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Case Laws
Showing 321 to 340 of 418 Records
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1999 (4) TMI 98 - HIGH COURT OF JUDICATURE AT ALLAHABAD
Stay/Dispensation of pre-deposit - Modvat ... ... ... ... ..... as not relevant as the petitioner is an independent legal person. In my view therefore, there was no justification for rejecting the petitioner s applications in the appeals and requiring it to deposit the whole of the amount which is more than Rs. 71 lacs.. The petitioner is bound to suffer undue hardship if it is required to deposit the whole of the amount even at the first appellate stage. 6.The writ petition is, therefore partly allowed and the order passed by the Commissioner in so far as Appeal Nos. 423 and 424 are concerned is set aside and it is ordered that in case the petitioner deposits within a month from today Rs. 13 lacs towards the adjudicated dues involved in Appeal No. 423 and Rs. 4.5 lacs towards the adjudicated dues involved in Appeal No. 424, the conditions of pre-deposit of the balance shall stand waived. The amount involved in Appeal Nos. 425 and 426 are not very large and hence no interference is required in the Commissioner s orders in respect thereof.
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1999 (4) TMI 97 - HIGH COURT OF JUDICATURE AT MADRAS
Prosecution - Confession ... ... ... ... ..... istrate is recording the statement under Section 164 Cr.P.C. Admittedly, the Customs Officer is recording a confession not as a Magistrate. Therefore, it cannot be contended that protection of Section 164 Cr.P.C. would be available to the accused in a case where the Customs Officer is recording the confession under Section 108 of the Customs Act. 42.In view of the above reasonings, I am of the considered opinion that the materials available on record would be genuine and acceptable and the same would be sufficient to record conviction on the appellant for the offence under Section 8 (c) read with Section 23 of the N.D.P.S. Act and Section 135 (a) of the Customs Act. Therefore, I do not find any merit in this appeal. 43.In the result, the appeal is dismissed confirming the conviction. However, under the facts and circumstances of the case, the sentence is modified into 10 years R.I., being the minimum and to pay fine of Rs. 1,00,000/-, in default, to undergo R.I. for one year.
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1999 (4) TMI 96 - SC ORDER
... ...
... ... ..... , Excise and Gold (Control) Appellate Tribunal held it as scrap. This question is directly covered by the decision of this Court in the case of Union of India and Ors. v. Modi Rubber Ltd. and Anr. In this the Court held this issue against the Revenue by holding since such tyres are not marketable and hence would not fall within scrap. Accordingly, impugned judgment is quashed and the appeal is allowed and held such tyres are not to be treated as scrap. 2. Appeal is allowed. No costs.
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1999 (4) TMI 95 - SUPREME COURT
Aluminium pieces - Manufacture ... ... ... ... ..... partment. The Tribunal clearly recorded that they are not subject to excise duty. The Tribunal rejecting the other part of the Department case that those pieces are component part of standardise frames and doors. 3. The finding is that in respect of tailor-made item there can be no question of it being component part but only replacement. Though it reserves that it may be in a given case even tailor made items if produced in much quantity may become standard item and the concept of component part may then emerges. However, it would depend on the fact of each case and it is for the Revenue to prove and for the authorities to record such finding, before such an item could be subjected to excise duty. This is not done. We find in the present case, the finding recorded by the courts below in the impugned order of the Tribunal is such which requires no interference. Thus we do not find any merit in this Department s appeal. Appeals are accordingly dismissed. Costs on the parties.
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1999 (4) TMI 94 - HIGH COURT OF JUDICATURE AT ALLAHABAD
Stay/Dispensation of pre-deposit ... ... ... ... ..... aiving the condition of pre-deposit on the ground that it had wrongly denied the moderate (sic) credit and it had a strong prima facie case. The Commissioner in the impugned order has noted the facts which show that only some procedural deficiencies have been made the basis of the denial of the moderate (sic) credit. It is true that the financial hardship was not stated before the Commissioner but in the writ petition it has been specifically stated that the petitioner has drawn from the banks sums totalling to about Rs. 1.5 crores. In my view, looking to the facts and circumstances of the case, it was a fit case in which the partial exemption should have been allowed to the petitioner at the stage of the first appeal. 4. I, therefore, allow this writ petition and setting aside the impugned order, it is ordered that in case the petitioner deposits Rs. 1.5 lacs with the adjudicating authority by 30th April, 1999, the condition of pre-deposit of the balance shall stand waived.
