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Showing 121 to 140 of 285 Records
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1992 (3) TMI 180 - CEGAT, NEW DELHI
Rectification of mistake ... ... ... ... ..... sel does appear as having argued for the appellants. However, this omission being an apparent error on the face of the record needs to be rectified and it is accordingly ordered that in the Tribunal rsquo s final Order No. 523/91-A dt. 5-8-1991 in the title portion the name of Shri Dushyant Dave, advocate be added, as advocate appearing for the appellants. 4. As regards the omission of the word ldquo million rdquo at page 12 of the order this is not an apparent error on the part of the Tribunal because the Tribunal was only quoting from a document produced by the appellants. We have perused that document again today during the hearing and find that in that document itself the word ldquo million rdquo does not occur. Therefore, there is no error apparent to be rectified. We also note that the plea for insertion of observation regarding consequential relief has since been withdrawn by the learned counsel during his submissions. The application is disposed of in the above terms.
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1992 (3) TMI 179 - CEGAT, NEW DELHI
Rate of duty ... ... ... ... ..... Counsel for the respondents therein that ldquo if the meaning under Glossary of terms of Petroleum Products be assigned to the expression feed stock used in the Notification then also it will merit exemption under the Notification rdquo . In other words the learned Counsel sought to emphasise that the Tribunal rsquo s finding was based upon the concession of the respondents rsquo Counsel. We do not agree. The Tribunal has taken into account the meaning of feed stock under the glossary of terms of petroleum products in arriving at this conclusion. We are, therefore, unable to distinguish the facts of Fertilizer Corporation of India case from the facts of the present appeal. 4. Respectfully following the ratio of the earlier orders of the Tribunal, we hold that the LSHS used in the generation of steam is not entitled to the benefit of concessional rate of duty in terms of Notification No. 147/74. We set aside the impugned order and allow the appeal. The cross objection abates.
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1992 (3) TMI 178 - CEGAT, NEW DELHI
MODVAT Credit ... ... ... ... ..... ides and perused the records. There is no requirement that inputs should be present in the final product or it should be consumed in order to qualify for modvat benefit. It is clear that to become input it must be used in or in relation to the manufacture of goods. If lead is used in the process of manufacture of final product, there cannot be any doubt in availing modvat credit as per Explanation to Rule 57A. As long as they are used in or in relation to the manufacture of the final products and are not specifically excluded from the scope of the benefit like machines, machinery appliance etc. in the explanation clause in Rule 57A of the Central Excise Rules or by exclusion in Notification No. 177/86-C.E., dated 1st, March, 1986, modvat credit has to be allowed. The cases cited by the learned counsel for the appellants definitely support their case, as pointed out above. In the view I have taken, I set aside the impugned order and allow this appeal with consequential relief.
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1992 (3) TMI 177 - CEGAT, NEW DELHI
MODVAT Credit ... ... ... ... ..... ise Rules. I find that assessable value of purchased duty paid inputs on which credit is taken under Rule 57A was allowed to be cleared for home consumption on appropriate rate of duty under Central Excise Rule 57F(1)(ii) as if such inputs have been manufactured in the same factory. It is evident that the appellants are not manufacturer of the inputs but they purchased duty paid inputs which were cleared from the original manufacturer. If the assessee is also manufacturing the goods in question, the rate of duty applicable will be the rate of duty as prevalent at the time of clearance of the goods. Since the inputs in question were already cleared on payment of duty at the appropriate rate from the original manufacturer of the inputs, I feel that there is no justification for the recovery of higher rate of duty as it was rightly contended by the appellant rsquo s counsel. In the view I have taken, I set aside the impugned order and allow this appeal with consequential relief.
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1992 (3) TMI 176 - CEGAT, NEW DELHI
Valuation
... ... ... ... ..... cause notice admittedly was given after six months from the closing of the accounting year. Therefore, the whole demand is barred by limitation. 11. As regards the demand for the period from 1-4-1976 to 31-3-1977, the show cause notice is barred by limitation from 1-4-1976 to 31-12-1976. As regards the demand from the 1st Jan. to 31st March, 1977, it is within the period of limitation. Similarly, the show cause notice dated 3-4-1978 for the period from 1-4-1977 to 30-9-1977 is within the period of limitation as it is within a period of six months from the closing of the accounting year. For the period from 1-10-1977 to 28-2-1978, the show cause notice dated 3-4-1978 is also within the period of limitation. 12. Though some of the show cause notices are within the period of limitation, since the demands are set aside on merits namely, that the appellants are entitled to the deduction of the discounts given to their stockists, the appeal is allowed and the demands are set aside.
