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Case Laws
Showing 221 to 240 of 531 Records
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2002 (9) TMI 597 - CEGAT, NEW DELHI
Production capacity based duty - Abatement of duty ... ... ... ... ..... h decision in the case of Avis Electronics P. Ltd. reported in 2000 (117) E.L.T. 571 referring to Paras 6 and 8 thereof to the effect that the Tribunal is not to supplement or add words to the Rules that when a particular thing is directed to be performed in a manner prescribed by Rules, it should be performed in that manner itself and not otherwise that as regards the notice being time-barred, this ground was not taken by the appellant either in his reply to the show cause notice or in the personal hearing accorded to him. As such, the same cannot be raised at this stage. 4. emsp After hearing the rival submissions, perusal of the records and the case laws cited by both sides, I find that the appellant has miserably failed to follow the procedure as laid down in Rule 96ZO(2) of the Central Excise Rules, 1944 and as such, following the ratio of the Larger Bench decision relied on by the learned SDR, I do not find any merits in the appeal and the same is accordingly dismissed.
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2002 (9) TMI 595 - CEGAT, NEW DELHI
EXIM - Rectification of mistake - Maintainability ... ... ... ... ..... y the learned Counsel, referred to above, were not even relied upon at that time. It is a question of interpretation of the Imports Exports (Control) Act read with Import (Control) Order, 1955, as to whether the licence value can be taken to be the same, which had been determined for the purpose of payment of duty or not. The Tribunal has taken the view on this issue in affirmative by observing that it could be taken into account as there could not be two values one for the purpose of duty and the other for the purpose of licence. 3. emsp It is well settled that no ROM is maintainable under the law on a debatable point of fact or law as observed by the Apex Court in the case of Income Tax Commissioner v. Hero Cycles, AIR 1998 SC 155. The appellants through the present ROM application want the recall of the impugned Final Order of the Tribunal, which is not permissible under the law. In our view, there is no merit in the ROM application and the same is ordered to be dismissed.
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2002 (9) TMI 591 - CEGAT, MUMBAI
Order - Non-application of mind ... ... ... ... ..... evident from the facts observed above that the Commissioner has not applied his mind at all to the issues before him. All that he has done is to accept blindly whatever the Deputy Commissioner has said. The Deputy Commissioner may or may not be right in his findings. The question however is not the correctness or otherwise of the opinion. The question is whether the conclusion arrived in the order is the conclusion of the Commissioner or the conclusion of the Deputy Commissioner. It is clear that the conclusion is admittedly that of the Deputy Commissioner. As we have noted, there is nothing to show that the Commissioner has applied his mind independently. It is, after all, his order and he is the one who signs the same. This order is not an order of adjudication by the Commissioner. The order therefore cannot be maintained. 5. emsp The appeal is allowed and the impugned order set aside. The Commissioner shall now proceed to adjudicate upon the notice in accordance with law.
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2002 (9) TMI 589 - CEGAT, NEW DELHI
Demand - Penalty ... ... ... ... ..... sed in the export products. (v) On verification from the Asstt. Commissioner, Kandla from where the export has taken place, they have confirmed that the exported goods cannot be related to the impugned AR.4s. (vi) In the export promotion copies of the shipping bills filed by the party, the name of the supporting manufacturer has been changed and over-written as that of the appellant whereas in drawback copies of the shipping bills, the name of the supporting manufacturer is different. This has also been confirmed on verification from the New Customs House, Mumbai from where the drawback has been claimed. 4. emsp The appellants in their present appeal have not contested any of the afore-mentioned findings. In my view therefore, the proof of export submitted by the appellants has rightly not been accepted. Consequently, they have to pay the duty and suffer the penal action for manipulation of the export documents. This appeal has no merits and the same is accordingly dismissed.
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2002 (9) TMI 587 - CEGAT, MUMBAI
Demand - Limitation - Modvat ... ... ... ... ..... the credit has been taken on such non-declared inputs. It is seen that the appellants had declared the inputs in question. They had been using these inputs in the manufacture of final products and paying duty on the final products including from the Modvat credit availed of on the inputs. They were also filing periodic returns. Thus, full facts about the inputs on which credit had been availed of were made known to the Central Excise authorities through the appellants rsquo statutory records and returns. A charge of suppression of facts is not maintainable against the assessee in these circumstances. We accept the appellant rsquo s submission that this is not a case involving suppression of facts, justifying raising duty demand by resort to extended period as provided in proviso to Section 11A of Central Excise Act. The demand and penalty imposed in the impugned order are set aside on the ground that they are raised beyond the permissible time limit and the appeal is allowed.
