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Case Laws
Showing 101 to 120 of 288 Records
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1990 (12) TMI 216 - SUPREME COURT
Whether the detenu or anyone on his behalf is entitled to challenge the detention order without the detenu submitting or surrendering to it?
Held that:- In the present case, admittedly the proposed detenu is absconding and has been evading the service of the detention order. The first respondent who is his wife has sought to challenge the said order because the show-cause notice under sub-section (1) of Section 6 of the SAFEMA is issued to him, a copy of which is also sent to her. Thus, the assistance of the High Court under Article 226 of the Constitution is sought by the first respondent on behalf of the detenu to secure the order of detention with a view to defend the proceedings under the SAFEMA. Thus the proposed detenu is trying to secure the order of detention indirectly without submitting to it. What is further, he is also trying to secure the grounds of detention as well as the documents supporting them which he cannot get unless he submits to the order of detention. No prima facie case is made out either before the High Court or before us for challenging the order of detention which would impel the Court to interfere with it at this pre-execution stage. Unfortunately, the High Court disregarding the law on the subject and the long-settled principles on which alone it can interfere with the detention order at this stage has directed the authorities not only to furnish to the detenu the order of detention but also the grounds of detention and the documents relied upon for passing the detention order.
The appellants took the plea that although they were willing to produce the order of detention and the grounds of detention for the perusal of the Court, they cannot furnish them to the first respondent unless, as required by the Act, the detenu first submits to the impugned order. The High Court thereupon issued the contempt notice by its order dated June 30, 1989. For the reasons discussed above, we are of the view that both the orders of the High Court directing the appellants to furnish to the detenu or to the first respondent or her counsel the order of detention, the grounds of detention and the documents supporting them as well as the contempt notice of 30th June, 1989 are clearly illegal and unjustified and they are hereby quashed. Both the appeals are accordingly allowed.
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1990 (12) TMI 215 - CEGAT, NEW DELHI
Valuation - Measuring instruments ... ... ... ... ..... o come to the finding that there was trafficking. Besides, after perusing the proviso 2 to Rule 5(3) of the Import Control Rules, we find much force in the learned Advocate rsquo s arguments that paragraph 118(5) of the Handbook is contrary to the Rules. It was not denied by the Revenue that in September 1988 (subsequent to the importation) this paragraph was omitted. The reason could be that it was not in accordance with the provisions of the Rule. In any event, we have to set aside the Collector rsquo s order for lack of acceptable evidence regarding trafficking of the licence. 11. As a result we uphold the enhancement of the value of the goods but set aside the confiscation of the goods. Considering that the evidence placed by the appellants before the Collector in relation to the value of the goods was not considered and that there is no allegation of any illegal remittance of money abroad, we set aside the penalty also. 12. The appeal is thus partly allowed as indicated.
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1990 (12) TMI 214 - CEGAT, NEW DELHI
Show cause notice issued for mis-declaration of classification list ... ... ... ... ..... ch a barrier cream as is manufactured under and in accordance with a licence issued under Drugs and Cosmetics Act, 1940 will not arise for consideration. It may also be noted that there is no dispute regarding the composition of the product, and further the Collector rsquo s findings are not based on the market enquiry by the Department, but are based on the technical literature, furnished by the appellants rsquo own pamphlets and advertisements of Oil of Olay showing how they themselves market it from which it is possible to conclude that it is marketed as a beauty fluid. The Collector rsquo s order denying exemption is well founded. However, having regard to the fact that the whole issue hinges on a question interpreation of the term lsquo Barrier Cream rsquo vis-a-vis the product Oil of Olay, there is a case for affording relief to the appellants in the matter of personal penalty which is accordingly reduced to Rs. 50,000/-. The Collector rsquo s order is otherwise upheld.
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1990 (12) TMI 213 - CEGAT, NEW DELHI
... ...
