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Showing 381 to 400 of 490 Records
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2003 (4) TMI 111
Stay/Dispensation of pre-deposit - Sick industry - Non payment of pre deposit amount - Tribunal dismissed appeal - Assessee contends that in view of Section 22 of the Sick Industrial Companies (Special Provisions) Act, 1985 (for short 'the Sick Industries Act'), the appellant need not deposit the amount - Held that:- contention of the learned Counsel cannot be accepted for reasons more than one. First, this aspect was not the subject matter of the order under challenge and, secondly, Section 22 of the Sick Industries Act, provides relief in regard to the proceedings which relate to (a) winding up of the industrial company; (b) execution, distress or the like against any of the properties of the industrial company, (c) the appointment of a receiver in respect thereof, and (d) proceeding in regard to suit for recovery of money or for the enforcement of any security against the industrial company or of any guarantee in respect of any loans or advance granted to the industrial company. Payment of pre-deposit covered under Section 35F of the Central Excise Tax Act, 1944 does not fall under any of the above-mentioned categories in Section 22 of the Sick Industries Act - Decided against assessee.
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2003 (4) TMI 110
Cenvat/Modvat Credit - Waste - Held that:- after the issuance of the aforesaid circular as appeal was filed before this Court, the third circular was issued on 19th July, 1999 to the effect that as the Department has filed an appeal against the order of the CEGAT and as it is admitted by this Court, it has been decided by the Board to withdraw the Circular dated 23rd July, 1999. It appears that while issuing the circular dated 19th July, 1999, the concerned authority has not applied its mind to the ratio laid down by the CEGAT in IOL's case (1992 (5) TMI 131 - CEGAT, BOMBAY) wherein it has been pointed out that there is no specific provision under the Rules considering such barrels/drums as a waste arising out of manufacturing process - Decided against Revenue.
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2003 (4) TMI 109
Whether in cases where a manufacturer includes equalised freight in the price of the goods and sells the goods all over the country at a uniform price, the Department is entitled to compute value by including the cost of transportation from the factory to the depot?
Held that:- Section 4 has to be read as a whole. If the place of removal was the factory, then the price would be normal price at the factory. If place of removal was some other place like a depot or the premises of a consignment agent and the price was different then that different price would be the price. It is because newly added Section 4(ia) was now providing for different prices at different places of removal that the definition of the term "place of Removal" had to be enlarged. Thus the amendment was not negativing the judgments of this Court. If that had been the intention it would have been specifically provided that even where price was the same/uniform all over the country, the cost of transportation was to be added.
Thus, in cases where the price remains uniform or constant all over the country, it does not follow that value for purpose of excise changes merely because the definition of the term "place of removal" is extended. The normal price remains the price at the time of delivery and at the place of removal. In cases of "equalised freight it remains the same as per the judgments of this Court set out in Union of India & Ors. Etc. Etc. v. Bombay Tyre International Limited Etc. [1983 (10) TMI 51 - SUPREME COURT OF INDIA, NEW DELHI] . It is because newly added Section 4(ia) was now providing for different prices at different places of removal that the definition of the term "place of Removal" had to be enlarged. Thus the amendment was not negativing the judgments of this Court. If that had been the intention it would have been specifically provided that even where price was the same/uniform all over the country, the cost of transportation was to be added.
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2003 (4) TMI 108
Whether the items imported by the appellant are classifiable under Tariff Heading 4707 as waste and scrap of paper or paper board or under Tariff Heading 4819, as cartons, boxes, etc. used in offices, of the Schedule to the Central Excise Tariff Act - Held that:- impugned order of the Customs, Excise and (Gold) Control Appellate Tribunal, New Delhi [for short, 'the Tribunal'] does not show that it had independently assessed the evidence in order to uphold the findings of the authorities below - Matter remitted back - Decided in favour of assessee.
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2003 (4) TMI 107
Whether there would be deemed removal from the warehouse on the date when the period of warehousing was over?
Held that:- It was not open to the Department to prefer the appeal before the Tribunal contrary to what has been laid down in the circular dated 12-7-1989 which specifically provided that in such cases residual Section 15(1)(C) of the Customs Act would apply to the case where the goods are removed from a warehouse after expiry of the warehousing period and that the rate of duty in such cases shall be the rate prevalent on the date of payment of duty. No doubt the aforesaid circular is withdrawn by Circular dated 14th August, 1997. Still, however, at the relevant time neither the impugned order passed by the Collector of Customs (Appeals) can be said to be in any way illegal or erroneous nor it was open to the Department to challenge the said order.
