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Case Laws
Showing 81 to 100 of 209 Records
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1983 (4) TMI 177
Yarn cleared for captive consumption entitled to benefit of Special Procedure Scheme ... ... ... ... ..... o be cleared for captive consumption under the Special Procedure and in respect of which the duty liability had to be determined in terms of Notification No. 62/72-C.E. dated 17-3-1972 which liability had to be discharged only at the time of clearance of the fabrics. This would be doing violence to the whole scheme of the Special Procedure. 8. In the result, we hold that the Yarn cleared for captive consumption during the period from 17-3-1972 ending 23-7-1972 in terms of the Special Procedure was entitled to the benefit of the rates fixed under Notification No. 62/72-C.E. dated 17-3-1972 and that no further duty was payable on that quantity of the Yarn. The Central Excise authorities are directed to calculate duty liability on this basis and allow consequential refund to the appellants, if duty at the rate computed by the department has already been paid, within two months of the date of this Order. The appeal is allowed in the light of the above observations and directions.
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1983 (4) TMI 172
Captive consumption ... ... ... ... ..... l time), according to which excisable goods which are consumed or utilised in a factory for the manufacture of any other commodity shall be deemed to have been removed from such factory immediately before such consumption or utilisation. There is ho doubt that in the present case, the Chlorine was in the form of a gas immediately before its utilisation, that is, at the point of time at which it should be deemed to have been removed from the factory. Clearly, the tariff value has to be related to this point of time and consequently it should be the tariff value applicable to the goods in the form they were in at that time, namely, gas. 8. ensp As a result of the aforesaid discussion, the appeal is allowed and the tariff value for Chlorine in dry gaseous form as that of liquid Chlorine set aside. After necessary calculation and adjustment in the light of this order, consequential refund, if any, should be granted to the appellants within 2 months of communication of this order.
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1983 (4) TMI 171
Leather Cloth ... ... ... ... ..... ours with the present case. 14. ensp We are rejecting Shri Kunnikrishnan rsquo s contention that the argument sought to be advanced before us was left to be taken and considered by the Tribunal. As a fact, in para 4 of the judgment in P. Hira rsquo s case, one of the contentions was specifically what was urged by Shri kunnikrishnan and the Tribunal after recording that rejected the same in para 5. It is to project this aspect that we have considered it necessary to reproduce P. Hira rsquo s case judgment above. 15. ensp Relying on Tribunal judgments (supra) in P. Hira rsquo s case and in Allibhoy Mohamed rsquo s cases, we hold that the goods imported by the appellant were entitled to the concessional rate of duty provided for in the Notification No. 29/79-Cus., dated 10th of February, 1979 and, therefore, the Revenue is debarred from recovering the duty already refunded. 16. ensp The Rule issued in respect of the Stay Order, dated 14-2-1983 shall stand discharged accordingly.
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1983 (4) TMI 170
Valuation (Customs) ... ... ... ... ..... amount alone could be added to the assessable value of the goods. In the face of a clear legal position in this behalf, we see no merit in this contention of the appellants. We also agree with Shri Nair that any special agreement between the Government of India and any foreign Government/financial institution (I.D.A. in the present case) cannot override the provisions of Customs Act. We have no hesitation, therefore, in upholding the finding of the Appellate Collector on this ground. 8. ensp As regards the second ground raised by the appellant, viz., the legality of adding landing charges to the assessable value of the goods, we have dealt with the issue at length while disposing of the appellants rsquo other matter covered by their Appeal No. 141/80-A decided on 15-4-1983. For the reasons contained in that order, the appellants rsquo claim on ground (ii) is also rejected. 9. ensp For the reasons stated above, we find no merit in this appeal and dismiss the same in entirety.
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1983 (4) TMI 169
Appeal - Right of withdrawal of appeal or petition not available to parties ... ... ... ... ..... being heard, pass such orders thereon as it thinks fit, confirming, modifying or annulling the decision or order appealed against or may refer the case back to the authority which passed such decision or order with such direction, as the Appellate Tribunal may think fit, for a fresh adjudication or decision, as the case may be, after taking additional evidence if necessary rdquo . 4. ensp From the above, we notice that the Tribunal in addition to other orders contemplated can modify the order appealed against which means modification resulting in enhancement of liability also. There may be situations where enhancement becomes necessary if on accepted facts a palpably wrong decision has been taken in favour of the assessee, but the latter is still not satisfied and files an appeal seeking relief in the present case, the facts are not such which could possibly give rise to the above situation. Therefore, accepting the request for withdrawal, we dismiss the appeal as withdrawn.