... ... ..... nal in the case of Indian Aluminium Cables Ltd. v. CCE 1989 (40) E.L.T. (86) that as held by the Supreme Court in the case of A.K. Roy and another v. Voltas Ltd., once wholesale dealings at arm rsquo s length are established, the determination of the wholesale cash price may not depend upon the number of such dealings. We also hold that MGW and WIGW are not ldquo related persons rdquo within the meaning of Section 4(4) (c), so as to attract the provisions of proviso (iii) of Section 4(l)(a) - the commonality of some Directors (who are brothers) is not sufficient to constitute relationship in the absence of any other factor like mutuality of interest between the two companies which are independent corporate legal entities. 6. In the light of the above discussion, we hold that the assessable value of the goods is the price of sales to WIGW and the price lists are to be approved under Part I. We set aside the impugned order and allow the appeal with consequential relief, if any.
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1990 (12) TMI 212 - CEGAT, NEW DELHI
... ...
... ... ..... chanism that records the number of movements. In short, as per the said Encyclopaedia, the timer system is not a clock which is made on the principle given therein. Even otherwise, the function of the timer is On and Off programming. It is only incidental that when the timer is energised it displays time, which on switching on the TV set has to be set to the time of the day or night. In most of the electronic or electrical gadgets clock as timer is fitted and by no stretch of imagination the electrical or electronic gadget can be treated as a clock. In view of this above discussion, we do not find any infirmity in the order passed by the Collector of Central Excise (Appeals). We uphold his findings and hold that the TV set in which the timer system is inbuilt falls at serial No. 19 of the table appended to Notification No. 68/86 dated 10th February, 1986 as amended from time to time. Accordingly, we do not find any merit in the revenue rsquo s appeals. The same are dismissed.
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1990 (12) TMI 211 - CEGAT, NEW DELHI
Rectification of mistake in the disposal of appeal ... ... ... ... ..... e first respondent. In the matter before us if further observations have to be made, then the arguments have to be advanced by both the sides and the matter is fully covered by the judgment of the Supreme Court in the case of T.S. Balaram v. M/s. Volkart Brothers, and we hold that it is not a mistake apparent from record. The present ROM application is in the nature of a review application. The Tribunal has no power to review its own order. Calcutta High Court in the case of Shew Paper Exchange v. ITO reported in (1974) 93 ITR/186 had held that the Tribunal has no power to review its own order. There is no mistake in the order passed by us. The judgment cited by the learned Advocate reported in 1987/32/ELT 783 does not help him. While coming to the conclusion, we had taken into consideration all the arguments advanced by both the sides. In view of the above discussion, we hold that there is no mistake apparent from record. The Rectification of Mistake application is rejected.
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1990 (12) TMI 210 - CEGAT, NEW DELHI
Refund - Limitation ... ... ... ... ..... on and the conclusion arrived at therein have our full concurrence. The claim for refund should be made to the Assistant Collector. That is all. It need not be presented before the Assistant Collector. It is also evident that consistent with prior practice the application was received by Range Office without demur. It was not returned as defective. The assessee was not directed to present the claim before the Assistant Collector. This is the normal course that should have been adopted, if the claim was not entertainable by the Range Office, though addressed to the Assistant Collector. 6. The ratio of the High Court judgment is fully applicable to the facts of the present case, and applying the same, we hold that the refund claim filed by the appellant is not time-barred and in this view of the matter set aside the impugned order and the Assistant Collector is directed to consider the refund claim on merits in accordance with law and after hearing the appellants in the matter.
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1990 (12) TMI 209 - CEGAT, NEW DELHI
Adjudication can not be beyond Show Cause Notice ... ... ... ... ..... ed to there was no discussion as to why it was not applicable to the facts of the case. It was observed that ldquo the Collector had not pointed out as to which item have been specifically assembled at site out of the components bought out by the appellants, at site either from their own works or from the independent fabricator or purchased from the market. He has apparently taken the completion of the products as assembly of the machine at site. The product itself being an immovable property cannot be charged to duty rdquo . In other words, the subject matter of the appeal was the assessability of Turn Key project which admittedly is immovable property and not goods. Therefore, not dutiable. Therefore, the order of this Tribunal in Tata Robins is not relevant to the facts of this case. 59. In the light of the above observation the appeal of M/s. Elpro International is remanded to the Collector for consideration afresh. The appeal filed by M/s. I.G.E. (India) Ltd. is allowed.
