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1984 (6) TMI 266
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... ... ..... ach movie in the case of a producer is a separate and an independent industrial undertaking and, therefore, the provisions of Section 37(3D) are applicable and not those of Section 37(3A). 8. It may not be out of place to mention that our above interpretation is also justified on equitable grounds. The reason behind the provisions of Section 37(3D) appears to be that the advertisement expenditure on a new product including the movie/picture in the initial stages should be allowed in full as that is a bare necessity for the carrying on of the business while after a few years the necessity may or may not be so much. In the case of a film producer, the movie/picture is a new product which requires a separate establishment and new advertising machinery. No doubt, the banner under which it is produced has also some advertising value but the main thing is the picture or the cast and not the banner. 9. In the result, the departmental appeal is dismissed though for different reasons.
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1984 (6) TMI 265
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... ... ..... f the relief granted or adjudication made. When there is no judgment to which finality could; be attached, no relief nor any adjudication could be regarded as having been granted or made. 9. For the foregoing reasons, in my opinion, the appeal preferred by the first and second respondents before the lower appellate court will require to be treated as not having been disposed of in accordance with law. The decree formally drawn up and duly signed will have to be treated as having no effect in the eye of law. The appeal will require to be readmitted on the file of the District Court and heard and decided afresh. Order accordingly. 10. Since the appeal was originally instituted in the District Court in March 1982, it would be expedient in the interest of justice to dispose it of as expeditiously as possible. Let early steps be taken in that direction. Let the parties appear before the District Court on June 14, 1984. 11. Rule made absolute accordingly with no order as to costs.
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1984 (6) TMI 264
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... ... ..... n and needs constant medical attention. I am sure that the prison authorities will arrange for proper treatment of the respondent whenever the need for it arises. I am informed that in a criminal revision petition filed by one of the accused the High Court has stayed the trial of the case. The High Court is requested to dispose of the case early since the accused are all in judicial custody. The order of bail passed by the High Court was suspended by this Court by an order made on 4/06/1984 and the respondent was ordered to be rearrested and kept in judicial custody. The respondent is now taken back into judicial custody. ( 7. ) In the result, the order of the High Court enlarging the respondent on bail is set aside and the respondent is directed to remain in judicial custody until further orders to be passed by a competent Court. The trial Court shall proceed to dispose of the case without feeling itself bound by any of the observations of the High Court. Order accordingly.
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1984 (6) TMI 263
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... ... ..... rable clarity by the Calcutta High Court in the case of Mercantile Express Limited v. Assistant Collector of Customs wherein it has been held that the Revenue authorities like Customs and Central Excise are bound by their own earlier decisions, whether correct or incorrect, and they cannot rectify their wrong decisions in subsequent cases See also AIR 1968 Supreme Court 372, AIR 1961 Guj. 22, AIR 1968 Patna 284 and 1980 E.L.T. 752 (Guj.) . The Orissa High Court while dealing with an excise matter in the case of Orissa Forest Corporation v. Assistant Collector-1982 E.L.T. 875 has held that the appellate order should be respected by the subordinate Revenue authorities so long as they remain in force and are not set aside by the higher authorities. The special Bench of the tribunal itself in the case of Guest Keen Williams Ltd. v. Collector ofC.E-1985 (22) E.L.T. 504, has held that lower quasi-judicial authorities are bound by the decisions of higher quasi-judicial authorities.
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1984 (6) TMI 262
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... ... ..... ;s office remaining closed is not reckoned in computing the period of 24 hours. In this connection, we have been referred, on behalf of the Company, to a Trade Notice No. 15/83 issued by the Additional Collector of Central Excise, Hyderabad, in which it is stated that holidays on which the Central Excise Office is closed are to be excluded for computing the aforesaid period prescribed under the various Central Excise Rules. It is not known if this Trade Notice is based on a relaxation granted by the Central Government in terms of Rule 173L(4). In the circumstances of the case, we are inclined to extend the benefit of this Trade Notice to the present case. Hence, we find that the benefit of Rule 173L be extended to all the three consignments covered by Gate Pass No. 129/ 17-10-82, 130/18-10-82 and 131/18-10-82. 9. In the result, Appeal No. 446/83 of M/s. Foods, Fats and Fertilisers is allowed and Appeal No. 471/83 of the Collector of Central Excise, Guntur, is dismissed.
