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Case Laws
Showing 101 to 120 of 233 Records
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1987 (10) TMI 165 - DELHI HIGH COURT
Natural justice - Inapplicability not to be presumed ... ... ... ... ..... ere to aware of the other companies which were associated with M/s. Jain Shudh Vanaspati Company Limited and as such no detailed orders could be passed. This contention further strengthens the case of the petitioners to the effect that the orders suffer from non-application of mind. The law laid down by their Lordships of the Supreme Court and the Guidelines laid down by the department itself have not been observed and as such the order applying the provision of Clause 6 to the petitioner companies has necessarily to be struck down on the ground of non-application of mind and for violation of principles of natural justice. 9. emsp For the reasons recorded above the rule is made absolute and the debarment order to the extent of application of Clause 6 on the petitioner companies are hereby quashed. The effect would be as if no debarment order under Clause 6 has been passed on either of the petitioner companies. In the circumstances the parties are left to bear their own costs.
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1987 (10) TMI 164 - CEGAT, NEW DELHI
Refund claim ... ... ... ... ..... ecision in the Collector of Central Excise v. Stewarts and Lloyds of India Ltd. 1985 (22) E.L.T. 522 . But that decision only lays down that a protest lodged simultaneous with payment of duty would amount to a claim for refund. It does not appear to me to be correct to extend this analogy and hold that a letter of protest filed subsequent to the payment of duty could also be construed to be an application for refund. Once duty had been paid any claim for refund thereof would have to be filed within the period of limitation prescribed therefor. A letter of protest filed subsequently may save from the bar of limitation payments made subsequent to that letter, but the said letter would not save (from the bar of limitation) the payments made earlier. Nor could it be treated by itself a claim for refund. 7. In the above view, the order of the Collector, setting aside the order of the Assistant Collector so far as the duty paid on 21-11-1980, is upheld and this appeal is dismissed.
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1987 (10) TMI 163 - CEGAT, NEW DELHI
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... ... ..... appeal. Here was a case where the hearing of the matter which had proceeded for quite some time, had nearly concluded and, as it happened, towards the end, it became apparent that the appellant rsquo s appeal was likely to be dismissed by the Bench. On quick calculation of his interest, Shri Ignatius thereupon sought permission to withdraw the appeal. It is, in these circumstances that we decided that the request could not be granted. If every appellant were to be considered to have a right to withdraw his appeal after he has argued that length, and in the course of arguments, it becomes apparent to him that the consequences of the appeal are going to be adverse to him, this would certainly defeat the ends of justice. 17. Appeal dismissed. Dated 26.10.1987 (K. Prakash Anand) Member In view of the majority opinion, the impugned order is upheld and the appeal is dismissed. (K. Prakash Anand) Member (V.T. Raghavachari) Member (G. Sankaran) Senior Vice-President Dated 27.10.1987
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1987 (10) TMI 162 - CEGAT, NEW DELHI
Reconstitution without following excise procedure ... ... ... ... ..... if the registration had been done (iv) it does not appear to have been produced before other public authorities also shortly after its alleged date of execution. The certificate produced before us as issued by the Sales Tax authorities is admittedly dated 29-8-1987 and (v) though both units were licenced no application for amendment of the licence in the name of the new partners had been made. These circumstances taken cumulatively throw a good deal of suspicion that the alleged partnership deed dated 1-12-1978 may not have come into existence that day but was evidently brought into existence subsequently. In the circumstances, the conclusion of the Additional Collector that there is no proper proof of dissolution of the earlier partnership and constitution of a new partnership, is correct. 8. emsp As earlier mentioned I agree with the conclusions in paragraphs 3(iii) to 3(vi) of Shri Jain rsquo s order as also with his conclusions to the nature of the disposal of the appeal.
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1987 (10) TMI 161 - CEGAT, NEW DELHI
Condonation of delay ... ... ... ... ..... icular further comments to make. 6. We have carefully considered the submissions made by the parties. It does appear to us that the delay in presenting appeal has been due to legal advice. It is not necessary for us to record whether the legal advice was mistaken or not. It is sufficient to say from the affidavit of Shri Ramamurthy and the arguments advanced before us that this legal advice was given after proper examination of authorities on the point. This, in our opinion, would be sufficient ground justifying condonation of delay. While mistake of Counsel may not always be a good ground for condonation of delay, the present case appears to be one where the opinion was expressed after proper scrutiny and bona fide and constitutes in our viewsufficient cause for condoning the dealy. We condone the delay in presenting the appeal. The dealy having been condoned, hearing of the appeal now for 10-11-1987. Papers if any should be filed within a week from today. No further notice.
