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Showing 441 to 460 of 522 Records
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2004 (5) TMI 83
Issues: Challenge to reduction of penalty under Rule 96ZQ(5)(ii) of Central Excise Rules, 1944 for delay in duty payment.
In this judgment, the High Court of Gujarat at Ahmedabad addressed the challenge to an order reducing the penalty under Rule 96ZQ(5)(ii) of the Central Excise Rules, 1944 for a delay in paying duty. The petitioners had previously raised a similar issue in another case where the penalty was also reduced. The Court, in a previous judgment, established principles regarding the penalty under Rule 96ZQ(5), emphasizing that the penalty should not be disproportionate to the length of the delay. The Court highlighted that the penalty should not exceed three times the amount of interest levied, ensuring it is commensurate with the delay and serves the rule's purpose.
The Court noted that the orders under challenge did not clarify if interest was paid for the delayed duty payment under Rule 96ZQ(5)(i). It directed that if interest had not been paid, it should be computed and paid within a month. The delay in payment ranged from 10 to 16 days, but neither the original nor the appellate authority considered this delay. Consequently, the Court set aside the orders imposing penalties and remanded the matter to the Deputy Commissioner of Central Excise and Customs for a reassessment of the penalty under Rule 96ZQ(5)(ii) based on the principles outlined in the previous judgment.
Ultimately, the Court made the rule absolute to the extent of setting aside the penalties imposed, with no order as to costs. This judgment provides a clear interpretation of the penalty provisions under Rule 96ZQ(5) and ensures that penalties for delayed duty payments are reasonable and proportionate to the delay, emphasizing the importance of considering the circumstances of each case.
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2004 (5) TMI 82
Issues:
Challenge to order of Customs, Excise & Service Tax Appellate Tribunal regarding pre-deposit of excise duty and penalty. Allegation of violation of natural justice in passing the original order. Financial hardship leading to request for longer time to deposit amounts. Request for waiver of pre-deposit or extension of time for payment. Consideration of instalment plan for depositing required amounts.
Analysis:
1. The petition challenged the order of the Customs, Excise & Service Tax Appellate Tribunal regarding the pre-deposit of Rs. 10 lakhs towards excise duty and Rs. 1 lakh towards penalty. The Tribunal had directed the petitioners to make this pre-deposit against a duty demand of Rs. 29,23,187/- and an equal penalty amount. The petitioners contended that the original order passed by the Commissioner of Central Excise was in violation of the principles of natural justice, seeking a waiver of the entire pre-deposit amount due to this reason.
2. The learned Counsel for the petitioners did not press the petition concerning the quantum of pre-deposit but requested more time for depositing the required amounts due to the extreme financial hardship faced by the petitioners. It was highlighted that the firm was currently unable to operate its business, necessitating arrangements for the deposit. In response, the Court disposed of the petition with a direction that the petitioners could deposit the required amounts in 22 equal monthly instalments of Rs. 50,000 each, starting from a specified date.
3. The Court clarified that upon the deposit of the pre-determined amounts towards duty and penalty, the Tribunal would proceed to hear and decide the appeals on their merits. It was emphasized that the petitioners would not be exempted from paying interest on delayed payments once the Tribunal made a final decision on the appeals. Additionally, the Court suggested that the Tribunal consider granting suitable instalments in cases where applicants face financial hardship, to avoid unnecessary approaches to the Court for payment arrangements.
4. The judgment concluded by disposing of the petition in line with the provided directions and observations. A writ of the Court was to be sent to the Tribunal, with instructions for the Registrar to inform all the Benches of the Tribunal about the same. The Court's decision aimed to address the financial challenges faced by the petitioners while ensuring compliance with the pre-deposit requirements set by the Tribunal.
This detailed analysis covers the issues raised in the legal judgment comprehensively, outlining the challenges faced by the petitioners, the Court's considerations, and the final directives issued to address the matter effectively.
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2004 (5) TMI 81
Issues:
Implementation of earlier order of the Customs, Excise and Gold (Control) Appellate Tribunal for refund of redemption fine and penalty, payment of interest at 12% per annum, Jurisdiction of the CEGAT to grant interest on delayed refund of redemption duty.
