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Case Laws
Showing 41 to 60 of 263 Records
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1989 (7) TMI 308
EXIM - OGL - Import of 20 MTs of Tartaric acid - Exemption ... ... ... ... ..... exempted, subject to any condition, from duty or any prohibition in respect of the import thereof under the Act or any other law for the time being in force, in respect of which the condition is not observed unless the non-observance of the condition was sanctioned by the proper officer, shall be liable to confiscation, and in terms of Section 112 of the Act, any person who, in relation to any goods, does or omits to do any act which act or omission would render such goods liable to confiscation under Section 111, or abets the doing or omission of such an act, shall be liable to penalties provided in the section. The Customs authorities have thus adequate powers to deal with any violation of the conditions subject to which exemption from duty and from prohibition on import have been authorised by law. 27. emsp In the light of the foregoing discussions, I agree that the appeal is to be allowed and the impugned order to be set aside with consequential relief to the appellants.
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1989 (7) TMI 307
Company – Incorporation of ... ... ... ... ..... osecution against the company on an extension of the doctrine against self-incrimination, many of the offences committed by companies cannot be detected, prosecuted and punished. One word more before we conclude and that is about section 305 of the Code of Criminal Procedure which provides that when a body corporate is an accused, it may appoint a representative for the purpose of any inquiry or trial and such representative is to be examined under section 313 of the Code providing for examination of the accused to explain any circumstances appearing against the corporation. We would like to make it clear that we have not decided the question as to whether such an one, while representing the corporation, can be compelled to appear as a witness against the corporation. We would, accordingly, reject the revisional application and discharge the rule. The records to go down at once to the court below to enable it to proceed with the trial with expedition. Nandi, J. mdash I agree.
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1989 (7) TMI 306
Circumstances in which a company may be wound up ... ... ... ... ..... ere a winding up order is made. With this one exception, if an order in winding up is made appointing the official liquidator or a receiver, then also by virtue of section 31 of the Act, the proceedings of winding up will continue notwithstanding the act as mandated under section 31 of the Act, which reads as follows 31. Saving of pending proceedings. mdash Where a receiver or an official liquidator has been appointed in any proceeding pending immediately before the commencement of this Act in any High Court for winding up of an industrial company, such proceedings shall not abate but continue in that High Court. Therefore, from whatever angle one may look at it, this petition is liable to be dismissed. It is accordingly dismissed subject to the observation that if there is a rehabilitation scheme which may revive the company, such scheme should be proposed to the court after notice to the official liquidator and that will be considered and disposed of in accordance with law.
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1989 (7) TMI 291
Annual Return – Penalty for not filing, Balance sheet - Default in filing copies of ... ... ... ... ..... re or refusal to comply was the reason for holding it to be a continuing offence. Daily fine prescribes only the measure of penalty, the object being enforcement of strict compliance with law and early compliance after default. The initial default thereby does not necessarily become a continuing offence. Initial default is an offence committed once and for all. We may, therefore, say that a continuing offence is an act or omission over which the offender can exercise his control irrespective of the penal provision of daily fine. Law may cast an obligation upon a person either to discontinue an act or abstain from continuing an omission. If the obligation continues and it is not discharged, the default constitutes a continuing offence. If continuance of an act or omission is an offence, it shall be a continuing offence until the act is discontinued or the omission is abated. If this test is applied in the cases before us, the offences are to be regarded as continuing offences.
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1989 (7) TMI 290
Company when deemed unable to pay its debts ... ... ... ... ..... tentions so raised by it had any basis. We are in complete agreement with the company judge that the defence raised by the respondent had no merit but we fail to understand as to why the petition should have been dismissed. In our opinion, prima facie, the only conclusion which could be arrived at was that the respondent was unable to pay its debt and that it was necessary to admit the petition. We, accordingly, allow the appeal and order that the winding up petition filed by the appellant is admitted. This leaves the question as to whether the petition should be advertised or not. The question as to whether the citation should issue will be determined by the learned company judge who will also decide the question as to whether a provisional liquidator should be appointed at this stage. It may perhaps be helpful for the learned company judge to summon all the directors in court for recording of their statements while passing further orders. There will be no order as to costs.
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1989 (7) TMI 274
... ...
