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Case Laws
Showing 161 to 180 of 236 Records
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1981 (1) TMI 76 - GOVERNMENT OF INDIA (REVIEW CASE)
Fabrics - Distinction between denim and dress material ... ... ... ... ..... he aforesaid contentions of the petitioners which have been supplemented by the affidavits from their employee do not carry their case any further, since the goods conform to the specification, which is ordinarily associated with denim cloth. Furthermore denim cloth can be both of heavier weight and lighter weight as pointed out in para 5 of the show cause notice issued in this case, Government see no reason not to treat the impugned goods as denim cloth merely because they were not of heavier weight. Also the petitioners contention that similar cloth was not classified as denim cloth is not substantiated. On the other hand, the fact is that the same Appellate Collector, who had allowed the petitioners appeal had rejected the appeals of some other manufacturers on the very issue. 10. In view of the above, Govt. hold that the order in question passed by the Appellate authority was not proper and legal and Govt. therefore set aside that order and restore the order-in-original.
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1981 (1) TMI 75 - GOVERNMENT OF INDIA (REVISION CASE)
Bulked yarn (acrylic hand knitting) - Meaning of - Interpretation ... ... ... ... ..... ure of impugned goods and since only goods manufactured with the aid of power would be covered under Tariff Item 18 Central Excise Tariff, the impugned goods are not dutiable at all. Government observe that the petitioners had not taken this plea either at the original or the appeal stage. Even in their revision application they have not raised this point. They have raised this plea belatedly at the time of personal hearing. Whether the petitioners used power for the manufacture of the impugned goods or not is a question of fact to be determined by the assessing officer. Govt. cannot entertain this new plea at this late stage and carry out enquiries to find out whether power was at all used in the petitioners factory. In view of this, Govt. cannot consider this plea of the petitioners. It would be open to the petitioners to take up this plea before the assessing officer. 11. Having regard to the foregoing, Govt. find no merits in the revision application and reject the same.
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1981 (1) TMI 74 - GOVERNMENT OF INDIA (REVISION CASE)
Refund - Computation of time-limit in case of exemption based on annual turnover ... ... ... ... ..... ces during the financial year 1976-77 in respect of the said goods would not exceed Rs. 2 lakhs only on the last day of the said financial year i.e. on 31-3-1977. The petitioners have therefore contended that the time-limit for filing the said refund claim should be computed from 31-3-1977 and, therefore, the refund claim dated 28 12-1977 was within the statutory period of 1 year from that date and was, therefore, not barred by limitation. 4. Government are of the view that there is considerable force in the petitioners contention viz. that the time-limit for filing refund claim in such cases should compute only from the close of the relevant financial year when alone correct position regarding eligibility of benefit of the relevant notification emerged. Govt. therefore, set aside the order-in-appeal, with direction that the petitioners claim for refund shall be disposed of on its merits, without being treated as time barred. The revision application disposed of accordingly.
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1981 (1) TMI 73 - GOVERNMENT OF INDIA
Tariff Item 68 - Scope of Notification No. 118/75 ... ... ... ... ..... falling under item 68 of the First Schedule of the Central Excises and Salt Act, 1944 manufactured in a factory and intended for use in the same factory, in which they are manufactured or in any other factory of the same manufacturer are exempted from the whole of Central Excise duty subject to the proper officer being satisfied that the said goods are intended for such use. 4. Government are of the view that the benefit of Notification No. 118/75-Central Excises, dated 30-4-1975 should be made available in respect of the impugned goods provided the Asstt. Collector of jurisdiction is satisfied by documentary evidence that the said goods which have been cleared from the petitioners factory were finally used in the factory at Nagda as contended by the petitioners. The said Asstt. Collector should also be satisfied in respect of common ownership of Harihar Polyfibers and the unit of Nagda as contended by the petitioners. 5. The revision application is disposed of accordingly.
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1981 (1) TMI 72 - GOVERNMENT OF INDIA
Intermediate product - Aluminium circles not dutiable ... ... ... ... ..... the learned Advocate, who explained the assessee s case stated that the order of the Appellate Collector did not warrant any revision. He stated that the assessee was making aluminium measures starting with aluminium sheets and in the process of cutting of sheets in order to make the measures they were getting the so called circles. He stated that the process was a continuous one and so called circles in question were never removed at the intermediate stage, he further pointed out that the impugned goods were never marketed as circles and they were obtained from sheets which had already paid duty under T.I. 27(b) of Central Excise Tariff. He submitted that under these circumstances it could not be said that the Appellate Collector had in any way erred in holding that the assessee did not manufacture circles within the meaning of item 27(b) of Central Excise Tariff. 3. Government see considerable force in the assessees contentions and accordingly drop the review proceedings.