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1983 (4) TMI 168
CLASIFICATION ... ... ... ... ..... cs, catalogue literature etc. 5. ensp Shri Chatterjee, on behalf of the respondent, took some time with the permission of the Bench to go through the material produced by the appellants. When the case came up for final hearing today, Shri Raghavan Iyer wanted some more time to go through the material and also to get further expert opinion from the Department of Electronics. 6. ensp In view of the certificates and the expert opinion already supplied by the appellants long ago and which remain un-rebutted by the Department till this day, we do not find any necessity to allow further time to respondent to get any more expert opinion at this stage. It is clear from the available records that the goods imported, namely Computer selective calling system type S-626 are a computer sub-system and as such they fall under Heading 84.51/55(2) of the Customs Tariff Act, 1975 read with Notification No. 272/76-Customs. Hence the appeal is allowed with consequential relief to the appellants.
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1983 (4) TMI 167
Machine tools - Sliding Headstock Automatics ... ... ... ... ..... ecified in the notification while the subject parts fell under headings not so specified. During the hearing, the Department rsquo s representative accepted the position that in terms of Notification No. 35/79-Cus. it is the machine to be manufactured which should fall under one of the headings specified in the notification and not the parts imported for the manufacture of that machine. He conceded that the contrary view taken by the lower authorities was not correct. On careful consideration of the matter, we agree with him. Accordingly, we remand the case to the Appellate Collector for a fresh decision in terms of Notification No. 35/79-Cus. within four months from the date of this order. The appellants are directed to produce the required certificate of the competent authority and an affidavit for end-use of the subject parts in terms of the notification, before the Appellate Collector, within three months from the date of this order. The appeal is disposed of accordingly.
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1983 (4) TMI 166
Demand - Time bar ... ... ... ... ..... ession of facts rdquo . When another factory of the respondent (at Cochin) was in fact paying duty on the sulphuric acid used for pollution control and had even taken up the matter with the Government of India in the Ministry of Petroleum, Chemicals and Fertilisers to move the Ministry of Finance for exemption on the quantity so used, it cannot be said that the respondent as a juristic person, was unaware of the leviability of such acid to duty and the need to declare it separately to the returns and lists submitted to the Department. In the circumstances, we find that there has been suppression of facts leading to non-levy of duty in the present case. In the proceedings before us there is no dispute as to the quantity of sulphuric acid used for pollution control or about its assessability to duty. In the circumstances, we set aside the order of the Appellate Collector and restore order of the Assistant Collector confirming the demand of Rs. 37,156.99 being the duty involved.
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1983 (4) TMI 165
Valves for Radar ... ... ... ... ..... ich would not be essential for their use for any other purpose. The certificate states further that no other valve can be substituted in their place because of the fact that the Radar circuits are designed taking into account the special design and the characteristic of the valve. The appellants added during the hearing that the Radar in question was not a mere wireless reception instrument and that it performed the function of reception and transmission simultaneously. On going through the certificate produced by the appellants, and after hearing their arguments, the Department rsquo s representative agreed that the subject goods were entitled to be assessed at concessional rate of duty under Serial No. (ii) of exemption notification No. 147/58-Cus. On careful consideration of the matter, we agreed with him. Accordingly, we allow this appeal with the direction that the goods be re-assessed under Notification No. 147/58-Cus and consequential relief be given to the appellants.
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1983 (4) TMI 164
Demand - Recovery of Short payment ... ... ... ... ..... le 173(1), there is no need of issue of formal notice. If the assessee does not agree with the classification done by the proper officer, it is open to him to avail of remedies provided for in the Act by way of a claim for refund or an appeal to the appropriate appellate authority and the like. We note that in the unnecessary show cause notice of the Superintendent of Central Excise issued on behalf of the Assistant Collector, reference has already been made to the assessment of the Superintendent of Central Excise, Mandya, indicating short payment of duty under Rule. 173(I)(2) of the Central Excise Rules, 1944 in the respective monthly R.T. 12 returns. In our view, the amount indicated by the Superintendent is payable and should have been debited to the Personal Ledger Account within ten days of the receipt of the R.T. 12 by the respondent. The respondent is hereby directed to comply with the requirements of Rule 173(I)(2) within ten days of the receipt of this order by him.
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1983 (4) TMI 163
Refund - Customs - Preferential area rates S/Shri B.B. Gujral, K.L. Rekhi, Smt. V.S. Rama Devi, JJ.
REPRESENTED BY : Shri R.B. Singh, for the Appellants.
Shri Sunder Rajan, for the Respondent.
[Order].
- Case came up for hearing today, i.e. on 4-4-1983.
