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Showing 221 to 240 of 293 Records
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1988 (3) TMI 73 - HIGH COURT OF CALCUTTA
Customs - Penalty for short-landing ... ... ... ... ..... ing the Survey Report should also be taken into consideration. 4. Under the circumstances, I set aside the order of the Appellate Collector as well as the order of the Deputy Collector and remand the case back to the Deputy Collector who will consider the matter afresh in accordance with law after giving the parties an opportunity of being heard. In considering the matter the Deputy Collector will also take into consideration the Survey Report regarding the alleged short-landing and if the same is rejected by him he must give his reason why he is not accepting the Survey Report. The other points urged in this writ petition are left open. If possible, the Deputy Collector should dispose of the matter within a period of eight weeks after receiving the signed copy of the operative portion of this judgment. The Rule is thus disposed of. There will be no order as to costs. 5. All parties will act on a signed copy of the operative portion of this judgment on the usual undertaking.
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1988 (3) TMI 72 - HIGH COURT OF JUDICATURE AT BOMBAY
Valuation - Related person ... ... ... ... ..... nvoked in the instant case, but it must be said in fairness to him that this attempt was given up because the wholesalers involved in this case are partnership firms and they could not be said to be persons who are associated with the assessee. They obviously do not come under the latter part of the definition of related person because they are not a holding company, a subsidiary company, a relative or a distributor of the assessee because a partnership firm cannot be a relative just as a limited company cannot be a relative. This petition must, therefore, succeed. Though Mr. Hidayatullah has urged certain other grounds also, I do not find it necessary to examine them. 8. In the result, the petition succeeds. Rule is made absolute in terms of prayer clauses (c) and (d)(iii). The amount of duty paid by the petitioners as per the order dated 19th November 1979 shall be refunded to the petitioners. 9. The petitioners are entitled for costs of this petition from the respondents.
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1988 (3) TMI 71 - HIGH COURT OF JUDICATURE AT BOMBAY
Precedent - Writ petition - Hearing ... ... ... ... ..... at in all matters where the Union of India is the respondents, invariably, without exception, adjournment motions are being made in matters which are of the year 1982 or even earlier. It may be, the office which is in charge of attending to these matters may be having its own difficulties, but at some stage that office must set its affairs in order and enable Courts to go on with the hearing of the petitions. I must make it clear at this stage that in these petitions which are almost ancient, no adjournments will ever be granted on the mere ground that affidavits in reply have not been filed. If no reply could be filed for years together, I do not see how they can be filed within a short time. 6. In the result, this petition must succeed. Rule is made absolute in terms of prayer Clauses (A), (B) and (C), except that the interest shall be at the rate of 12 per annum instead of 18 per annum as prayed for. The respondents shall pay the costs of this petition to the petitioners.
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1988 (3) TMI 70 - HIGH COURT OF JUDICATURE AT BOMBAY
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... ... ..... to the total exemption as claimed in this writ petition. In my opinion, the submission of Dr. Kantawala is well founded. If one reads the notification carefully it is quite clear that the exemption is also available to intermediary stage in the factory of production in the manufacture of sub-items 1 and 2 therein. This intermediary stage is an intermediary product and in my opinion, the notification leaves no manner of doubt that this intermediary product is also exempt from payment of excise duty under this notification The notification is quite clear and needs no further elaborate discussion. All that the notification has done is that the practice that was followed till then is changed to a law by issuing the notification. This conclusion is quite clear from the last two lines of the notification. 4. In the result, the writ petition succeeds and the rule is made absolute in terms of prayers (a) and (b). In the circumstances of the case, there shall be no order as to costs.
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1988 (3) TMI 69 - HIGH COURT OF JUDICATURE AT BOMBAY
Yarn - Writ Jurisdiction - Words and Phrases ... ... ... ... ..... yeing. These two processes admittedly gave the yarn, in the words of the appellants themselves, bulky or fluffy appearance. In other words, it was practically admitted that the yarn was bulky yarn. 8. The petitioners themselves have in their petition mentioned that in their case the grey yarn is subjected to a process of dyeing with the help of steam which ensures fast colour to the yarn, which grey acrylic yarn is subject to the process of dyeing because, by reason of the natural properties of acrylic yarn coming in contact with water or steam, it shrinks longitudinally and correspondingly expands. On a careful examination of the process of manufacture involved in the petitioner s case, the authorities below have arrived at their findings, which findings are not liable to be interfered with by this Court under Article 226 of the Constitution. No error apparent, is disclosed. 9. In the result, the petition must fail. Rule is accordingly, discharged with no order as to costs.