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1990 (12) TMI 208 - CEGAT, CALCUTTA
Appeal - Condonation of delay of 18 days ... ... ... ... ..... d to be on leave. In a time bound matter necessary alacrity and despatch does not appear to have been displayed but the file was processed in a casual manner. Going by the contents of the appeal, we find that it largely follows the pattern of the order in original itself passed by the Assistant Collector and the issue involved viz., whether the manufactured goods are cleared as just glass bottles or as a system consisting of the bottle with the supporting stand the value of the goods being made up of all the units should not have taken elaborate time to justify the contributory delay at successive stages. In the circumstances, we are not satisfied that the applicant has made out a case of sufficient cause having prevented him from filing the appeal in time. Hence, we decline to condone the delay. The condonation application is dismissed and accordingly, the appeal itself is dismissed as time barred. 8. In the result, the Miscellaneous Application and the appeal are dismissed.
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1990 (12) TMI 207 - CEGAT, CALCUTTA
... ...
... ... ..... there is any undue haste. It also cannot be said that this act had made the goods liable to confiscation. So also it is not clear as to what the learned Collector meant by observing that the appellants rsquo firm was callous or not diligent in the matter of scrutiny of documents as no such specific documents or acts of callousness were dealt with in the order. It is nothing but a vague observation made in that regard. There is no definite material which probablises that any act or omission of the appellants had made the goods liable for confiscation. So also there is no material to show that the appellants rsquo firm abetted the doing of any act or omission of any act which would render the goods liable. Such an observation made by the Collector in his order was without any basis of materials in that regard. Accordingly, we extend the benefit of doubt to the appellants and set aside the penalty of Rs. 5,000.00 imposed on the appellants rsquo firm. The appeal is thus allowed.
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1990 (12) TMI 206 - CEGAT, NEW DELHI
Jurisdiction ... ... ... ... ..... ection (2) of the Section 125 of the Act. As noted above, the Adjudging Officer has neither demanded duty nor confirmed it in his order and as such Sub-section (2) cannot be invoked after the adjudging the case to demand duty on the basis of imposition of fine under Sub-section (1) of Section 125 of the Act. Therefore, there is no demand of duty and the Importer, while choosing to exercise the option of redeeming the goods is required to pay the fine as levied under Sub-section (1) of Section 125 of the Act alone. 22. In view of this position, the ruling of M/s. Metro Export and M/s. Bliss Impex (supra) are not applicable to the facts and circumstances of this case and as there is no question of determination of rate of duty in this appeal but question of contravention of provisions of the Import and Export (Control) Act, 1947 and Customs Act, the Special Bench has no jurisdiction to decide the case as per the provisions of Sub-section (3) of Section 129 C of the Customs Act.
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1990 (12) TMI 205 - CEGAT, NEW DELHI
Manufacture ... ... ... ... ..... e Court. Therefore, the contention of the appellants that there is no process of manufacture in this case is not tenable. As observed earlier in the ruling cited by the advocate, the concept of manufacture was considered keeping with the new goods that emerged after several processes the product had undergone. 10. The Assistant Collector has rejected the appellants rsquo claim for classification under Chapter Heading 23.02 which deals with preparations of a kind used in the animal feed including dog and cat feed. The reasoning given by the Assistant Collector for rejecting this heading is not seriously challenged and I find that there is no ground to interfere with the said findings. However, the lower authorities were not justified in rejecting the claim of the appellants for grant of exemption of duty under Notification No. 23/55. For the reasons stated by my learned brother in the impugned order, the appellants are entitled for grant of exemption and the appeal is allowed.