2. This is a revision application filed under the then Section 131 (now transferred to the Appellate Tribunal under Section 131-B of the Customs Act, 1962) against the Order No. S/3-1196/76, dated 234-9-1976 passed by the Appellate Collector of Customs, Bombay.
3. In this case, the appellants claimed refund of duty on the goods imported by them after re-assessing the duty (1) by taking the actual insurance charges into consideration and (2) at preferential rate of duty as the goods were imported from U.K. Their claim had been rejected as un-substantiated.
4. Shri R.B. Singh, on behalf of the appellants, showed us the records to prove that the certificate of origin was submitted at the time of clearance. The letter of Insurance Company dated 16-8-1976 was also produced. The appellants had submitted the evidence of actual insurance charges on 17-12-76 but the same was not collected in the Assistant Collector’s office. He also showed evidence that the appellants’ Clearing Agent had addressed a letter to the Appellate Collector of Customs, Bombay stating that the suppliers’ invoice certifying the country of origin was submitted to the Customs authorities well in advance before the finalisation of their case by the Customs authorities.
5. Shri Sunder Rajan, on behalf of the respondent stated that the appellants did not comply with the conditions of U.K.-India Trade Agreement Rules as they had not produced the certificate of origin in the prescribed form ‘A’ and claimed assessment at preferential rate of duty at the clearance time. Hence, he stated that the claim of the appellants should be rejected.
6. It is evident from the records that the implied claim had been made at the time of clearance as the invoice containing the certificate of origin and the Bill of Entry clearly brought out all the details regarding the origin of the country etc., and the certificate of origin in the prescribed form had also been produced later. Hence, we hold that the claim was made within time and allow the appeal on both the counts with consequential relief to the appellants.
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1983 (4) TMI 136
Customs Valuation ... ... ... ... ..... uld be said to have been entertained by some Customs Officers. Therefore, according to us, the short levy demand of Rs. 11,209.54 came to be correctly raised and there is no dispute or agitation regarding the calculation as such. 8. emsp Shri R.G. Sheth, on a query from the Bench, informed that after November 1970 even the exporters have not agitated and for purpose of assessment the commission paid to foreign agents is not claimed as a deduction from the value of goods which is offered to the buyer. 9. emsp For the Revenue, we had the assistance of Shri Kunnikrishnan, Jr. D.R. who made a short effective reply by submitting that the agitation raised by the exporter was unnecessary and avoidable litigation. Considering that any lengthy discussion in the case is not called for and that there is no substance in the appeal, it is dismissed on the ground that any other view than the one taken by the Revenue Authority in the present case would have been wrong. 10. Appeal dismissed.
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1983 (4) TMI 132
Investigation and Enquiry ... ... ... ... ..... f the second respondent in Criminal Appeal No. 688 of 1976 that this Court be pleased to pass an order regarding the return of M.O. 5 series, the gold jewelleries seized from him, to him. The learned Chief Metropolitan Magistrate has directed M.O. 5 series to be returned to the second accused (second respondent). But, it is represented that when M.O. 5 series were asked to be returned, a reply was received from the Assistant Collector of Central Excise, Preventive, Madras, stating that since the matter is pending in the High Court, the petitioner could move the High Court for return of the property. As the matter is now disposed of and as no petition is pending before this Court regarding the disposal of the property, we direct the petitioner either to move the authorities concerned or to take appropriate action for the return of the property, and this Court is not inclined to pass any order regarding the disposal of the property as it is not the subject matter of the appeal,
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1983 (4) TMI 129
Business Expenditure, Diversion Of Income ... ... ... ... ..... cieties Act with regard to the contribution made to the education fund. In both the cases it is a payment unrelated to the business of the assessee and is payable only because of the assessee being a co-operative society. If the business has been carried on by any other person than a co-operative society under both the enactments, the payment would not become necessary. The basic principle for the allowance of the expenditure that it should be relevant to the assessee s business and his capacity as a businessman applies in the same way in respect of both the enactments. A comparison of the provisions set out earlier in this order also shows no difference between these two enactments. 25. We, therefore, hold that the assessee is not entitled to a deduction of the sum of Rs. 25,000 paid towards the Education Fund . The order of the Commissioner is upheld. 26. The appeal is dismissed. 27. We express our thanks to Shri Kulkarni (intervenor) for his assistance in the above appeal.