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1984 (6) TMI 261
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... ... ..... tive to that situation. It does not in any way effect the basic objective of Rule 56A that the quantum of duty paid on the raw material, contained in a unit or the finished product if it larger than quantum of duty per unit on the finished product, cannot be utilised by the manufacturer of the finished product merely because he happens to use that raw material in the production of an excisable product which carries a lower quantum of duty per unit. We also note that Rule 11, as it existed at the relevant time, provides for refund of duty paid in excess but it does not say in what manner the refund should be made-whether in cash or by cheque or by means of certain credits to accounts prescribed statutorily. The amount due should be credited to the RG 23 account, if such credit is needed for adjustment of any duties payable, the liability for which may be determined on or after 1-7-1976. The appeal is dismissed in so far as it seeks to get refund of the excess payment in cash.
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1984 (6) TMI 260
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... ... ..... ing subject to a duty of excise and were goods which were manufactured or produced in India they could not be removed unless duty at the rate set forth in the First Schedule to the Act was paid.” He also referred to the judgment of the Gujarat High Court in the case of Alembie Chemical Workes Co. Ltd., Baroda v. Union of India and others 1979 E.L.T. (J 258) where the same view has been expressed. From these judgments, he argued that the rate of duty relevant to a transaction is the one prevalent at the time of removal of the goods from the factory and in the present case what is being sought to be enforced. 11. We find that the combined effect of Sec. 3 and Rules 7, 9 and 9A as laid down by Their Lordships of Bombay and Gujarat High Courts, will be to hold that the impugned order is maintainable in law. 12. In the result, we hold that the order of the Appellate Collector of Central Excise is maintainable on facts and law. Accordingly, the appeal is dismissed.
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1984 (6) TMI 259
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... ... ..... Notification No. 201/79 goods have to be received under cover of the relevant gate pass. The gate pass issued by the manufacturer of raw materials or components is a document valid up to the first point of its destination. By implication, therefore, set off is available only for the first receipts of the component parts from the manufacturer thereof. We also note that where goods are indented through agents, Government have prescribed a special procedure which admittedly has not been followed by the appellants in the present case. We further note that in a similar situation under Rule 56A, we have already held a similar view in Appeal No. ED (MAS) 136/83. The order of the Government of India relied upon by the appellants may at best serve to have some persuasive value; unfortunately it does not contain any reasoning as to why the relaxation had been granted by the Government and hence does not serve even this limited purpose. In the result the appeal fails and is dismissed.
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1984 (6) TMI 258
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... ... ..... , we set aside the order of the Appellate Collector of Central Excise, Madras, appealed against and restore the order of the Asstt. Collector of Central Excise, Hosur Division, Hosur in C. No. V/1/30/60/81 T.3 dated 29-6-82. The amount demanded by the Assistant Collector shall be paid by the respondents within 30 days from the date of service of this order on the respondents. 8. During the hearing of the case, mention was made of the provisions of Section 11 which provides for recovery of sums of any kind payable to the Central Government. This point has not been agitated in the forums below. We, therefore, do not deal with it at length except to observe that even in that Section the reference is to sums payable under any of the provisions of this (Central Excises and Salt) Act or the Rules made thereunder. In view of our finding earlier that the amount paid is by way of administrative or banking function, prima facie, the provisions of Section 11 may not be applicable.
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1984 (6) TMI 257
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... ... ..... o; to be constitutionally valid. 16. In the result, the petition succeeds and the impugned order is modified to the extent it denies the right to copies of statements and documents at the commencement of the trial. The petitioners would be supplied copies of statements, recorded under Section 161 of the Code, in the course of investigation, as also copies of documents, which were seized in the course of investigation, and are sought to be used at the trial, subject, however, to the rider that if the trial Court considers any document to be voluminous it may instead of directing a supply of its copy permit the petitioners to inspect the document and make copies thereof before the commencement of the trial. It would, however, be open to the Court to moderate the question of cost of supplying copies since the right could not extend to copies “free of cost” as envisaged by the Code. 17. Parties are directed to appear before the trial Court on July 11, 1984.