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1992 (3) TMI 175 - CEGAT, NEW DELHI
... ... ... ... ..... the transit and allow the same. 20. The next item of dispute is the turnover tax paid by the appellants. The Collector directed that the appellants should pay the tax and claim refund. The observation of the Collector is quite contrary to the observations of the Supreme Court in Bombay Tyre International 1984 (17) E.L.T. 329 (S.C.),. According to the Supreme Court, turnover tax should be allowed to be deducted from the sale price in order to arrive at the assessable value and also octroi where payable/paid by the manufacturer. In this case, there is no dispute about the fact that the turnover tax is payable and therefore, instead of paying it and claiming refund, in terms of the Supreme Court judgment, the appellants are entitled to the deduction of the turnover tax payable. We accordingly, modify the order of the Collector in so far as the turnover tax is concerned. As regards the other claims, we dispose of the same in the above lines. The appeal is disposed of accordingly.
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1992 (3) TMI 174 - BANGALORE HIGH COURT
Contempt Proceedings ... ... ... ... ..... e point of time, the respondent had made such an application to Court but, for some unexplained reason, it did not reach hearing and no order was made thereon. The complainant says he has no know ledge of such application. The respondent must, therefore, be held to be in breach of the learned Judge rsquo s order even in so far as he did not comply with it within the time specified. 5. We have quoted the observations of the respondent in his order. He refers to ldquo the limited time made available to him rdquo . It is true that the Court gave him four weeks rsquo time but he forgets that he took almost 11 months. In any event, he has in this behalf tendered an affidavit containing an unconditional and unqualified apology, which we accept. 6. For the other breaches aforementioned, we do not propose to take penal action, but we record our disapproval. 7. The respondent shall pay to the complainant costs quantified at Rs. 1,000/-. Order on the Contempt of Court Case accordingly.
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1992 (3) TMI 173 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... ave a misleading description. rdquo 9. In this case, however, the factual position is different. There is nothing on record to show that the disputed goods viz. control panel assembly was being treated by the appellants themselves as motor starters. Therefore, it cannot be said that suppression has been established. It is also pertinent to note here that no penalty has been imposed in the impugned order and this itself is a pointer towards the fact that the Department has not been able to conclusively establish the allegation of suppression. We, therefore, hold that the demand for the period upto 30-9-1985 is barred by limitation and the Department would be entitled to levy duty only for the period from 1-10-1985 to 31-12-1985. In the result we uphold classification of the control panel assembly manufactured by the appellants under TI-30B and we further hold that the demand is valid for the period 30-9-1985 to 31-12-1985 only. 10. The appeal is disposed of in the above terms.
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1992 (3) TMI 172 - CEGAT, NEW DELHI
Valuation - Valuation on the basis of transaction value of similar goods ... ... ... ... ..... to in the show cause notice, no reliance can be placed on the said report. We agree with Shri Nankani in this aspect. 17. From the above, it follows that neither the price of M/s. Pandya Plastics nor the price referred to in the Platts International Petro Chemical Report can be relied on for ascertaining the value of imported goods. 18. The appellants themselves in their reply to show cause notice referred to a number of Bills of Entries indicating the imports during the relevant period. The Collector has neither referred to the said Bills of Entry nor considered them. We, therefore, direct the Collector to examine and consider the assessable value of the goods in the light of Bills of Entries filed by the appellants. If the conditions, either under Rule 5 or 6 of the Customs Valuation Rules of 1988 are satisfied, he may adopt the same. 19. The appeals are thus allowed and remanded to the Collector for redetermining the assessable value in the light of the above observations.
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1992 (3) TMI 171 - CEGAT, NEW DELHI
... ... ... ... ..... s entitled to immunity from Customs laws if it is shown that the Nataraja idol with pedestal was his property and that he was exporting it to New York. Hence, it takes us to the second point for determination as to whether it was His Highness the Chogyal of Sikkim who was the owner of goods at the relevant time of its seizure and if so whether the immunity can be extended to him even though the adjudication proceedings were even at a time when he became an ordinary citizen of India by virtue of Sikkim rsquo s cession with India. 17. In view of the case laws noted above, the grounds taken up by the appellants are legal in nature questioning the jurisdiction of the authorities and hence, they can be raised for the first time before the Tribunal. The merit of the said ground can be looked into at the time of final hearing. At this stage, the additional grounds sought to be raised being legal in nature, are permissible to be raised and therefore, the Misc. application is allowed.