As a result, the appeals are allowed and impugned judgments and orders passed by the Tribunal are set aside
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2003 (4) TMI 106
Confiscation of export goods - Tribunal held that Sec 113 would apply to prohibited goods only - Held that:- Admittedly, goods in question are not prohibited for export and no export duty is leviable on the said goods. In this view of the matter, no interference is called for with the impugned judgment and order - Decided against Revenue.
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2003 (4) TMI 105
Confiscation of goods - Over valuation of goods - Supreme Court declined to interfere with the order of Tribunal where Tribunal held that for the goods which were sought to be exported there was no over-valuation by the assessee concerned and, therefore, the goods were not liable to confiscation.
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2003 (4) TMI 104
Whether the respondent is liable to pay additional customs duty as provided in Section 3 of the Customs Tariff Act, 1975 on the imported low ash coking coal?
Held that:- Washing of coal would not amount to production or manufacture of a new item. Section 4 of the Coal Act also provides that for the purpose of conservation of and for development of coal, the Central Government may require the agent or manager of all coal mines to take measures which may include washing of coal with a view to reducing the ash contents of the coal. Washing of coal or reducing the ash content of the coal was not considered by the Parliament as a manufacturing activity. Even if coal is washed and ash contents are reduced, Section 6 uses the phraseology ("of all coal raised") and "on all coke manufactured and dispatched", which would mean that coke is manufactured while coal is only raised. It is not manufactured. In this view of the matter, there is no substance in the argument raised by the learned Counsel of the appellant. Against assessee.
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2003 (4) TMI 103
Whether process of cold rolling of steel strips from hot rolled strips does not amount to manufacture of a new excisable commodity?
Whether they had not passed on the burden of duty to their customers/
Held that:- Remitted the matters to the Assistant Commissioner to consider the question as to whether the respondents have passed on the burden of duty of excise to their buyers, which question has to be considered in the light of the provisions of Section 11B of the Act, it is only appropriate that the Assistant Commissioner concerned should first record a finding on that question. If the finding is against the respondents, their claim applications shall have to be rejected. This, of course, is subject to the order that may be passed in appeal by the appellate authority and ultimately by the Tribunal. Only if it is ultimately found that the respondents have not passed on the burden of excise duty to their buyers, the other questions which we have remitted to the Tribunal may require consideration. We, therefore, direct that in the first instance those appeals shall stand remitted to the concerned Assistant Commissioners to hear the parties and decide only the question of unjust enrichment having regard to the provisions of Section 11B of the Act. It will be open to the respondents to challenge the finding if it goes against them before the appellate authority and/or before the Tribunal. If no appeal is preferred against an adverse finding by the Assistant Commissioner, that will be an end of the matter and no further consideration by the Tribunal will be necessary. However, if it is ultimately found that the respondents have not passed on the burden of excise duty to their buyers then the Tribunal will consider the other questions, which we have remitted to it for its consideration and the Tribunal shall thereafter dispose of the matters in accordance with law. To enable the Tribunal/ Commissioner to pass fresh orders, we set aside the impugned judgments and orders of the Tribunal in all the appeals, as also the Order of the Commissioner in Civil Appeal.
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2003 (4) TMI 102
Issues Involved:
1. Classification of Banphool Oil as a "perfumed hair oil" or an "Ayurvedic Medicament".
2. Interpretation of relevant Tariff Items and Chapter Notes.
3. Burden of proof regarding the classification of the product.
4. Admissibility and relevance of expert opinions and circulars.
Issue-wise Analysis:
1. Classification of Banphool Oil:
The primary issue in these appeals is whether Banphool Oil should be classified as a "perfumed hair oil" under Tariff Item 3305.10 or as an "Ayurvedic Medicament" under Tariff Item 3003.30. The Customs, Excise and Gold (Control) Appellate Tribunal (CEGAT) had a split decision, with the majority classifying it as an Ayurvedic Medicament. The Supreme Court agreed with the majority opinion, noting that the product is used for treating various ailments and is registered with the Drug Controller, manufactured under a drug license.
2. Interpretation of Relevant Tariff Items and Chapter Notes:
The Additional Solicitor General argued that Banphool Oil should be classified under Chapter 33, which deals with perfumed hair oils. He cited Chapter Note 1(d) of Chapter 30, which states that preparations under Chapter 33, even with therapeutic properties, remain as toilet preparations. The respondent countered that Chapter 30 covers all types of medicines, and the ingredients of Banphool Oil are listed in Ayurvedic texts. The Supreme Court emphasized that the primary criterion for classification is the product's use by consumers, which in this case, is for medicinal purposes.
3. Burden of Proof:
The Court reiterated that the burden of proof to show that a product falls within a particular Tariff Item is on the revenue. The revenue failed to provide evidence that Banphool Oil is understood by consumers as a hair oil rather than a medicament. The Court noted that the product's label indicates its medicinal uses and dosages, supporting its classification as an Ayurvedic Medicament.
