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Case Laws
Showing 41 to 60 of 168 Records
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1985 (11) TMI 177
Refund of tax paid under Mistake of law ... ... ... ... ..... ndandaramayya, J.) in a judgment delivered sitting in a Division Bench in Godavari Trading Co. v. A.M.C. Palakol, (1984) 1 Andh. LT 221 relating to the applicability of promissory estoppel in public law would equally apply in this case. We said ldquo The principle of equity as stated by the American authority is rdquo to prevent fraud or manifest injustice . Instead of resting the doctrine on the basis of contract, consideration, detriment, or cause of action, it should be based upon quity governing the jural relationship between the State and the citizen when the citizen acted to his detriment on the declared policies of the State. In the interests of administrative law, an independent concept must be allowed to grow akin to doctrine of natural justice, colourable exercise of power, or an abuse of power based on general requirement of exercising constitutional or statutory power by the authorities without resting on literal meaning of constitutional or statutory provisions.
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1985 (11) TMI 174
Questions based on facts and merely argumentative in character not referable ... ... ... ... ..... ich would not merit reference to the High Court. 8. Regarding Question 8 - This is a question of fact derivable from the material on record and hence is not referable. 9. Regarding Question 9 - Charges under Rule 173Q(1) and other sub-sections of that Rule are different in character. This too s in the nature of an argument and hence is not referable to the High Court. 10. Regarding Question 1C - This is a determination of fact relating to the nature of goods and hence not referable. 11. In the result the following questions are referred to the Hon rsquo ble High Court of Judicature at Madras - (i) Whether the Tribunal was correct in holding that mens rea is not a necessary ingredient for an offence created by Rule .173Q (1)(b) of the Central Excise Rules, 1944 (ii) Whether in the facts and circumstances of the case with specific reference to the presence of the goods in the production hall of the factory the application of Rule 173Q(1)(b) to the facts of the case is in order.
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1985 (11) TMI 171
Stay/dispensation of deposit of duty ... ... ... ... ..... ty alleged to have been evaded was quantified in para 18 thereof. The penalty that was levied on the applicant was, however, admittedly, recovered by enforcing a Bank Guarantee furnished by the applicant. 3. ensp In the result, it does not appear that ldquo the decision or order appealed against relates to any duty demanded rdquo from ldquo the person desirous of appealing against the decision rdquo . Section 35(F) of the Central Excises and Salt Act, 1944 4. ensp Accordingly, since no duty had been demanded by the order under appeal, there is no question of making a deposit of any duty demanded or dispensing with such deposit. 5. ensp This being the case, we, in exercise of the ancillary or incidental powers vested in us I.T.O. v. Mohd. Kunhi (1969) 71 ITR 815 hereby order and direct that no steps should be taken to effect recovery of any amount towards duty from the applicant under the order in question till the hearing and disposal of the appeal preferred by the applicant.
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1985 (11) TMI 167
Revision by Collector - Suo motu revision ... ... ... ... ..... 1-H of the Act, the Central Government has declared an inland area of 50 kilometres in width from the coast of India falling within the territory of State of Madras and Union Territory of Pondicherry as specified area taking into account the vulnerability to smuggling of that area. There is no dispute that Pozhal is within 50 kilometres from the coast of the territory of the State of Madras and undoubtedly that area would fall within the notification as specified area for purpose of the Act. Consequently, this contention of the learned counsel for the petitioner also cannot be accepted. No other point was urged. Thus, on a careful consideration of the facts and circumstances of the case as well as the several contentions urged, no case is made out for issuing the writs as prayed for by the petitioner in these writ petitions. Consequently, the rule nisi is discharged and the writ petitions are dismissed with costs of the third respondent-one set. Counsel rsquo s fee Rs. 500/-.
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1985 (11) TMI 163
Paper - ‘Paper and Paper Board’ ... ... ... ... ..... ds manufactured, produced or stored by him, the goods shall be liable to confiscation and the manufacturer shall be liable to penalty. The order of the Additional Collector to confiscate the goods was, therefore, legally valid. It has, however, not been brought out either in the show cause notice or in the order-in-original that the non-accountal of the seized goods in the Central Excise records was with the intention to clandestinely remove the goods from the factory without payment of duty. In view of this, the end of justice could be met by imposing a smaller amount of redemption fine. For the same reason, I also hold that no penalty should be imposed for the aforesaid lapses. In the circumstances, having regard to the facts and circumstances of the case, I confirm the order of confiscation of the impugned goods, but reduce the amount of redemption fine from Rs. 10,000/- to Rs. 5,000/- only. I also set aside the penalty. 12. The appeal is partly allowed in the above terms.