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1999 (4) TMI 93 - HIGH COURT OF JUDICATURE AT ALLAHABAD
Stay/Dispensation of pre-deposit ... ... ... ... ..... and some of the authorities of the revenue have accepted the stand similar to the one taken by the petitioner. The learned counsel for the Commissioner has not dealt with the financial aspect of the matter, though it was specifically pleaded in paragraph 2 of the petition that the appellant is facing acute financial hardship and the business is running on borrowed capital. It would cause undue hardship to the petitioner to compel it to borrow money and pay it to the Government. Even if it succeeds in appeal, no interest will be payable by the revenue atleast for the period during which the appeal remains pending. 6.In my view, it is fit case in which the petitioner s prayer for waiving the condition of pre-deposit fully should have been accepted. 7.The writ petition is, therefore, allowed and modifying the Commissioner s order, dated 24-3-1999, it is ordered that the condition of pre-deposit is fully waived and the petitioner s appeal shall be disposed of very expeditiously.
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1999 (4) TMI 92 - HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
Arrest - Offence ... ... ... ... ..... and an officer of the Central Excise belong to different categories. On behalf of the petitioners, it was contended that persons of the Central Excise are vitally different from those under the Railway Property (Unlawful Possession) Act, 1966. It may be so. We do not consider it necessary to go into the different provisions of different Acts. 25.In view of the above, we hold that the contention of the counsel for the petitioners that no arrest can be made without a warrant, cannot be accepted. Consequently, it is rejected. It may also be noticed that in CWP No. 1647 of 1999, the petitioner had prayed for an anticipatory bail. The learned Single Judge had rejected his prayer inter alia with the observations that in the facts and circumstances of the case, custodial interrogation was necessary. 26.No other point was raised. 27.In view of the above, we find no ground to interfere. Resultantly, we dismiss both the petitions. The parties are, however, left to bear their own costs.
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1999 (4) TMI 91 - HIGH COURT OF JUDICATURE AT ALLAHABAD
Stay/Dispensation of pre-deposit ... ... ... ... ..... ully so that the petitioner could exercise its right of first appeal. It was also contended that the petitioner was in a very bad financial position and hence could not deposit the money. 4.As is evident from the facts of the case, after the dismissal of the writ petition the Tribunal s order became conclusive and there was no option for the petitioner but to deposit the amount as directed by the Tribunal. Admittedly, it did not do so in spite of long time having elapsed and the Tribunal having adjourned the matter more than once even after the dismissal of the writ petition by this Court. The Tribunal was, therefore, left with no option but to dismiss the appeal because Section 35F barred entertaining the appeal unless the deposit was made. The Tribunal s order, therefore, is wholly in accordance with law and no case for interference under Article 226 of the Constitution of India is made out. The writ petition is, therefore, dismissed in limine with costs to the respondents.
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1999 (4) TMI 90 - HIGH COURT OF JUDICATURE AT ALLAHABAD
Refund - Interest thereon ... ... ... ... ..... ssioner (Appeals), Appellate Tribunal or any Court against an order of the Assistant Commissioner of Central Excise, under sub-section (2) of Section 11B, the order passed by the Commissioner (Appeals), Appellate Tribunal or, as the case may be, by the Court shall be deemed to be an order passed under the said sub-section (2) for the purposes of this section. 5.We find no ambiguity in the aforesaid provisions of explanation to Section 11BB of the Act. In the present case, admittedly the petitioner was entitled to refund and the same was paid to it after more than 3 months. Therefore, the petitioner is also entitled to interest on the said payment of refund. We direct the Tribunal to allow interest on the amount of refund. Consequently, we set aside the observation made in para 11 of the order dated 28th August, 1998 passed by the Tribunal. The matter is remanded back to the Tribunal to decide the quantum of interest which the petitioner is entitled. The matter is disposed of.
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1999 (4) TMI 89 - HIGH COURT OF JUDICATURE AT ALLAHABAD
Stay/Dispensation of pre-deposit - Modvat ... ... ... ... ..... ility is not disputed. It is however, contended that the petitioner has not availed any Modvat credit for the period 2-3-1998 in respect of HSD oil. 6. In the aforesaid circumstances, I am of the view that the interest of the revenue, as well as, the interest of justice will be well served if the petitioner is required to deposit only a sum of Rs. 5 lacs under Sec. 35F of the Act and the condition of pre-deposit of the balance is waived. 7. This writ petition is, therefore, allowed and modifying the Commissioner s order dated 14-1-1999, it is ordered that in case the petitioner deposits Rs. 5 lacs with the adjudicating authority within a period of 15 days from today, the condition of pre-deposit of the balance of the adjudicated dues shall stand waived for the purposes of the entertainment of the appeal by the Commissioner. It is made clear that no observation made in this order about any fact or law will be binding on the Commissioner while disposing of the appeal on merits.
