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Case Laws
Showing 61 to 80 of 218 Records
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1985 (12) TMI 216
Statement - Retraction would not wipe out the original statement if the nature of threat ... ... ... ... ..... t himself. Therefore, we see no infirmity in the order of confiscation and the penalty passed by the Addl. Collector and confirmed by the Board, and uphold the order of confiscation of the gold. 8. emsp So far as the confiscation of Rs. 2,036/- of the appellant is concerned, there was hardly any evidence to establish that it represented the sale proceeds of the contraband goods. We therefore set aside that part of the order of the Addl. Collector and confirmed by the Board. The department is however at liberty to appropriate this amount towards the penalty amount. If the appellant had paid the penalty, the amount of Rs. 2,036/- which is recovered from his person shall be returned to him. Incidentally, we would like to point out that Shri Shah did contend that the penalty imposed was harsh but having regard to the value of the gold seized and the modus operand of the appellant we do not consider that the penalty was either harsh or unreasonable or unjust, and confirm the same.
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1985 (12) TMI 215
Delay condoned ... ... ... ... ..... be either in person or through a Registered Post and since the appellant had not adopted either of the above modes, the Registry had rightly refused to accept and in the absence of any other cause for the delayed presentation of the appeal, the application shall have to be rejected. 2. emsp We have considered the submission made by Shri Senthivel. Rules of procedure are not intended to hamper justice but to further justice. Though the Rule 6 contemplates of presentation of the appeal in person or through Registered Post the expression lsquo in person rsquo should be construed liberally and if it is sent by a representative of the appellant the Registry would not be committing any irregularity much less illegality in accepting the appeal. Taking a liberal view of the matter, we condone the delay and direct that the appeal be admitted. The appellant be however notified of the defects pointed out by the Technical Officer and he be given 2 weeks rsquo time to rectify the defects.
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1985 (12) TMI 214
Excise duty chargeable at the time of removal of excisable goods from the place of manufacture
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1985 (12) TMI 192
Cognizance of offence ... ... ... ... ..... ing authority and I fail to appreciate how one could ever spell out a conflict between Section 122 vis-a-vis 137 of the Act. Assuming argumendo that the finding of the Tribunal is apt to create administrative difficulties, it should not be difficult to notify certain category of officers as Collectors within the meaning of Section 137 for the limited purpose of according sanction. 9. emsp The plea of the respondent that the Department having accepted the finding of the Tribunal in the impugned order and commenced fresh adjudication proceedings by issue of show cause notice which has also been responded to would not have the right of reference under the Act is legally untenable. As rightly pointed out by the learned SDR acts initiated by the Department subsequent to the order of the Tribunal and in conformity thereto, would not destroy or nullify the pre-existing right of reference in terms of Section 130(1) of the Act. 10. In the result, the reference application is rejected.
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1985 (12) TMI 191
Excess production rebate ... ... ... ... ..... f a period of three years one were to substitute period of three full sugar years. We do not think such a reading of the notification is warranted. In this view of the matter, the appeal is dismissed. 4. emsp We have heard both the sides to the Reference Application. Since the questions raised call for an interpretation of the notification, we consider that both the questions would arise for reference from our order through a single question in the following form would serve the purpose and accordingly refer the following question to the Honourable High Court of Judicature at Karnataka - ldquo Whether in the facts and circumstances of the case, with specific reference to the non-existence of the factory for a part of the three years period relevant to Notification No.132/82-CE. dated 21.4.82, the Tribunal was right in holding that the benefit was available to the assessee and in doing so, whether the Tribunal has given retrospective effect to an exemption notification. rdquo
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1985 (12) TMI 190
... ...
... ... ..... xported by the petitioners was regarded as ldquo absorbent cotton wool rdquo . It thus clearly fell within the description of the relevant goods contained in item No. BB. 1 of Annexure II and hence was entitled to the cash subsidy. In our view, with respect the learned Judge was right in coming to the conclusion that the petitioners were entitled to the cash subsidy claimed by the petitioners. Although a number of other points appear to have been raised in the petition and in the trial Court, no other point was canvassed before us and, therefore, it is not necessary for us to consider any of those points. In the result the appeal fails and is dismissed with costs. 4. emsp It appears that the petitioners have already received the cash assistance claimed by them and in respect of the same have executed a Bank guarantee in favour of the Prothenotary and Senior Master. In view of our aforesaid decision, the said Bank guarantee must be cancelled and returned to the bank concerned.