... ... ..... above no judgment was dictated in the Court and the Bench pronounced its formal expression of its decision with the clear direction that Order will follow which on account of the circumstances mentioned above could not be written and signed by all the Members constituting the Bench. In such a situation the appeal in hand was ordered to be listed for hearing afresh upon notice to the parties. Thus, a situation pointed out by their Lordships in the case of Vinod Kumar Singh v. Banaras Hindu University, supra, itself wherein as extracted above it was stated that a judgment pronounced in open Court should be acted upon unless there be some exceptional feature and if there be any such, the same should appear from the record of the case. 26. In the result we overrule the preliminary objection and on the point of repetition hold that the Order allowing the appeal on 19-4-1988 was not a valid Order in terms of sub-section (1) of Section 35-C of the Central Excises and Salt Act, 1944.
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1989 (7) TMI 273
Appeal - Admissibility of question of fact at appeal stage ... ... ... ... ..... nt and machinery under Rule 173Q(2) is harsh and unjustified. We find a lot of force in this submission. The Rule requires the adjudicating authority to record specific reasons for directing such confiscation. We do not find any such specific reasons spelt out in the adjudication order for confiscating the plant and machinery. Nor has it been indicated whether it is for the reason that the offence has been committed for the second or subsequent occasion which is also one of the grounds mentioned for the purpose in Rule 173Q(2). In the circumstances, the order confiscating the plant and machinery is not sustainable and is set aside and the appellant is entitled to the consequential relief. We also reduce the penalty on the appellant from Rs. 25,000/- to Rs. 15,000/- (Rupees fifteen thousand only) in the facts and circumstances of the case. The order of the Collector is modified to the extent indicated above. It is otherwise upheld. The appeal is disposed of in the above terms.
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1989 (7) TMI 272
Doubling/twisting/triple-twisting of different varieties of yarn/dipping of yarn ... ... ... ... ..... sted by the customer should after the application of the manufacturing process by the job worker, not lose, its essential identity entirely, but should retain its essential identity subject to the effects of the manufacturing process is carried out..... ldquo The only broad guideline for the applicability of the notification would be that the process applied by the job worker should not be in the nature of manufacture in its primary sense and the resultant product should not be so completely distinct as to lose the original identity itself. rdquo 18. So it can be seen from the above excerpts that what has been held by the Tribunal is that the article should not lose its identity. In light of the judgment in the case of Aditya Mills Ltd. (supra), in the present appeals, the article loses its identity. So, this argument of Sh. Bharucha is not correct. So, we pass the following final order All these five appeals are allowed and impugned order of Collector (Appeals) is set aside.
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1989 (7) TMI 268
Revision - Time limit of one year for issuing review show cause notice ... ... ... ... ..... nt, therefore, in exercise of the powers vested under Section 36(2) of the C.E. and S.A., 1944 proposes to set aside the order of the Appellate Collector of Central Excise, Calcutta mentioned above and to restore the above said order of the A.C.E.E., Ranchi or to pass such orders deemed fit after consideration of the submissions of the assessee. rdquo In the review show cause notice there is no mention as to non-levy of any duty or short-levy of any duty or granting of erroneous refund and as such the extended period of limitation as provided under Section 11-A is not applicable. Accordingly, we are of the view that the review show cause notice was issued after the expiry of limitation in terms of sub-section (2) of erstwhile Section 36 of the Central Excises and Salt Act, 1944. Accordingly, the appeal is dismissed, the review show cause notice being hit by limitation. Since we are dismissing the appeal on the point of limitation, we are not going into the merits of the same.
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1989 (7) TMI 267
Confiscation of seized goods ... ... ... ... ..... - (Rupees One thousand only). 10. In view of what is discussed above, it does not appear necessary to consider the other points raised. However, I would like to observe that the learned advocate for the appellant has also raised a contention that the appellant is a licensed gold-smith and vide Section 42 of the Act, he is entitled to retain with him primary gold up to 300 gms. Section 42 does permit retention of primary gold up to 300 gms but such retention is subject to observance of other provisions of the said Act. Thus if the appellant acquired or retained the gold in contravention of the other provisions of the Act, merely because the gold found from him is less than 300 gms cannot exonerate him from the liability arising out of the breach of other provisions of the act. 11. From, what is discussed above, the appeal is partly allowed. The order of confiscation is set aside and the personal penalty imposed on the appellant is reduced to Rs. 1000/- (Rs. One thousand only).