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1985 (11) TMI 159
Import of dry fruit ... ... ... ... ..... o the Customs Authorities to identify the goods, which in their judgement could be appropriately classified as consumer goods rsquo . The above paragraph in our opinion does not support the contention of Shri Patel. The Collector is given discretion to identify the goods as consumer goods even though the goods would not fulfil the definition given in Chapter 2. Sub-para(6) does not confer any discretion on the Collector to classify the goods as not consumer goods if it falls within the definition of consumer goods incorporated in Chapter 2. We, therefore, reject this contention also. 24. emsp On careful consideration of all the aspects we hold that the goods imported are consumer goods. The licence produced by the appellant for clearance of the goods was not valid for the import of the goods in question. We, further hold that the goods in question could not have been imported as OGL items during the relevant period. 25.In the result this appeal fails and the same is rejected.
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1985 (11) TMI 158
Confiscation of conveyance used as a means of transport in the smuggling of goods ... ... ... ... ..... a significant omission in the order of the Additional Collector. The Faizi Husaini was on charter to National Co-operative Consumers rsquo Federation Ltd., and was carrying wet dates consigned to it. Therefore, the owner of the cargo of wet date contained in the Faizi Husaini was well within the knowledge of the Addtional Collector of Customs, Bombay. As per Section 124 of the Customs Act, the owner of the cargo should have been given notice before confiscating the same. No such notice was given to the owner of the wet dates in the present case. Accordingly we find that the Additional Collector rsquo s order of confiscation of 240 bags of wet dates under Section 119 of the Customs Act is bad in law. Accordingly, we set aside the same and direct that the fine of Rs. 10,000/- paid by the appellant be refunded to them. 7. emsp Except for the modifications mentioned above, the order of the Additional Collector of Customs, Bombay is confirmed and the appeal is otherwise rejected.
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1985 (11) TMI 152
Refund of duty ... ... ... ... ..... R.T.12 returns is on notice that certain clearances have been made after payment of duty under protest, as will be evident from a perusal of the gate passes. The Officer completing the R.T.12 returns has to refer to these gate passes, amongst other things, to verify the correctness of the entries in the R.T.12 itself. We would therefore, conclude that the provisions of Rule 233B in regard to endorsement of gate passes and R.T.12 returns are directory and not mandatory in nature. This is particularly so as an important document, such as gate pass has been duly endorsed, this action itself being a follow up of a valid letter of protest dated 29.12.81. 8. emsp In these circumstances, we find that duty had been paid under protest in this case. Accordingly, we set aside the orders of the Collector (Appeals), Madras and the Asst. Collector and remand the case back to the Asst. Collector for determination of the claim of the party on merits, keeping in view our observations herein.
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1985 (11) TMI 151
Refund - Excess Production rebate ... ... ... ... ..... spondent. Regarding Question No.1, this calls for a general discussion of the order not raising any specific question of law and no reference can arise on this question. Regarding Question No.3, we note that the decision dated 20-12-83 in 1984(15)(ELT) referred to was not cited before the Tribunal during the hearing of the appeal and hence was not dealt with in our order. Regarding Question No. 5, we find that the point sought to be raised is already covered by Question No. 2 on which we are making a reference. Regarding Question Nos. 2 and 3, though both the questions will arise from the order, it was agreed that a single question framed as under could be referred to the High Court. We accordingly refer the following question to the Hon rsquo ble High Court of Judicature at Madras. ldquo Whether in the facts and circumstances of the case, the date of declaration would be the relevant date for the purpose of claim for refund under Rule 11 of Central Excise Rules, 1944. rdquo
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1985 (11) TMI 150
Refund claim time barred ... ... ... ... ..... The observations of the Supreme Court in the case of Assistant Collector of Central Excise, Calcutta v. National Tobacco Co. of India Ltd. 1978 E.L.T. 416, referred to by the advocate for the appellant deals with an entirely different situation. That was a case where a debit was made to the PLA without any assessment and the question was whether such a debit which was a mechanical process would constitute a levy. As we have observed in the preceding paragraphs, the debit made to the PLA in the present case is the result of a deliberate act on the part of the assessee after conforming to the provisions of Chapter VII-A in the course of which formal and quasi-judicial determinations have been made by proper officers, both in respect of the rate of duty applicable and the unit value of the excisable goods. 21. emsp In the result, we hold that the provisions of Rule 11B have been correctly applied to the claim for refund made by the appellant. Accordingly, we dismiss the appeal.