4. Admissibility and Relevance of Expert Opinions and Circulars:
The respondent highlighted a Board Circular dated 5th December 1991, which directs that in case of doubt regarding the classification of a product as an Ayurvedic Medicament, the matter should be referred to the State Drug Licensing Authority. The Drug Controller had opined that Banphool Oil is an Ayurvedic preparation. The Court held that the revenue should have followed this circular and referred the matter to the Adviser, Ayurveda, if doubts persisted.
Conclusion:
The Supreme Court upheld the majority opinion of the Tribunal, classifying Banphool Oil as an Ayurvedic Medicament under Tariff Item 3003.30. The appeals were dismissed, with no order as to costs. The Court emphasized the importance of consumer perception and expert opinions in determining the classification of products under the Excise Act.
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2003 (4) TMI 101
Classification of goods - Himtaj Oil - Classification under sub-heading 3003.30 or under sub-heading 3305.10 - Held that:- it must be mentioned that in this Civil Appeal the question of classification relates to "Himtaj oil". On board along with this Appeal were a number of other Appeals which related to classification of "Bhanphool oil" - by a separate judgment, Court negatived the submissions of the Revenue in respect of "Bhanphool oil". Thus for reasons set out in that separate judgment the arguments of the Revenue even in respect of "Himtaj oil" cannot be accepted. The authority relied upon is also of no assistance. In that case there was no evidence to show that the common man considered that product as a medicine. In this case the report of the Range Officer shows that dealers, wholesalers, retailers, customers, chemists and druggist all consider "Himtaj oil" to be an Ayurvedic medicament. Apart from that the other material relied upon by the Assistant Collector (which has been set out hereinabove) also clearly shows that "Himtaj oil" is an Ayurvedic medicament - Decided against Revenue.
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2003 (4) TMI 100
Classification of goods - Himtaj Oil - Classification under sub-heading 3003.30 or under sub-heading 3305.10 - CEGTAT held it as Ayurvedic medicament - Held that:- Following decision of 2003 (4) TMI 101 - SUPREME COURT OF INDIA "Himtaj oil" is classifiable as an Ayurvedic medicaments. Thus to this extent the impugned judgment stands confirmed. CEGAT has thereafter referred all the Appeals back to the Adjudicating Authority to re-compute the duty and to decide whether the extended period of time limit is applicable in the matters or not. No reason to interfere with those directions - Decided against Revenue.
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2003 (4) TMI 99
Whether the price is affected by the fact of interest free advance or remains uniform for all?
Held that:- The mere fact of making an interest free advance by a buyer to the manufacturer, by itself will not be a sufficient ground to reload the assessable value with notional interest. It would be necessary for the revenue to show that such advance has influenced in the lowering of the price and that it is not depicting the normal price of the goods.
In the present appeals, neither there is any evidence or proof on the record nor it is the case of the appellant on facts, that the interest free advance has influenced the price and the price lower than the normal price had been charged by the respondents. We do not think it necessary to deal with facts of each case separately since it is not in dispute that interest free advances were made by the buyers but at the same time it is also not in dispute that such advances had never influenced the price charged by the manufacturers from buyers. Appeal dismissed.
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2003 (4) TMI 98
Manufacture - Spent earth - whether a goods becomes excisable merely because it falls within a tariff item - Held that:- In the case of B.P.L. Pharmaceuticals Ltd. v. Collector of Central Excise reported in [1995 (5) TMI 98 - SUPREME COURT OF INDIA] it has also been held that merely because there is a change in the Tariff Item the goods does not become excisable. Subsequently in a judgment [2003 (2) TMI 65 - SUPREME COURT OF INDIA] it has been held that merely because an item falls in a Tariff Entry, it does not become excisable unless there is manufacture and the goods is marketable. In Lal Woollen & Silk Mills' case (1999 (4) TMI 78 - SUPREME COURT OF INDIA) it has not been held that the twin test of manufacture and marketability is not to apply. It is not possible to accept the contention that merely because an item falls in a Tariff Entry it must be deemed that there is manufacture. The law still remains that the burden to prove that there is manufacture and that what is manufactured is on the revenue. In this case no new evidence is placed to show that there is manufacture. "Spent earth" was "earth" on which duty has been paid. It remains earth even after the processing. Thus if duty was to be levied on it again, it would amount to levying double duty on the same product - Decided against Revenue.
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2003 (4) TMI 97
Whether the High Court is justified in quashing Paragraphs (14) to (18) of the impugned show cause notice dated June 30, 1995?