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1981 (1) TMI 71 - GOVERNMENT OF INDIA
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... ... ..... itted and that these fans are also capable of being fitted to other items and are accordingly in the nature of industrial fans. He stated that this assumption was against facts because they were supplying their fans only to units like, Jaf Kay Engg. who are manufacturing cooling tousex and colling coils and Air Technic Corporation, who are manufacturing humidification plant used in Textile Mills. He further contended that the fans manufactured by them required minimum going up to 25 H.P., the lowest diameter fan weighed as such as 200 kgs., with its blast going up to 30 feet, the intensity being so much that no human being would be able to stand within 3-4 feet from the fan. Government see considerable force in the party contention that the fans manufactured by them were nothing but industrial fans falling under item 33(2) Central Excise Tariff, and that the Appellate Collector s order did not therefore warrant a review. 4. Government accordingly drop the review proceedings.
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1981 (1) TMI 70 - GOVERNMENT OF INDIA
Paints & Varnishes ... ... ... ... ..... treated as bituminous black, notwithstanding the presence of rubber. It was also submitted that there was no technical literature which ruled out the presence of rubber in bituminous blacks and in the absence of any authority, the benefit of doubt should go to the petitioners. They further submitted that an identical product manufactured by Shalimar Tar Products Ltd., under the name of chasis black was even today being classified under tariff-item 14-II (ii) by the Bombay Central Excise. 5. Government observe that in view of the predominance of bitumen vis-a-vis rubber in the impugned goods their classification as bituminous blacks was more appropriate and not precluded by the small presence of rubber so as to justify exclusion of goods from the scope of a specific entry i.e. 14-II (ii) which reads as Bituminous and Coal-tar blacks under the broad heading of Varnishes and blacks. 6. Government accordingly accept the petitioners submissions and allow the revision application.
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1981 (1) TMI 69 - GOVERNMENT OF INDIA
Vial seals are not pilfer proof caps ... ... ... ... ..... Ghatkopar, Bombay were being assessed under Item 68 of Central Excise Tariff and not item 42 and he gave a copy of that particular manufacturer s invoice for ready reference. He also drew attention to the clarification given by the Department of Revenue vide instructions contained in B/10-1-69-CX. I, dated 29-2-1969, issued by the Ministry of Finance in 1969 Budget regarding the scope of Item 42 wherein it was clarified that vial seals used as caps on vials containing antibiotics and similar other medicines would not attract duty under Item 42 of the Central Excise Tariff because they are merely used to keep the rubber wad or bung in position and do not provide any pilfer proof protection to the vial. Lastly Shri Poonekar contended that the review proceedings are hit by time bar as notice was received more than after six months of the issue of the order in appeal. Government accept the assessee contention on the merit of the case and accordingly drop the review proceedings.
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1981 (1) TMI 68 - HIGH COURT OF MADRAS
Valuation - Review - Refund of duty paid under mistake of law - Limitation for refund - Writ jurisdiction - Legality - Erroneous order - Price list
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1981 (1) TMI 67 - HIGH COURT OF BOMBAY
Brand name - Manufacturer - Agreement stipulating variation in prices - Effect ... ... ... ... ..... hat if two views are possible, the Court should not interfere in exercise of writ jurisdiction. The fallacy of this contention is that with due modesty, I fail to see what view other than the case taken by me can possibly be taken in the facts and circumstances of this case. 11. On the question of refund of the amount of Rs. 1,71,268.60 Mr. Mehta submitted that no interest thereon should be awarded to the Company. On the aspect of interest Mr. Bhatt submitted to the orders of the Court. I think it would be sufficient if the Department repays to the Company the sum of Rs. 1,71,268.60 without interest within 6 months from today. 12. In the result, the Petition is allowed in terms of prayers (a) and (c) with the exception of the interest prayed for in prayer (c). The Department shall refund to the petitioner-Company the amount of Rs. 1,71,268.60 within 6 months from today. The respondents shall pay to the petitioners the costs of the petition. Rule is made absolute accordingly.