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1992 (3) TMI 170 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... same time, upholding the liability to duty on Neomycin Sulphate Capsules manufactured by the appellants as a Patent and Proprietary Medicine. We therefore set aside the order and refer the matter back to the Collector of Central Excise, Aurangabad for fresh adjudication after taking into account all the pleas which were raised before him and after granting hearing to the appellants before passing an order. There is also a ground in the appeal that the basis of calculation of duty has not been indicated and the appellant has, therefore, not been in a position to deal with the allegations. The Collector is directed to work out the calculation which we find missing from Annexure-II to the show cause notice. The work-sheet shall first be supplied to the appellants based on which they would be at liberty to make representation which should be considered before the order is finally passed. 5. Thus, the appeal is allowed by remand to the extent indicated in the preceding paragraph.
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1992 (3) TMI 169 - CEGAT, NEW DELHI
... ... ... ... ..... that in the absence of any evidence to support the enhancement of the value, the invoice value should be accepted. 8. During the course of arguments Shri Sawhney argued that issue relating to classification of the products in question also is required to be determined by the Tribunal as they were not correctly classified at the time of clearance. We are not inclined to go into that issue at this stage in view of the fact that this was neither an issue in the Show Cause Notice nor raised at any time during the adjudication proceedings before the Adjudicating Authority as it was rightly pointed out by the D.R. Further his requisition for grant of interest at the rate of 18 on the refund amount, if any, from the date of filing the appeal till the repayment also cannot be considered by the Tribunal as there is neither such provision in the Statute nor Tribunal can grant such relief being a creature of the very Statute. 9. Thus, these three appeals are disposed of the above terms.
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1992 (3) TMI 168 - CEGAT, NEW DELHI
S.S.I. exemption - Clubbing of clearances ... ... ... ... ..... the Learned Collector. The basis for allegation may at best lead to a reasonable suspicion but there is no valid proof of the allegation placed by the Department in view of the details available in second mahazar, which records about work in progress in some units. The rulings given in the cited cases on these similar allegations are fully applicable to the facts of this case -also. As noted above, the demands would also be time barred. As the facts of all the units being in existence and their activity being under physical control with regular checks, cannot be said to be not within knowledge of the Department. The type of activity is fully within the knowledge of the Department and hence charge of suppression is not sustainable. Therefore, applying the ratio of these rulings, the impugned order has to be set aside by allowing the appeals. As the appellants have succeeded on merit, there is no need to examine the applicability of Notification No. 42/81. 18. Appeals allowed.
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1992 (3) TMI 167 - CEGAT, NEW DELHI
... ... ... ... ..... rket in packets of 1 dozen each. These are used by ladies for tying their hair i.e. they are consumable items. We see no reason to differ with the finding of the adjudicating authority that the goods are consumer goods falling under Sl. No. 145 Appendix 2 Part B and, therefore, in the absence of a valid licence the goods have been imported unauthorisedly, in contravention of Section 11 of the Customs Act read with Section 3(2) of the Import and Export Control Act, 1947 and liable for confiscation under Section 111(d) of the Customs Act. The importers in Appeal No. C/436/90-C were given an option to redeem the goods on payment of a fine of Rs. 32,000/- which is hereby reduced to Rs. 25,000/-. The redemption fine of Rs. 25,000/- imposed on the importers in C/1540/89-C is hereby reduced to Rs. 20,000/-. The penalty of Rs. 10,000/- imposed on M/s. Satya Vijay Exports - Appeal No. C/1540/89-C is hereby set aside as not warranted. 13. The appeals are disposed of in the above terms.
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1992 (3) TMI 166 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... Item 18 and 22 and was issued declaring that it was not the intention that after introduction of Tariff Item 22F pending enactment of the Finance Bill excise duty should be levied on such goods both under Item No. 18 and 22 and under Item 22F. In the present case there is on record, the test report dated 8-7-1982 by the Chemical Examiner, Customs House, Calcutta regarding the sample of glass fabric which was tested for physical properties and chemical composition. The test report shows that the sample received is a rectangular pale brown colour cut piece consisting of piece fabric entirely made of glass fabric yarn coated with a composition containing formaldehyde type of synthetic resin percentage of glass fabric 59.30 . The test report therefore, indicates that applying the predominance test classification of the goods under Item 22F, CET will be in order. 8. In the result classification of glass fabrics treated with resin in this case under TI 22F, CET is more appropriate.
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1992 (3) TMI 165 - CEGAT, NEW DELHI
Manufacture ... ... ... ... ..... nary reading with common sense will reveal to anybody that the appellant was not accepting the liability without protest. We have no hesitation to hold that the letter was in the nature of protest. That being the position, the question of limitation does not arise for refund of the duty. In these circumstances, the appeal is allowed, the order passed by the Tribunal and other authorities are set aside. It is declared that the appellant is entitled to refund of the amount. The appellant shall be paid interest at the rate of six per cent from the date of refusal with costs of this appeal quantified at Rs. 10,000/-. 4. In view of the observation of the Hon rsquo ble Supreme Court and keeping in view of the facts of the present case, we are of the view that the duty was paid by the appellants under protest with effect from 21-6-1982. With these observations, the appeal filed by the appellants is allowed. Revenue authorities are directed to give consequential effect to this Order.
