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Case Laws
Showing 61 to 80 of 190 Records
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1985 (5) TMI 172
Appeal - Pre-deposit of penalty ... ... ... ... ..... of appeal on merits, and their appeal will be rejected for non-compliance of the provisions of Section 129E of the Customs Act, 1962. 45. ensp In view of the above discussion, I agree with the conclusion of learned Brother Shri M.G.S. Murthy, Judicial Member. I dispense with the pre-deposit of the penalty amount of Rs. 1 lakh on the condition of applicant, depositing a sum of Rs. 10,000/- (Rupees ten thousand only) 46. ensp The matter will now go to East Regional Bench, Calcutta for passing order in accordance with Section 129C(5) of the Customs Act, 1962. Sd./- (Harish Chander) Member (Judicial) FINAL ORDER 47. ensp Following the majority decision, the request for waiver of the pre-deposit of penalty amount is allowed subject to the condition that the applicant deposits a sum of Rs. 10,000/- only within four weeks of the receipt of the order. Sd./- (S.K. Bhatnagar) Member (Technical) Sd./- (Harish Chander) Member (Judicial) Sd./- (M. Gouri Shankar Murthy) Member (Judicial)
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1985 (5) TMI 170
Refund - Excess duty paid on shortage of goods due to pilferage ... ... ... ... ..... . 8. ensp As regards question (iv), this has been dealt with in detail in Paragraph 10 of the order. Though this is a question of law, the limitation to the binding nature of such decisions is a settled one hence no question of law arises from our order. We have also given in Paragraphs 8 and 9 of our order the detailed jurisdiction for our disagreement with the judgment in the Sialkot Industrial Corporation case. As regards Question No. 1 and 2, a reply to any one question will cover both questions. As the issue contested in this case is mainly about the validity of the cancellation of the out of charge order, the following question is referred to the Honourable High Court of Judicature, Madras, under Section 130(1) of the Customs Act, 1962. Whether in the facts and circumstances of the case, the cancellation of the ldquo out of customs charge rdquo order given under Section 47 of the Customs Act, 1962 can be considered to be not a valid one as held by the Department. rdquo
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1985 (5) TMI 169
Refund - Time limit ... ... ... ... ..... asked in refund. We are not concerned with whether the amount of the money is correct or whether it should be less. A claim was staked out and the central excise must process it correctly and pay it not more, not less. 18. ensp What the central excise did was to say that the later two claims were time barred. What they should have done was to try to determine whether the claims were correct. As I have discussed above, the claim to the concession was notified in good time and the time bar would not operate. The only thing that would prevent the claims being paid is whether they are correct and payable on merits, and not because they are time barred. They are not time barred from what we have seen of the proceedings and the papers. 19. ensp I direct the Assistant Collector to recalculate the concession admissible on the clearances as recorded, and pay the right sum that becomes payable. He will no doubt bear all facts in mind including actions he may have taken in this matter.
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1985 (5) TMI 161
Classification of goods ... ... ... ... ..... as provided by law. 24. emsp The Supreme Court rsquo s observations in 1967 (3) SCR 957 regarding Mahalaxmi Textiles is clearly about a new ground for granting relief to an assessee. I am not convinced that this judgment can be read as permission to introduce a new demand or assessment which may, according to law, be already barred by time limit. I do not think we can interpret this as the court rsquo s approval of a new claim or demand at the appeal stage even if such new demand or claim is affected by the time limit. 25. emsp The disability affects the government as it does the assessee. Neither is immune to the attack of time bar. This bar operates inexorably, relentlessly and all claims and demands afflicted by it cannot be saved and must perish. 26. I set aside the notice dated 6-9-1982 issued by the Government. FINAL ORDER In the light of the majority view, the appeals are disposed of in accordance with the observations and directions contained in the majority decision.