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1987 (10) TMI 160 - CEGAT, NEW DELHI
Rubber products - Latex foam sponge ... ... ... ... ..... ified in moulds to the desired sizes and shapes. 16. As seen from para 13 of the Supreme Court judgment in Atul Glass Industry case (supra), wind screens, rear screens and door screens were manufactured from sheet glass, unlike in the present case, where, as we have noted, bus seats etc. have not been fabricated from out of bigger pieces of sponge. Besides, the glass is first given shape and size according to customers rsquo specifications and thereafter subjected to the process of toughening. As the Court has noted, wind screens, etc. are fabricated articles. It is in this context and having regard to the considerations in the case of glass mirrors that the court held that wind screens, etc. could not be described as glass or glassware under Item No. 23A(4) but more appropriately as motor vehicles parts or accessories. 17. In view of the foregoing discussions, I agree that the subject goods are classifiable under Item No. 16A(1), CET and that the appeal merits to be allowed.
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1987 (10) TMI 159 - CEGAT, NEW DELHI
Motor vehicle parts ... ... ... ... ..... ection does not cover vehicles, aircrafts, ships or boats of Section XVII. It is evidently because these goods (though machines) are specified elsewhere, not because they are not considered to be machines. 15. The subject goods are no doubt made of felt. Heading 59.01/15 covers articles of felt. But articles of a kind commonly used in machinery or plant are more specifically described in Heading 59.16/17. Further, according to note 4(b) to Chapter 59, textile articles of a kind commonly used in machinery or plant (for e.g. gaskets, washers, polishing discs and other machinery parts) fall within Heading 59.16/17 and these goods are to be taken as not falling within any other heading of Section XI. Therefore, steering felts which are admittedly parts of steering assemblies of motor vehicles are correctly classifiable under Heading 59.16/17 and not 59.01/15. 16. In the result, the impugned orders are set aside. The appeals are allowed with consequential relief to the appellants.
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1987 (10) TMI 158 - CEGAT, NEW DELHI
Rectification of mistake ... ... ... ... ..... the period expiring on 31-12-1978, a Sunday. In these circumstances, we are of the view that Section 10 of the General Clauses Act has no application in the facts and circumstances of the present case. 7.4 As noted elsewhere in the order, the actual date of filing of the bill of entry is not clear from the record but it is not the appellant rsquo s case that the Bill of Entry for clearance of the goods for home consumption was presented after the date of entry inwards of the vessel by which the goods were imported. The entry inwards of the vessel was admittedly granted on 1-1-1979. Therefore, in terms of Section 15 of the Customs Act, it is this date which is relevant for determination of the applicable rate of duty. We also direct that the last two sentences of the order as it reads at present shall form para 8 and reads as follows - and ldquo In the circumstances, we hold that the impugned order is correct and we uphold the same. Consequently, we dismiss this appeal. rdquo
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1987 (10) TMI 157 - CEGAT, NEW DELHI
Cotton fabrics ... ... ... ... ..... abrics) on which excise duty was leviable either in whole or in part, are subjected to any process or processes specified in the table to the notification within the factory in which the subject unprocessed fabrics had been produced, the exemption contained in the notification would not apply. As already noted, cropping is a process specifically mentioned in the table to the said notification. Since the appellants had produced the unprocessed fabric in their factory and subjected the same to the finishing process of cropping in the same factory, the exemption contained in the notification would not apply in the case of the appellants. 10. emsp In the above view of the matter, the demand for differential interest in terms of the Central Excise Rule 49A which provides that where cotton fabrics are cleared after processing, 3 of the duty payable on the yarn shall be payable by way of interest on the amount of yarn duty, was justified. 11.In the result, the appeals are dismissed.
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1987 (10) TMI 156 - CEGAT, NEW DELHI
Customs Valuation - Misdeclaration of prices ... ... ... ... ..... the order of my learned brothers. The ground on which the appeal is allowed is that the customs department did not prove under-valuation. 12. While I agree with the brothers rsquo finding that customs did not prove under-valuation, I take note that the Collector while passing the order relied upon some evidence consisting an import at CWC, New Delhi. In fairness to the defence, he should have disclosed the evidence to them and they should have been given an opportunity to counter the same. This has not been done the order cannot be sustained. 13. However, I feel that the omission on the part of the Collector should be allowed to be made good. While I agree that the order should be set-aside, I hold that the matter should be remanded to the Collector for fresh adjudication after disclosing to the appellants the relevant evidence relied on by the department and after giving a reasonable opportunity to them to counter the evidence. 14. I, therefore, allow their appeal by remand.