Analysis:
The petitioner imported goods which were confiscated with an option to redeem upon payment of a fine and bank guarantee. After appeals, the CEGAT directed refund of the redemption amount and release of the bank guarantee. The Collector of Customs delayed the refund and did not pay interest as directed by the CEGAT. The petitioner approached the CEGAT again, which directed the Collector to decide on the interest refund without delay. The Collector expressed inability to calculate interest, leading to the petitioner challenging the order.
The petitioner contended that the Commissioner misread the CEGAT's order and had a harassing approach. The jurisdiction of the CEGAT to grant interest was questioned by the Union of India, arguing that it was not within the statutory provisions. Section 129B of the Customs Act was analyzed to determine the Tribunal's powers, which were found to include rectifying mistakes and passing appropriate orders.
The Court upheld the CEGAT's order to grant interest as the Customs Authority's actions were deemed unauthorized and illegal. The Commissioner's misinterpretation of the CEGAT's orders was criticized, and the Court directed payment of interest at the rate fixed by the CEGAT from the expiry of one month as mentioned in the earlier order.
The Court refrained from awarding costs based on arguments presented. A stay of operation of the judgment was granted until four weeks after summer vacation upon the request of the Union of India's counsel. The application was allowed, and the Commissioner of Customs was directed to pay interest as per the CEGAT's order.
This detailed analysis covers the issues of implementing the CEGAT's order, jurisdiction to grant interest, and the interpretation of statutory provisions, providing a comprehensive overview of the judgment.
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2004 (5) TMI 80
Issues Involved:
1. Jurisdiction of Customs Authorities
2. Nature of Goods Imported
3. Compliance with Customs Act and Regulations
4. Authority to Levy Customs Duty
5. Legality of Seizure and Show Cause Notice
Issue-wise Detailed Analysis:
1. Jurisdiction of Customs Authorities:
The primary issue was whether the Customs authorities at Madras Port had jurisdiction to intercept, seize, and investigate the goods intended for transhipment to Bangalore. The appellant argued that only the Bangalore Customs House had jurisdiction to assess the nature of the goods and levy the appropriate customs duty. The court examined Section 54 of the Customs Act, which deals with the transhipment of goods without payment of duty, and concluded that the Madras Customs House did not have jurisdiction to adjudicate the matter. The court emphasized that the proper officer at the destination customs station (Bangalore) is responsible for verifying the nature of the goods and levying the correct duty.
2. Nature of Goods Imported:
The appellant imported 46 containers of non-alloy steel melting scrap (NASMS) but was accused of mis-describing the goods to evade higher customs duties. The Customs officials at Madras detained the containers, alleging that they contained serviceable materials rather than scrap. The court noted that determining whether the goods were scrap or serviceable required a fact-finding inquiry, which was beyond its purview at this stage.
3. Compliance with Customs Act and Regulations:
The appellant contended that the Madras Customs officials were twisting the provisions under Section 54 of the Customs Act and should only verify the bona fides of the transhipment, not the nature of the goods. The court reviewed the relevant regulations, including the Import Manifest (Vessels) Regulations, 1971, and the Goods Imported (Conditions of Transhipment) Regulations, 1995. It concluded that the concern of the Customs officer at the first point in the Indian territory is to verify the authenticity of the goods and their lawful transhipment, not the rate of duty.
4. Authority to Levy Customs Duty:
The court determined that the proper authority to levy customs duty on the transhipped goods was the Customs House at the destination point (Bangalore), as per Section 55 of the Customs Act. The court cited Notification No. 14 of 2002, which specified that the Commissioner of Customs, Bangalore, had territorial jurisdiction over the goods in question.
5. Legality of Seizure and Show Cause Notice:
The appellant challenged the legality of the seizure and the show cause notice issued by the Madras Customs officials. The court held that since the Madras Customs House did not have jurisdiction, the impugned proceedings were illegal and without jurisdiction. The court directed the Madras Customs officials to complete the transhipment of goods to Bangalore and allowed the Bangalore Customs authorities to verify the nature of the goods, levy the proper duty, and take appropriate legal action.