Held that:- In the instant case, it is not pointed out to us that there is anything to suggest in Paragraphs (14) to (18) that either the buyer was a related person or that the price was not the sole consideration or there was other vitiating circumstance to doubt the normal price of the wholesale trade. If that be so, recourse to Clause (b) of sub-section (1) of Section 4 could not be had. There being no valid foundation for ignoring the price under Clause (a) of sub-section (1) of Section 4, the authority lacks jurisdiction to issue notice calling upon the assessee to show cause in the matter.
There can be no doubt that in matters of taxation, it is inappropriate for the High Court to interfere in exercise of jurisdiction under Article 226 of the Constitution either at the stage of show cause notice or at the stage of assessment where alternative remedy by way of filing a reply or appeal, as the case may be, is available but these are the limitations imposed by the Courts themselves in exercise of their jurisdiction and they are not matters of jurisdictional factors. Had the High Court declined to interfere at the stage of show cause notice, perhaps this Court would not have been inclined to entertain the special leave petition; when the High Court did exercise its jurisdiction, entertained the writ petition and decided the issue on merits, we do not think it appropriate to upset the impugned order of the High Court under Article 136 of the Constitution on a technical ground. Appeal dismissed.
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2003 (4) TMI 95
Export, Special Deduction - Supreme Court after leaving the question of law open, inasmuch as the appellants conceded that in the facts of the case the respondents would be entitled to relief even if the appellants' submissions were accepted by the court, Court declined to interfere with the judgments of the High Court where High Court held that subsequent circular would be applicable to the assessment years previous to the issuance of this circular as well.
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2003 (4) TMI 94
Whether even though the reconstitution of the firm resulted in the reduction of the share of profit of the assessee-trust, there was no gift exigible to tax in its hands ?
Whether even though there was a transfer by the assessee in favour of the incoming partner and existing partners, the consideration for the transfer could not be evaluated during the subsistence of the partnership and so the question of adequacy or inadequacy of consideration could not be quantified and so there was no gift exigible to tax ?
Held that:- The facts found in the present case are that the incoming partner (M. U. Indira) had contributed Rs. 25,000 towards her share of the capital. The value of her services or usefulness to the firm as partner has not been disputed by the Revenue authorities. As pointed out by this court in D. C. Sitah's case [1996 (9) TMI 120 - SUPREME Court] , the mere fact that upon reconstitution of the firm the share of one partner decreased and that of another increased cannot lead to the inference that the former had gifted the difference to the incoming partner. There is no other material placed on record by the Revenue to show that, in the facts and circumstances of the case, particularly taking into consideration the obligations of all the partners in the partnership deed dated October 1, 1982, there was inadequate consideration for the reallocation of 12 per cent. of the share in favour of the incoming partner. In our view, the contribution of Rs. 25,000 towards the capital together with the obligations undertaken of sincerely and faithfully carrying on the business for the common advantage of the firm was adequate, consideration for reallocating the share of the profits and giving 12 per cent. of the share in favour of the incoming partner, M. U. Indira. That C. K. jinan was the managing partner and C. N. Purushuthaman was the administrative head, did not take away the obligations of the other partners including those of M. U. Indira which arose generally under the Partnership Act, as well as under the partnership deed dated October 1, 1982.
We are of the view that even assuming that there was a transfer of 12 per cent. of the share of profit/loss in favour of the incoming partner, M. U. Indira by the appellant-assessee, it was not a situation of transfer for inadequate consideration so as to amount to a taxable gift within the meaning of section 4(1)(a) of the Gift-tax Act, 1958.
In the result, we answer question No. 1 against the Revenue and in favour of the assessee. In view of our answer thereto, it is not necessary to answer the second question.
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2003 (4) TMI 93
Interest Tax Act, 1974 - notices issued under section 10 of the Interest-tax Act, 1974, seeking to reopen the assessment – Held that the notices are bad because it is a clear case of change of opinion based on the opinion of the audit. Change of opinion does not authorise initiation of proceedings for reopening the assessment.
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2003 (4) TMI 92
"Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in holding that the surplus realised on the sale of land shall be treated as long-term capital gains and the surplus on the sale of building shall be treated as short-term capital gain ?" - we answer the above question in the affirmative, i.e., in favour of the assessee and against the Department
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2003 (4) TMI 91
Small Scale Industries - "(i) Whether, on the facts and in the circumstances of the case, the Tribunal was legally correct in holding that the structural steel and tubular structure fall within the definition of 'plant and machinery'? - (ii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the assessee was entitled to depreciation at 30 per cent. on the structural steel and tubular structure?" - It is not necessary that the manufacturer itself would sell the manufactured goods. The manufacturer may utilise it for construction of dams or for other purposes. Once a person manufactures any goods involving use of plant and machinery, capital and labour, he will be treated as a manufacturer and then it will be a case covered under section 43 of the Income-tax Act. - we answer the questions referred to above in favour of the assessee and against the Department.
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9911796707