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1987 (10) TMI 155 - CEGAT, NEW DELHI
Coffee and chicory powder ... ... ... ... ..... the entire product manufactured and sold by these four appellants was coffee-chicory blended mixture. Shri Sridharan contends that this finding is manifestly wrong since the major product manufactured and sold was plain coffee powder, the manufacture and sale of the blended mixture being of a small percentage of the entire sales. In this connection he relies on records relating to the purchase of chicory during the entire period and points out that as the chicory-coffee mixture is in the ratio of 10 or 20 of chicory and the balance of coffee powder, the entire quantity of chicory consumed each year could not have produced chicory-coffee blend that would have exceeded the maximum limits laid-down under notifications governing exemption of such products. As already mentioned while this argument is certainly of some force it is unnecessary to go into the same in view of the earlier finding. 10. In the result these appeals are allowed and the order of the Collector is set aside.
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1987 (10) TMI 154 - CEGAT, NEW DELHI
Hydraulic rivetting Guns ... ... ... ... ..... fit of that exemption does not apply to complete machinery manufactured in a factory and meant for producing or processing of goods, even if they are intended for use in the same factory in which they are manufactured or in any other factory of the same manufacturer. In fact, the Counsel for TELCO had fairly conceded before us that if the rivetting gun is held to be a machine, the appellants would not be entitled to the benefit of Notification No. 118/75. 13. emsp We, therefore, hold that the rivetting gun, pipe line and power pack cannot be considered together to constitute a single piece of equipment or machinery chargeable to duty under Item No. 68, CET. The rivetting guns are, however, classifiable under Item No. 68 and are chargeable to duty accordingly since they will not be eligible for duty exemption under Notification No. 118/75 because of the second proviso thereto. 14. Appeal No. 1628/81 is disposed of in the above terms with consequential relief to the appellants.
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1987 (10) TMI 153 - CEGAT, NEW DELHI
Seizure and confiscation ... ... ... ... ..... has failed to mention specifically the clause of Section 112 under which orders are passed. On this issue, the judgment of the Madras High Court in the case of B. Lakshmichand 1983 (12) E.L.T. 322 (Mad.), which has been cited by the learned advocate, is directly on the point. It has been held by the Madras High Court that if the penal action is proposed to be taken and proceedings initiated which are likely to culminate in the imposition of penalty, then the authorities must be clear in mind as to whether clause (a) or clause (b) of Section 112 will apply or both, and the order must make specific reference to the provisions failing which the order of penalty is not sustainable. 13. In respectful deference to this decision of the Madras High Court, we set aside the penalty in this case. 14. In the result, appeal No. C/2381/87 of the department is allowed and the Mercedes Car is absolutely confiscated. Appeal No. C/2752/86 is partly allowed inasmuch as the penalty is set aside.
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1987 (10) TMI 152 - CEGAT, NEW DELHI
Cement Plant ... ... ... ... ..... s per day, (b) the expression ldquo large cement plant rdquo means a cement plant consisting of one or more kilns and having a total licensed or registered capacity exceeding 200 tonnes per day. It would be seen that, clause (a) of the explanation sets out a definition of the mini cement plant. There is no dispute that the respondents unit has no kiln. To existence of a kiln is an indispensable requirement of the mini cement plant under the definition. We do not think that this essential ingredients or requirement of the definition can be allowed to controverted by some understanding or interpretation of the expression. We, therefore, hold that the respondents unit does not fulfil the kiln requirement of mini cement plant as defined in the explanation. That being so, the concession under the Notification would not be available to the respondent. We, therefore, set aside the impugned order and restore the demand confirmed by the Assistant Collector. The appeal is thus allowed.
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1987 (10) TMI 151 - CEGAT, NEW DELHI
... ...
... ... ..... the goods without the cables. There is nothing in the impugned order to show that the base stations and walkie talkie do not function without the cable. The unchallenged statement that the appellants sell the units without the cable shows that the cable could not be considered as an essential part of the equipment. It is also beyond dispute that these cables are bought-out items and are dealt with by the appellants only as part of their trading operations and not as part of their manufacturing activities. We have also perused a copy of the Appellate order passed by the Collector on 6-11-1986 in respect of the same appellants. 8. emsp Taking into consideration all these facts and circumstances, we hold that for the purpose of assessment of the base stations and walkie talkies manufactured by the appellants, the value of cable which is not an integral part of the sets but is an optional accessory should not be included in the value of the sets. Accordingly we allow this appeal.