Conclusion:
The court concluded that the impugned proceedings by the Madras Customs were illegal and without jurisdiction. It directed the Madras Customs officials to facilitate the transhipment of goods to Bangalore, where the proper customs authority would verify the nature of the goods, levy the appropriate duty, and take necessary legal actions. The writ appeal was disposed of accordingly, and the related petitions were dismissed.
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2004 (5) TMI 79
Issues Involved:
1. Legality of the cancellation of permission for Domestic Tariff Area (DTA) sale.
2. Classification of the petitioner's activity as "reconstruction" versus "remaking" or "reconditioning".
3. Compliance with procedural requirements for cancellation of permissions.
Issue-wise Detailed Analysis:
1. Legality of the cancellation of permission for Domestic Tariff Area (DTA) sale:
The petitioner, a unit under the Export Oriented Unit (EOU) Scheme, sought directions for the assessment of duty on 1500 reconstructed diesel engines and their clearance for sale in the Domestic Tariff Area (DTA) as per the Development Commissioner's permission. The Development Commissioner initially granted permission for DTA sale, which was later cancelled. The petitioner challenged this cancellation, arguing it was done without jurisdiction, arbitrarily, and without a hearing, thus violating their accrued rights. The court noted that the cancellation was communicated without a hearing and lacked detailed reasoning, which contravened Section 9(4) of the Foreign Trade (Development and Regulation) Act, 1992, requiring a reasonable opportunity of being heard before such actions.
2. Classification of the petitioner's activity as "reconstruction" versus "remaking" or "reconditioning":
The petitioner contended that their activity of reconstructing old diesel engines did not equate to "remaking" or "reconditioning," which would disqualify them from DTA sales under Paragraph 9.22 of the Exim Policy. The respondents argued that the petitioner's activities were indeed "reconditioning," thus falling under the restrictions of Paragraph 9.22. The court found that determining whether the petitioner's activities constituted "reconstruction" or "reconditioning" required a factual investigation, which could not be resolved based on the existing record. The court directed the appropriate authorities to inspect the nature of the petitioner's activities to make this determination.
3. Compliance with procedural requirements for cancellation of permissions:
The court emphasized that any cancellation of permission (which is considered a "licence" under Section 2(g) of the Foreign Trade (Development and Regulation) Act, 1992) must follow due process, including providing a reasonable opportunity of being heard and recording detailed reasons for the decision. The court found that the cancellation of the petitioner's DTA sale permission did not comply with these procedural requirements. Consequently, the court quashed the cancellation order and directed the respondents to provide a hearing and detailed reasons before making a fresh decision.
Conclusion:
The court quashed the cancellation of the DTA sale permission due to procedural non-compliance and directed the respondents to re-evaluate the petitioner's activities with a proper hearing and detailed reasoning. The respondents were instructed to complete this process within one month, ensuring the petitioner's right to export remains unaffected during this period. The writ application was disposed of with no order as to costs.
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2004 (5) TMI 78
On misunderstanding of Dhiren Chemical's case - it was pointed out that during hearing of Dhiren Chemical's case that because of circulars of the Board in many cases the Department had granted benefits of exemption Notifications. To prevent the department to reopen cases.the Para 9 was incorporated to ensure that cases where benefits has been granted, cases should not be reopened. Otherwise Courts/Tribunals can not ignore a judgment of this Court and follow circulars of the Board.
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2004 (5) TMI 77
Issues Involved:
1. Whether the erection of Hydraulic Mudguns and Tap Hole Drilling Machines at the site resulted in the creation of excisable goods or immovable property.