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1988 (3) TMI 68 - HIGH COURT OF JUDICATURE AT BOMBAY
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... ... ..... turning out articles with the result that the article which was produced was the result of manufacture and not as a result of processing. Since there is no doubt that the articles which are turned out by the factory of the petitioner are the result of manufacturing activity, Notification No. 119/75 must necessarily apply to it. The view of the respondent that the said notification applies only to a processing unit is patently erroneous. Notices of demand based upon such a view are necessarily illegal and will have to be set aside. The excise duty that would be payable by the petitioner would be only on the value added to the raw materials supplied to it by its customers. 8. In the result, the petition must succeed. Rule is made absolute in terms of prayer clause (a). The Bank guarantee given by the petitioner, if any, under the ad-interim order is cancelled and the same shall be returned to the petitioner forthwith. 9. The petitioner is entitled to the cost of this petition.
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1988 (3) TMI 67 - HIGH COURT OF JUDICATURE AT BOMBAY
Fans - Interpretation of Statute ... ... ... ... ..... idance to decide as to whether an impeller motor assembly is an electric fan or not. Considered from either point of view, the view taken by the reviewing authority discloses a patent error of law and the order based upon such a view is thus liable to be aside. 10. Mr. Shankarramakrishnan, on behalf of the respondents, interrupted the flow of my judgment in the midst and submitted that this matter should be adjourned. This is a strange way of asking for an adjournment when neither at the time when the matter was called out nor when I started dictating the judgment anybody appeared for the respondents. It is only when the judgment had gone half-way through that a motion was made for adjournment. Obviously, such an adjournment could not be granted, and was not granted. 11. In the result, this petition must succeed. Rule is made absolute in terms of prayer Clause (a). In view of the fact that none appears for the respondents, there will be no order as to costs in this petition.
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1988 (3) TMI 66 - HIGH COURT OF JUDICATURE AT BOMBAY
Sliver - Intermediate goods - Central Excise duty - Dutiability ... ... ... ... ..... recalled that even in the case of Union Carbide India Ltd. the commodity, namely, aluminium cans, were included in Entry No. 87. Still the Supreme Court held that those aluminium cans which were being manufactured by the Union Carbide India Ltd. were not liable to excise duty because they were incapable of being sold to a consumer. If on the facts of the present case it has been established conclusively that the slivers manufactured by the petitioner are incapable of being sold to a consumer, obviously on the same ground as in Union Carbide India Ltd. s case it must be held that they cannot be subjected to excise duty. 5. In the result, the petition must succeed. Rule is made absolute in terms of prayer Clauses (a), (b)(i) and (iv) of the petition. The bank guarantee given shall be cancelled and returned to the petitioner. The amount, if paid pursuant to the interim order of this Court, shall be refunded to the petitioner. There will be no order as to costs in this petition.
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1988 (3) TMI 65 - HIGH COURT AT CALCUTTA
Refund claim - Limitation ... ... ... ... ..... dgment, much controversy could have been avoided had the legislature while prescribing a period of limitation for preferring such claims under a special statute, made provision authorising the statutory functionaries to condone the delay in preferring the claim, on such delay being explained satisfactorily. 58. But so long it is not done the writ Court as a Court of equity has to step in sometimes in case of collection of tax without authority of law in contravention of Article 265 of the Constitution. 59. Since as already held that this is a proper case where the writ Court should intervene the writ petitions succeed and the Rules issued are made absolute without any order for costs. 60. The respondents are hereby directed by the issue of a writ in the nature of Mandamus to refund to the petitioner the excess excise duties as prayed for within a period of sixty days from this date. 61. This order, as already stated, will govern both the Rules hereby disposed of analogously.
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1988 (3) TMI 64 - HIGH COURT OF GUJARAT AT AHMEDABAD
Central Excise duty and Additional Excise duty ... ... ... ... ..... of the basic duty. The impugned notification is, therefore, infra vires Rule 8(1) of the Rules. Similarly, it is open to the Government to change the basis of exemption so long as the duty does not exceed the basic duty. This is clearly permissible under Rule 8(3) read with the explanation thereto. Since there is no increase in the basic additional duty levied under Section 3(1) of the 1957 Act by the impugned notification, we see no merit in the contention based on Section 3 of the Tariff Act. 22. For the above reasons we see no merit in the contentions urged on behalf of the petitioners and dismiss these petitions and discharge the rule with costs. As the petitions fail, we vacate the interim order but grant eight weeks time to the petitioners to arrange to pay the difference in duty in respect whereof they have furnished bank guarantees failing which it will be open to the revenue to recover the duty by enforcing the bank guarantee in the case of the defaulting assessee.