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2002 (9) TMI 585 - CEGAT, MUMBAI
Classification - Interpretation of statutes ... ... ... ... ..... nt because no such material would be then classified under this heading. Thus, a harmonious consideration of the two headings leads to the conclusion that Heading 54.09 would cover fabrics printed otherwise by way of flocking. It has been noted that the Explanatory Notes of the harmonious system of Nomenclature (HSN) on which the tariff at this time was broadly based itself includes in Heading 59.07 (corresponding to 59.06 of the tariff) some kind of flocked fabrics such as fabric coated with glue and sprinkled with a fine layer of other material textile flock or dust. It is to be noted however, the Heading 59.07 of the HSN did not include specifically as does 59.06 of the Tariff, fabric covered partially or fully with textile flock or preparations containing textile flock. In the light of the clear provisions of the tariff the goods that the appellant manufactured would be classified under Heading 59.06. We therefore find no ground for interference. 4. emsp Appeal dismissed.
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2002 (9) TMI 574 - CEGAT, BANGALORE
Valuation - Demand - Show cause notice - Scope of - Departmental clarification - Binding effect
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2002 (9) TMI 573 - CEGAT, NEW DELHI
Demand - Appellant not placed any order with foreign supplier - Penalty ... ... ... ... ..... dence to show that the payment in respect of goods was made by the applicant or the documents for clearance of the goods were cleared and taken delivery by the appellants. We also find that the appellants had not at any stage filed any Bills of Entry for clearance of the goods or any other documents at the time of clearance of the goods. Thus, we find that the Department has not been able to make out a case against the appellants that they are importers and since no duty can be demanded from any other person other than the importer or his agent, the order demanding duty from the appellant is set aside. 6. emsp We further note that penalty has been imposed under Section 112(a). We note that penalty under Section 112(a) can be demanded only from the importer. We hold that no evidence has been adduced to prove that the appellant was the importer and imposition of penalty also set aside. 7. emsp In view of the above findings, the stay petitions as well as the appeals are allowed.
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2002 (9) TMI 572 - CEGAT, MUMBAI
Stay/Dispensation of pre-deposit ... ... ... ... ..... lenging the surmises and presumption made by the Commissioner. The Commissioner, however, dismissed the appeals for failure of the assessees to obey his directions made under Section 35F of the Central Excise Act, 1944. Hence the present appeal. 5. emsp As we have observed above when the facts before them were prima facie covered by the citation made, the original and the appellate authorities should not have made conscious efforts to avoid their application. The original authority did not discuss the citation at all and the appellate authority brought in irrelevant and extraneous factors which did not exist in the body of the show cause notice. In doing so both authorities committed judicial improprieties. 6. emsp This appeal is allowed. The proceedings are remanded to the Commissioner (Appeals) who shall hear the appellants without insisting any pre-deposit and shall pass appropriate orders based on the allegation made in the show cause notice and citations made before him.
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2002 (9) TMI 571 - CEGAT, NEW DELHI
Capital goods ... ... ... ... ..... n has to flow to them. Further, the Tribunal, in the Appellants rsquo own case as reported in 2001 (128) E.L.T. 225 (T) has held as under ldquo He submitted that factory of production refers the items produced in the factory and not the finished product as understood by the department. On going through the relevant notification and wordings Shri D.K. Verma, learned SDR has nothing to argue further. Shri G. Shivdass, learned Advocate also referred to the decision by the Tribunal in the case of Triveni Engineering Works Ltd. v. CCE reported in 2000 (36) RLT 619 in support of his contention. There is some force in the arguments advanced on behalf of the assessee that Notification No. 67/95 grants exemption to capital goods manufactured in the factory and used within the factory of production. In view of the matter we do not find any justification to deny the benefit in terms of Notification No. 67/95. rdquo 7. emsp We, therefore set aside the impugned order and allow the Appeal.