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1992 (3) TMI 164 - CEGAT, NEW DELHI
Rectification of mistake ... ... ... ... ..... al or additional evidence or new argument can be accepted, at the rectification stage. Therefore, the introduction of fresh document obtained after the issue of the Tribunal rsquo s order in the manner sought to be done by the applicants is not permissible under that Section. Dealing with the other arguments on the application by the learned Counsel, it has to be borne in mind that rectification application should refer only to those errors apparent on the face of the records and not those which have to be established by arguments. Even in the case of Reference Application, the Supreme Court has laid down that findings on facts by the Tribunal cannot be disturbed by the High Court unless it was a case of no evidence or that the order was totally perverse. This is not the case in the present order of the Tribunal. In the result, no error apparent on the face of the record arises for rectification from the impugned order of the Tribunal. The application is, therefore, rejected.
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1992 (3) TMI 163 - SUPREME COURT
Promissory estoppel, its extent and applicability questioned
Held that:- Promissory Estoppel being on extension of principle of equity, the basic purpose of which is to promote justice founded on fairness and relieve a promisee of any injustice perpetrated due to promisor’s going back on its promise, is incapable of being enforced in a court of law if the promise which furnishes the cause of action or the agreement, express or implied, giving rise to binding contract is statutorily prohibited or is against public policy.
Return or refund of it or its equivalent, irrespective of form is repayment or refund of sales tax. This would be contrary to Constitution. Any agreement for such refund being contrary to public policy was void under Section 23 of the Contract Act. The constitutional requirements of levy of tax being for the welfare of the society and not for a specific individual the agreement or promise made by the government was in contravention of public purpose thus violative of public policy. No legal relationship could have arisen by operation of promissory estoppel as it was contrary both to the Constitution and the law. Realisation of tax through State mechanism for sake of paying it to private person directly or indirectly is impermissible under constitutional scheme. The law does not permit it nor equity can countenance it. The scheme of refund of sales tax was thus incapable of being enforced in a court of law.
Fallacy of such constitutionally inhibited policy, sacrificing public interest resulting in illegal private enrichment is exposed by claim of refund for nearly ₹ 2 crores, for a period of three years, only, when total investment in establishing the unit was ₹ 1.5 crores. Levy of tax to raise revenue for promoting economic growth of the State reduced itself in enhancing the profit margin of the manufacturer and the sales tax stood converted into income of the appellant. Such contrivance of law even though bona fide is legally unenforceable. Appeal dismissed.
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1992 (3) TMI 162 - ITAT PUNE
Interest On Securities, Tax At Source ... ... ... ... ..... s not made an application for every year in a separate form for certificate. There are so many lapses on the part of the assessee. 11. After exmining the facts and order of the CIT (Appeals) coupled with the case law and the arguments, we are of the opinion that the interest levied by the ITO is justified. The deletion of the same by the CIT (Appeals) does not appear proper. However, we are of the opinion that the interest should be levied on the amount which was not deducted at source though deductible from the date of crediting them to the account of the creditor up to the date of making the assessment on the creditor which dates are given as 1-10-1984 for assessment year 1983-84, 18-11-1984 for assessment year 1984-85, 18-11-1985 for assessment year 1985-86 and 22--8-1986 for assessment year 1986-87 and the ITO is directed to verify these dates before levying interest as directed. 12. In the result, the revenue succeeds and the appeals are partly allowed as indicated above
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1992 (3) TMI 161 - ITAT PUNE
Excise Duty, Mercantile System, Total Income ... ... ... ... ..... the CIT(A) have proceeded on the basis that the assessee has not disclosed primary fact of refund of excise duty or it was not offered as income or deemed income for the purpose of assessment and the non-disclosure of deemed income amounted to concealment of income, as held by the Punjab and Haryana High Court in the case of Behari Lal Pyare Lal. Nothing prevented the assessee from offering the income in Part III of the return of income subject to dispute that it is not taxable at all. This was not done by the assessee. On appreciation of all the facts and circumstances of the case, we are satisfied that the assessee had not furnished the particulars of income relating to the refund of excise duty and therefore, there was concealment of income and, consequently, penalty is warranted in law. Accordingly, we uphold the order of the CIT(A) and reject the grounds taken by the assessee. No argument was advanced on the point of limitation. 11. In the result, the appeal is dismissed
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