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1989 (7) TMI 266
Confiscation and redemption fine quashable ... ... ... ... ..... he office of CCI and E seeking for clarification. Though the item, described by them is a broad term ldquo nickel mesh rdquo , C.C.I. and E. thought it fit to give the clarification in their favour presumably knowing the actual use of the item sought to be imported. All these factors cannot be brushed aside. We also take note of the fact that DGTD, in regard to the specific item under dispute have clarified that it can be imported under OGL during the relevant policy period. Though this clarification has been obtained subsequent to adjudication, this has a persuasive value on the adjudicating authority, even if the case is remanded for this purpose as urged by Sh. Mondal. 8. When two views are possible, the view favourable to the appellants is to be extended, especially when it is observed that they have approached the concerned authorities for guidance prior to import, as is evidenced from the correspondences cited. We, therefore, allow this appeal with consequential relief.
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1989 (7) TMI 265
Damaged or sub-standard goods ... ... ... ... ..... ds imported did not comply with the specifications set out in the order has not been explained. In this background, though the fact of reduction in value has been accepted by the Collector (Appeals), we cannot say that the claim for refund of duty has been satisfactorily established. Mere reduction in value without a satisfactory explanation therefore cannot be the basis for reduction of duty which apparently was collected correctly on the basis of the declared value. 17. However, in view of our finding that the goods are eligible for exemption from payment of additional duty of customs, the appellants would get relief in this respect. Insofar as basic duty of customs is concerned, the appellants rsquo claim on the ground of reduction in value is not acceptable. 18. In the result, Appeal No. 598/82 and Supplementary Appeal No. 3733/88 are allowed. Appeal No. 1466/84 is allowed to the extent of relief in payment of additional duty of customs. It is dismissed in other respects.
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1989 (7) TMI 260
Confiscation ... ... ... ... ..... of the two Kruggrrands of gold in question or they acquired the same with the knowledge that the same was liable to confiscation under Section 111 of the Customs Act. Consequently, the penalty imposed under the Customs Act cannot be sustained in the eye of law. 10. Conclusion In the result - (1) Appeals filed by Shri Manmohan Singh son of Jaswant Singh under the Customs Act and the Gold (Control) Act are dismissed being without any merits. (2) Appeal No. G/81/85-NRB filed by Virender Singh under the Gold (Control) Act is dismissed, but the appeal filed by him (Virender Singh) under the Customs Act is allowed and that part of the impugned order which imposes the penalty upon him under the Customs Act is set aside with consequential relief. (3) Both the appeals filed by M/s. Lamba Jewellers under the Gold (Control) Act and Customs Act are allowed and that part of the impugned order which imposes the penalties upon them under both the Acts is set aside with consequential relief.
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1989 (7) TMI 258
Cable terminals, not treatable as plugs and sockets ... ... ... ... ..... also anything in the nature of a pin which fits in a hollow as a plug. No evidence has been brought on record by the Revenue that the items in question are known as plugs or sockets in the trade parlance. It is again settled law that Dictionary meaning cannot be taken to be the governing interpretation, of the Tariff when trade parlance test is available. The goods are used in the electrical circuits, and it has not been shown in respect of the products in question whether the products are considered in the trade as apparatus for switching or for making connections in electrical circuit and are of the nature as given by way of example in the Tariff Heading 85.36. In view of this I hold that the appellants rsquo products cannot be considered as plug and sockets and therefore these do not fall in the excluded category of items are mentioned in sub-item (i) of Serial No. 13 of Notification No. 160/86, dated 1-3-1986 for the purpose of benefit of Notification under that heading.
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1989 (7) TMI 257
Classification ... ... ... ... ..... g, the question of considering the alternative claim of classification under Item 68, CET, does not arise. However, for the record we note that during the hearing, in response to a query by the Bench, Shri Abrol had stated that the claim that if the goods fell under Item 68, CET, no duty was chargeable thereon as the total clearances did not exceed Rs. 30 lacs in value, had not been taken up in the proceedings before the lower authority and that he would not, therefore, be pressing this point. In any event, the question of considering the claim does not survive in view of our finding on the classification of the goods. 20. Though the Collector rsquo s order confiscates certain goods, imposes fine in lieu of confiscation and penalty on the appellants, Shri Abrol did not address any arguments before us on these aspects during the course of hearing of the appeal. In the circumstances, we are not recording any finding on these aspects. 21. In the result, this appeal is dismissed.