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1985 (5) TMI 160
Rectification ... ... ... ... ..... by the Appellate Tribunal is one which is attributable to the Appellate Tribunal and not due to the fault of the party. It is submitted that no such condition is contained in section 35C(2), Central Excises and Salt Act, 1944. Thus a mistake in the Tribunal rsquo s orders has to be rectified may it be on account of party to the appeal or on account of the Appellate Tribunal itself. The only condition in this respect is that the mistake which is to be rectified should be apparent on the face of record. But that does not mean that any omission or fault of any of the parties to raise a point can be termed as a mistake which can be subsequently cured by way of rectification. The provision for rectification cannot be used by parties just for enforcing a re-hearing of appeal to cover up their lapses. But where the Tribunal has committed a mistake in its order vis-a-vis record due to party rsquo s fault, such mistake will fall within the mischief of Section 35C(2) for rectification.
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1985 (5) TMI 153
CLASSIFICATION ... ... ... ... ..... e the proper duty that may be payable on the asbestos yarn cannot be quantified in the absence of this information. Hence even if a de novo adjudication is ordered, which will have to be preceded by an amendment to the earlier show cause notice, there will be no material on which the duty demand could be quantified in such an amendment also. It is in these circumstances that we are of opinion that no de novo adjudication is called for, especially after a lapse of this length of time. Another circumstance which is also to be kept in mind in this connection is that with reference to this adjudication also the appellants had been demanding a copy of the test report of the sample drawn on 15-11-1973. For the reasons mentioned earlier no such test report is available even now with the department. Therefore, in the absence of that test report also no proper adjudication would be possible. 33. In the above circumstances, we allow both these appeals and set aside the impugned orders.
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1985 (5) TMI 149
Confiscation ... ... ... ... ..... . When the legislature thought it fit to quantify the penalty as an alternative between two sums of money - whichever greater there is no room for the exercise of discretion in the matter. The legislative mandate cannot be ignored, in exercise of a discretion that is not, on the language of the provision vested in the Adjudicating Officer (d) admittedly, the goods in question are of the value of Rs.15,100/- and the penalty is a sum of Rs.10,000/- is far less than five times the value (e) accordingly, there is no case for reduction of the penalty at all (f) in terms of S.125 of the Act, in the case of prohibited goods, absolute confiscation of the goods is, in the discretion of the Officer adjudging the case. It cannot be said that the discretion was wrongly exercised, when we see that the Appellant was let off with a penalty much less than what should have been levied. 4. In the premises, I find no reason to interfere with the order below. The Appeal is accordingly dismissed.
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1985 (5) TMI 148
Seizure and confiscation ... ... ... ... ..... d float needles along with jet and other articles. In such a situation the appellant would not certainly be permitted to clear the same free of duty and the plea of the appellant that he brought the same to the notice of the Customs rsquo authorities and they allowed him to take it free of duty is incredible. The Appellant could have produced purchase bills and other Accounts Book at the time of seizure to prove that he purchased them, but he did not produce the same. So the Appellant has not discharged the burden shifted to him. 7. emsp Coming into the question of the quantum of redemption fine and penalty, I find that the goods have been valued at Rs. 15,329/- and the penalty has been levied at more than 100 . I feel this is on the high side and call for reduction. Therefore, I reduce the redemption fine from Rs. 16,000/- to Rs. 10,000/- and consequently reduce the penalty also from Rs. 8,000/- to Rs. 5,000/-. Except for above modification the appeal is otherwise dismissed.
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1985 (5) TMI 143
Revision by Central Government - Revision Application transferred to the Tribunal - Penalty not exceeding Rupees ten thousand
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1985 (5) TMI 142
Rate of duty - Modification in approved classification list ... ... ... ... ..... e Assistant Collector when he initiated the proceedings bound him to the indicated- classification and that it was not open to him to go beyond those orders. We have already given the finding that the amendment of Item 34A with effect from 1-3-1979 materially altered the law and facts relating to the classification of the impugned goods. This justified reopening and re-examination of the matter. It is also well established that in giving decision in such matters at various levels the departmental officers act in quasi-judicial capacity and they have to apply their mind and come to an independent decision in the matter, depending on the merits of each case. In view of the fact that, as admitted by the Appellate Collector in his own order, he has not considered the decision contained in the Order-in-Original, on merits, we have no option out to set aside his order and to remand the matter back to him for de novo consideration and orders. 32.The appeal is allowed in these terms.
