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Case Laws
Showing 41 to 60 of 214 Records
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1991 (6) TMI 217
... ...
... ... ..... ld the vires of section 25B of the Act and find no ground to quash the notification (annexure R/2). In Civil Writ Petition No. 3782 of 1990 for the assessment years 1986-87 to 1988-89 the assessments have not been finalised by the Assessing Authority and there is no reasonable explanation for the delay in completing the assessments. Accordingly, while upholding the vires of the provisions of section 25B of the Act and validity of the notification we issue a direction in Civil Writ Petition No. 3782 of 1990 to respondent No. 2 to finalise the assessments within four months of the receipt of this order, if not already finalised. In case it is found that the assessee is entitled to refund, refund be made to him without delay in accordance with law. While Civil Writ Petition Nos. 8414, 9510 and 13983 of 1990 are dismissed, Civil Writ Petition No. 3782 of 1990 is dismissed with the aforesaid limited direction. The parties are left to bear their own costs. Writ petition dismissed.
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1991 (6) TMI 216
Classification ... ... ... ... ..... he notice of hearing was not served on the respondents, no appearance has bean made on behalf of them. However, in view of the fact that the issue stands decided against the Department we proceeded to hear the appellants, in the absence of the respondents. 4. emsp At the outset, Shri J.N. Nair, learned JDR drew our attention to Final Order No. C/724 to 726/90-D, dated 7-11-90 1991 (52) E.L.T. 405 (Tribunal) passed by this Tribunal in the case of Collector of Customs, Bombay v. M/s. Indian Scientific Glass, Khatau Bldg, Bombay wherein it was held that the subject goods are classifiable under TI 68 and not under Tariff Item No. 18(iv) of the CET. Therefore the assessment/levy of the CVD duty cannot be upheld. However, he reiterated the submissions made by the Collector on behalf of the Revenue in the aforesaid case. 5. emsp We have considered the submissions. Following the ratio of the above said decision we uphold the impugned order. Consequently, we reject the present appeal.
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1991 (6) TMI 209
Officer who is in default – Meaning of, Balance sheet - Default in filing copies of ... ... ... ... ..... er in favour of the Clyde Fan Company Private Limited and did not get possession of the factory building and machinery as the staff started agitation for their salaries, bonus and other dues. In spite of repeated reminders the persons who were directors prior to the transfer of the shares in favour of the petitioner and his family did not hand over the books of account and the balance-sheet as on December 31, 1973, and also on the date of transfer of shares. It is alleged that the default was due to circumstances beyond the control of the petitioner. Whether this is a valid defence or not can be decided only at the time of trial after consideration of the evidence adduced by the petitioner. The facts are disputed. It cannot, therefore, be held at this stage that the complaint is not maintainable on this score. In the result, both the rules are discharged and the revisional applications are dismissed. Interim order of stay is vacated. Send down the lower court records at once.
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1991 (6) TMI 200
Circumstances in which a company may be wound up, Company when deemed unable to pay its debts
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1991 (6) TMI 192
Foils - Exemption - Benefit of Notification No. 229/76-Cus., ... ... ... ... ..... sed polyester films and the claim for exemption issued under Notification 228/76, dated 2-3-76. The Supreme Court observed in Para-8 that it agrees with the view of the Bombay High Court that, though for certain purposes there is a distinction between lsquo films rsquo , lsquo foils rsquo and lsquo sheets rsquo so far as the article presently in question is concerned, it is recognised in trade only as lsquo film rsquo . It is difficult to imagine any person going to the market and asking for these films by describing them as lsquo foils rsquo or lsquo sheets rsquo . Collector was of the opinion that the goods under consideration cannot be described either as lsquo foils rsquo or as lsquo sheets rsquo . Apparently this was the decision which the Collector (Appeals) was referring to in his order. Therefore, on a total consideration of the evidence on record and for the reasons stated above, the order of the Collector (Appeals) is maintainable and appeal is accordingly rejected.
