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Case Laws
Showing 141 to 160 of 217 Records
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1993 (11) TMI 77 - ITAT AHMEDABAD
Assessment Year, Previous Year ... ... ... ... ..... er Where in respect of a particular source of income or in respect of a business or profession newly set up an assessee has once exercised the option under clause (b) or sub-clause (ii) of clause (d) or sub-clause (i) of clause (e) of sub-section (1) or has once been assessed, then, he shall not, in respect of that source, or, as the case may be, business or profession, be entitled to vary the meaning of the expression previous year as then applicable to him, except with the consent of the Assessing Officer and upon such conditions as the Assessing Officer may think fit to impose. From the above it is evident that the option is to be exercised by the assessee and since the assessee had been regularly following the year ending on 30th June the action of the learned CIT in directing the Assessing Officer to extend the previous year to a period of 18 months is legally untenable. We, accordingly, cancel the order passed by the learned CIT. 6. In the result, the appeal is allowed.
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1993 (11) TMI 76 - GOVERNMENT OF INDIA
Demand, confiscation and penalty - Clandestine removal - Adjudication - Evidence ... ... ... ... ..... propriate duty is upheld. 15. However, in respect of one ground of revision application Government find some force in the party s plea. This relates to the Board endorsing imposition of a personal penalty of Rs. 10,000/- under the impression that central excise duty evasion related to 20,71,740 pieces of pilfer proof caps. There is apparently a double counting in this regard in Para 8 of the order-in-appeal. Hence, in all fairness, it can be concluded that the appellate authority would have possibly considered a lesser amount of penalty as sufficient if it had taken note of the fact that the offence related to only 10,35,870 pieces of pilfer proof caps. Therefore, granting benefit of doubt in this regard in favour of the party Government is inclined to reduce the amount of personal penalty from Rs. 10,000/- to Rs. 5,000/- (Rs. Five thousand only) with consequential relief. But for this modification the orders of the lower authorities are upheld. 16. It is ordered accordingly.
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1993 (11) TMI 75 - GOVERNMENT OF INDIA
Presumption as to smuggled nature of goods ... ... ... ... ..... upon or discussed in the order-in-original by the said authority). Government presume, therefore, that invoices produced, on enquiry were found genuine. 7. In short, therefore, the position that emerges is that there is no evidence to prove that the diamonds/manufacture of diamonds seized in this case were made out of diamonds of foreign origin. It has also to be appreciated that the diamonds involved in this case are of inferior quality/value and, therefore, not the types that would normally be smuggled in. Since the case of the department is not established at threshold of Section 123 ibid the presumption that the goods were smuggled is not available. 8. Therefore, notwithstanding the fact that there was some information with the Department, Government is inclined to grant benefit of doubt in this case without going into other aspects. 9. Accordingly, the revision application succeeds and orders of lower authorities are set aside with consequential relief to the applicant.
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1993 (11) TMI 74 - HIGH COURT OF ORISSA
Redemption fine and penalty - Gold - Appellate Tribunal ... ... ... ... ..... thority, namely the Tribunal and the Tribunal has given positive direction in the confiscation proceeding requiring the Collector of Central Excise to deliver the gold in question. That order of the Tribunal not being challenged must be faithfully implemented by the authorities concerned and inaction on their part entities the petitioner for issurance of a mandamus from this Court. In our considered opinion, pendency of the criminal proceeding would not disentitle the petitioner in getting delivery of the gold in question. The said contention accordingly fails and must be rejected. 11.All the contentions raised by the opposite parties having failed, the writ petition is allowed. A writ of mandamus be issued to opposite parties 2, 3 and 4 to deliver 250 grammes of gold to the petitioner within three weeks from the date of receipt of the writ in accordance with the order of the Tribunal. The writ application is allowed with costs. Hearing fee is assessed at rupees five hundred.
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1993 (11) TMI 73 - HIGH COURT OF JUDICATURE AT MADRAS
Money credit ... ... ... ... ..... ication dated 25-8-1989 came up for consideration and it was held that the said notification was prospective and not retrospective, as the said notification itself stated that the earlier notification dated 1-3-1987 was rescinded with effect from 25-8-1989. Accordingly, following the said decision, we see no ground to admit this writ appeal. The writ appeal is rejected.