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1985 (5) TMI 141
One firm not dummy for another ... ... ... ... ..... materials and such other clinching circumstances to conclude that these two firms are not distinct entities as such, but merely creations or camouflage to get over the provisions of law. 15. emsp Further Shri Sahani rightly pointed out that the Department cannot rely on Rule 10A as Rule 10 alone would be applicable and during that period the time limit was three months/I year. The department had verified the details and for 4 years, it allowed the benefit of exemption. When the department knew the details of the production, it is futile to contend that there was any mis-declaration or suppression by the appellants. We do not accept the contention rsquo of the department that the time bar would not be attracted. 16. emsp Taking the entire circumstances into account, we are of the view that the impugned order cannot be sustained and the probabilities are more in favour of the appellants than against them. In the result, the impugned order is set aside and the appeal is allowed.
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1985 (5) TMI 135
manufacture of bolts, nuts and screws ... ... ... ... ..... he learned counsel for the appellants, that a manufacturer cannot be said to one for and on behalf of the other merely because he has received raw material for such manufacture. We accept Shri Ramasubramaniam rsquo s explanation regarding the use of the word lsquo ancillary rsquo in the Assistant Collector rsquo s order and the context in which it was made. In our view, on the available material the learned Appellate Collector rsquo s finding that bolts and nuts manufactured by others were for and on behalf of the appellants cannot be sustained. 7. emsp Parties agreed that if the value of bolts and nuts of Rs. 58,347.57 were excluded the appellants would be well within the exemption limit stipulated in the notification. As a result of aforesaid discussion the appellant is held eligible to concession under Notification No. 158/71, dated 26-6-1971 and their clearances within the limits stipulated therein. The demand raised against the appellants is set aside and appeal allowed.
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1985 (5) TMI 134
manufacture ... ... ... ... ..... wn any details of such mis-calculation but in the interests of justice we order that they may be given an opportunity to make a representation to the appropriate authority in this regard. The representation may be examined and the appellants given an opportunity to be heard before the said representation is disposed of according to law, by issue of a formal appealable order. 21. emsp The appellants also submitted that the penalty is not justified and is any way harsh. We note that duty of over Rs. 140, 000 was found to have been evaded. The circumstances have been dealt with extensively by the Collector. We too have gone into the circumstances in detail. We do not, as a consequence feel that the penalty imposed at Rs. 20,000 is excessive. The fine imposed is also reasonable. We, therefore, refuse to interfere with the impugned order and except for the direction issued supra about considering the appellants rsquo representation about the quantum of duty, we dismiss the appeal.
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1985 (5) TMI 129
’Daily use’ ornaments are not ‘commonly used’ ornaments ... ... ... ... ..... in any unfinished or semifinished form. According to the definition, only gold in any unfinished or semi-finished form is lsquo primary gold rsquo . In the impugned orders there is no indication regarding the form or state of the seized gold pieces. The Panchnama as per Annexure 1 and the notice to show cause as per Annexure 3 also do not mention that the seized gold pieces were in any unfinished or semi-finished state. 7. emsp In view of the infirmities and defects pointed out above the impugned orders as per Annexures 5, 8 and 10 must be set aside. It is necessary that the matter should be re-adjudicated by the opposite party No. 1, in accordance with law. 8. emsp In the result the writ application is allowed. The impugned orders as per Annexures 5,8 and 10 are hereby quashed. The cases is remitted to opposite party No. 1 for re-adjudication and disposal in accordance with law after due notice to the petitioner. In the facts of this case parties shall bear their own costs.
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1985 (5) TMI 126
... ...
... ... ..... ch would mere often be, when the family matters are causing anxiety or when they cease to be employees for reasons beyond their control. The word employee is thus used to cover existing and former employees in contradistinction to non employee . The extension of benefit to the family of the employee does not take the case out of clause (iv) of section 164 because the assessee is in effect meeting the needs of the employees. We do not agree with the departmental representative that clause 5 of the trust deed enables the trustees of extend benefit without this employment link. If the intention were to restrict the benefit to trusts giving aid only to existing employees the legislature would have inserted the word existing before the word employee. We accordingly hold that clauses 5 and 7 of the Trust Deed do not take the assessee out of clause (iv) of proviso to section 164(1). The contrary view held by Commissioner is therefore held incorrect. 13. Appeals are allowed as above.