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1991 (6) TMI 185
Valuation - Clearance sale ... ... ... ... ..... mpare the price with goods imported from a country other than Czechoslovakia. We have also gone through the grounds of appeal before the Collector and also the Memorandum of appeal before us. The appellants have not stated anywhere that the invoice value relied upon by the authorities is not the correct value or comparable. They have also not disputed that the value of similar goods imported from West Germany is Rs. 4037.56. In other words, they have not disputed the correctness of invoice value of comparable goods. Since, they have not disputed the correctness of the invoice value on which the authorities have relied upon and since they have not disputed that this value is not applicable to the appellants case, it will result in a futile exercise if we remand the matter to the Collector for determining the assessable value after furnishing a copy of the invoice to the appellants. Therefore, we see no reason to interfere with the order of the Collector and dismiss the appeal.
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1991 (6) TMI 184
Motor vehicles ... ... ... ... ..... ve that the lower authority should have made enquiries with the trade and also referred to the authoritative literatures on the subject before arriving at the conclusion. The ld. Lower authority inspite of the plea of the appellants that the Central Board of Excise Customs has issued instructions has not dealt with the issue in the context of the instructions which might have a bearing on the issue involved in this regard. In any case, even if under the instructions the benefit of notification was not to be made available, it was necessary for him to have referred to the same in the impugned order to enable us to appreciate the matter. In view of the above discussion we hold that the Learned Lower Authority s order is not a proper one and we, therefore, set aside the same and direct the learned Lower Authority to re-adjudicate the matter de novo in the light of what we have stated above and also after affording an opportunity of hearing to the appellants. Ordered accordingly.
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1991 (6) TMI 183
Stay/Dispensation of pre-deposit - Natural justice - Demand - Non-accountal of tobacco ... ... ... ... ..... the guidelines issued by the Departmental authorities in this regard. On prima facie ground therefore, we hold that the appellant s prayer for dispensation of duty has to be allowed and we order accordingly. 8. emsp As mentioned earlier, with the consent of both the sides the appeal itself has also been taken up for disposal along with the stay application. We have already held above that the ld. Collector s order has been passed in violation of the principles of natural justice and also without examination of the matter indepth in regard to the demand raised on the above two counts. We, therefore, hold that the lower authority s order is not maintainable in law and the matter is remanded to the ld. lower authority for de novo adjudication in the light of what we have observed above after affording the appellants a reasonable opportunity of hearing and cross-examination of the officers as pleaded by the appellants in accordance with law. The appeal is thus allowed by remand.
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1991 (6) TMI 173
Reference to High Court ... ... ... ... ..... the finished goods do not pass this criterion and in that view of the matter we hold that the appellants have rightly been denied the Modvat credit in relation to chipper knives. rdquo 5. emsp The West Regional Bench of the Tribunal has also taken a similar view. 6. emsp We observe that what is to be taken as having been used in or in relation to the manufacture of a finished product depends on the facts of each case and the line to be drawn is whether materials used as in processing materials or for maintenance of the machinery or making any implements. The inputs used for the latter purposes have to be taken not to have been used in or in relation to the manufacture of the finished product but have to be considered for making the machinery and the implements etc. functional. The inputs in the present case are of such nature. In the above view of the matter, we, therefore, hold that no point of law arises for reference in this case and the reference application is rejected.
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1991 (6) TMI 171
Confiscation and Penalty - Non-account of production ... ... ... ... ..... provide any justifiable ground to exonerate the party altogether. 7. With the factual position duly established, that manufactured goods were found without entries made in RG-1 Register, clear non-compliance of the provisions of Rule 173Q(1)(b) are established. Thus, even if some credence is given to the submission that clause (d) may not stand attracted, in view of there being no evidence to prove that the appellants had intended to evade payment of duty, which too, is not convincingly proved, non-compliance with the provisions of clause (b) would render the goods liable to confiscation, and the defaulter liable to imposition of penalty. 8. emsp The show cause notice does allege such non-compliance, and with the allegation in that regards duly established, the order of confiscation and imposition of penalty appear just and proper. 9. As regards the quantum of fine and penalty, I see no justifiable grounds to interfere with the same. 10. In the result, the appeal is rejected.