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1983 (4) TMI 126
Income Tax Act, Words And Phrases ... ... ... ... ..... plant and other fixtures and furniture being adjuncts of the building designed to serve as a hotel, which by itself must be regarded as a plant because it is an essential part of the trading activity of the assessee. Whatever be the fixtures and furnitures that are in the premises the entire premises is by itself an integral unit, a commercial asset and the tool of the trade of the assessee, all of them are inseparable and constitute one single commercial asset with which the assessee plies his trade and derives the income. Therefore, that commercial asset being an inseparable combination of building, plant, furnitures, etc., is to be treated as a plant and the assessee is entitled to deduction of depreciation at the appropriate rate. We, therefore, deem it fit to set aside the orders of the authorities below and direct the ITO to recompute the total income after verifying and allowing the claim of the assessee by treating the hotel premises as a plant. The appeal is allowed.
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1983 (4) TMI 124
... ...
... ... ..... tisfactory. It was observed that the offence in such a case is not just a default but a default without a reasonable cause and the onus is not on the assessee to show that there was reasonable cause for his default the onus on the contrary is on the Officer to show that the assessee rsquo s default was without reasonable cause and there is quite a difference between the two. The decision in (1978) 108 ITR 192 (Mad) relied on by the assessee also, according to us, lends support to the assessee rsquo s case. The other argument advanced by the ld. counsel with regard to the lack of opportunity was only a supporting argument and it also has force, but it is not necessary for us to base our decision on that argument or the acceptance thereof because on the merits of the case, we are satisfied that the CIT(A) rsquo s order upholding the explanation of the assessee as reasonable cause is correct and justified. The department rsquo s objection is rejected and the appeal is dismissed.
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1983 (4) TMI 122
Business Loss, Carry Forward And Set Off ... ... ... ... ..... e firm falling to him, it will represent income or profits of the business carried on by him and the sub-partner, the relationship of the two being covered by the principles of partnership. We are, therefore, satisfied that the character of income derived even for a sub-partnership continues to be profits from business carried on by him. Applying these principles to the facts of this case, it is clear that the half share of income or loss allocated to the assessee s father in the firms to which the assessee is entitled by virtue of partition should be regarded as income from profits and gains of business carried on by himself and any loss unabsorbed in the past is entitled to be brought forward and set off in accordance to the provisions of section 72 and other connected provisions of the Act. We, therefore, reverse the order of the departmental authorities and direct them to carry forward the loss and set off in accordance to the law. 6. In the result, the appeal is allowed.
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1983 (4) TMI 119
... ...
... ... ..... ng such deduction for annuity deposit in computing such income notwithstanding the fact that no actual annuity deposit was in fact made. In the present case also it would appear that in determining the tax payable by the assessee as if it is an unregistered firm, the fiction introduced should be brought into play to the full extent for finding out the advance tax to be deducted, the advance tax should be calculated with reference to the estimate made by the assessee on the basis that it is an unregistered firm and on the assumption that such advance tax has been paid. However, in view of our accepting the assessee rsquo s claim that there was reasonable cause for the default, it is unnecessary to base our decision on the alternative claim made by the assessee. The levy of penalty is cancelled and the amount, if collected is directed to be refunded to the assessee. 6. In view of our disposing of the appeal, the stay petition becomes infructuous and it is accordingly dismissed.
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1983 (4) TMI 116
Revenue Receipt ... ... ... ... ..... possible to apply the decision of the Cuttack Bench to the facts of this case. The other contention of the assessee that the subsidy was discretionary and should be treated as a bounty cannot be accepted because, as held by the Madras Bench, the receipt by an assessee who was carrying on a profession must be treated as income from that profession because it was given to assist it in the carrying on of the business. It is obvious that the subsidy was not given out of benevolence but only to meet the additional expenditure that the assessee may have to incur by producing the feature film in the State of Andhra Pradesh with reduced facilities and that the receipt was directly connected with the exercise and the result of the professional activity of the assessee. We are, therefore, convinced that the ITO was right in assessing the subsidy as part of the income of the assessee. We, therefore, set aside the order of the AAC and restore the assessment order. The appeal is allowed.
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1983 (4) TMI 113
Assessment Proceedings, Real Income, Reassessment Proceedings, Revised Return ... ... ... ... ..... ek redress under those proceedings. We do not see why the assessee should be made to wait for more than a decade for a simple waiver of penalty when prompt action has been taken to accept his statement as information for the purpose of making the assessments. Viewing the inaction of the Commissioner with the advertisement which came shortly after the assessee s disclosure, the only inference that we can draw is that the Commissioner found it unnecessary to pass any individual orders because in the cases of those kind, that is where revised returns have been filed voluntarily, the Board has itself issued a public statement that there will be no penal consequences. We are, therefore, of the considered opinion that in the light of the policy statement of the department itself which will lose its credibility unless it is given effect to, there was no warrant for imposing penalties on the facts of this case. The penalties imposed are, therefore, cancelled. The appeals are allowed.
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