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1984 (6) TMI 256
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... ... ..... for to the satisfaction of the proper officer. This has not been done in the instant case. What could have happened to the missing goods is not relevant to an adjudication under Section 116 ; nor has this been attempted in the order of the Tribunal. This question is therefore, without any foundation. 5. Question (7) Once it is found that there is non-accountal to the satisfaction of the proper officer, imposition of penalty follows 6. Question (8) The quantum of penalty to be imposed is a matter of judicial discretion subject to an upper limit of twice the amount of duty payable on the goods. In the absence of any claim or even allegation that the imposition of penalty or determination of its quantum is mala fide or for collateral purposes, the mere exercise of discretion is not an issue involving any point of law to merit a reference to the High Court. 7. As none of the questions raised by the applicant involves any point of law, the application is rejected.
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1984 (6) TMI 255
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... ... ..... n the prayer for high prerogative writs, on the negative plea of ‘alternative remedy’ since the root principle of law married to justice, is ubi jue ibi remeduim. ...” 11. In summation (a) duty was collected by the Department without authority of law; (b) the appellant came to know of its mistake in paying such duty when the Gujarat High Court delivered its judgment on 17th/18th March, 1972; (c) the writ petition was filed within 3 years thereafter; (d) restitution must be made. It is as simple as that. 12. The appeal is allowed and the judgment and order of the learned Single Judge are set aside. The Department shall within 4 weeks from today make the requisite calculations, if any, of the countervailing duty paid by the appellant between 1962-1965 and shall within 2 weeks thereafter refund to the appellant the countervailing duty found payable. Rule is made absolute accordingly. The respondents shall pay to the appellant the costs of the appeal.
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1984 (6) TMI 254
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... ... ..... or does it impose new duties in respect to the transactions which were complete at the time when the amendment came into force. It has been held by the Hon’ble Supreme Court in the case of New India Insurance Co. Ltd. v. Smt. Shanti Misra (1976 AIR SC 237) that a change in law which relates to a change of forum is a change of procedural law and not of substantive law. Such a change of law operates retrospectively and, the person has to go to the new forum, even if his cause of action or right of action accrued prior to the change of forum. The ratio of this decision of the Supreme Court squarely applies to the facts of the case before us. The settled legal position completely negates the contentions of the applicant and clearly establishes that the Tribunal has merely followed the ‘well settled’ legal position as pronounced upon by the Hon’ble Supreme Court. In these circumstances, the reference application is misconceived and is, therefore, rejected.
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1984 (6) TMI 253
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... ... ..... detract from the character of wholesale cash price; (j) once this was so, there was no question of any reduction in such prices for the ascertainment of the assessable value, except cost of transport, where permissible in terms of the ratio of the Supreme Court decision in 1983 E.L.T. 1896 (S.C.), adverted to supra. 6. Accordingly, we hold that the prices charged by the Appellant from their buyers, less excise duty, if included therein and such cost of transportation as is permissible in the light of the ratio in 1983 E.L.T. 1896 (S.C.) (Union of India v. Bombay Tyres International Limited etc.) is the assessable value. 7. In the result we hereby allow the appeal in the above terms, and remand the case for the re-determination of the assessable value after giving allowance for the cost of transportation in so far as it is permissible, in terms of the decision of the Supreme Court supra, and excise duty where it was included in such price. 8. Order accordingly.
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1984 (6) TMI 252
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... ... ..... to be remanded to the Appellate Collector, now Collector (Appeals) for decision of the appeal on other grounds urged by the respondent other than Rules 9 and 49 of the Rules which are not available to the respondent in view of the amendment. 9. As a result of the discussion, the order passed by the Appellate Collector is set aside and the matter remanded to him for de novo decision in the light of new grounds urged by the respondent (appellant before the Appellate Collector) and the evidence produced before the Tribunal and such further evidence as the Collector of Central Excise (Appeals) may allow them to produce before him. The Department shall have the opportunity of rebutting the evidence adduced by the respondent and then the Collector (Appeals) Central Excise, shall pass fresh orders in accordance with law. The appeal by the Department is thus allowed and the matter remanded to the Collector of Central Excise (Appeals) for de novo consideration and adjudication.
