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Case Laws
Showing 61 to 80 of 287 Records
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1988 (8) TMI 381 - ORISSA HIGH COURT
... ...
... ... ..... our opinion, is quite efficacious, adequate and comprehensive. We would, therefore, require the petitioner to prefer appeals against the orders of assessment before the appellate authority within two weeks from today with applications for condonation of delay which, if filed, in the facts and circumstances would be allowed by the appellate authority and the appeals would be set down for hearing on merits. By order dated 4th March, 1987, the demands were stayed by this Court. The stay order in respect of demands in each of the cases would operate until disposal of the appeals, if any, filed. If, however, the appeal/appeals are not filed within two weeks, the order of stay shall stand vacated. The appeals are directed to be disposed of within three months from the date of filing. 7.. With the aforesaid observations and directions, the writ applications are disposed of. No costs. K.P. MOHAPATRA, J.-I agree. S.C. MOHAPATRA, J.-I agree. Writ applications disposed of accordingly.
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1988 (8) TMI 380 - SUPREME COURT
Removal of Arbitrator - Whether a reasonable intelligent man, fully appraised of all the circumstances, would feel a serious apprehension of bias?
Held that:- Appeal allowed. It cannot be said that the Superintending Engineer, as such cannot be entrusted with the work of arbitration and that an apprehension, simpliciter in the mind of the contractor without any tangible ground, would be a justification for removal. Mere imagination of a ground cannot be an excuse for apprehending bias in the mind of the chosen arbitrator.
Thus the order made by the learned Judge. City Civil Court, and the decision of the High Court cannot be sustained and they are set aside - remand the case back to the learned Judge, City Civil Court, to ask the Government to appoint the Superintending Engineer. Trichy, to be an arbitrator in accordance with the arbitration agreerment.
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1988 (8) TMI 379 - CALCUTTA HIGH COURT
Aluminium Industry, Appeal To Supreme Court, Mining ... ... ... ... ..... is a fit case for appeal to the Supreme Court under section 261 of the Income-tax Act, 1961, on the following substantial questions of law (i) Whether prospecting and investigating expenses incurred before commencement of business to find out the source of raw materials are capital or revenue in nature ? (ii) Whether expenses on prospecting and investigation incurred at the pre-production stage for the purpose of quality and quantum of raw materials available are to be treated as revenue expenditure. ? (iii) Whether in case the expenditure is incurred for the purpose of creating an advantage for more beneficial running of the business with view to producing better profits, it is not material to consider whether the expenses were incurred at the pre-production or post-production stage ? For the reasons aforesaid, the application is allowed. It is certified that it is a fit case for appeal to the Supreme Court. Let a certificate be issued accordingly. K. M. YUSUF J. -I agree.
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1988 (8) TMI 378 - SUPREME COURT
Garnishee order is for a specified sum - sale of property to recover a higher sum makes the garnishee order and the sale void - Revenue, is held responsible to make good the loss of auction purchaser by way of compensation - sum was deposited by the auction-purchaser - auction-purchaser will be entitled to withdraw the said amount unconditionally & will be entitled to get interest on the said amount at the rate of 15% on the amount remained blocked, by way of compensation
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1988 (8) TMI 377 - CEGAT, NEW DELHI
Classification - Dutiability - Shells ... ... ... ... ..... en no charge of Central Excise duty got created on the goods at the time of manufacture. In the present case the charge on the goods subsisted till these were cleared for the intended use as envisaged in the notification No. 118/75. In the light of the discussion, I find the facts of this case are distinguishable from the cases cited by brother Shri Raghavachari and I am not able to persuade myself to agree with his conclusions. In view of the above, I hold that goods which were cleared after the budgetory changes, have been correctly charged to duty by the original authority. I, therefore, dismiss the appeal of the assessee and allow the appeal of the Revenue. In view, of what, I have held, I do not find it necessary to go into the question of time-bar. Sd/-(V.P. Gulati)Member (T)Dated 19-8-1988 FINAL ORDER In veiw of the majority opinion, we allow the appeal filed by the Revenue and dismiss the appeal of the assessee. Sd/-(V.P. Gulati)Member (T) Sd/-(D.C. Mandal)Member (T)
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1988 (8) TMI 371 - SUPREME COURT
Whether countervailing duty is includible in the octroi?