2. Whether the demand for duty was barred by limitation due to the alleged suppression of facts by the appellant.
3. Whether the penalty imposed on the appellant was justified.
Issue-wise Detailed Analysis:
1. Erection Resulting in Excisable Goods or Immovable Property:
The appellant argued that the Hydraulic Mudguns and Tap Hole Drilling Machines erected at the Bhilai Steel Plant were immovable property and thus not subject to excise duty. The facts revealed that the machines were assembled and erected on a concrete platform 25 feet above ground level, making it impossible to move them without dismantling. The judicial member of the CEGAT agreed with the appellant, citing the Supreme Court's decision in Municipal Corporation of Greater Bombay v. Indian Oil Corporation Ltd., which established that if an item must be dismantled and reassembled to be moved, it is considered immovable property. Conversely, the technical member and the third member held that the machines were movable and thus excisable, relying on Narne Tulaman Manufacturers Pvt. Ltd. v. Collector of Central Excise. However, the Supreme Court clarified in Mittal Engineering Works (P) Ltd. v. CCE, Meerut that the Narne Tulaman case did not address whether the items were movable or immovable. Ultimately, the Supreme Court concluded that the machines were immovable property, as they were permanently erected and could not be moved without dismantling.
2. Demand for Duty Barred by Limitation:
The appellant contended that the demand for duty was barred by limitation, as they had disclosed all relevant facts. The technical member found that the appellant had not informed the Indore Collectorate about the manufacturing activities at Bhilai, thus suppressing material facts. The judicial member disagreed, stating that there was no suppression and the demand was time-barred. The Supreme Court sided with the technical member, noting that the appellant did not file the necessary classification list with the Central Excise Officers having jurisdiction over Bhilai and did not comply with other Excise formalities. Therefore, the demand was not barred by limitation, invoking the extended period under Section 11A of the Central Excise Act.
3. Justification of Penalty:
The penalty of Rs. 8 lakhs was imposed on the appellant for suppressing facts and failing to obtain a Central Excise license and maintain statutory records. The judicial member found that the penalty was not sustainable due to the absence of suppression. The technical member, however, justified the penalty, citing the appellant's failure to comply with Excise formalities. The Supreme Court, agreeing with the technical member, upheld the penalty, noting the appellant's non-compliance and suppression of material facts.
Conclusion:
The Supreme Court allowed the appeal, setting aside the CEGAT's order and holding that the appellant was not liable to pay excise duty on the Hydraulic Mudguns and Tap Hole Drilling Machines, as they were immovable property. Consequently, the penalty of Rs. 8 lakhs was also quashed. There was no order as to costs.
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2004 (5) TMI 76
Whether while repairing the defective compressors any part such as stators replaced by the appellant involves manufacturing activity attracting duty under the Central Excise Act?
Held that:- In the present case, what was looked into examined and found was the several steps taken in respect of the stator and so far as the stators were concerned, it has been rightly held by the Tribunal that separate activities were carried on by the appellants which were identical to the ones that was carried out in respect of new stator and, therefore, to the extent of the stator being made ready for the purpose of using in the repairing of compressor must be held to be an activity of manufacture and the Tribunal has confirmed the demand only in respect of "Stators".
But, insofar as the application of extended period of limitation provided under Section 11A is concerned, we do not think that the Tribunal is justified because it was not clear as to whether if any part is used for the purpose of repairing a machinery would amount to manufacture. In fact, the Tribunal on a detailed analysis and after going into several processes carried out by the appellant, came to the conclusion that the stators which were used in the repairing of the compressors involved manufacturing activity. This circumstance itself shows that there was bona fide dispute between the parties in regard to the question whether stators made ready for the purpose of use of compressors involved any manufacturing activity or not. Therefore, to the extent the authorities invoked Section 11A of the Act and imposed penal interests and other penalties shall stand set aside and the order made by the Tribunal stands modified to that extent. Appeals are partly allowed
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2004 (5) TMI 75
Duty demand - whether Electric Overhead Travelling (EOT) Cranes are liable to excise duty or not - Held that:- Following previous decision in assessee's own case - no excise duty is payable on the E.O.T. cranes as assembled - Matter remanded back - decided in favour of assessee.
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2004 (5) TMI 74
Whether the appellant had wrongly availed of the benefit of the Notification No. 31/88, dated 1-3-1988?
