 or 3307.00 of the Central Excise Tariff Act, 1985 and entitlement to benefit of Notification No. 235/1988-C.E.
Judgment Summary:
The appeal concerned the classification of 'Kum-Kum pencil' under the Central Excise Tariff Act, 1985 and its eligibility for the benefit of Notification No. 235/1988-C.E. The Assistant Collector and the Collector (Appeals) classified 'Kum-Kum pencil' under Heading 3307.00, but found it to be a form of 'Kum-Kum' eligible for the notification benefit. However, the Tribunal excluded 'Kum-Kum' in pencil form from the notification's benefit, contrary to other forms. The Supreme Court held that since 'Kum-Kum' is available in various forms and the notification did not specify exclusion, 'Kum-Kum' in pencil form should also be included.
Notification No. 235/1986-C.E. exempted goods under sub-heading 3307.90, including 'Kum Kum' and kajal. The notification encompassed 'Kum Kum' in multiple forms, as evidenced by its availability in the market for making a forehead mark. The Court found no valid reason to exclude 'Kum-Kum' in pencil form from the notification's scope, as the general term 'Kum-Kum' should cover all its forms. Consequently, the Court set aside the Tribunal's order and reinstated that of the Collector (Appeals).
The civil appeal was allowed in favor of the manufacturer-assessee, with no costs incurred. Another appeal was also allowed in line with the previous judgment, with no additional costs imposed.
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2002 (9) TMI 104
Whether plastic body, a part of Electro Mosquito Repellant, and 'Fragrant Mat' are chargeable to excise duty under Clause 5(f) of Notification 160/86-C.E. dated March 1, 1986 and Sub-Heading 3307.49, respectively, of the Central Excise Tariff Act, 1985?
Held that:- If one goes to the market to purchase plastic body of EMR of the respondents either for replacement or otherwise one cannot get it in the market because at present it is not a commercially known product. For these reasons, the plastic body, which is a part of the EMR of the respondents, is not 'goods' so as to be liable to duty as parts of EMR under para 5(d) of the said exemption notification.
As already mentioned that not merely 'Agarbatti' and 'Dhoop' but preparations which are akin to 'Agarbatti' and 'Dhoop' and which can produce vapour on burning and spread perfume would fall within the meaning of that entry. From the process of manufacture of Fragrant Mat, noted above, it cannot but be held that preparation in Mat form is similar to that of 'Agarbatti'. Therefore, Fragrant Mats are classifiable under Sub-Heading 3307.41 and not under 3307.49 of the Tariff Act. Appeal dismissed.
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2002 (9) TMI 103
Whether the benefit of exemption under Notification No. 217/86 (as amended by Notification No. 82/87-C.E.) can be granted to assessee?
Held that:- A perusal of the Notification as amended by Notification No. 82/87, extracted above, shows that the description of inputs given in column (2) under Chapter 25, would be 'plaster of paris' and the final product given in column (3) under Chapter 69 would be 'ceramic goods'.
It follows that plaster of paris which is used as inputs in relation to the manufacture of sanitaryware (final product), is exempt under Notification No. 217/86, dated April 2, 1986, as amended. In favour of assessee.
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2002 (9) TMI 102
Whether another Division Bench or a Full Bench had jurisdiction or competence to review an earlier Division Bench division of that particular court?
Whether it could be treated as affirmed, for whatsoever reasons, by the Supreme Court on a plea that in view of the decision having been dealt with by the Supreme Court the decision of the High Court was no longer available to be reviewed?
Held that:- Under article 141 of the Constitution, it is the law declared by the Supreme Court, which is binding on all courts within the territory of India. Inasmuch as no law was declared by this court, the Full Bench was not precluded from going into the question of law arising for decision before it and in that context entering into and examining the correctness or otherwise of the law stated and either affirming or overruling the view of law taken therein leaving the operative part untouched so as to remain binding on the parties thereto.
Inasmuch as in the impugned judgment, the Full Bench has not adjudicated upon the issues arising for decision before it, we do not deem it .proper to enter into the merits of the controversy for the first time in exercise of the jurisdiction of this court under article 136 of the Constitution. We must have the benefit of the opinion of the Full Bench of the High Court as to the vires of the State legislation involved. Appeal allowed. The impugned judgment of the High Court is set aside. All the appeals shall stand restored before the Full Bench of the High Court and shall be heard and decided in accordance with law.
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2002 (9) TMI 101
Benefit of the Kar Vivad Samadhan Scheme - Whether the directors/officers are entitled to a refund?
Held that:- A reading of the Kar Vivad Samadhan Scheme (Removal of Difficulties) Order shows that where a declaration had been made in respect of a tax arrear and where in respect of the same matter a show-cause notice had also been issued to any other person, then the settlement in favour of the declarant has to be deemed to be full and final in respect of other persons on whom show-cause notices had been issued. It is settled law that when an appeal is pending there is no finality to the proceedings. The proceedings are then deemed to be continuing. Undoubtedly, at one place the Kar Vivad Samadhan Scheme (Removal of Difficulties) Order seems to state that the show-cause notice should be pending adjudication. However, the same order also talks of the show-cause notice being in respect of the same matter on which the show-cause notice has been issued to the main declarant. Then the order provides that a settlement in favour of the declarant will be deemed to be full and final in respect of other persons also. This order has to be read as a whole.
Thus, even though the show-cause notice may have been adjudicated upon and an appeal is pending a party could still take the benefit of the Kar Vivad Samadhan Scheme and file a declaration. The object of the Kar Vivad Samadhan Scheme (Removal of Difficulties) Order is to give benefit of a settlement by the main party (i.e., the company in this case) to all other co-noticees.