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1988 (3) TMI 63 - SUPREME COURT
Whether the sales pattern of the respondents that the distributors were 'related persons' as per Section 4 of the Act and the price at which the distributors sold the goods should, therefore, be the assessable value?
Held that:- Where the sale in the course of wholesale trade is effected by the assessee through its sales organisation at a place or places outside the factory gate, the expenses incurred by the assessee upto the date of delivery under the aforesaid heads cannot, on the same grounds, be deducted. The assessee will be entitled to a deduction on account of the cost of transportation of the. excisable article from the factory gate to the place or places where it is sold. The cost of transportation will include the cost of insurance on the freight for transportation of the goods from the factory gate to the place or places of delivery.The new Section 4(4)(d)(i) has made express provision for including the cost of packing in the determination of "value" for the purpose of excise duty. Tribunal's upholding the order of the Appellate Collector, was right and correct.
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1988 (3) TMI 62 - SUPREME COURT
Timber - Central Excise - Dutiability ... ... ... ... ..... idered in the background of the fact whether planks, cut into sizes, etc., sawed out of logs, are different from logs in its nascent state. 5. It may be worthwhile to note that manufacture implies a change, but every change is not manufacture and yet every change of an article is the result of treatment, labour and manipulation. But something more was necessary and there must be transformation a new and different article must emerge having a distinct name, character or use. See Union of India v. Delhi Cloth Mills (supra) at page 596 of the report. Having regard to the facts found in this case by the Tribunal, which ultimately is the final fact finding authority, we are of the opinion that regard being had to the principles for determining the questions which were correctly applied in the decision of the Tribunal, in the facts of this case, the conclusion of the Tribunal is unassailable. 6. In the premises there is no merit in this appeal and the same is accordingly dismissed.
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1988 (3) TMI 61 - SUPREME COURT
Whether "Decoplast" manufactured by the appellant is plastic emulsion paint and, therefore, classifiable under Tariff Item 14(I)(3)(iv) of the First Schedule of the Act as plastic emulsion paint or it should be classifiable under Tariff Item No. 14(I)(v) that is as "paints not otherwise specified"?
Held that:- In view of the composition, characteristics, user and how it is known in the trade, the Tribunal came to the conclusion that Decoplast was plastic emulsion paint. This is a finding of fact arrived at on relevant and valid materials. There was no misdirection in law. Therefore, there is no ground for interference with the said Order. Appeal dismissed.
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1988 (3) TMI 60 - SUPREME COURT
Whether assessee were entitled to the benefit of Section 5(3) of the Central Sales tax Act, 1956?
Held that:- The High Court was right on the facts found by the Tribunal in this case that frozen frog legs is same as fresh frog legs, the process was only to prevent decomposition. What was purchased and exported was one and the same commodity. The frozen frog legs did not undergo any material change in character. The identity of the frog legs remained unchanged as such. In that view of the matter the Tribunal held that the assessee was entitled to the benefit of Section 5(3) of the aforesaid Act,. Appeal dismissed.
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1988 (3) TMI 59 - SUPREME COURT
Whether there is any disposal of these goods in any manner otherwise than by way of sale within the State?
Held that:- Disposal means transfer of title in the goods to any other person. The expression "dispose" means to transfer or alienate. It was formerly an essential word in any conveyance of land. See Jowitt "The Dictionary of English Law" and also Webster Comprehensive Dictionary (International Edn.) -Vol. 1, page 368. Clause (b) of the section requires that the goods in question should be transferred to some person otherwise than by way of sale. In this case, there was no evidence of any transfer at all, therefore, there was no 'disposal' of the goods as known to law. The High Court records that admittedly there was no transfer of the cashew shells, the lime shells or the consumed stores in this case. These were used by the assessee himself as fuel in the case of cashew shells for the maintenance of kiln. Sub-clause (b) of Section 5A(1) was, therefore, not applicable. In the background of the facts of this case, the High Court, in our opinion, was right. Appeal dismissed.