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1985 (11) TMI 149
Foreign Currency confiscated by Customs ... ... ... ... ..... lised by the Govt. by crediting into the Reserve Bank of India on 8-12-1982 be made available to the applicant in US on the basis of the rate of exchange prevalent on the date of receipt of the order of the Tribunal by the Custom House. Any subsequent variation in the exchange rate making a difference to the quantum of currency will have to be borne either by the Department or the applicant as the case may be. 7. Ordered accordingly. 8. emsp In the application, a request has been made for ordering payment of interest at the rate of 18 per annum because of long delay. There is no provision in the Act for payment of interest in respect of sums found due to an assessee or to the Department Interest is not charged either way. We therefore, do not see any reason to accede to this request of the applicant. 9. emsp As considerable time has already passed, we hope that the issue will be decided at an earlier date, say, within the course of another 8 weeks from the date of this order.
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1985 (11) TMI 140
Confiscation, fine and penalty ... ... ... ... ..... e, we find force in the appellants rsquo plea so far as the fine and penalties are concerned. After concluding that the charge of clandestine removal on the part of the appellants was established, the Collector stated in the concluding paragraph of his two orders, almost in identical language ldquo The contravention is, no doubt, very serious but I cannot rule out the possibility that the mills might have misconstrued the scope of the Notification resorting to a particular mode of classification and clearances guided by the objective of reducing their losses or of making profits. I do not, therefore, impose the maximum penalty liable in this case. rdquo The appellants are right in saying that the aforesaid finding is not merely an extenuating circumstance, it also admits of the possibility of two constructions of the Notification and hence fine and penalty are not justified. 11.In the result, we set aside the confiscation and penalties. The two appeals are otherwise rejected.
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1985 (11) TMI 139
Appellate Tribunal’s Order ... ... ... ... ..... mber Bench and later the 5-Member Bench came to different conclusions on the same issue. We are of the opinion, in the circumstances, that the order of the 3-Member Bench cannot be said to suffer from any mistake apparent from the record. 12. emsp Another decision cited by Shri Kapoor is West Coast Paper Mills Ltd. Dandeli v. Collector of Central Excise, Bangalore reported in 1985 (21) E.L.T. 222 (Tribunal). In that case, the South Regional Bench of the Tribunal referred a question of law to the Karnataka High Court. The High Court decided the question in the affirmative, which decision was against the view taken by the Bench. Accordingly, the Bench modified their order and passed an appropriate modified order. We do not see any parallel between this case and the one before us. 13. emsp We can see no mistake in our order dated 9-1-1984 as is apparent from the record nor, therefore, any case for invoking our powers under Section 35C(2) of the Act. The application is dismissed.
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1985 (11) TMI 138
Remission of duty on industrial use of duty paid goods ... ... ... ... ..... . There can be a situation where the duty liability is transferred to a person other than the manufacturer. In that case both the liability to pay extra duty and the right to receive refunds may be passed on. Thus, in the case of an assessee working under Chapter X procedure, Rule 196 provides for demand of duty from him on goods not duly accounted for. If any duty has been levied on an industrial consumer under this rule he would no doubt be entitled to claim refund thereof. But these considerations are not applicable to the present case where the Chapter X procedure was not followed and where duty was paid unconditionally at the time of clearance by the manufacturer, namely I.O.C. 25.For the above reasons we find that the preliminary objection taken by the learned Departmental Representative is well-founded. We hold that the appellants before us had no locus standi to make the refund claim or to file further appeals. Accordingly, we dismiss their appeal as not maintainable.