Admittedly, in this case, all the officers have paid the amounts in pursuance of the declaration made by them under section 88. Even if they have paid the amounts under protest they are not entitled to refund. The directors/officers in Kerala would also not have been entitled to refund by virtue of section 93. However, section 93 does not seem to have been pointed out to the High Court of Kerala. As, pursuant to the order of the High Court of Kerala, they have received refund we do not direct that they should repay the amounts to the Revenue.
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2002 (9) TMI 100
Issues Involved:
1. Legality of the order for special audit u/s 142(2A) of the Income-tax Act, 1961.
2. Compliance with principles of natural justice.
3. Complexity of accounts and necessity for special audit.
Summary:
1. Legality of the order for special audit u/s 142(2A):
The petitioner-assessee challenged the order dated November 8, 2001, approving a special audit u/s 142(2A) of the Income-tax Act, 1961. The petitioner argued that there was no warrant for a special audit as the tax audit report u/s 44AB and statutory audit report under the Companies Act, 1956, were already furnished and found faultless by the assessing authorities. The petitioner contended that the impugned order was made on extraneous, irrelevant, and collateral considerations without proper application of mind or satisfaction of the conditions precedent for forming the requisite opinion.
2. Compliance with principles of natural justice:
The petitioner-company was previously informed on February 27, 1991, about the proposed special audit for the assessment year 1988-89, which was challenged and quashed by the court on July 12, 2001, with liberty to the respondent authorities to give a hearing if they wished to take steps u/s 142(2A). The Commissioner of Income-tax (CIT) afforded a hearing to the petitioner on October 19, 2001, and the petitioner submitted objections on November 6, 2001. The impugned order recorded that the CIT discussed with the petitioner's representatives and reviewed their submissions. However, the petitioner argued that the opportunity of hearing was a mere formality as the CIT had a predetermined mind.
3. Complexity of accounts and necessity for special audit:
The CIT's impugned order stated that the accounts were complex and some vital information was not ascertainable, necessitating a special audit. The petitioner contended that all requisitions by the Assessing Officer were complied with, and no fault was found with the audit reports submitted. The court observed that the power to direct a special audit should be based on objective criteria and not exercised lightly. The court found that the Assessing Officer did not make an honest attempt to understand the accounts and could have called for additional particulars if needed. The court held that the grounds for the special audit were not justified as the complexity of the accounts was not established.
Conclusion:
The court quashed and set aside the impugned order dated November 8, 2001, for special audit u/s 142(2A) for the assessment year 1988-89, allowing the respondent authorities to proceed with the finalization of the assessment in accordance with the law. The writ application was disposed of without any order as to costs.
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2002 (9) TMI 99
Advance Tax, Powers Of High Court, Levy Of Interest - An order dated December 10, 2001, passed by the Chief Commissioner of Income-tax, Delhi-III, New Delhi, in pursuance of the notification issued by the Central Board of Direct Taxes (for short "the Board") under section 119(2)(a) of the Income-tax Act, 1961 (for short "the Act"), dated May 23, 1996, for waiver of interest under sections 234A, 234B and 234C of the Act, is under challenge in this writ petition. By the impugned order, the Commissioner has granted partial waiver of the interest charged from the petitioner under section 234B of the Act. - the writ petition, being devoid of merit, is dismissed.
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2002 (9) TMI 98
Appeal To CIT(A), Draft Assessment Order - "Whether, on the facts and in the circumstances of the case, the Appellate Tribunal was right in law in holding that the Commissioner of Income-tax (Appeals) was not competent to entertain the enhancement petition made by the Department?" - Our answer to the question referred, therefore, is in favour of the Revenue and against the assessee.
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2002 (9) TMI 97
Capital Or Revenue Expenditure, Technical Know-how - whether this expenditure by the assessee was of a capital or a revenue nature. The Assessing Officer had held the expenditure to be of a capital nature and allowed depreciation but disallowed total deduction. - We are still less concerned with the provisions introduced in 1998 in section 32(1)(ii) of the Income-tax Act which relates to depreciation of know-how which is used for the purposes of the assessee's business. - Since these sections are not involved and the matter does not require any consideration of any still unsettled point of law, the appeal petition is summarily rejected.
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2002 (9) TMI 96
Business Income, Banking Business, Bad Debts, Sticky Loans, Business Expenditure - "Whether, on the facts and circumstances of the case, the assessee was entitled to deduct net interest paid by the assessee for the broken period to persons from whom the assessee bought Dated Government Securities while computing the assessee's business income?" - we find that the assessee's method of accounting does not result in loss of tax/revenue for the Department. That, there was no need to interfere with the method of accounting adopted by the assessee-bank.
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2002 (9) TMI 95
In my view, this is one of the exceptional cases where this court should exercise its power under article 226 of the Constitution of India for quashing the said notice as I am of the opinion that on the face of the recorded reasons palpably the initiation of the proceedings are wholly unwarranted and the reasons recorded do not satisfy the requirements of the law to invoke the jurisdiction of the Assessing Officer under section 147. The entire course Of reassessment proceedings will be an exercise in futility. It has been observed by the apex court in Calcutta Discount Co. Ltd.'s case, that the High Courts have ample powers under article 226 of the Constitution of India, and are in duty bound thereunder, to issue such appropriate orders or directions as are necessary in order to prevent persons from being subjected to lengthy proceedings and unnecessary harassment by an executive authority acting without jurisdiction. The alternative remedies that are provided by the Income-tax Act, 1961, cannot always be a sufficient reason for refusing quick relief in a fit and proper case.
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