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1980 (10) TMI 84
... ... ... ... ..... isions of the Supreme Court and the High Courts in a manner which would indicate that such decisions were not correctly understood or appreciated by the Tribunal. 18. Sec. 4 of the Partnership Act clearly states persons who have entered into partnership with one another are called individually partners and collectively a firm. 19. Shri G.N. Desai, who would not leave any point even if the chance of such point being accepted be one in one thousand, did not base in ITA No. 1249/Ahd/78-79 any argument on behalf of the revenue on s. 5 of the Transfer of Property Act because no responsible counsel can think of basing any argument on that section. 20. It is immaterial to the outsiders whether any particular property belongs to the firm or to all the partners or even to any one of the partners because even the separate property of any partner is available to the creditors of the firm for satisfaction of their dues. 21. The order of the AAC is confirmed. 22. The appeal is dismissed.
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1980 (10) TMI 83
... ... ... ... ..... the ld. Deptl. counsel that in ascertaining the prejudice to the Revenue there is no bar on the Commr. looking into the records not only the assessee but other persons as well and certainly those of the partners. We do not however agree that that tax effect is to be determined on the basis of computing the income and tax for one year only. This should be done as pointed out above for all the years until another change in previous year is asked for. It may be that if one or other institution in which the partners are interested were to close its business thus resulting in avoidance of tax there may be atleast some semblance of prejudice to the Revenue. On the facts of the present case the firms in which the partners are interested continued without dissolution and we cannot regard the change of previous year has been indulged in by the assessee for avoidance of tax. We, therefore, set aside the order of the Commr. and restore the order of the ITO. 6. The appeals are allowed.
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1980 (10) TMI 82
... ... ... ... ..... tly. Though the stabiliser may have a certain period of life the manufacturer s guarantee for the same would extent to only about a year and in this view of the matter also it cannot be said to be an asset of an enduring benefit either. In the circumstances the assessee s claim for allowing this as an item of revenue expenditure has to be allowed. As regards the bad debt this is incurred in the course of the business, it being found that customary advances to employees to keep them in good working efficiency is common in the business. That the amount has been lost is not disputed. That claim of bad debt has to be allowed. The item of expenditure on tea etc. would come under the definition of entertainment expenses. Having regard to the details of the expenditure claimed we are satisfied that on the ratio of the Gujarat High Court s decision in Patel Brothers 106 ITR 424 the claim should be allowed. The other grounds of appeal are not pressed. 4. The appeal is partly allowed.
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1980 (10) TMI 81
Torch body - Classification of goods ... ... ... ... ..... fully gone through the list of articles mentioned in Item No. 39.07 of Brussles Tariff Nomenclature and find that all those articles can be manufactured directly from the material mentioned in sub-item No. (1) of Tariff Item No. 15A and there is nothing in this trade notice which runs counter to the interpretation of Tariff Item No. 15A made by us. Even if the departmental authorities may be bound by the trade notice (on which question we express no opinion) the trade notice relied upon by the counsel for the petitioner do not help this case. 28. In the result, we are of opinion that the flash light torches made by the petitioner, main body of which is of plastic, cannot be said to be article made of plastic as contemplated by sub-item (2) of Tariff Item 15A and that they would fall within the ambit of Tariff Item 68. Accordingly the impugned decisions are upheld, though for different reasons. The petition fails and is dismissed. Parties are directed to bear their own costs.
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1980 (10) TMI 80
Refund — Excess duty paid by compulsion — Provisional assessment — Writ jurisdiction — Duty recovered by mistake
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1980 (10) TMI 79
Valuation - Wholesale cash price - Determination of - Price lists - Assessment order ... ... ... ... ..... and invalid, they should be set aside. 105. As in our view all the impugned assessments were not properly made in accordance with the principles laid down by the Supreme Court in Voltas case the same cannot be sustained. Further all the pending assessments and the future assessments, in our view, should be made in accordance with the aforesaid principles. In the above view of the matter, the judgment and order of the Court of the first instance cannot be upheld. 106. The appeal is, therefore, allowed. Rule Nisi is made absolute. All impugned assessments are set aside and the excise duty for the period covered by the said assessments should be reassessed in consistency with the law and the principles as laid down by the Supreme Court in Voltas case. We further direct that in future all assessments of the petitioner s goods will be made by the department consistent with the law and the aforesaid principles. There shall however be no order as to costs. S.C. GHOSE, J. - I agree.