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1989 (7) TMI 256
Seizure of 12 gold lockets from locker ... ... ... ... ..... rt decides to release the seized articles to the petitioner. 9. On the contrary the petitioner claims that the action if any under the Gold Control Act for adjudication u/s 79 of the said Act could have been taken within six months of the seizure. No action having been taken in that regard, the articles seized are liable to be returned unconditionally. Be that as it any, we do not think it necessary for the purpose of the present writ petition to go into merits of respective claims and the stand taken by the parties. We also do not think necessary to express any opinion as to whether the respondent No. 1 is entitled to take any action against the petitioner under the Gold Control Act. 10. In view of that has been stated earlier, we allow this petition and direct the respondent No. 2 to return the articles seized from locker No. 62 with the Union Bank of India, Civil Lines Branch, Allahabad as per seizure memo dated 23rd December, 1985. 11. There shall be no order as to costs.
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1989 (7) TMI 255
Rate of duty ... ... ... ... ..... ry had also been filed for the clearance of the Car on 25-2-1986 and hence the rate of duty applicable will be that prevailing on that date as per provisions of Section 15(1)(a) of the Customs Act, 1962. The mere change of berthing of the vessel would in the circumstances make no difference. The assessment of the Car to duty applying the higher rate prevailing on the date on which the vessel carrying the Car was brought into another berth in the same port is not legally sustainable. The further plea of the appellant in the appeal that the rate of exchange should be the one at the time of his paying for the Car is not accepted as it is not in consonence with the provisions of Section 14 of the Customs Act relating to valuation of goods for the purposes of assessment wherein it is clearly laid down that the price shall be calculated with reference to the rate of exchange as in force on the date on which a Bill of Entry is presented. The appeal is disposed of in the above terms.
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1989 (7) TMI 254
Value of clearances ... ... ... ... ..... ression or mis-statement therein. Such allegations cannot merely be implied they must be made clearly and unambiguously. We perused with great respect, the judgment of the Supreme Court in Chemphar Drugs (supra), wherein referring to the application of extended period of limitation, the Hon rsquo ble Supreme Court inter alia stated that ldquo something positive other than mere inaction or failure on the part of the manufacturer or producer or conscious or deliberate withholding of information when the manufacturer knew otherwise, is required before it is saddled with any liability, before the period of six months rdquo . 8. It is quite clear from the facts of the case and from the records that there is no evidence that the appellants intentionally and deliberately withheld information from the Central Excise Department. Therefore, we hold that the demand should be limited to a period of six months prior to the date of show cause notice. 9. The appeals are thus partly allowed.
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1989 (7) TMI 253
Prosecution and Seizure ... ... ... ... ..... otic Drugs and Psychotropic Substances Act, 1985. In connection with the detection of the offences a raid was organised at the premises of the petitioner and National Saving Certificates, Fixed Deposit Receipts and cash a sum of rupees one lakh fourteen thousand and odd was seized along with the drugs. The contention of the petitioner rsquo s counsel is that the authorities did not have power to seize National Saving Certificates and Fixed Deposit Receipts which were of a date much earlier to the commission of the offence by the petitioner. However, we did not wish to go into these controversies in the present proceeding as we consider it appropriate to direct the Magistrate to decide the criminal case pending before him. 3. The Special Judicial Magistrate (Economic Offences), Allahabad is directed to decide the complaint filed against the petitioner within three months of the filing of the certified copy of this judgment. 4. Subject to above the writ petition is disposed of.
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1989 (7) TMI 252
... ...
... ... ..... with fitted collar and cuff rdquo or ldquo a woman rsquo s blouse of similar form rdquo . It is apparent that a lsquo shirt rsquo is characterised by the design of the garment and not by the type of the fabric. We are, therefore, constrained to observe that the Collector in readjudication has completely misdirected and misapplied himself. 6.5. We feel that the importer rsquo s prayer for keeping a sample of the cloth and comparing it with the shirts at the time of the export of the latter a reasonable request which could be accepted. We accept that request of the appellants made by them to the original adjudicating authority. 6.6. Subject to compliance with this condition of keeping a sample of the cloth and making a comparison with that at the time of export of the shirts through Bombay Custom House, we set aside the impugned order and allow the goods to be released forthwith. We also set aside the penalty imposed on the appellants. 7. Appeal disposed of in the above terms.
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