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1984 (6) TMI 251
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... ... ..... ults from an approval accorded by the proper officer of that assessment-such as the approval of the classification list-there can be an short levy of the kind that will attract Rule 10. 18. However, we have already decided in Order No. 253/84 dated 14th May, 1984 that the product produced by M/s. Bhor Industries, that is to say, the PVC coated paper was covered by Notification 68/76-C.E. Indeed it is not explained in the Collector’s order why the product he calls PVC coated paper was not covered by that notification. We have seen that the Central Excise had approved the classification list extending the exemption to this product. But for reasons we are not still very clear about, they sought to take away the exemption and issue the demands for the past clearances. As we have already held in the earlier order that the product was entitled to exemption, we set aside the Collector’s order. Refund of moneys recovered under that order should be given in 3 months.
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1984 (6) TMI 250
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... ... ..... force on 1-3-1979 and, as on 28-3-1979, there was no exemption granted in respect of the subject goods from this levy. As such, we do not think that the learned Counsel’s contentions in this behalf have any force. It is not as if, in the facts and circumstances of the case, two views are possible and the notification (ad-hoc exemption order in the present case) has to be construed in favour of the assessee in the present case. In our view, no two views are possible. We do not accept the SDR’s contention that the IOC has no locus standi in the matter. Though the ad hoc exemption order refers to import by CPC, the bill of entry was filed by the Custom House Agent in the name of the CPC A/c IOC. Moreover, the locus standi of IOC in the proceedings has not been questioned before the lower authorities. It is too late in the day to raise this question, apart from the fact that, in our view, IOC has locus standi. 8. In the result, the appeal fails and is rejected.
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1984 (6) TMI 249
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... ... ..... supplies of superior kerosene under bond under Rule 13 of Central Excise Rules to foreign bound aircraft. In the next sentence he explains why he said so. He said that the classification lists filed by the appellants have been approved including the levy of duty and the special excise with different dates of effect. It is clear from this order of the Assistant Collector that he is only correcting the classification list which needed correction. It also appears that this order was not preceded by any notice calling upon M/s. Bharat Petroleum to show cause why duty should not be demanded or recovered. This order of 16th November, 1978 is, therefore, defective, not merely on merits but also because it did not follow the procedure set out by law for demanding and recovering duty thought to be short levied. 8. For the reasons stated above, there is only one conclusion we have to reach and that is that the demand is not sustainable and must be set aside. We order accordingly.
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1984 (6) TMI 248
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... ... ..... the Port Trust and if theft or pilferage had taken place before actual delivery to the consignees. As a matter of fact, this Regional Bench has been consistently holding following the decision of the Delhi High Court that the expression “lost” or “destroyed” appearing in Section 23(1) is not used in any narrow or particular sense but in a broader sense and includes the loss or destruction caused by whatsoever reason. 9. As has been stated earlier, the evidence adduced in this case established that the loss took place when the goods were in the custody of the Port Trust authorities and as such the appellants could not take actual physical delivery. Therefore, in law, the appellants became entitled to claim refund of the duty paid by them. 10. In the result for the reasons stated above I allow both these appeals and direct the consequential relief to the appellants in both the appeals within four months from the date of communication of this order.
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1984 (6) TMI 247
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... ... ..... oms duty is concerned, is not, therefore, tenable. 7. As regards the question of countervailing duty, Item 32-CET reads “Electric Lighting bulbs and fluorescent lighting tubes- (1) Vaccum and gas filled bulbs. (2) and (3) are not relevant. (4) All sorts, not otherwise specified." It is clear that only electric lighting bulbs, and not other bulbs, are covered by this item. It is also clear that an identical description in Item 60(2) of the erstwhile ICT was held by the Board to exclude bulbs specially designed for scientific apparatus. From the facts before us, the subject bulbs are clearly of this category viz. specially designed for scientific apparatus and they would not be liable to countervailing duty under Item 32. They would be classifiable under Tariff Item 68 CET. However, no countervailing duty would be chargeable in view of the fact that such duty on imported goods was levied only w.e.f. 1-3-1979. 8. In the result, the appeal is partly allowed.
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