Held that:- Appeal dismissed. So far as the two periods after July 28, 1976 are concerned, I agree with my learned brother that there can be no doubt that this is included. The specific inclusion of the word "countervailing duty" and broader reference to duties "incurred or liable to be incurred " in the 1983 amendment in my opinion, only further clarifies the position which was prevalent even prior to June 28, 1983. The word "incidental charges" has a very wide meaning, particularly in a context where duties and taxes are referred to and the idea seems to be to include all items that will be taken into account by an importer as part of his cost.
In regard to the period till July 28, 1976, I had a little doubt as the rule included only charges incurred "till the arrival of the article at the place of import". But, considering that "arrival" is the event which simultaneously attracts both octroi and customs, I think that the later change of language was only clarificatory and I agree with the conclusion my learned brother has reached that the position should be the same for the first period also.
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1988 (8) TMI 370 - SUPREME COURT
Whether the direct and immediate result of the impugned notification No. S.O. 934 dated August 1, 1984 was to impose an unfavourable and discriminatory tax burden on the imported goods?
Held that:- The general rate of sales tax on hosiery goods was 5 per cent and it was the exemption for locally manufactured hosiery goods, granted by the said Notification No. S.O. 934 dated August 1, 1984, which constituted the departure. It is, therefore, really this notification which is discriminatory and which must be struck down. We find that the said Notification No. S.O. 934 dated August 1, 1984 is void and we quash the same.
As quashing of this notification on the ground that it was void ab initio might lead to undue hardship for the dealers in the State of Bihar who might have sold locally manufactured hosiery goods without taking into consideration any amount on account of the liability to sales tax in view of the exemption granted by the said notification dated August 1, 1984.In order to obviate this hardship, we direct that the arrears of sales tax which would become payable by the dealers in the State of Bihar in respect of sales of local hosiery goods made during the period when the said notification was in operation should not be collected.
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1988 (8) TMI 369 - SUPREME COURT
Whether the sales tax could be charged from the assessee in respect of packing charges received by the assessee from the purchaser?
Held that:- Appeal allowed. The fact that here, packing in the gunny bags was done by the dealer in respect of the goods at the time of or before the delivery, in our opinion, the High Court was in error in the view it took. There was a contract for packing the silica in sound gunny bags, the cost of packing materials had been realised, we are clearly of the opinion that the High Court was in error.
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1988 (8) TMI 368 - SUPREME COURT
Sales tax liability - Held that:- Appeal dismissed. As without calling upon the assessee or the dealer to explain its claim on section 8-A(1)(c), the imposition of the penalty which was sought to be sustained and maintained under clause (d) of section 8-A(1) of the Act cannot be sustained in this case by reference to clause (c).
In the premises, the High Court was right in the view it took. The petition raises no substantial question of law which requires looking into or interference by this Court.
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1988 (8) TMI 367 - SUPREME COURT
Whether excess realisation was of sales or purchase tax thus incurring penal liability under sub-clause (qq) of sub-section (1) of section 15-A or it was excess realisation of price over and above that the assessee was entitled to charge from its customers under Notification No. 4602 of the Essential Commodities Act?
Held that:- Appeal dismissed. Penalty can be levied or is leviable for realisation of excess of tax legally payable and not for contravention of section 8-A(2)(b). Realisation of excess amount is not impermissible but what is not Permissible is realisation of excess amount as tax. The High Court noted that the assessee did not act fairly in this case. By way of price it realised from its customers more than what it was entitled to under Notification No. 4602 but in order to avoid any consequences under the Essential Commodities Act such as suspension or cancellation of its licence, etc., the excess realisation was shown as amount covered by Explanation II of the notification. On these facts the High Court found that the provisions of section 15-A(1)(qq) were not applicable. It has to be borne in mind that the imposition of a penalty under the Act is quasi-criminal and unless strictly proved, the assessee is not liable for the same. There is no scope for interference under article 136 of the Constitution.