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1987 (10) TMI 131 - CEGAT, NEW DELHI
CLASSIFICATION ... ... ... ... ..... itional evidence. In view of these, it was made clear in the course of the hearing that we would not be considering these certificates. 8. emsp We do not consider it necessary to refer to and discuss the decisions referred to by either side in support of their respective stands. This is because we had occasion to consider the classification of cartridge paper of over 85 g.s.m. very recently in Kumar Agencies v. Collector of Customs, Bombay, 1987 (29) E.L.T. 748, in which we held that such paper fell under heading No. 48.01/21(3) of the Customs Tariff Schedule. The corresponding classification under the CET would be Item No. 17(1), This view gains support from the authorities referred to in para 5 of this order. 9. emsp Following the above decision, we hold that, in the present case also, cartridge paper of over 85 g.s.m. fell under Heading No. 48.01/21(3) of the Customs Tariff Schedule and Item No. 17(1) CET. This appeal is allowed with consequential relief to the appellants.
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1987 (10) TMI 127 - ITAT NAGPUR
... ...
... ... ..... basis of the tax payable on the total income as if the firm has been assessed as unregistered firm. The Court observed that the legislature was competent and not acted arbitrarily in enacting such a provision. In other words, the Expln. 2 to s. 139(8)(a) was held to be not discriminatory or arbitrary and not violative of the constitution. In view of the decision of the Kerala High Court which is squarely applicable to the facts of the case, the decision of the Gauhati High is not on all fours with the facts of the assessee s case under consideration because the Gauhati High Court was dealing with the case of penalty under s. 271(1)(a) and not levy of interest under s. 139(8) of the IT Act, 1961. Accordingly we hold that the CIT(A) was not justified in cancelling the interest levied by the ITO under s. 139(8) of the IT Act. 1961 for the asst. yr. 1973-74. Accordingly, we reverse the order of the CIT(A) and restore the order of the ITO. 8. In the result, the appeal is allowed.
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1987 (10) TMI 124 - ITAT NAGPUR
Donations To Charitable Institutions, Deduction ... ... ... ... ..... nce to the quantum of deduction admissible. The phrase in respect of which the assessee is entitled to deduction is an adjective clause qualifying the noun amount. In other words, the phrase in respect of which refers to and is linked to the amount on which the assessee would be entitled to deduction under the provision of Chapter VI-A of the IT Act, 1961. Further the sub-section (4) of section 80G seeks to restrict the aggregated of the eligible sums with reference to two factors, namely (i) 10 per cent of the gross total income, and (ii) Rs. 5,00,000 whichever is smaller and the excess of the aggregated sum should be ignored. Therefore, the amount which is sought to be reduced is gross amount and not net amount. In this view of the matter, therefore, the CIT (A) was justified in re working the eligible amount for deduction under section 80G of the IT Act, 1961. Accordingly, no interference is called for in his working and decision. 8. In the result, the appeal is dismissed.
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1987 (10) TMI 121 - ITAT MADRAS-D
Valuation, House Property ... ... ... ... ..... worded. See CED v. K. Hilal 1981 130 ITR 781 (Mad.) . There, the requirements for getting exemption were more stringent, namely, one house or part thereof exclusively used by the deceased for his residence alone was exempt. Under the provisions of section 7(4), the words used are exclusively used by him for residential purposes . According to the learned counsel, the terminology under the Wealth tax Act is must wider in scope and concept and the benefit of section 7(4) would be applicable even where a house belonged to the assessee and was used for residential purposes by him though he did not physically reside there. We do not dwell on this any further since we have already held that on the facts of the present case, the assessee would be entitled to the benefits of section 7(4). We, therefore direct that the pegged value under section 7(4) be taken for this assessment year for the value of Rs. 11,50,000 adopted by the WTO. The result is the appeal is the appeal is allowed.
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1987 (10) TMI 120 - ITAT MADRAS-D
Rectification Of Mistakes ... ... ... ... ..... the assessee is relevant only for the purpose of capital gains under section 45 and not for the purpose of section 155(5). Further, the provisions of section 155(5) contain a non obstante clause whereby the development rebate originally granted shall be deemed to have been wrongly allowed and the Income-tax Officer may not withstanding any other provision contained in this Act recompute the total income of the assessee for the relevant previous year and make the necessary amendment. Therefore, the non-obstante clause overrides any other definition of transfer contained in any other section of the Act. Consequently the question is to be decided only within the framework of the relevant sections dealing with development rebate or investment allowance and in the light of the judgment of the several Courts in this regard. In this view of the matter we uphold the orders of the Commissioner (Appeals) as they are justified in law. In the result the result the appeals are dismissed.
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