Held that:- In the present cases, we will have to consider the expression "bulk drug" as specified under First Schedule to the Drugs (Prices Control) Order, 1987. In Explanation after the Table in the Notification No. 31/88-C.E. dated 1-3-1988 it is clearly set out that the expression "bulk drugs" shall have the same meaning assigned to it in the Drugs (Prices Control) Order, 1987. It is clear that substance has to be used as such, or as an ingredient in any formulation in terms of the Drugs (Prices Control) Order, 1987. Hence, expression "formulation" is only with reference to a medicine processed out of bulk drug. Therefore, when the ingredient used by the appellant, namely, Menthol IP, in the manufacture of tooth paste, powder and shaving cream is not in the use of any formulation which is a medicine processed out of, or containing one or more bulk drugs, the view taken by the Tribunal that assessee are not entitled for the benefit of Notification cannot be assailed.
However, so far as the application of Section 11 for the purpose of levy of penalty is concerned, it is not clear as to whether the law is absolutely clear on the matter or not and the authorities also had to issue clarifications from time to time. In the circumstances, we think, invoking of Section 11A is not called for and levy of penalty in the present case would not be appropriate and the application of extended period of limitation is not justified. The order of the Tribunal is modified to this extent. The appeal is partly allowed.
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2004 (5) TMI 73
Issues: Classification of water-proofed fabrics under Central Excise Tariff Schedule; Invocation of extended period of limitation under proviso to Section 11A of Central Excise Act; Imposition of penalty under rule 173Q of Central Excise Rules.
Classification of Water-Proofed Fabrics:
The appeal concerned the classification of water-proofed fabrics under the Central Excise Tariff Schedule. The main issue was whether the fabrics should be classified under Heading 52.07 or Heading 59.06. The Tribunal held that the fabric manufactured by the appellants was impregnated with a visible coating, thus falling under Heading 59.06. The Tribunal analyzed various headings and concluded that fabrics with a visible coating should be assessed under Heading 59.06. The appellants' plea for re-testing their fabrics was rejected by the Tribunal, and this decision was upheld.
Invocation of Extended Period of Limitation:
Another issue was the invocation of the extended period of limitation under the proviso to Section 11A of the Central Excise Act. The appellants argued that they believed the fabrics were classifiable under Heading 52.07, and thus, there was no deliberate intention to suppress information. The Tribunal rejected this contention, stating that department officials were aware of the manufacturing process. The Supreme Court disagreed with the Tribunal's decision to invoke the extended period of limitation, as there was no evidence of deliberate suppression of information by the appellants.
Imposition of Penalty under Rule 173Q:
Regarding the imposition of a penalty under rule 173Q of the Central Excise Rules, the Tribunal's decision was maintained. The Tribunal had held that the fabric manufactured by the appellants was impregnated, and therefore, should be considered as fabric impregnated with materials other than those mentioned under Tariff 59.02 and 59.05. As this finding was based on factual analysis, the Supreme Court did not interfere with it. The appellants' contention that the fabric should not be classified under Heading 59.06 due to the visibility of the impregnation or coating was rejected.
Conclusion:
The Supreme Court partly allowed the appeals by setting aside the Tribunal's decision to invoke Section 11A of the Act. However, in all other respects, the Tribunal's order was maintained. The Court did not examine the contention regarding the charging of excise duty on the price of the product without treating it as cum-duty price, as this issue was not specifically raised before or considered by the Tribunal.
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2004 (5) TMI 72
Whether bleached sheeting which is heavily sized and manufactured by each of the respondents falls under Heading 52.06 of the Central Excise Tariff Act, 1985 or under Heading 59.01?
Held that:- The Tribunal held that the Board by their instructions issued on 2-9-1988 had clarified that for classifying such products under Heading 59.03, the textile fabrics should have a continuous and adherent films or layer on one side of the fabric surface and the fabric should be impervious and should satisfy the conditions prescribed in Note 2 of Chapter 59. They also adverted to letter issued by the Ministry of Finance, Department of Revenue dated 7-12-1989 wherein it had been confirmed that bleached and sized cotton fabrics manufactured by them merit classification under Chapter 52 as these fabrics were neither coated nor impregnated but only sized with starch.
When the several ingredients have to be satisfied, even if one ingredient is not satisfied, namely, that the stiffness has to be of permanent and durable nature, we do not think that the view taken by the Tribunal calls for any interference on our hands. In addition, we may notice that in none of the cases presently involved, we have any heavily sized fabric. Therefore, that aspect need not detain us. Affirm the view taken by the Tribunal and dismiss these appeals.