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1985 (11) TMI 137
Refund-When can it be erroneous ... ... ... ... ..... This is a well settled proposition of law. rdquo 59. emsp Reference in this connection may usefully be made to the decision of the Supreme Court in the case of B. Balakotaiah v. The Union of India, AIR 1958 S.C. 232 and Afzal Ullah v. State of U.P., AIR 1964 S.C. 264. 60. emsp Mr. Nariman vehemently contended that Rule 10 should have been available to the Excise authorities when it passed the order and since by repeal that rule ceased to exist the Authority could not take advantage of Rule 10. We are afraid, this contention is again of no effect in view of principles of construction contained in Section 6 of the General Clauses Act being applicable to Rules framed under the Central Excises and Salt Act, 1944. 61. emsp On the date on which rebate in excise was erroneously given, cause of action arose for claiming this refund and certainly Rule 10 was there when the notice was issued to the petitioners to refund the same. The result is that the petition fails and is dismissed.
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1985 (11) TMI 129
Exemption notification with fixed duration ... ... ... ... ..... judgment. Further, the Tribunal cannot be equated to a court of equity. In any event, on grounds of equity the present case cannot be compared with the M.P. Sugar Mills case and the Godfrey Philips case, because there was no specific representation to the appellants or to their association, as in those cases. It can be further distinguished from the Godfrey Philips case, because unlike that case, where duty was sought to be collected on goods which had been manufactured and sold years earlier, here duty was levied on raw material for goods still to be manufactured. A rule of equity cannot be invoked in these circumstances. 30. emsp In the result our conclusion is that the plea of promissory estoppel is of no avail to the appellants in the present case. Additional duty of customs was correctly levied by the Customs authorities in the light of the notifications as in force at the relevant time. We accordingly confirm the order of the Appellate Collector and reject this appeal.
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1985 (11) TMI 126
Show Cause Notice issued by Supdt ... ... ... ... ..... . On this limited point alone, we find that the appeal preferred by the Collector of Central Excise, Belgaum cannot be sustained and deserves to be rejected. 3. emsp Shri Tripathi, S.D.R., for the Appellant Collector has urged that the purported order dated 7-11-83 is no order at all in the eyes of law. It was therefore open to the Assistant Collector to cancel it and initiate fresh proceedings under the law. We are unable to accept this contention of the S.D.R. and reject the same outright. There is no provision in the Central Excises and salt Act, 1944 under which an Assistant Collector, having passed an order under the law, can cancel it and initiate fresh proceedings arising from the same show cause notice. 4. emsp The S.D.R. argued the matter on merits but since we are inclined to reject the appeal on the substantive legal issue itself, we do not propose to go into the merits of the case. 5. emsp In the result, the appeal fails and is rejected. Ordered in the open Court.
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1985 (11) TMI 125
CLASSIFICATION ... ... ... ... ..... duct is not cellulose in its natural form but processed to a high degree of purity. In the state it is imported, it can be no longer described as a natural product but appropriately only as a manufactured product even if the source is cellulose obtained from vegetable material. 17. emsp The imported goods, would, therefore, fall for classification under Heading No. 39.01/06 of the Customs Tariff Schedule and Item No. 15A(1)of the Central Excise Tariff Schedule. 18. emsp The Compendium of Classification Opinions published by the Customs Co-operation Council at page 57 shows Cellulose powder, finely divided, white, under Heading No. 39.06 of the C.C.C.N. This would also support the view which we have taken. Shri Sogani rsquo s contention that the imported goods are used for purposes other than those described in the compendium is not of assistance to him because the compendium describes only some of the uses of cellulose powder. 19. emsp In the result, the appeals are rejected.
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1985 (11) TMI 124
Appeal - Condonation of delay in filing ... ... ... ... ..... and does not bring into sharp focus as to the circumstances of a compelling nature which led to the delay in filing of the present appeal. We are afraid the present application does not disclose any material at all which would warrant a grant of the prayer made in the application. 7. emsp We have given anxious consideration to the prayer of the learned SDR for further time being granted but we think it would not be in order. The Appellant Collector had sufficient time and the very purpose of moving a condonation application is to collect all the relevant material and set it out in the application. We are, therefore, constrained not to accede to the request of the learned SDR for granting further time to amend the application. 8. emsp In the result, we do not find any ground for condonation of delay and therefore reject the application. 9. emsp As the application for condonation of delay has been rejected, the appeal itself is dismissed as barred by time. Ordered accordingly.
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1985 (11) TMI 123
Claim presented to the Superintendent of Central Excise who after necessary verification forwarded it to Assistant Collector of Central Excise
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