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1985 (12) TMI 189
Export - “Attempt” to export improperly - Distinction between preparation and “attempt” ... ... ... ... ..... , being a relative of Mohd. Irfan, was entrusted with 10 Kgs. of silver ornaments on 30-10-1979. Indeed the concluding part of his statement dated 20-11-1979 is to the effect that when he enquired Mohd. Irfan earlier as to why he was buying silver like this, he told him that it was for being taken to Bombay for disposal. We are indeed surprised that the Board in the impugned order should have observed that ldquo Irfan, Choksi, Abdul Razak, Kazia Ismail Bappu and C.D. George have all accepted their roles in the attempt at unauthorised export rdquo . Such a finding in the original order as well as the appellate order has no basis or warrant on facts. We therefore hold that the charge of abetment against appellants Babu Rao, Surendra Rao and Kazia Ismail Bappu has not been made out. 19. emsp On a careful consideration of the entire evidence and materials available on record, we hold that the charges against the appellant have not been proved. Accordingly the appeals are allowed.
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1985 (12) TMI 188
Customs - Imports of spare parts - Confiscation
... ... ... ... ..... e or it cannot be used as spare part. The Board seems to be of the opinion that a spare part is only the pipe in the machine and not the strip in the pipe. This view appears not correct having regard to the definition of the spare given in the subsequent Policy, and having regard to the clear elucidation of spare parts in paragraph 54. Paragraph 54 is clear, explicit and admits of no doubt. It states spare parts are those parts of machine which because of wear and tear, use or breakage needs replacement. The appellants rsquo contention is that the strips inside the pipe gets worn out and needs replacement. Therefore, the strips can be spare parts within the meaning of paragraph 54. Since the import was not objected on the ground that it is a non-permissible spare part or a consumable spare, the order of confiscation is bad in law. 12. emsp In the result this appeal is allowed, the order of confiscation is set aside and the fine if any paid shall be refunded to the appellants.
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1985 (12) TMI 187
Customs - Confiscation of T-shirts and half shirts invalid ... ... ... ... ..... alf shirts is liable to be set aside and the same is set aside. They shall be released to the appellant. 7. emsp As regards, the penalty besides confiscation of T-shirts and half shirts, the Additional Collector had ordered confiscation of the wrist watches and that part of the order of the Additional Collector had not been challenged. The allegation was that the watches were of foreign origin and they were thrown out by the appellant from the flat which he was occupying. Therefore, the Additional Collector could have imposed a personal penalty on the appellant in respect of appellant rsquo s acts in relation to the watches which were notified goods. Therefore, I see no reason to interfere with that part of the order. 8. emsp In the result, this appeal is allowed in part. The order of confiscation of the T-shirts and half shirts is set aside. In other respects, the order of the Additional Collector is confirmed. T-shirts and the half shirts shall be returned to the appellant.
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1985 (12) TMI 186
Customs-Penalty for non-filing of IGM ... ... ... ... ..... the agent so chooses he can file the IGM. Thus there was only an option on the agent to file the IGM and not a legal obligation to file the IGM. In the said circumstances, the finding of the Collector that the omission on the part of the appellant to file the IGM would render him liable for penalty under Sec. 112 appears untenable in law. As regards Sec. 148, it was not independently made use of. According to the Collector that Sec. has to be read with Sec. 30. I have already referred to the scope of Sec. 30. That Sec. did not make it obligatory for an agent to file the IGM. In the said circumstances, there is hardly any scope to invoke the provisions of Sec. 148. Moreover, the basic requirement of Sub-Sec. (2) of Sec. 148 also had not been established in this case. 9. emsp Taking all aspects into consideration, I hold that the penalty imposed on the appellant is not legal, and therefore, I set aside the same. The penalty if any paid by the appellant shall be refunded to him.
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1985 (12) TMI 185
Condonation of delay in filing application ... ... ... ... ..... ed between the disposal of the writ petition and the date of filing of the present petition the absence of proper explanation regarding the receipt of certified copy or the loss thereof, we do not think that, in the circumstances of this case, the applicants have been able to establish that they were prevented by sufficient cause from presenting the application within the initial period of 60 days. We further hold that in respect of the further delay of 22 days also, there has been no proper explanation to account for the said delay. We, therefore, hold that, even if the contention of the applicants as to the applicability of the provisions of the Limitation Act to the present proceedings is to be accepted, (which is not the case) the applicants have made out no case for condonation of the delay. 13. emsp Accordingly, we dismiss the application for condonation of the delay. In view of the said dismissal the application for reference is also dismissed, as barred by limitation.