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1999 (4) TMI 88 - HIGH COURT OF JUDICATURE AT ALLAHABAD
Stay/Dispensation of pre-deposit ... ... ... ... ..... f the factory is not disputed. The Tribunal itself has found that the matter is contentious which means that on merits, the petitioner has an arguable case. Regarding the financial hardship, no doubt the petitioner has not specifically alleged before the Tribunal that it is in the adverse financial circumstances. In the writ petition also, it is not so averred but the fact remains that the petitioner s mill has stopped production and does not seem to have been restarted. In all these circumstances, I am of the view that the pre-deposit of a substantial amount of Rs. 3.5 lacs would cause undue hardship to the petitioner and the Tribunal should have required the petitioner to deposit only a nominal amount. 10.This writ petition is, therefore, allowed and it is directed that in case the petitioner deposits Rs. 50,000/- before the adjudicating authority by the 10th of May, 1999, the condition of pre-deposit of the balance shall stand waived. The parties will bear their own costs.
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1999 (4) TMI 87 - HIGH COURT AT CALCUTTA
Appeal - Order - Customs House Agents Licence ... ... ... ... ..... suspension should not be allowed to continue for a long time. In that view of the matter and keeping in view the fact that the livelihood of the petitioner is affected by reason of the impugned order, we agree with the view of the learned trial Judge that the reliefs may be moulded by the courts. We, however, in modification of the order passed by the learned trial Judge, direct that a proceeding must peremptorily be initiated within a period of one month from date, failing which the order of suspension shall stand revoked. Even if such order of suspension stands revoked, it goes without saying that it would be open to the appellant to initiate appropriate proceeding and take appropriate steps as against the writ petitioner if any occasion arises therefor in accordance with law. 33.This appeal is disposed of with the aforementioned directions but in the facts and circumstances of this case, there with be no order as to costs. 34. Assent per S.N. Bhattacharjee, J. . - I agree.
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1999 (4) TMI 86 - SC ORDER
Confiscation - Natural justice - Detention certificate - Demurrage charges ... ... ... ... ..... faviour of the respondent. Learned Additional Solicitor General further submits that the proceedings for confiscation of gold had been initiated by the authorities and an order has already been made confiscating the said bars. It is submitted that in view of the order of confiscation of gold bars, these petitions have now been rendered infructuous. 2.Learned Counsel for the respondent submits that the order of confiscation was made behind the back of the respondent and that the respondent would take appropriate proceedings in the proper forum against the order of confiscation. We record his statement. The respondent is at liberty to take recourse to such proceedings as are available to it. 3.Special Leave Petitions are dismissed as infructuous. No costs. 4.The bank guarantee, on account of the subsequent orders made by the departmental authorities regarding confiscation should not be returned to the respondent because the petitioners have the custody of the confiscated gold.
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1999 (4) TMI 85 - SC ORDER
Prosecution - Error ... ... ... ... ..... onfiscation proceeding under Chapter XIV of the Act has got nothing to do with the criminal prosecution under Chapter XVI of the Act. We, therefore, find sufficient substance in the argument of Mr. Veerappa, the learned Counsel appearing for the State that the High Court committed error in quashing the criminal proceeding on an erroneous view of the law. But at the same time, we do not think any fruitful purpose will be served by interfering with the said order of the High Court and directing the prosecution to go on after lapse of 18 years. We, therefore, decline to interfere with the impugned order of the High Court. The appeal is accordingly dismissed.
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1999 (4) TMI 84 - HIGH COURT OF JUDICATURE AT ALLAHABAD
Stay/Dispensation of pre-deposit - Writ jurisdiction ... ... ... ... ..... ection 35F of the Act and if a person has no means to make the deposit his right to appeal will be nullified if the power given under the proviso is not exercised in his favour. Therefore, the financial aspect of the matter has primacy and a perusal of the impugned order passed by the Tribunal shows that the financial situation of the petitioners has been given a go-bye by the Tribunal and it has based its order mainly on the merits of the petitioner s case and coming to the view that the appellants have not made out a strong prima facie case, though at the same time it mentions that the matter is highly contentious. In my view, therefore, the Tribunal has not properly disposed of the petitioners application for dispensing with the pre-deposit in terms of the proviso to Section 35F. 6.This writ petition is, therefore, allowed. The impugned order dated 26th June, 1998 is set aside. The Tribunal shall dispose of the application of the petitioners afresh, in accordance with law.