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1993 (11) TMI 72 - HIGH COURT OF JUDICATURE AT MADRAS
Project Import - "Industrial plant" ... ... ... ... ..... ion of India, 1993 (66) E.L.T. 3 (S.C.) . The Supreme Court has upheld the validity of the Project Imports Regulations, 1986, and has held that it is open to define industrial plant excluding service establishments like photographic studios from the project import benefit and as such the Regulations cannot be held to be invalid. The aforesaid decision, it is not disputed before us, fully covers these cases. 3. Following the aforesaid decision, these appeals are dismissed. There will be no order as to costs. However, the appellants are granted four weeks time to pay the remaining 50 per cent of the duty.
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1993 (11) TMI 71 - HIGH COURT AT CALCUTTA
Writ Jurisdiction - Territorial Jurisdiction ... ... ... ... ..... Mr. Mitra for the respondents on the merits of the case, as the point of jurisdiction appears to me to be a deciding one. Hearing Mr. Nag, however, it did not appear to be that the petitioner has come to Court with any frivolous case. But for the reasons above I am not minded to enter into the merits of the case at all. 22. The conclusion that I have reached, has been reached on the basis of the petition only as the respondents have been unable to file an affidavit-in-opposition within time. I have heard the writ itself and for the reasons above I would dismiss the same granting the petitioner liberty to approach the appropriate High Court for favour of its consideration. 23. The writ application is, therefore, dismissed without any order as to costs. 24. Stay of operation of this order is prayed for. The same is refused and it is only clarified that along with the dismissal of the writ all interim orders passed herein will also stand immediately vacated. Petition dismissed.
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1993 (11) TMI 70 - HIGH COURT OF MADHYA PRADESH, INDORE BENCH
Demand - Limitation - Writ jurisdiction ... ... ... ... ..... nd hedging with qualifying clauses like do this , do that , and do the other , the Central Excise authorities, respondents, may take recourse de novo, if they are so advised, to have the matter re-agitated after affording the petitioners full opportunity to meet out a case against them if any. It goes without saying that the approved classifications remain approved and the petitioners are allowed to take the plea of limitation and if the Department wants to change the classification, they can do it only after giving a proper show cause notice in accordance with law and that too prospectively and not retrospectively. The power under the statute cannot be taken away either collaterally or incidentally. The review petition is, therefore, allowed and the petitioners could only if any such change is made prospectively go on clearing the goods under the classification list approved up to date. In the circumstances of the case, however, parties are directed to bear their own costs.
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1993 (11) TMI 69 - HIGH COURT OF JUDICATURE AT MADRAS
Stay/dispensation of pre-deposit - Financial hardship ... ... ... ... ..... learned counsel for the petitioner is that the manufacture is completed only at the place of erection. Secondly, it is pointed out that the Tribunal had not taken note of the financial position of the petitioner company before directing deposit of rupee sixteen lakhs. Having heard the learned counsel for the respondents, I am satisfied that the Tribunal did not go into the question of the financial aspect of the petitioner company. In view of the above circumstances, I am inclined to pass the following order 1. Instead of the direction to deposit rupees sixteen lakhs, there will be a direction to deposit rupees eight lakhs within eight weeks from today. 2. For the balance of rupees eight lakhs, the petitioner is directed to furnish either Bank guarantee or security of unencumbered immovable property within eight weeks from today. The Writ Petition is allowed in the above terms, and the order of the Tribunal is modified to the above extent. There will be no order as to costs.
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1993 (11) TMI 68 - HIGH COURT OF JUDICATURE AT MADRAS
Stay/Dispensation of pre-deposit ... ... ... ... ..... have considered the application for waiver on merits and passed suitable orders. I have heard the learned counsel for the respondents. The duty demanded by the Original Authority is Rs. 2,46,000/-. Counsel for the petitioner pleads financial restraints in making the payment. Considering all the aspects of the case. I direct the petitioner to deposit a sum of rupees one lakh within two months from today. On such deposit, the appeal will be taken on file and disposed of in accordance with law. The writ petition is ordered accordingly. No costs.
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1993 (11) TMI 67 - HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
Manufacture - Meaning - Classification of goods - Adjudication - Evidence - Estoppel ... ... ... ... ..... stion that is open for examination by the High Court under Article 226 of the Constitution. It is also well settled that the question as to whether certain goods fall within a particular entry or not is a question of law. Reference of A.C.T.O. v. Ramesh Leather Stores, 1982 (49) STC 79, Kota Steel Rolling Ltd. v. C.T.O., Kota , 49 STC 80 may be made here. Even at the stage of show cause notice, party can approach the High Court. Reference of N.B. Sanjana v. E.S.W. Mills, 1978 (2) E.L.T. (J 399) (SC) AIR 1971 SC 2039, may be made here. 20.In view of the aforesaid findings, it is not necessary to decide that Item No. 2504 of Chapter 25 of the Schedule of the Act of 1985 is ultra vires of Section 3 read with Section 2(f) of the Act of 1944. 21.Accordingly, the writ petition is allowed. It is held that the petitioner s product Agglomerated Marble Slabs/Tiles (VILLA NOVA) is not exigible to tax under the Act of 1944. The notices Annexures 5 and 7 are quashed. No order as to costs.