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1980 (10) TMI 78
Yarn cleared for captive consumption should be assessed at the spindle stage ... ... ... ... ..... nsized yarn instead of the yarn in its sized condition. 3. The applicants contest that the revision application should be decided merits on the ground that the manufacture of yarn is complete at the spindle stage and the sizing which is done separately at the place of weaving. The yarn used for warp only is sized before it is used in the Weaving Department. 4. Government observe that the applicants do not sell yarn but consume the same internally for purpose of weaving the fabrics. The sizing is done only in respect of the yarn used as Warp after the yarn is taken from, the spinning to their Weaving Department whereas the yarn used in the Weft stage is not sized at all. Government therefore accept the applicants arguments that the yarn should be assessed on its form and weight in which it is cleared in this case for captive consumption at the spindle stage. 5. The order-in-appeal is therefore set aside and the revision application is allowed with consequential relief if any.
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1980 (10) TMI 77
P.V.C. Conveyor beltings not 'Cotton Fabrics' ... ... ... ... ..... se Tariff. Government also agree with the petitioners that even if one went by the extended meaning of cotton fabrics, the end product namely P.V.C. belting which is produced by confusion of various layers with fabrics dipped in a special type of solution, lost its identity as a cotton fabrics and, therefore, cannot be said to fall within the meaning of the expression of cotton fabrics under Item 19(iii) of the Central Excise Tariff. 4. Government are of the view that since classification of the goods under Item 18(2) was already ruled out by the lower authorities when they switched over to item 19(iii), Central Excise Tariff for issuing the impugned demands, the goods in question could only be classified under Item 68 of the Central Excise Tariff from the date this item was introduced in the tariff w.e.f. 1-3-75. Government accordingly allow the revision applications by setting aside the impugned demands without going into the question of time-bar raised by the petitioners.
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1980 (10) TMI 76
Vegetable products - Interpretation - Tariff Item in statutes ... ... ... ... ..... ry tariff item 68, Central Excise Tariff. In this connection, it may be mentioned that the High Court of Gujarat in the case of Navasari Oil Products Ltd. v. Supdt. of Central Excise, Navasari and others held in special Civil Application No. 862 of 1978 (reported in 1980 ELT 435) that super hardened groundnut oils and palm oil with a melting point above 450C is unfit for human consumption and are not classifiable under tariff item 13, Central Excise Tariff and that they would be liable to duty under tariff item 68, Central Excise Tariff. Government therefore set aside the order of the Appellate Collector by which he confirmed the order of Supdt. that the impugned goods are classifiable under tariff item 13, Central Excise Tariff. The impugned goods are classified under tariff item 68, Central Excise Tariff, and would be leviable to duty under that item from the date the said entry was inserted in the Central Excise Tariff. The Revision Application is disposed of accordingly.
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1980 (10) TMI 75
Compressor or blower is classifiable ... ... ... ... ..... oods are similar to Twin Lobe Compressors referred to in the judgment It is seen from the records that Shri C.A. Khedakar, Works Manager of the petitioners firm has in his statement dated 6-3-74 stated that the blower has a stator and rotor with blades and the art blower is coupled with electric motor. The goods in this case are therefore distinguishable from the Twin Lobe Compressors dealt with in the Gujarat High Court judgment and therefore the judgment would not be applicable to this case. Government consider that merely because the impugned goods are used in the plant, the fans do not cease to be fans. Further the Government are not saw of the analogy of blowers referred in the advices cited by them which do not at all hold good in their case. But in any case these advices are not binding on Government. In view of the above Government hold that the order in appeal is correct in law and does not call for any interference. The Revision Application is accordingly rejected.
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1980 (10) TMI 74
Exemption notifications - Value of clearances during exempted period - Deduction of notional amount of duty
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1980 (10) TMI 73
Limitation - Computation of ... ... ... ... ..... 3J of Central Excise Rules, 1944 would be applicable and that the relevant date for the purpose of computing the limitation under Rule 11 would be the date of finalisation of the R.T. 12. The Government hold that the ratio of the said order would be equally applicable to the instant case. The Government do not therefore find it necessary to grant further personal hearing in this case. 3. Accordingly, the Government modify the order of the Appellate Collector to the extent indicated above, and dispose of the Revision Application with consequential relief, if any.
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1980 (10) TMI 72
Resins - Polyester or phenolic resins - Dutiability of intermediate product ... ... ... ... ..... nt indicated above. We direct, in C.W. 219/78, the issue of a writ of certiorari quashing (a) the orders dated 6-6-1974 and 11 -2-1975 of the second respondent (Exhibits G and H ) (b) the orders dated 5-3-1975 and 30.9. 1975 of the third respondent (Exhibits J , and P ) and (c) the orders dated 6-12-1977 and 17-11-1977 of the first respondent (Exhibits L and R ) and the issue of a writ of mandamus directing the respondents to refund to the petitioners the excise duty of Rs. 5,00,283.17 in respect of the period from July, 1974 to 15th February,1975 illegally collected from it. In C.W. 220/78 we direct the issue of a writ of certiorari quashing the orders dated 6-12-1977 (Exhibit I ) 31-8-1976 (Exhibit G ) and 25-6-1976 (Exhibit E ) and the issue of writ of mandamus directing the respondent to refund to the petitioner the sum of Rs. 871.93 collected from it in respect of the production on 11-5-1976. The petitioners will be entitled to one set of costs. Counsel s fee Rs. 500/-.