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2004 (5) TMI 71
What is the assessable value of silver which is used in the manufacture of silver oxide zinc batteries supplied to MOD?
Held that:- The supply of silver by MOD being one of the stipulation in the contract between MOD and the appellant, would constitute a 'normal practice' of the wholesale trade in such goods. As per the first proviso to Section 4(1)(b), where in accordance with the normal practice of the wholesale trade, goods are sold at different prices to different classes of buyers, each such price shall be deemed to be the normal price of such goods in relation to each such class of buyers. Therefore, the normal price of battery sold to MOD by the appellants is Rs. 33,393/- and the assessable value of silver used in the manufacture of such battery is at Rs. 2,500/- per kg. and cannot take the market value of silver.
The contract between the MOD and the assessee provided for supply of silver from the mint at a particular rate and had to be supplied by the MOD and in lieu thereof the appellants were allowed to retrieve silver from old used batteries, and their special feature cannot be ignored. Batteries of the nature in question are largely used only by MOD. Hence the view taken by the Tribunal down to adjudicating authority cannot be sustained. .Appeal allowed accordingly
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2004 (5) TMI 70
Dutiability of Waste and scrap - Bar of Limitation - exemption under Notification No. 74/65-C.E. dated 1-5-1965 and under Notification No. 119/66-C.E. dated 16-7-1966 - Held that:- Unless the scrap and waste are goods that had been used can be demonstrated to have been a duty paid goods, it cannot be assumed that they are so, particularly when it cannot be said with certainty that all scrap and waste material used has been subject to excise duty earlier. The waste and scrap was dutiable only when it is a manufactured product and not otherwise. The object of exemption being to avoid cascading effect in the matter of payment of excise duty.
Classification list filed by the appellant dated 25-3-1983 was not approved and a show cause notice was issued on 23-7-1984. The approval was accorded only on 15-9-1984. As there was no approval of the classification list and there was no final assessment, we think, in the circumstances of the case the bar of limitation would apply only from the date of the finalization of the classification - Decided against assessee.
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2004 (5) TMI 69
Whether the appellant was required to pay excise duty at ad valorem basis or at specific rates as provided in the relevant notification?
Held that:- From totality of the circumstances and the nature of transaction conducted by the appellant, the view taken by the Tribunal that the stock transfer from their factory to their depots would not amount to sale of goods and actual sale of goods took place from their depots and when the goods were sold they were having printed retail price on the packages and also that the sale price charged from the buyers was the sale transaction notwithstanding there were free gifts that had been offered thus stands to reason and does not call for our interference.
In the present case, earlier the appellant was paying duty at the rate of 18% ad valorem on the maximum retail price. It is only after 2-6-1998 change was sought by the appellant by not printing the price on the packed goods by removing the same to their depots from their factory in order to claim that the packed goods had not been priced at the time of their removal from the factory and gifts were offered by the appellant to indicate that the consideration in the sale transaction was not solely the price. These factors, we think, were rightly taken note of by the authorities and the penalty imposed need not be considered in the present proceedings.
In the result, the appeal is dismissed.
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2004 (5) TMI 68
Whether Johnson's Prickly Heat Powder and Phipps Processed Talc are patent or proprietary medicines classifiable for the purposes of excise duty under the erstwhile Tariff Item 14E (as prior to 1-3-1986) and Heading 30.03 (subsequent to 1-3-1986) as claimed by the appellants or whether they are cosmetics or toilet preparations falling under the erstwhile Tariff Item 14F (prior to 1-3-1986) and Heading 33.04 (after 1-3-1986) as claimed by the Department?
Held that:- In the present case when throughout the meaning given to products in question not only by the department itself but also by other departments like Drug Controller and the Central Sales Tax authorities is that the product in question is a medicinal preparation should be accepted.