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1993 (11) TMI 66 - SUPREME COURT
Bank guarantee ... ... ... ... ..... nding before the authorities. We are informed by the learned counsel for the appellants that treating the bank guarantees as if it is deposited in favour of the Revenue, the Revenue already in view of the orders of the High Court encashed the bank guarantees. We find behaviour of the excise department highly improper. Bank guarantees are furnished to secure interest of the parties till determination of matters pending before the court. No bank guarantees can be encashed till the decision of the court. This Court having once decided the appeal on merits the bank guarantees of their own should expire and lapse. The Revenue authorities had no powers to use their executive power to get such bank guarantees encashed through bank. If Bank guarantee has been encashed, we direct to the Collector of Central Excise/Assistant Collector of Central Excise, Ludhiana Division to refund the money so collected from the bank to the bank concerned forthwith. The appeal is allowed with no costs.
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1993 (11) TMI 65 - HIGH COURT OF JUDICATURE AT MADRAS
Recovery of Government dues - Demand ... ... ... ... ..... ober 1977, it does not lie in the mouth of the petitioner to say that he was not aware of any assessment having been made on the petitioner. 7. For all the reasons stated above, I do not see any merit whatsoever in the claim or objection of the petitioner. So long as the petitioner is still liable to pay the arrears of Excise Duty and the person whom he has introduced has not also honoured his commitment and wiped off the arrears, the liability of the petitioner remains unaltered and therefore the second respondent was well within his rights in addressing the first respondent to have the amount of arrears of Excise Duty recovered, by invoking the provisions of the Revenue Recovery Act. The petitioner has not pleaded or substantiated or challenged the impugned proceedings on any other ground. The only ground pleaded having been rejected, the writ petition is liable to be dismissed in the circumst-ances and is accordingly dismissed. However, there will be no order as to costs.
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1993 (11) TMI 64 - HIGH COURT OF JUDICATURE AT MADRAS
Modvat - Adjustment in duty credit ... ... ... ... ..... red for temporary use. The petitioners in this case are only depositing the amount in pursuance of the conditional order of stay made by the third respondent. They are not paying the amount of duty de hors his appeal before the Tribunal. Under such circumstances, I am clearly of the opinion that the petitioners cannot claim even at this stage, MODVAT credit for the deposits made in pursuance of the order of the third respondent. As rightly pointed out by the learned counsel for the respondents, the respondents could acknowledge payments as deposit towards duty made in pursuance of the third respondent s order. The respondents are certainly not obliged to give a certificate under Rule 57-E of the Rules and thus enabling the customer of the petitioner to avail of MODVAT credit even at this stage. The writ petitions are therefore, dismissed with the above observation, recording the statement of the learned counsel for the respondents. There will however, be no order as to costs.
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1993 (11) TMI 63 - HIGH COURT OF JUDICATURE AT MADRAS
Writ Petition - Existence of alternate remedy ... ... ... ... ..... payable on advances/deposits made by customers can or cannot be included in the assessable value of the goods. In the particular case, the notional interest may influence the sale price as amounting to additional consideration. In a particular case it may not so influence. I had rendered a finding in that case that a Circular dated 20-10-1986 was valid because it was general terms whereas the trade notice dated 26-10-1990 had dispensed with certain requirements of a nexus between the deposits and price . In other words, I had held that the Trade Notice interfered with the Quasi-Judicial power of the Authority issuing the show cause notice. Therefore, the said decision will not apply to the facts of the present case. 4. For the reasons already given by me I am not inclined to entertain these writ petitions at the stage of the show cause notice and they are accordingly, dismissed. It is open to the petitioner-company to submit his explanation and proceed in accordance with law.