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1988 (8) TMI 345 - HIGH COURT OF BOMBAY
Winding up - Powers of liquidator ... ... ... ... ..... and having regard to the decision of the Supreme Court in Ramesh H. Shah rsquo s case (supra) the company can dispose of the property for a price. This distinction in the nature of the interest of the company, in the present case, is of a fundamental nature. Therefore, the two decisions Ravindra Ishwardas Sethna rsquo s case (supra) and Kamani Tubes Ltd. rsquo s case (supra) relied upon by the applicants counsel have no application. The company, as a member of the applicant society, has interest in the two plots and the structure. The official liquidator is, under section 457(l)(c) of the Act, empowered to sell the plot with the court s permission. Therefore, he is not liable to deliver possession of the plots and the structures to the applicants. In the result, the judge s summons is discharged and the company application is dismissed with costs. ------------------------- Bye-law No. 6 is in Marathi. A free translation into English is set out in paragraph 4 of this judgment.
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1988 (8) TMI 335 - HIGH COURT OF KARNATAKA
Company – Membership of, Oppression and Mismanagement – Right to apply under section 397 and 398
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1988 (8) TMI 327 - HIGH COURT OF DELHI
Company - Incorporation of ... ... ... ... ..... he Act and the Rules made thereunder. So far as individual liability of a director to the payment of excise duty and penalty is concerned, no liability can be fastened on him unless the department is able to show as to how and to what extent a particular director is liable. We wish to say no more at this stage. Before parting with this case, we may note the contention of the petitioners that section 9AA cannot be invoked in adjudication proceedings as it relates only to criminal proceedings. Section 9AA, which was introduced with effect from December 27, 1985, cannot be invoked in adjudication proceedings as it relates only to criminal proceedings. In all fairness to Mr. Ramaswamy, he conceded that the stand in para 4(e) of the counter-affidavit of the respondents is not correct with the result that the respondents will not rely on section 9AA of the Act in the adjudication proceedings. For the above reasons, the writ petition fails and is dismissed with no order as to costs.
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1988 (8) TMI 319 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... (22)1 E.L.T. 879 (Tribunal) 1985 ECR 2334 (Cegat), this Tribunal held that the rigid plastic laminated sheets made from plastic, glass and paper was classifiable under Tariff Item-68 and that the present case is covered by that order in favour of the respondents. 3. We have considered the arguments of both sides and the records of the case. The description of the goods in the invoice at page 38 of the paper book and also in the impugned order is insulating material. Classification under T.1. 15A(2) is, therefore, ruled out. Page 43 of the paper book, which is a photo copy from a page of the catalogue, shows that the glass content in the goods was more than 50 . Therefore, following the decision of the Tribunal in the case of Formica India (supra) these goods are correctly assessable under Item 22F of the Central Excise Tariff. 4. We, therefore, set aside the impugned order, allow the appeal and direct that the goods be re-assessed under Item 22-F of the Central Excise Tariff.
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1988 (8) TMI 318 - CEGAT, BOMBAY
Gold - Confiscation ... ... ... ... ..... ld does not belong to him but belongs to somebody else is on the appellant. As discussed earlier, the appellant failed to discharge his initial burden. 12. For the reasons stated in the preceding paragraphs, I reject Shri Solanki rsquo s contention that the seized gold was not liable to confiscation for non compliance of the provisions of Section 79. 13. Shri Prabhu, the learned Departmental Representative, is amply justified in contending that the Collector (Appeals) had taken a lenient view. The Collector (Appeals) had set aside the penalty of Rs. 1000/- on the appellant. The original authority had imposed a fine of Rs. 3750/- which works out to 10 of the seized gold and gold ornaments. This fine was no doubt confirmed by the Collector (Appeals). Looking to the gravity of the offence and the false defence taken, the authorities below had erred on leniency. 14. This appeal does not deserve any further consideration even in the matter of fine. Therefore, the same is rejected.
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1988 (8) TMI 316 - CEGAT, NEW DELHI
Drugs and medicines ... ... ... ... ..... on of a drug preparation, the conditions should be deemed to have been complied with. 10. In considering this problem we have referred to, in addition to the books cited for the assessee, The Pharmaceutical Codex incorporating the British Pharmaceutical Codex (XIth Edition). At page 756 of the book under the heading Propylene Glycol it is found stated under the head lsquo Veterinary Uses rsquo as follows - ldquo Propylene Glycol is used in the treatment of Bovine Ketosis and pregnancy toxaemia of sheep. Usual dose for both cattle is 200 to 300 ml and for sheep 60 to 100 ml these dose are repeated daily for 3 or 4 days. rdquo 11. It is thus clear that Propylene Glycol is used in the treatment of animals. In that event, it would be a bulk drug as defined in Notification No. 234/82. We, therefore, hold that the importer is entitled to succeed in both the appeals. Accordingly, Appeal No. 1323/86-C is dismissed and Appeal No. 2809/87-C is allowed with consequential relief, if any.