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1981 (1) TMI 66 - HIGH COURT OF DELHI AT NEW DELHI
Countervailing duty - Lubricating oils ... ... ... ... ..... leviable on the class of article to which the imported article belongs. Countervailing duty has been levied on the import of Lubricating Oils in accordance with item 11-A. Reading of the entry Item 11-B reaffirms my view that even blended Lubricating Oils and greases meaning Lubricating Oils and greases obtained by straight blending or compounding of mineral oils or by blending or compounding of mineral oils with any other ingredients, are also subjected to the excise duty. The lubricating oils imported by the petitioner from abroad are petroleum products. Various types of petroleum products are provided in item Nos. 6 to 11 of the said Schedule. It is the petroleum products not otherwise specified which are mentioned in item 11-A. Lubricating Oils which means all types high as well as low grades and of various viscosities are thus clearly within the fold of the entry at item 11-A. 4. For the above reasons, the writ petition fails and is dismissed with no orders as to costs.
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1981 (1) TMI 65 - CALCUTTA HIGH COURT
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... ... ..... an amount which is deductible but has not been allowed as a deduction, though the money may be available with the assessee and would have to be given or taken into account in paying the tax liability, that amount of money was not a free reserve, as gratuity had to be paid out of the funds reserved and the amount could not be put to any lawful use in future for any purpose of the business to meet other liability (sic). If this is the position, then even by any common sense point of view which we had preferred to adhere to in treating the reserve in contradistinction to the commercial principle of accountancy, this amount should not be treated as a reserve. In that view of the matter we must hold that the Tribunal fell into an error on this aspect. In the premises, on both the aspects, the question is answered in the negative and in favour of the revenue. In the facts and circumstances of the case, the parties will pay and bear their own costs. SUDHINDRA MOHAN GUHA J.-I agree.
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1981 (1) TMI 64 - ALLAHABAD HIGH COURT
Business Expenditure, Gratuity Fund Scheme ... ... ... ... ..... not lay down any method of calculating the exact amount. It only lays down the limit, namely, that the initial contribution cannot exceed 8 1/3 of the employee s salary for each year of his past service. In other words, the maximum initial contribution can be of one month s salary for each year. This limit has admittedly not been exceeded. It is doubtful if in these circumstances it can be claimed that r. 104 was not complied with. The Tribunal went on to hold that in the alternative even if it be held that the assessee has made any excess contribution the excess would be clearly allowable under s. 37 of the Act because the payment has been made for business purposes and in the capacity as a trader. In our opinion, this view of the Tribunal is, in the circumstance of the case, valid. In the result, we answer the question referred to us in the affirmative in favour of the assessee and against the department. The assessee will be entitled to costs which are assessed at Rs. 200.
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1981 (1) TMI 63 - CALCUTTA HIGH COURT
Income, Sales Tax ... ... ... ... ..... aler collected the sales tax as such from his customers but only paid a portion of that amount to the sales tax department, the balance of that amount would be the revenue income in the hands of the assessee-dealer chargeable to income-tax and it was further held that as and when this amount was paid to the Government it would be allowed to the assessee as deduction. The Calcutta High Court in its decision in the case of Ikrahnandi Coal Co. v. CIT 1968 69 ITR 488 has proceeded on the said principle. The Gujarat High Court applied the same principle in the case of Motilal Ambaidas v. CIT 1977 108 ITR 36. In view of the ratio of the aforesaid decisions, we are of the view that the Tribunal was in error in holding that the amount in question did not represent the assessee s taxable income in the facts found by the Tribunal. In the premises, the question is answered in the negative and in favour of the revenue. There will be no order as to costs. SUDHINDRA MOHAN GUHA J.-I agree.
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1981 (1) TMI 62 - KARNATAKA HIGH COURT
Exemptions, Income Tax ... ... ... ... ..... ted. In our view, the Tribunal after having noticed the position in law in the United States was in error in stating that it was immaterial that such deduction had been given to the assessee in the United States and that the amount received by the assessee was an income and was not scholarship and was not exempted under s. 10(16) of the I.T. Act, on the view that the amount was not meant to cover only expenses for education, but obviously represented the salary for the services rendered. There was no basis for this assumption, particularly in view of the, second paragraph of the certificate issued by the Jewish hospital. Accordingly, our answer to question No. 3 is in the negative, that is, the Tribunal was in error in upholding the order of the Additional Commissioner of Income-tax that the amount of 7,725 was not liable for exemption under s. 10(16)of the I.T. Act. In view of our answer to question No 3, questions Nos. 1 and 2 have become academic and need not be answered.