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1980 (10) TMI 71
Intermediate products-Liability to duty - Yarn - Liability to duty - Jurisdiction ... ... ... ... ..... urporting to follow the advice contained in the letter of the Central Board of Excise and Customs which has been referred to earlier. In view of this it is clear that a part of the cause of action leading to the grievance of the petitioners has arisen in Delhi on account of the letter circulated by the Central Board. Since a part of the cause of action is within the jurisdiction of this court, it is not possible to accept the contention of the learned, counsel for the respondents that this court has no jurisdiction to entertain the writ petition. 9. In the result, we allow the writ petition and make the rule absolute. The letters dated 6th October, 1976,, 26th April, 1979, 30th April, 1979 and 5th May, 1979 are quashed and the respondents are restrained from levying any excise duty on the petitioners in respect of the yam manufactured by it whether at the stage of cone yarn or at the stage of sized yarn. The petitioners will be entitled to their costs. Counsel s fee Rs. 500.
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1980 (10) TMI 70
Import Licence - Powers of Licensing authority - Validity - Criteria for - Affidavit in Rejoinder - Writ of certiorari - End use certificate
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1980 (10) TMI 69
Printed cartons - Quasi-judicial proceedings - Interpretation - Classification - Criteria for
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1980 (10) TMI 68
Dumpers are motor vehicles - 'Adapted for use upon road' ... ... ... ... ..... run on roads. It does not mean that vehicles which are suitable for use on roads but which are not actually used on roads for much of the time are excluded from the expression motor vehicles . It is clear from the judgment that the dumpers are suitable for use on public roads. They can be and are used on public roads, if need arises. The fact that the petitioners use them on rough terrain for purposes of haulage etc. does not take them away from the category of motor vehicles so long as they have all the necessary ingredients and accessories which make them suitable for use on roads. Plying of these vehicles on the public road is not ruled out. 7. For the reasons given in the preceding paragraphs, the Govt. hold that the goods in question have been correctly levied to duty under Item 19(1) of the Central Excise Tariff. The claim for their reassessment under Item 16(3) C.E.T. is not tenable. 8. In the result, all the revision applications listed in the annexure are rejected.
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1980 (10) TMI 67
Manufacturer - Partnership - Liability to duty ... ... ... ... ..... the period of assessment. Having regard to these considerations, it appears to us that the only construction possible is that, in the context of the notification, a firm should be treated as an independent entity as is being done in several other contexts. 13. The result is that we make the rule absolute and issue a writ of certiorari setting aside the order passed by the Superintendent (A), Central Excise Division, Meerut, dated November 27, 1975 (Annexure K) rejecting the petitioners claim amounting to Rs. 3,02,605.65, the order dated February 3, 1967 passed by the Collector of Central Excise, Kanpur, dismissing the appeal of the petitioner (Annexure M) and the order of the Central Government in revision, passed on December 16, 1969 (Annexure O) and direct the respondents to reconsider the case of the petitioner for rebate under the aforesaid notification in accordance with law laid down by us. In the circumstances of the case, the parties will bear their respective costs.
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1980 (10) TMI 66
Duty wrongly collected - Time bar for refund not applicable - Illegal levy - Writ Jurisdiction - Criteria for refund
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1980 (10) TMI 65
Compounded levy - Penalty - Clarificatory notification not communicated - Effect - Revision ... ... ... ... ..... Collector was, therefore, right in the view that he took and the Revisional authority was in error in setting aside that part of the direction. The learned Counsel is also right in his submission that in the Revisional application preferred by the petitioner society, it was not open to the Revisional authority to pass any order adverse to it. Insofar as this aspect is concerned, the order passed by the Appellate Collector must be restored. 8. In the result, the petition is allowed. The respondents are directed to modify the demand in the following manner - (1) With regard to the demand in respect of the period between May 15, 1972 and July 12, 1972, it may be withdrawn (2) With regard to the demand in respect of the period from July 13, 1972 to August 31, 1972, the direction given by the Appellate Collector in his order dated March 17, 1976 as per Annexure C which is restored may be followed. 9. Rule made absolute to the aforesaid extent. There would be no order as to costs.
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