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1993 (11) TMI 62 - HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
Prosecution ... ... ... ... ..... d the application of the petitioner and continued with the proceedings and framed the charges. 4. Mr. D.D. Sharma, who appears for the respondent, states that he has received instructions through Shri Rajiv Sood, Inspector, not to contest this Petition. 5. Since the Appellate Authority had quashed the order of the Collector Annexure P.2, the net result of the order was that the plea of the department that the petitioners had indulged in clandestine removal of the sodium silicate was not accepted and thus, no default had been committed by the petitioner in payment of the excise duty. In this situation, the matter having been finally settled by the Appellate Authority, no prosecution on the same facts was legally competent, and the complaint cannot terminate in an order of conviction, the continuation of such a complaint is thus abuse of process of court. 6. I, hereby, allow the petition and quash the impugned charge and consequent proceedings. This petition stands disposed of.
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1993 (11) TMI 61 - HIGH COURT OF JUDICATURE AT BOMBAY
Writ jurisdiction - Orders passed in appeal and revision not challenged ... ... ... ... ..... he Revision Application No. 3 of 1980 and the copy of the order passed by the Union of India on its Revision Application and since both these orders are before the Court, the Court may consider the validity and legality of these two orders in terms of prayer clause G which reads as under For such further and other reliefs as the nature and circumstances of the case may require. We are afraid such a request of the learned advocate cannot be accepted since it was necessary for the petitioner to challenge both these orders specifically in view of the fact that the same had a binding effect and in fact the petitioner was knowing about the same. 7. Thus, in our opinion, the petitioner does not make out any case to grant any relief as regards the two detention orders at Exhibit H and I and consequently, the petition is required to be rejected. In the result, the petition fails and the rule is discharged. In the facts and circumstances of the case there will be no order as to costs.
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1993 (11) TMI 60 - HIGH COURT OF JUDICATURE AT MADRAS
Appeal against endorsement on Bill of Entry ... ... ... ... ..... recorded by this Court. Under these circumstances, we have heard both sides. 4. It is submitted by learned Counsel for the appellant that it would be sufficient if it is observed by this Court that the finding recorded and the opinion expressed by the learned Single Judge shall not be relied upon by the Collector of Customs, while deciding the appeal preferred by the petitioner/appellant. Learned Counsel for the respondents also submits that the respondents cannot have any objection for disposing of the appeal without reference to the aforesaid observations made by the learned Single Judge. Accordingly, this appeal is disposed of in the following terms. The Appellate Authority viz. the Collector of Customs, Appeals, shall decide the appeal on merits and in accordance with law, without referring to any of the findings recorded or the observations made by the learned Single Judge in the order dated 8-10-1993 passed in W.P. No. 16991 of 1993. There shall be no order as to costs.
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1993 (11) TMI 59 - HIGH COURT OF JUDICATURE AT BOMBAY
Refund - Unjust enrichment ... ... ... ... ..... made clear that on the basis of the averments in the affidavit of Shri Ramesh Girijya Kulal, dated 7th September 1992, it is concluded that the petitioners have imported the goods for their own use and in fact hey have used the same in their factory for manufacturing end-products. They have not sold the goods to any outsider and, therefore, the question of passing incidence of duty on the consumer does not arise. 10. In the result, petition succeeds. The impugned orders of rejections of the refund application are quashed and set aside and the petitioners are directed to make fresh application in terms of Section 27 of the Customs Act to the appropriate authority. If such an application is made by the petitioners, the said authority shall dispose of the same within six months and will not reject the same on the ground of limitation. This order is made bearing in mind the peculiar facts and circumstances of this case. Rule made absolute in the above terms. No order as to costs.
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1993 (11) TMI 58 - HIGH COURT OF JUDICATURE AT MADRAS
Natural Justice ... ... ... ... ..... ny could have succeeded if an opportunity of hearing had been given to the petitioner-Company cannot be prejudged. But demand for additional excise duty amounting to Rs. 8,29,10,883.25 without giving notice to the petitioner-Company to show cause why the said amount be not held to be payable by it, is contrary to the principles of natural justice and the scheme of the Act and cannot be sustained in law. 4. Following the said judgment of the Patna High Court, Writ Petition No. 9766 of 1987 is allowed and the impugned demand dated 29-9-1987 is set aside. It is open to the respondents to pass fresh orders in accordance with law after giving notice to the petitioners and giving them an opportunity to put forth their objections, if necessary, in a properly held enquiry. W.P. No. 9766 of 1987 is allowed in the above terms. In view of the order in W.P. No. 9766 of 1987, no orders are necessary in W.P. No. 5054 of 1991 and the said writ petition is dismissed as unnecessary. No costs.
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