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1981 (1) TMI 61 - CALCUTTA HIGH COURT
HUF, Partial Partition In HUF ... ... ... ... ..... ainst the interests of the minors. An aggrieved member of the coparcenary can question such a partition but not third party, namely, the I.T. Dept. As regards the issues raised in the case of CIT v. Seth Gopaldas (HUF) 1979 116 ITR 577 (MP) that a partial partition can be made only by the consent of all, it may be pointed out that the question of consent would not arise in this case as the sons were minors and they could not give any valid consent. It is the father who acted on their behalf. Thus, we would hold that the father in this case had every right to bring about a partial partition of the family properties among his sons inter se as part of his patria potestas. In this view of the matter, the partial partition in this case as found valid by the Tribunal seems to be in consonance with s. 171 of the I.T. Act, 1961. Thus, we answer the question in the affirmative and in favour of the assessee. There will, however, be no order as to costs. SABYASACHI MUKHARJI J.-I agree.
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1981 (1) TMI 60 - PUNJAB AND HARYANA HIGH COURT
Appellate Assistant Commissioner ... ... ... ... ..... remand order. In our view, the finding recorded by the Tribunal that the remand order passed by the AAC was arbitrary is not sustainable. Further, the direction given by the Tribunal that the AAC should decide the case on the material already on record, is also not sustainable in the eye of law. The AAC, if he wanted to decide the appeal himself, had ample power to record further evidence with a view to do justice between the parties and this power, which has been vested in him by the statute, could not be restricted by the Tribunal by giving a direction that the AAC should decide the matter, on the material already on record. Since we are reversing the view of the Tribunal on the first question as well, the second question is not of much consequence, but anyhow we are supposed to answer both the questions. For the reasons recorded above, we answer both the questions in the negative, i.e., against the assessee and in favour of the revenue. There will be no order as to costs.
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1981 (1) TMI 59 - KARNATAKA HIGH COURT
Exemptions, New Industrial Undertaking ... ... ... ... ..... n our opinion, the facts in that case bear a close parallel to the facts in the instant case as the same commodity was being manufactured by the new industrial undertaking. It was observed in that case (pp. 179, 180) The concept of reconstruction of business would not be attracted when a company which is already running one industrial unit sets up another industrial unit. The new industrial unit would not lose its separate and independent identity even though it has been set up by company which is already running an industrial unit before the setting up of the new unit. These observations were approved of by the Supreme Court. In our opinion, the facts noticed by the Tribunal leave no room for doubt that what had been set up was a new industrial undertaking. The Tribunal applied the correct principles in coming to a conclusion whether the undertaking was a new industrial undertaking or not. We, accordingly, answer the question in the affirmative and in favour of the assessee.
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1981 (1) TMI 58 - CALCUTTA HIGH COURT
Exemptions, New Industrial Undertaking ... ... ... ... ..... process of galvanising or coating to protect it from rust. This does not bring into existence a different article or an article commonly known to the people differently who deal with it before it was galvanised. This work of galvanisation may or may not be processing. We had noted in the case of CIT v. Radha Nagar Cold Storage (P.) Ltd. 1980 126 ITR 66 (Cal) that the expression process was different from the expression manufacturing . In this section, what is required is that the articles should be manufactured or produced. The process of galvanising does not result in the manufacture or production of new goods as such. In that view of the matter, we are of the opinion that the assessee-company does not fulfil cl. (iii) of sub-s. (2) of s. 84 of the I.T. Act, 1961, as it stood at the relevant time. In the aforesaid view of the matter, the question is answered in the affirmative and in favour of the revenue. There will be no order as to costs. SUDHINDRA MOHAN GUHA J.-I agree.
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1981 (1) TMI 57 - DELHI HIGH COURT
Actual Cost, Depreciation ... ... ... ... ..... ing on behalf of the applicant. Shri Madan Lokur, learned counsel for the department, contended that the apportionment of the expenditure between the three companies had been done on an ad hoc basis. He also suggested that some at least of the expenditure incurred by the managing director on tours had been for his own personal purposes. But these are aspects of the matter which do not arise for consideration before us. It has not been the case of the department at any stage that any portion of the amounts presently in question did not constitute expenditure incurred in relation to the business. The Tribunal has found as a fact that the allocation of expenditure between the three companies was reasonable. These findings are final and cannot now be agitated before us. For the reasons mentioned above, we answer the question referred to us in the affirmative and in favour of the assessee. As the department has failed, it will pay the costs of the assessee. Counsel s fee Rs. 300.
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