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1988 (3) TMI 58 - PATNA HIGH COURT
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... ... ..... be answered in identical terms. It is, therefore, held in this reference that the Tribunal was not right in holding that the Commissioner of Income-tax acting under section 263(1) of the Act could not interfere with the order of the Income-tax Officer under section 143(1). The first question, therefore, is answered in favour of the Revenue and against the assessee. The second question is ancillary to the first one. Since the first question has been answered in favour of the Revenue and against the assessee, the second question also must be answered in favour of the Revenue and against the assessee. We, therefore, hold, on the second question as well, that the Tribunal was not right in cancelling the order passed by the Commissioner. The references to this court are answered accordingly. We shall, however, make no order as to costs. Let a copy of this judgment be transmitted to the Assistant-Registrar, Income-tax Appellate Tribunal, Patna, in terms of section 260 of the Act.
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1988 (3) TMI 57 - PATNA HIGH COURT
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... ... ..... ource of initial capital investment. It was, therefore, held that the order of the Commissioner was not based on conjectures and surmises. The same is our view in regard to question No. 2 in these references. Question No. 3, in these references, is ancillary to questions Nos. 1 and 2. Since questions Nos. 1 and 2 have been answered in favour of the Revenue, question No. 3 also must be answered in favour of the Revenue. So far as question No. 4 goes, there can be no escape from the position that the Tribunal was not right in cancelling the consolidated order passed by the Commissioner of Income-tax under section 263(1) of the Income-tax Act. In that view of the matter, all the four questions referred to this court must be answered in favour of the Revenue and against the assessee. However, there will, be no order as to costs. Let a copy of this order be transmitted to the Assistant Registrar, Income-tax Appellate Tribunal, Patna, in terms of section 260 of the Income-tax Act.
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1988 (3) TMI 56 - KERALA HIGH COURT
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... ... ..... question in the affirmative, against the Revenue and in favour of the assessee. ITR Nos. 431 to 438 of 1982 These references relate to the assessment years 1974-75 and 1975-76. In fixing the value of the property at Rs. 7 lakhs, the Appellate Tribunal followed the decision rendered by it for the earlier year 1973-74, which is the subject-matter of ITR Nos. 282 to 285 of 1980, and held that there is no justification to depart from the course adopted by the Tribunal in valuing the very same property for the earlier assessment year and fixed the value at Rs. 7 lakhs. The reasoning and conclusion stated by us in answering the questions referred to us in ITR Nos. 282 to 285 of 1980 will govern these, references also. On that basis, we answer the question referred to us in the affirmative, against the Revenue and in favour of the assessee. A copy of this judgment under the seal of this court and the signature of the Registrar will be forwarded to the Tribunal, as required by law.
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1988 (3) TMI 55 - CALCUTTA HIGH COURT
Application For Review, High Court, Limitation, Review ... ... ... ... ..... licant. We thus keep it on record that the delay in the instant case of 164 days for not filing the Review Tender No. 3693 has not been duly and satisfactorily explained and no plausible or possible ground has been made out, for which we can hold that the applicant was prevented by just and sufficient cause from preferring his second review application in time. We also find that the affirmation of the application in Review Tender No. 3693 of 1986 was neither due nor proper and the same was defective. Even though in this case we were not required to deliberate on the facts and merits of the case, we have made reference to some facts and cases as cited, as Mr. Islam placed those facts and cases at the time of hearing. For the views which we have expressed, we find no merit in this application and accordingly this application is rejected. In this case, we could have passed an order for costs, but we are not doing so since there has been no appearance entered by the respondents.
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1988 (3) TMI 54 - MADRAS HIGH COURT
Capital Gains ... ... ... ... ..... erty connotes the passing of rights in property from one person to another. This proposition will apply with full force in the case of a capital asset which consists of corporeal property. In order that there should be a transfer of capital asset even within the extended meaning of total extinction of the rights in the capital asset, in our view, the rights in the capital asset which is corporeal property must vest in someone or the other. Equally, there must be consideration for such transfer. As already pointed out, in the instant case, we are unable to hold that there was any transfer as contemplated by section 45 read with section 48 of the Income-tax Act, 1961, when the boat sank in the sea. Further, the insurance amount received by the assessee cannot, in our view, be considered as consideration . Accordingly, we answer the reference in the affirmative and in favour of the assessee. The Revenue is directed to pay the costs of the assessee. Costs are fixed at Rs. 1,000.
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