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1990 (12) TMI 204 - CEGAT, NEW DELHI
Demand - Limitation ... ... ... ... ..... o much of the duty as is proved to have been paid on the said iron subsequent to observance of procedure prescribed under Rule 56A. In this case, steel melting scrap falling under Tariff Item 26 has been produced from iron on which no duty has been paid and the final product (steel melting scrap) has been cleared without payment of duty or following Chapter X procedure as stipulated in Notification 150/77 dated 18-6-1977. The appellants rsquo contention that the notifications are independent of each other is not tenable because the procedure for manufacture and clearance is governed by both Notification 18/71 and 150/77. The Department is justified in recovering duty at the stage prior to the last stage as, in the last stage, the product, i.e. steel melting scrap is subject to nil rate of duty. 8. In the result, we uphold the demand of duty for the period of 6 months prior to the date of issue of show cause notice. 9. The appeal is dismissed subject to the above modification.
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1990 (12) TMI 203 - BOMBAY HIGH COURT
Cancellation of Bail ... ... ... ... ..... of the investigation is unnecessary, and consequently, that the learned Additional Sessions Judge ought not to have interfered with the order releasing the Accused on bail. 11. While it is essential that Courts should provide Investigating Authorities with reasonable time to carry out their investigations, it is equally necessary that the Courts strike a correct balance between this requirement and the equally compelling consideration that the curtailment of the liberty of a citizen cannot be done unless the facts and circumstances completely justified it. In this view of the matter, the order passed by the learned Additional Sessions Judge, dated 19-12-1990, in Criminal Miscellaneous Application No. 899 of 1990 is set aside. The order of the learned Additional Chief Metropolitan Magistrate in Remand Application No. 1246 of 1990 dated 5-12-1990 stands confirmed. 12. On 24-12-1990, I have dictated the operative part of the order which shall form part and parcel of this order.
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1990 (12) TMI 202 - CEGAT, CALCUTTA
... ...
... ... ..... ant to the said order, they had paid the duty on 30-12-1987 as seen from the copy of the Bank Challan produced by them. Thus, duty had remained unpaid for more than three years and nine months from the time it had fallen due. Offence attracting the provisions of Rule 173Q(l)(a) and (b) stands disclosed, as they had removed excisable goods in contravention of the provisions of the Rules and had engaged in the manufacture of excisable goods without having applied for the licence required under Section 6 of the Act. The penalty imposed is Rs. 5000/- as against the offence involving goods of value Rs. 63,200/- approximately. The penalty that can be imposed can go upto three times the value of the goods in question and in that manner the penalty imposed is a token one. The Collector had himself observed that he was taking a lenient view. I am satisfied that the view was lenient enough in fixing the quantum of penalty. I, therefore, dismiss the appeal and uphold the impugned order.
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1990 (12) TMI 201 - CEGAT, CALCUTTA
Import Licence ... ... ... ... ..... essary ingredients of a charge relating to the contravention of the provisions of the Act and, therefore, non-mention of the sub-section of the penal provision of Section 112 of the Act is inconsequential and it is not the case of the appellants that they suffered any prejudice on this score, nor pleaded any inability either in comprehending the charge against them in the conduct of their defence. The ratio in the Premier Brass and Metal Works case has, therefore, no application to the facts of the case. 8. Taking all relevant factors into consideration, we are of the view that while holding the import of the goods is not covered by the licence, the breach being technical in nature, interests of justice should be met if the quantum of fine is reduced to Rs. 1 lakh (Rupees one lakh) only from Rs. 4 lakhs, and the penalty to Rs. 10,000/- (Rupees ten thousand) only from Rs. 50,000/- and we order accordingly. Except for the above modifications, the appeals are otherwise rejected.