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1988 (8) TMI 314 - CEGAT, NEW DELHI
Proforma Credit ... ... ... ... ..... bsequently deleted w.e.f. 1-3.1983 by Notification No. 95/83-C.E., dated 1-3-1983 which superseded the earlier Notification No. 95/79-C.E., dated 1-3-1979. But this will not affect the position of the present case. The period involved in the present case related to 1-3-1982 to 28-2-1983 i.e. prior to the issue of Notification No. 95/83-C.E., dated 1-3-1983. 8. In the case of Vikrant Tyres Ltd. v. Collector of Central Excise, Bangalore 1985 (21) E.L.T. 620 (Tribunal) , this Tribunal in the context of Exemption Notification No. 201/79-C.E, dated 4-6-1979, held that set-off of duty paid on inputs should be allocated as between duty on the goods not exempted and the exempted goods and that set-off of duty paid on inputs which were used in the manufacture of final products which were fully exempted from Central Excise duty, was not available. This decision supports the view taken by us. In the light of the foregoing discussions, we uphold the impugned order and dismiss the appeal.
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1988 (8) TMI 313 - CEGAT, NEW DELHI
Classification of goods ... ... ... ... ..... tem Nos. 3, 6, 7, 9 and 11 of the diagram and chart. 9. In the absence of the Examination Report recorded on the Bill of Entry, we have to base our conclusions on the aforesaid evidence produced before us. An analysis of the above evidence goes to establish that 5 components were imported in the consignment and they constituted kit colour port repair though imported in knocked down condition. We have, therefore, to conclude that the findings of the lower authorities that two components, viz. gauge glass and gasket, were alone imported in the consignment, are not correct. Consequently, the impugned order has to be set aside and the appeal allowed. We order accordingly. Consequential refund admissible to the appellants should be granted after re-assessment of the goods under Tariff Heading 90.29 read with Tariff Heading 90.24 of the CTA, 1975 and Item 68 of the Central Excise Tariff for the purpose of additional duty of customs. 10. The appeal is disposed of in the above terms.
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1988 (8) TMI 309 - CEGAT, CALCUTTA
Redemption fine ... ... ... ... ..... 7. In so far as 28.200 grams of primary gold is concerned, we confirm the order of absolute confiscation. Regarding the quantum of fine of Rs. 32,000/- in lieu of confiscation 818.400 grams of gold ornaments and articles, having regard to the fact that the value of the same is only Rs. 30,694/- we reduce the quantum of fine to Rs. 10,000/-. We find that under the impugned order the adjudicating authority have imposed a penalty of Rs. 2 lakhs jointly and sevarally on the appellants. We should confess, we are at a loss to understand as to how a penalty can be jointly and severally imposed on two persons when proceedings are penal in nature. Having found the contraventions against the appellant we set aside the penalty jointly imposed by the adjudicating authority on Appellants, modify that part of the order and impose a separate penalty of Rs. 15,000/- on each of the appellants. 8. Except for the above modification, the appeal is otherwise dismissed. 9. Announced in open Court.
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1988 (8) TMI 308 - CEGAT, MADRAS
Show cause notice ... ... ... ... ..... ards the charges against the appellants Ashok Kumar Agarwal son of Bhaiyyalal and Ashok Kumar Agarwal son of Moolchand, they are not denying the charges but the plea is only for reduction in the quantum of penalty. The evidence on record clearly shows that primary gold of very high purity was recovered from their possession and the charges against them are clearly established. 17. As regards the quantum of penalty, considering the significance of the role in the offence of these appellants, and also since the gold involved is already under absolute confiscation, the personal penalty on appellants Ashok Kumar Agarwal son of Bhaiyyalal and Ashok Kumar Agarwal son of Moolchand is reduced to Rs. 10,000/- (Rupees Ten Thousand) each, and the personal penalty on the other appellants Mahendra Kumar Agarwal and Surendra Prasad Agarwal is also reduced to Rs. 30,000/- (Rupees Thirty Thousand) each. The Collector rsquo s order is modified only to the above extent, it is otherwise upheld.
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