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2002 (9) TMI 570 - CEGAT, MUMBAI
Stay/Dispensation of pre-deposit ... ... ... ... ..... ur relied upon by the petitioners supra it is held that the provisions of Section 35F are not applicable to the pre-deposit of interest since these deal only with the deposit of duty demanded or penalty levied pending finalisation of appeal. Further, the specific provisions under Section 35N read as follows - ldquo Section 35N. emsp Sums due to be paid notwithstanding reference, etc.-Notwithstanding that a reference has been made to the High Court or to the Supreme Court or an appeal has been preferred to the Supreme Court, sums due to the Governments as a result of an order passed under sub-section (1) of Section 35C shall be payable in accordance with the order so passed rdquo . 4. emsp In view of the above specific provisions mandating the payment of the sums due to the Government notwithstanding any reference pending before the High Court, etc. there is no ground to stay the recovery of the interest amount as prayed in this petition. The petition is accordingly dismissed.
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2002 (9) TMI 567 - CEGAT, NEW DELHI
Modvat/Cenvat - Capital goods ... ... ... ... ..... emsp The party filed an appeal but the same is rejected by the Commissioner (Appeals), Jaipur, vide his order dated 24-4-2002. 3. emsp This is second stage appeal against the impugned order of the Commissioner (Appeals). I have heard Shri Nand Kishore, Advocate for the appellants and Shri H.C. Verma, JDR for the respondents. The role of M.S. Tubes in the manufacturing process undertaken by the appellant is already spelt out in the order of the original authority as extracted above. It is not stated in that order as to why this item cannot be considered as machine, machinery, equipment or appliances, etc., as defined under Rule 57Q of Central Excise Rules, 1944. The ground for denial of the Modvat credit is therefore subjective and without rational. In my view, the case of the appellants is fully covered by the decision of the Supreme Court in the case of CCE v. M/s. Jawahar Mills Limited - 2001 (132) E.L.T. 3 (S.C.). The appeal is allowed by setting aside the impugned order.
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2002 (9) TMI 563 - HIGH COURT OF KERALA
Winding-up - Overriding preferential payment ... ... ... ... ..... paying off all the claims admitted to proof and that the secured creditors covered by section 529A could be satisfied fully with interest at the rate of 4 per cent, the Official Liquidator is bound to honour the decree of the Civil Court. Contributories and other shareholders would be entitled to only rest of the amount after the decree is being satisfied fully. 10. In the aforementioned circumstances, we are inclined to set aside the judgment of the learned Single Judge restricting interest at 6 instead of 10 per cent as ordered by the Civil Court in O.S. No. 3 of 1986 of the Sub-court, Ernakulam. We are of the view fixation of rate of interest, rates and taxes is a legislative function wisdom of which cannot be challenged in these proceedings. In the absence of any materials to satisfy that such statutory interest is in any way arbitrary or violative of Article 14 of the Constitution of India, we do not find any merit in the writ petition and the same will stand dismissed.
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2002 (9) TMI 562 - HIGH COURT OF MADRAS
Recovery of Dues Relating to Non-Performing Assets ... ... ... ... ..... ioner is pending before the DRT, the petitioner has approached this court and wanted this court to adjudicate the present claim in this writ petition as well. The various findings recorded in the application for injunction on the original side of this court speaks the conduct of the petitioner in volume. 20. In the light of the above discussion, this court holds that all the points are answered against the petitioner and in favour of the respondent. The contention that the respondent cannot give a new reason in the counter is unsustainable since the relief sought for is not only a writ of certiorari, but also mandamus. Further, there is no duty or obligation on the part of the respondent-bank to receive the payment offered by the petitioner belatedly to settle the dues. The petitioner is not entitled to claim benefits as per the guidelines of the RBI also. 21. In the result, the writ petition fails and it is dismissed. No costs. Consequently, connected WPMP is also dismissed.
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2002 (9) TMI 561 - HIGH COURT OF DELHI
Winding up - Circumstances in which a company may be wound up ... ... ... ... ..... posited within the aforementioned period, publication of citation shall not be carried out. However, on failure to make the deposit, citation be published in Hindustan Times (English) and Veer Arjun (Hindi), returnable on 16-12-2002. 7. Once the deposit is made, the court will consider whether it should be held to the credit of a suit, if filed by the petitioner, thereafter, in respect of the claim in the petition, or to be released to it in full and final settlement of all its dues. The complete settlement would obviously be dependent on a consensus being reached. 8. Learned counsel for the respondent further submits that the respon-dent-company has approached the BIFR. This only fortifies the conclusion already arrived at that the winding up petition be admitted. In these circumstances, in my view, it may even be expedient to appoint a provisional liquidator forthwith. However, a decision on this question is deferred till the next date of hearing. 9. Renotify on 16-12-2002.