Applying the principles enunciated in BPL Pharmaceuticals Ltd., case [1995 (5) TMI 98 - SUPREME COURT OF INDIA] and taking into consideration various circumstances as to the manner in which the goods had been treated on the earlier occasions by the department and the product having been utilised with reference to the commercial parlance and understanding, that it had been treated as a drug it would not cease to be one notwithstanding the fact that new tariff act has come into force. What is to be seen in such cases is when in the common parlance, for purpose of the Drug Act, for purpose of Sales Tax Act and in various findings recorded on earlier occasions by the department itself having been noticed, the conclusion is inevitable that the products in question must be treated as medicinal preparations.
No hesitation in reversing the view of the Tribunal and restore that of the Collector that in view of the medicinal ingredients, namely, salicylic acid and boric acid which are meant to cure the disease called Milaria Rubra, prickly heat powder is a drug and, therefore, classifiable as a drug or a medicinal preparation. Appeal allowed of assessee.
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2004 (5) TMI 67
Classification of goods - Rate of duty - Writ jurisdiction at show cause notice stage - whether Floor Coverings and Filter Fabrics are to be classified under sub-heading No. 5703.90 of the Tariff Item attracting duty at the rate of 30% ad valorem or whether it should be classified under sub-heading 5703.20 attracting duty at the rate of 5% ad valorem - Held that:- The matter relating to commodity classification whether it falls under one heading or the other or attracts higher or lower duty has to be decided on facts arising in each case. Even though, the decision may have been taken earlier at one point of time but on further investigation discover new fact or the law has changed, as is the stand in the present case, the matter has to be re-examined. It is not at all proper for the High Court to interfere in such matters at the stage of issue of the show cause notice. We, therefore, set aside the order made by the High Court and remit the matter to the concerned authority for adjudication. It shall be open to the respondent to file reply to the show cause notice as they deem fit, if not already filed within a period of one month from today or such further time as may be allowed by the Adjudicating Authority - Decided in favour of Revenue.
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2004 (5) TMI 66
Whether the interest accruing on advances are deductible from the price or not, and as to deduction of the bank charges and collection charges?
Held that:- As it is clear that the decision in Commissioner of Central Excise, New Delhi v. Vikram Detergent Ltd. case (2001 (1) TMI 84 - SUPREME COURT OF INDIA) fully covers both the questions in this case and, therefore, we have no hesitation in modifying the order of the Tribunal to direct the authorities to whom the matters have been remanded to examine the question whether interest on receivables arises on account of time lapse between the delivery of goods and the realisation of monies is deductible from the assessable value of the goods at the time of removal from the factory of the assessee and also excludes the bank charges included in the price on account of clearance of outstation cheques.
The appeals stand allowed accordingly.
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2004 (5) TMI 65
Whether the principles relating to promissory estoppel as culled out from these earlier cases still hold the field?
Held that:- The appellants have been unable to establish any overriding public interest which would make it inequitable to enforce the estoppel against the State Government. The representation was made by the highest authorities including the Finance Minister in his Budget Speech after considering the financial implications of the grant of the exemption to milk. It was found that the overall benefit to the State's economy and the public would be greater if the exemption were allowed. The respondents have passed on the benefit of that exemption by providing various facilities and concessions for the upliftment of the milk producers. This has not been denied. It would, in the circumstances, be inequitable to allow the State Government now to resile from its decision to exempt milk and demand the purchase tax with retrospective effect from April 1, 1996, so that the respondents cannot in any event readjust the expenditure already made. The High Court was also right when it held that the operation of the estoppel would come to an end with the 1987 decision of the Cabinet.
The power in the State Government to grant exemption under the Act is coupled with the word "may"-signifying the discretionary nature of the power. We are of the view that the State Government's refusal to exercise its discretion to issue the necessary notification "abolishing" or exempting the tax on milk was not reasonably exercised for the same reasons that we have upheld the plea of promissory estoppel raised by the respondents. We, therefore, have no hesitation in affirming the decision of the High Court and dismissing the appeals without costs.
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2004 (5) TMI 63
Applicant resigned from Morgan Stanley and left India to take up job in USA - applicant received being payment from Morgan Stanley Staff Superannuation Fund – held that amount received from superannuation fund in 2002-2003 for the services rendered in India is taxable in India as per the DTAA with USA - The amount received from superannuation fund on resignation before specified age is not eligible for exemption under section 10(13) of the Income-tax Act, 1961.
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9911796707