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1991 (6) TMI 170
Refund Claim - Gate Pass ... ... ... ... ..... icate payment. Though I may not be inclined to hold that the Department was not justified in insisting on complying with the instructions, in this particular case it appears that the department could entertain the claim by ascertaining the amount and may evolve some full proof machnery to provide the safeguard against the duplication of the claim. In my view, an affidavit on the part of the appellants to the effect that they have so far not claimed the amount and giving an undertaking that they should not claim the same again supported by a bank guarantee for a period of six months for the amount for which the claim to be allowed, for this period. On complying with the above direction, the Department should entertain the claim for refund on its merits and sanction the same if otherwise admissible. 5. Orders of the authorities below are therefore set aside and the matter is remanded back to the adjudicating authority to decide the case as per the observations made hereinabove.
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1991 (6) TMI 169
Penalty -Department alleging clearance of goods without payment of duty ... ... ... ... ..... xplained, the Bank of Maharashtra put the date as 2-7-1986 and based on the same the appellants are deemed to have cleared the goods without there being any balance in PLA prior to 2-7-1986. The Bank of Maharashtra was the approved agent at that time to collect the excise duty and as such they are deemed to have acted for and on behalf of the Department. The letter from the State Bank of India shows that the credit has been made as early as on 28-6-1986. No explanation was called for from the Bank of Maharashtra as to how this discrepancy arose. Further the appellants had also held the balance in RG. 23 Part-II which could have been taken as the balance available for payment of duty. In any case, therefore, there does not appear any justification in alleging that the appellants had cleared the goods without there having any balance in their account. The penalty under the circumstances, appears to be not justified. Appeal is therefore accordingly allowed. Penalty is set aside.
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1991 (6) TMI 168
Refund - Limitation ... ... ... ... ..... ification has to be taken as provisional. In that case, the bar of limitation as laid down under Section 11B of the Act would not stand attracted and the present case squarely falls within the ratio of the decision which has the bind effect on the Tribunal and it is not open for the Tribunal to draw a different conclusion. The appeal filed by the department against allowing of the claim of the Respondent for refund does not merit any consideration. The same has to be rejected. In view of the rejection of the appeal, the matter will go back to the Assistant Collector for sanctioning of the refund claim. It is however directed that the A.C. while sanctioning the refund claim as per the direction, will be at liberty to examine the issue as to the availment of the MODVAT credit by third parties, on the said items and shall be guided by the existing legal position as to the sanction of the refund claim. 8. With this modification, the appeal filed by the Department stands rejected.
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1991 (6) TMI 167
Offence - Clandestine removal ... ... ... ... ..... n a search was made in the premises of the appellants and the Show Cause Notice was issued on 24-11-1978. Now, more than twelve years have lapsed and hence Shri N. Mookherjee, the learned Advocate contended that the case is not a fit one which requires to be remanded. In this connection he relied on the decision of the Tribunal reported in 1990 (47) E.L.T. 558 (Tri.) 1990 (28) ECR 428 in the case of Himco Laboratories v. Collector of Central Excise, Delhi. We have perused the above cited decision. In that case also, the Tribunal refrained from remanding the case back as twelve years had already lapsed after the initiation of the proceedings. Taking into consideration the principles laid down in that decision and applying the same to the facts of this case, we extend the benefit of doubt to the appellants and accordingly this appeal is allowed. The impugned order is hereby set aside. 19. In terms of the above order, the appellants are entitled to consequential reliefs, if any.
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1991 (6) TMI 166
Contempt proceedings ... ... ... ... ..... is not respected by the lower authorities, the Tribunal is within its right to refer the matter to the Hon rsquo ble High Court under Section 10 of the Contempt of Courts Act for initiating contempt proceedings against the authorities concerned. This view is also expressed by the Supreme Court in a decision reported in A.I.R. 1981 S.C. 723, at page 726 in the case of K.Sarkar v. Vinay Chandra Mishra. 4. However, in the circumstances, the learned Deputy Collector of Customs (Preventive), West Bengal, Calcutta is hereby directed to dispose of this matter within two months from the date of receipt of this order, which the appellant himself may hand over to him personally either by himself or through his advocate, and if he fails to dispose of the case mentioned above within two months from that date, the matter will be referred to the Hon rsquo ble High Court under Section 10 of the Contempt of Courts Act for initiating necessary action without any further notice in this behalf.