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1999 (4) TMI 83 - HIGH COURT AT CALCUTTA
Stay/Dispensation of pre-deposit ... ... ... ... ..... appellate authority for fresh consideration of the prayer for total exemption from pre-deposit. It is, however, made clear while deciding such question of undue hardship afresh the appellate authority must proceed on the footing that each of the appellants has a strong prima facie case and it will be open to the appellants to produce materials for the purpose of showing its financial position. It is further made clear in considering the question of such dispensation from pre-deposit and causing of undue hardship to the appellant because of such deposit, the question of protection of interest of revenue as provided in Section 35F of the Act has also to be taken into consideration and after considering all aspects of the matter it will be open to the appellate authority either to dispense with pre-deposit entirely or partly but the appellate authority must pass a reasoned and speaking order. 37.All the writ applications are thus disposed of. There will be no order as to costs.
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1999 (4) TMI 82 - HIGH COURT OF MADHYA PRADESH AT INDORE
Stay/Dispensation of pre-deposit ... ... ... ... ..... quired. 3. A perusal of the Tribunal order shows that it had reduced the requirement from Rs. 89 lacs to Rs. 9 lacs. That by itself shows that Tribunal had considered the plea of hardship taken by the petitioner. Tribunal order therefore, cannot be said to be unreasonable nor overlook the case of hardship projected by petitioner. As such we find no merit in this petition which is dismissed. 4. At this stage Mr. Dandwate, L/c for petitioner prayed that petitioner be granted a reasonable time to make the requisite pre-deposit and till then his pending appeals be saved or else he would be non-suited because of his incapacity to make the requisite pre-deposit in one go. We accordingly provide that petitioner shall pay pre-deposit amount as directed by the Tribunal within three months from today and during this period his appeal shall proceed, without any final orders being passed in it. However, in case of any default, it shall be open to the Tribunal to pass appropriate orders.
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1999 (4) TMI 81 - HIGH COURT OF JUDICATURE AT BOMBAY
Stay/Dispensation of pre-deposit ... ... ... ... ..... , and stay of the disputed demand pending hearing of the appeal, which is mechanical and without application of mind. During the last six months, we had to set aside a number of such orders for the very same reason. The Commissioners (Appeals) have been directed by this court to apply their mind to the facts and circumstances of the case before passing orders on the application for dispensation of the requirement of pre-deposit and to pass reasoned order. We are constrained to note that despite of such repeated observations, things have not improved. 7.In the facts and circumstances of the case and in view of the fair stance taken by the learned Counsel for the respondents, we set aside the impugned order with a direction to the Commissioner (Appeals) to give a hearing to the petitioners and after considering the submissions of the petitioners and the facts and circumstances of the case, pass a reasoned order. 8.Writ petition disposed of accordingly with no order as to costs.
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1999 (4) TMI 80 - SUPREME COURT
Whether, Can Filler, Fruit Feeder and Ripple Machine are accessories to the continuance icecream freezer or are independent machines covered by Chapter 84.19 and 84.30(1)?
Held that:- Persuing xerox copies of the literature relating to the aforesaid machines and find that all such machines are independent and not accessories. The mere fact that the so-called machines can be connected with freezers would not change their character of being independent machines. The aforesaid machines are intended only to give better production of the ice cream. It cannot be said that for those machines freezer cannot be utilised for the purpose of the manufacture of the ice cream. The purpose of the aforesaid machines is to facilitate in filling the tubs with icecream of one or two-three flavours add fruit syrups, chocolate etc. to produce multi flavoured product.
Thus the statutory authorities under the Act and the Tribunal, were, therefore, justified to hold that the Can Filler, Fruit Feeder and Ripple Machine are independent machines and not accessories as claimed by the appellant. Appeal dismissed.
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1999 (4) TMI 79 - SUPREME COURT
Whether the excess production of sugar by the appellant during the designated period commencing on 1st May, 1982 but before the date of issue of the amending Notification 193 of 1982, dated 11th June, 1982 was entitled to duty reduction in terms of the Notification 132 of 1982, dated 21st April, 1982 as substituted by Notification 193?
Held that:- When Notification granted exemption to such factories which produced in excess of average production and such assessee if otherwise is entitled for such exemption, it cannot be defeated merely on the ground that such factory has already paid the duty for the period in question. Even if duty is paid under ignorance of law or otherwise, if by subsequent legislation or valid Notifications the obligation to pay the duty is withdrawn, it cannot be refused since he has already paid the duty.
The present appeal has merit which is accordingly allowed. The impugned orders of the Tribunal dated 29th October, 1985 is hereby quashed and we hold that the appellant is entitled for the rebate under the substituted Notification No. 193/82, dated 11th June, 1982 even for a period of 1st May till 11th June, 1982.
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