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1985 (12) TMI 171
Refund not deniable merely because duty paid voluntarily in excess ... ... ... ... ..... Asphalt (P) Ltd., Visakhapatnam - 1985 (22) E.L.T. 539 (Tribunal). As we have noticed therein a factor kept in view by the High Courts and the Supreme Court in exercising writ jurisdiction under Articles 32 and 226 of the Constitution cannot be imported in dealing with a regular claim for refund of duty under Sec. 11B of the Act. (We have also noted that even in the exercise of this extraordinary jurisdiction, the High Courts have differed in their approach in regard to the theory of unjust enrichment). Hence the decision of the Delhi High Court in the P.N. Monga Bottlers (P) Ltd. case is hardly of any relevance in disposing the present case. 6. We find it difficult to agree that merely because an assessee paid duty voluntarily in excess, he is not entitled to claim refund thereof. If it were so, there would be no justification for a provision like Section 11 B in the Act in its present form. 7. In the result, we allow the appeal with consequential benefit to the appellants.
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1985 (12) TMI 170
Shortlanding ... ... ... ... ..... lants did not get the IGM or Bill of Lading amended, no penalty, in our opinion, can be imposed under Section 116 of the Customs Act when the appellants are able to establish shortshipment by documentary evidence of unimpeachable character and which are anterior to the landing of the goods. The letters of the foreign agents are anterior to the date of landing that their genuineness are not challenged. We therefore accept the contention of Shri Sheth that imposition of Rs. 6,29,970/- against Item 38 in the circumstances was unjustified and unwarranted. We accordingly set aside the penalty imposed against Item 38. 14. emsp In the result this appeal is allowed in part. The penalties imposed in respect of Items 2 and 38 are set aside. The penalties imposed in respect of items 14 and 24 are cofirmed. The appellants be granted refund of Rs. 6,29,970/- the amount of penalty imposed in respect of Item No. 38 and Rs. 63,732.90 the amount of penalty imposed against Item No. 2, if paid.
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1985 (12) TMI 169
Chinaware and porcelainware ... ... ... ... ..... ike which have specialised significance and utility, nor does a general merchant dealing in ldquo glassware rdquo ordinarily deal in articles like clinical syringes. These consideration are, in our view, equally applicable to the term ldquo porcelainware rdquo . It is clear that the articles under consideration, namely, Rasching rings, intolax saddles and balls unglazed are articles of specialised nature, used as part of the equipment of chemical and allied industries. One would certainly not expect to buy them from a shop dealing with porcelainware as ordinarily understood, such as articles of tableware. In our view, therefore, the goods under consideration, even if they could be said to be made of porcelain, cannot be considered as articles of porcelainware, so as to come within the scope of Item 23B(4). 21. emsp In the result, we consider that the Appellate Collector rsquo s orders were correct. We accordingly reject the four appeals of the Department against these orders.
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1985 (12) TMI 163
Shortlanding ... ... ... ... ..... lants did not get the IGM or Bill of Lading amended, no penalty, in our opinion, can be imposed under Section 116 of the Customs Act when the appellants are able to establish shortshipment by documentary evidence of unimpeachable character and which are anterior to the landing of the goods. The letters of the foreign agents are anterior to the date of landing that their genuineness are not challenged. We therefore accept the contention of Shri Sheth that imposition of Rs. 6,29,970/- against Item 38 in the circumstances was unjustified and unwarranted. We accordingly set aside the penalty imposed against Item 38. 14. emsp In the result this appeal is allowed in part. The penalties imposed in respect of Items 2 and 38 are set aside. The penalties imposed in respect of items 14 and 24 are cofirmed. The appellants be granted refund of Rs. 6,29,970/- the amount of penalty imposed in respect of Item No. 38 and Rs. 63,732.90 the amount of penalty imposed against Item No. 2, if paid.