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1991 (6) TMI 165
Set-off of duty ... ... ... ... ..... to us by Shri Gokhale how a credit of duty arising out of an exemption notification can be called as a ldquo right rdquo . It is not necessary for us to explain that an exemption given under the law is different from a lsquo right rsquo arising out of an enactment. In fact, as the word signifies, ldquo exemption rdquo means a concession from something and it would be difficult to treat it as a lsquo right rsquo conferred by the statute. We do not find any logic or understandable reason for considering the credit arising out of the exemption notification to be a ldquo right rdquo conferred by an enactment. Therefore, this argument also fails. The appeal is, therefore, (A. No. E/2444/88-D) devoid of any merit is rejected. 16. Thus, except for the modification indicated in Paragraph 7 of this order, all other appeals fail. We suggest that the authorities should look into this aspect expeditiously and finalise the claim within a period of three months from the date of this order.
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1991 (6) TMI 164
Rectification of mistake ... ... ... ... ..... s beyond the control of especially in Government matters as the file has to be routed through several sections of the Department rdquo . We are aware of the fact that the Government being impersonal takes longer time than the private bodies or the individuals. Even giving that latitude, there must be some way or attempt to explain the cause for such delay. As stated from the facts narrated hereinbefore there is no sufficient cause to explain the delay. Hence, the application for condonation of delay is dismissed. In view of the above discussion, we are of the view that it is not a fit case where we could exercise our discretion in terms of the provisions of sub-section (5) of Section 35B of the Central Excises and Salt Act, 1944. The appellant rsquo s prayer for condonation of delay is rejected. 7. Since we have rejected the appellant rsquo s prayer for condonation of delay, we are dismissing the appeal being hit by limitation and we are not going into the merits of the same.
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1991 (6) TMI 163
Classification ... ... ... ... ..... se two items are not classifiable under ldquo refrigerators or refrigerating equipment parts and accessories thereof. rdquo When once they are excluded under the specific heading and classified under 8419 namely ldquo machinery for the treatment of materials by process involving a change of temperature such as heating, cooking, roasting, distilling ........... condensing or cooling, other than machinery or plant of a kind used for domestic purposes instantaneous or storage water heaters, non-electric, rdquo they cannot be brought under the exclusion clause. Since the classification is Heading 8419 and since the exclusion clause relates to the Heading 8418 and 84.15 the Collector is justified in extending the benefit of exemption Notification to the goods in dispute as the notification excludes specifically goods falling under 8418 and 84.15 whereas the goods in dispute are classified under 8419. We, therefore, agree with the Collector and dismiss the appeal of the Department.
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1991 (6) TMI 162
Stay/Dispensation of pre-deposit grantable when demand raised being in violation of High Court’s direction
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1991 (6) TMI 161
Demand - Limitation ... ... ... ... ..... the expiry of the prescribed period of six months and the proceedings initiated under the notice cannot, therefore, be sustained. Consequently, the appeal is allowed and the orders of the lower authorities are set aside. 5. Assent per G.P. Agarwal, Member (J) . - While agreeing with the conclusion recorded by my learned brother, Shri N.K. Bajpai, Technical Member. I would like to add that in the instant case, admittedly, the appellants have their office in Bangalore and the demand notice under Section 20-A(1) of the Customs Act, 1962 was issued on 11-8-1986 under Registered Post and the same was received by them on 18-8-1986. The said demand notice ought to have been served within six months that is to say, on or before 13-8-1986 as required under Section 20-A(1) of the Customs Act, 1962. In the normal course notice of demand issued on 11-8-1986 under Registered Post could not have reached by 13-8-1986 to the appellants as admittedly they are having their office at Bangalore.
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