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1985 (5) TMI 123
... ...
... ... ..... case of the Mardas High Court reported in B. K. Murthi vs. CIT (1961) 42 ITR 379 (Mad) squarely applies to the facts of this case and s. 64 of the Act has no application to the facts of this case. We, therefore, hold that Mrs. Alka Chaudhary is not the benamidar of Dr. Chaudhary in respect of ground floor and first floor of the house property standing on NIT Plot No. 93-94 on Central Avenue Road, Nagpur. She is the owner of half share in the said plot and ground floor and first floor of the building in her own right. Thus the income by way of rent arising from her portion of property cannot be included in the total income of Dr. Chaudhary. We further hold that the provisions of s. 64 of the Act are not applicable to the facts of he case and that the income accruing to Mrs. Alka Chaudhary by way of rent from Vijaya Bank is not liable to be included in the income of Dr. Chaudhary by application of s. 64 of the Act. 21. In the result, the appeal filed by the assessee is allowed.
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1985 (5) TMI 120
Assessment, Benami Transaction, Transfer Of Assets ... ... ... ... ..... se of gift or transfer without consideration. In fact the case of the Madras High Court, R.K. Murthi, squarely applies to the facts of this case and section 64 has no application to the facts of this case. We, therefore, hold that Smt. Alka Chaudhary is not the benamidar of Dr. Chaudhary in respect of ground floor and first floor of the house property standing on NIT plot Nos. 93-94 on Central Avenue Road, Nagpur. She is the owner of half share in the said plot and ground floor and first floor of the building in her own right, Thus, the income by way of rent arising from her portion of property cannot be included in the total income of Dr. Chaudhary. We further hold that the provisions of section 64 are not applicable to the facts of the case and that the income accruing to Smt. Alka Chaudhary by way of rent from Vijaya Bank is not liable to be included in the income of Dr. Chaudhary by application of section 64. 21. In the result, the appeal filed by the assessee is allowed.
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1985 (5) TMI 117
Application For Extension, Assessment Year, Carry Forward And Set Off, Set Off Of Loss, Supreme Court
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1985 (5) TMI 115
... ...
... ... ..... en a payment is made is even opposed to all commercial principles. Therefore, if self-assessment tax is deducted from the tax determined and thereafter the excess determined interest would be paid on at least a portion of the amount for some period from 1st of April till the date of payment of self-assessment tax when such payment had not been made. Acceptance of the contention of the assessee would lead to such a result which a plain reading of he terms of the section does not warrant. We, therefore, agree with the findings of he authorities below that self-assessment tax is not to be excluded from gross tax determined to ascertain whether there is excess payment of advance tax or not. 8. Regarding the only other contention urged namely that the authorities below were not justified in failing to grant interest under s. 214(2), no arguments have been adduced before us which would in any manner support the stand of the assessee. 9. The result is that the appeals are dismissed.
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1985 (5) TMI 113
Investment Allowance, Manufacture Or Production ... ... ... ... ..... ief and advance the remedy. Since our interpretation will advance the object of section 32A and not defeat the same, we are of the opinion that the assessee, in the present case, is entitled to investment allowance under section 32A. 15. It is not necessary to repeat the other reasons of the learned Accountant Member. I am in agreement with him. I may simply add that even if there are two possible interpretations of a fiscal enactment, the one in favour of the assessee should be adopted. 16. In view of the above discussion, the assessee deserves to succeed on both the counts. Per Shri A. Krishnamurthy, Judicial Member--I agree with the learned Vice President that the reassessment under section 147(b) in this case is invalid for the reasons stated by him. In the circumstances, I consider that the department s appeal on the merits of the assessee s claim does not survive for consideration and, therefore, I do not consider it necessary to express my views in respect of the same.
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