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2002 (9) TMI 560 - SUPREME COURT
Interpretation as to the scope of section 630 of the Companies Act, 1956 - whether the employee would include the legal heirs of the deceased employee.? - Held that:- As there is an apparent conflict between the two decisions of this Court - one in Smt. Abhilash Vinodkumar Jain’ s case (1995 (3) TMI 344 - SUPREME COURT OF INDIA) and the other in J.K. (Bombay) Ltd.’s case (2001 (1) TMI 894 - SUPREME COURT OF INDIA), on the interpretation of section 630. Hence it will be appropriate to refer the matter to a Larger Bench.
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2002 (9) TMI 559 - HIGH COURT OF DELHI
Winding up - Circumstances in which a company may be wound up ... ... ... ... ..... as been written after having received the Court notice on 1-3-2002. The sequence of events indicates that the defence has been formulated after the petition was filed, and, therefore, does not attract credence. 9. Keeping all the circumstances and submissions in view, I find that no legal objection had been raised which would defeat the present petition. It has already been seen that the solvency of the company would not be relevant in the face of a resolute refusal to pay its outstanding dues. In the present case, there is a clear admission of debt in the light of the settled reconciliation statement dated 27-11-2000. When subsequent transactions are taken into consideration, the amount claimed in the petition is beyond controversy. The fact that no replies were sent to the letters of the petitioner, and that apparently pre-dated letter had been sent to set up a defence to the petition, after its receipt on 1-3-2002, is indicative of mala fides. 10. The petition is admitted.
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2002 (9) TMI 558 - HIGH COURT OF DELHI
Winding-up - Circumstances in which a company may be wound up ... ... ... ... ..... ufficient time for examining the goods, as envisaged in section 41. In supplying the goods to Ishapore, the company must be deemed to have accepted the goods as contemplated in section 42. 8. In the background of facts as well as of law, the defence that has been presented is not only untenable in law but smacks of being false. Therefore, the winding-up petition is admitted. The respondent is directed to deposit with the Registrar of this Court, within four weeks from today, a sum of Rs. 4,16,261. 9. On the failure of the respondent to make compliance, the citation shall be published in the Delhi Editions of the lsquo Statesman rsquo (English) and Nav Bharat Times (Hindi) and in the Delhi Gazette, returnable for 11-11-2002. It is made clear that in such an event, keeping the admission of the company of its suffering financial and commercial viability in view, a provisional liquidator is likely to be appointed on the next date of hearing. 10. Renotify the matter on 11-11-2002.
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2002 (9) TMI 544 - CEGAT, NEW DELHI
Stay/Dispensation of pre-deposit ... ... ... ... ..... and for the spares requirement it is less than 10 . The appellant contends that the transaction sales are at two different commercial levels and at different prices and, at any rate, the value of 10 of sale cannot be applied to 90 sale. The learned counsel for the appellant placed before us certain decisions of this Tribunal in support of the above contentions raised by it. 2. emsp We heard the learned DR also. Alter hearing both sides we feel that the appellant has made out a strong case in its favour. We, therefore, waive the condition for pre-deposit. The stay application is allowed.
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2002 (9) TMI 543 - CEGAT, NEW DELHI
Demand - Clandestine removal - Evidence - Penalty ... ... ... ... ..... E.L.T. 531 (T) 2000 (41) RLT 209, wherein that very proposition of law had been reiterated. 11. emsp The provisions of Rule 209A could also be not invoked against Shri B.M. Gupta, appellant, who was Vice-President of the company, HPL. The confessional statement made by him, was later retracted by him having been obtained under duress. Even otherwise, his statement did not find corroboration from any other tangible evidence. The very clandestine production and clearance of the goods by the company, HPL to the company, GSL, does not stand proved from the material brought on record, as discussed above. That being so, Shri B.M. Gupta, could not be penalized under Rule 209A of the Rules. 12. emsp In view of the discussion made above, the impugned order of the Commissioner cannot be sustained against any of the appellants and the same is ordered to be set aside. The appeals of all the appellants accordingly stand allowed with consequential relief, if any, permissible under the law.
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