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1985 (12) TMI 162
Chinaware and porcelainware ... ... ... ... ..... ike which have specialised significance and utility, nor does a general merchant dealing in ldquo glassware rdquo ordinarily deal in articles like clinical syringes. These consideration are, in our view, equally applicable to the term ldquo porcelainware rdquo . It is clear that the articles under consideration, namely, Rasching rings, intolax saddles and balls unglazed are articles of specialised nature, used as part of the equipment of chemical and allied industries. One would certainly not expect to buy them from a shop dealing with porcelainware as ordinarily understood, such as articles of tableware. In our view, therefore, the goods under consideration, even if they could be said to be made of porcelain, cannot be considered as articles of porcelainware, so as to come within the scope of Item 23B(4). 21. emsp In the result, we consider that the Appellate Collector rsquo s orders were correct. We accordingly reject the four appeals of the Department against these orders.
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1985 (12) TMI 157
Import - Glass and glassware ... ... ... ... ..... found even in the paper-books filed by the Revenue. This apart, the show cause notice itself proceeds on the basis that the goods are for use in the R and D department of the respondent, though it takes the view that such use in industry would not qualify the goods for description as laboratory glassware. We cannot find anything in Heading 70.17/18 which has the effect of ruling out glassware for use in laboratories in industry. No evidence has been adduced by the Revenue that the subject goods are for use in industry for production purposes. If such evidence was available, the position may have been different. In the given facts and circumstances of the case, we are inclined to agree with the Appellate Collector that the subject goods were correctly classifiable as laboratory glassware under Heading No. 70.17/18 of the Import Tariff Schedule and Item No. 23A(2) of the Central Excise Tariff Schedule. 6. In the result, the impugned order is upheld and the appeal is dismissed.
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1985 (12) TMI 156
Special Excise duty on export goods ... ... ... ... ..... charge is a load and chargeable is a burden also be liable to be charged, then the petroleum products exported to Nepal had no charge nor were they chargeable with, excise duty under section 3 of the Central Excise Act. If they were in this condition, they did not meet the qualification demanded by the Finance Acts of being ldquo Chargeable with a duty of excise under the Central Excise Act rdquo . They had no load of basic excise duty because they were ldquo permitted to be exported rdquo without payment of duty of excise , and so, because of this statutory permission, were not chargeable to duty of excise. No person could charge or load them with excise duty under the Central Excise Act. 36. emsp That being so, the special duty under the Finance Act will have to be calculated or a percentage of 10 of the duty of excise chargeable under the Central Excise Act or 10 of 0, which is 0. That is the special duty to ldquo be levied and collected rdquo on these petroleum products.
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1985 (12) TMI 155
Captive Consumption ... ... ... ... ..... xure lsquo D rsquo is concerned. 17. emsp In regard to Annexure lsquo E rsquo , the representative of the appellant did not press the case. 18. emsp In regard to goods covered by Annexure lsquo F rsquo , there is practically a concession that there is a violation but the plea is that there was carelessness but no ulterior motive. 19. ensp In the light of the above, we order as follows The demand for duty in respect of goods covered by all Annexures except Annexure lsquo D rsquo in full and goods covered by Delivery challans Nos. 583, 588, 594, 596 and 599 of Annexure lsquo G rsquo is upheld. 20. emsp Considering the circumstances of the case, the penalties imposed under various Rules are also modified to the amounts indicated below - Under Rule 9(2) of the Central Excise Rules, 1944 ... Rs. 750 (Rs. seven hundred and fifty) Under Rule 52 (f) (5) ... Rs. 250 (Rs. two hundred and fifty Under Rule 173Q ... No reduction. Under Rule 226 Ordered accordingly. ... Set aside in full.
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1985 (12) TMI 154
Appeal to Appellate Tribunal ... ... ... ... ..... cceptance of the appeal on merits and that the same should be regarded as a very good reason for the condonation of the delay, is wholly without substance in view of the law laid down by their Lordships of the Supreme Court in the case of State of Gujarat v. Sayed Mohd. Baquir El Edross - A.I.V. 1981 S.C. 1921. In para 3 of page 1921, their Lordships observed as follows ldquo 3. Mr. Phadke also contended that he had a strong case for the acceptance of the appeal on merits and that the same should be regarded as a very good reason for the condonation of the delay. The contention is wholly without substance. The abatement stands in the way of the appeal being heard on merits which cannot, therefore, be looked into. rdquo (Emphasis supplied) 17. emsp In the result, we find that the appellants had not shown sufficient cause for the delay. Its application for Condonation of Delay is, therefore, rejected. Consequently, the Appeal No. 382 of 1985 also stand dismissed as time-barred.
........
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