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1990 (12) TMI 200 - CEGAT, NEW DELHI
Stay—Deposit of duty pending appeal ... ... ... ... ..... proceed with the adjudication proceedings in respect of the following show cause notices - Number Date Period V(29A)15/14/CE/88/274 20/1/88 Sept. 86 to Mar. 87, Apl. 87 to Oct. 87 V(8414)l5/27-CE/89/102 20/12/89 9/1/90 Nov. 87 to May 88 C. No. CE-13/Karna/R-17/88/Demand/1481 15/12/88 June 88 to Nov. 88 C. No. CE-13/Karna/R-17/Demand/ 89/ 769 19/25-5- 89 Dec. 88 to Apl. 89 C. No. CE-13/Karna/R-17/Demand/ 89/1404 27/10/89 May 89 to Sept. 89 C. No. CE-13/Karna/ R-13/Demand/ 90/ 1970 30/3/90 Oct. 89 to Feb. 90 C. No. CE-13/Karna/R-13/ Demand/ 90/667 21/8/90 March 90 to July 90 However, we make it clear that the Revenue authorities are well within their rights to issue show cause notices for any period in accordance with law, if they so choose. Since there is recurring effect we accept the prayer of the learned advocate for the grant of early date of hearing which is not opposed by the learned JDR, Shri M.S. Arora. We also order that the appeal will be heard on merits on 6-3-1991.
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1990 (12) TMI 199 - CEGAT, NEW DELHI
... ...
... ... ..... was held that Principal was not responsible for the illegal acts of the agent. Permissibility of Letter of Authority or otherwise was not dealt with in that case as it was permissible. But in the present case, the authorisation itself is questionable and subject-matter of the dispute. According to para 118(2) of Import Policy, 1985-88, the appointing any type of agent is not allowed unless obtained prior permission by the Competent Authority. Further mens rea cannot be taken as a shield against penal proceedings particularly where economic offences are proved and party failed to fulfil binding obligations prescribed under the I.T.C. Policy availed of by the appellants. However, as regards quantum of penalty, we feel that imposition of penalty upon the appellants is on higher side and required to be reduced after taking all the facts and circumstances of the case. Accordingly, we reduce the penalty to Rs. 50,000/- as against Rs. 2 lakhs, 9. Thus, the appeal is partly allowed.
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1990 (12) TMI 198 - CEGAT, NEW DELHI
Plastics - P.F. Moulding powder manufactured from duty paid resin not liable to duty ... ... ... ... ..... or. In absence of any grounds made by the Revenue in this appeal and further the appeal having been filed after more than four years, it can be safely presumed that the Revenue has accepted the order of the Collector. The appeal is liable to be dismissed on this ground alone. The matter has been fully settled by the ruling tendered by this Tribunal in Plastic Powders (P) Ltd. (supra). The position of law is equally clear now that P.P. Moulding powder manufactured from duty paid resin is not dutibale. It has also been well settled that captive consumption of duty paid P.F. resin in the making of P.F. Moulding powder does not make the P.F. moulding powder dutiable for the second time, as the process of preparing P.F. Moulding powder by addition of fillers/additives has been held as not a process of manufacture as no new product emerges, decided in CCE v. Densons Engineers - Order No. 2676/86-C. In view of this position, there is no merit in the appeal and the same is dismissed.
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1990 (12) TMI 197 - CEGAT, NEW DELHI
Matter remanded to adjudicating authority ... ... ... ... ..... ollowed the decision of the Hon rsquo ble Supreme Court of India in the case of M/s. Kalra Glue and Factory v. Sales Tax Tribunal and Others and reported in 1967 ITR 498 (ii) M/s. Eros Metal Works (P) Ltd. v. Collector of Central Excise and reported in 1989 (43) E.L.T. 361 (Tri.) (iii) Pradeep Kumar Sengupta v. Collector of Central Excise, reported in 1989 (41) E.L.T. 412 (Tri.). 6. In order, therefore, to afford an opportunity to the appellants to establish their- case before the adjudicating authority by providing cross-examination of the experts and also to provide evidence that the machine is meant for use in the packaging of food industry, we feel that it will be reasonable and in the interest of justice to remand the case back to the adjudicating authority having jurisdiction to take into consideration all these aspects, after fulfilling the principles of natural justice. We do not express any views on the merits of the case. The appeal is accordingly allowed by remand,
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