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Case Laws
Showing 81 to 100 of 252 Records
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1995 (4) TMI 219
Order establishing procedure for certification of bona fide shares by stock exchanges ... ... ... ... ..... es to Court. The Court can then send for certification. 5. Mr. Tulzapurkar suggests that the certification process may be stopped 3 months after a Pubic Notice to that effect is issued. This is reasonable and correct. 6. Accordingly, application is made absolute in terms of prayers (a ) and (b). The Respondents and Custodian to decide mutually, within 15 days from today, the form of the Public Notice and the newspapers in which the public advertisement is to appear. In the event of disagreement, the decision of the Custodian to be final and binding. The costs of the advertisements to be shared equally by the respondents. The process of accepting forms for certification is to stop with effect from 1-8-1995. All recognized stock exchanges to inform all their members that the last date for submitting forms for certification is 31-7-1995. The Custodian to forthwith send a copy of this Order to all recognised stock exchanges informing them that they have to comply with this Order.
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1995 (4) TMI 200
Cigarettes - Loose Sticks - Dutiability ... ... ... ... ..... accepted which conclusion will also follow from the decision of the Tribunal in similar circumstances with reference to the empirical test of bidis in its Jyoti Home Industries decision (supra). Therefore, the demand for duty in respect of cigarettes consumed captively, which is also made in terms of Rule 49 of the Central Excise Rules in the show cause notices, is sustainable and concessional rate can be availed of only if it is shown that the conditions, therefore, in the exemption notification are satisfied and not otherwise rdquo . (Page 10-11). 5. emsp Thus, following the ratio of the said decision we uphold the duty. As regards the personal penalty we find that in the said case of the appellants personal penalty was set aside. After taking all the facts and circumstances of the case in hand we set aside personal penalties imposed as we do not find any justification for the same. 6. emsp In the result, except the aforesaid modification, the appeal is otherwise rejected.
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1995 (4) TMI 191
Penalty - Personal penalty ... ... ... ... ..... JDR for the Department has pleaded that inasmuch as the absolute confiscation of the engine is not contested, he leaves it to the Bench in regard to the levy of the personal penalty. 3. emsp I have considered the pleas made by the appellant. Inasmuch as the confiscation of the engine is not contested, the order of the learned lower authority regarding confiscation of the engine is upheld. So far as the levy of personal penalty is concerned, there is nothing on record to show that the appellant had anything to do with the importation of the engine or he had any knowledge about the contraband nature of the engine. The appellant is a mechanic and his plea that he has taken it in good faith for undertaking repairs in the facts and circumstances of the case has to be accepted. In view of the above I hold that there is no warrant to levy personal penalty on the appellant. Therefore the order levying personal penalty is set aside. The appeal is therefore allowed in the above terms.
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1995 (4) TMI 190
Wires and Cables ... ... ... ... ..... ry because the exemption under the two notifications is subject to the same condition and it has to be factually established that the condition is fulfilled. Therefore, it will be more appropriate for the assessee-appellants to be given an opportunity to so establish their claim for the exemption with satisfactory evidence, and, accordingly, the case on the aspect of the extent of exemption to be extended to scrap PVC compound is remanded to the jurisdictional Assistant Collector of Central Excise, who may give his findings thereon in accordance with law and after hearing the assessee-appellants in the matter. In so far as the appeal by the appellant Collector is concerned, as already discussed above, we see no reason to interefere with the findings in the impugned order of the Collector (Appeals) whose order on this aspect holding that waste and scrap of wires and cables is not excisable goods is upheld on the terms set out above. The two appeals are disposed of accordingly.
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1995 (4) TMI 188
Customs House Clearing Agent ... ... ... ... ..... , etc. It is only after perusing this and treating this as a Kutcha B/E, the Asstt. Collector put his initials in the paper and thereafter the very same customs authorities inspected the cargo and gave permission for clearance under the provisions of the Customs Act, 1962. In such circumstances, I am not able to understand much less appreciate as to how and why the appellant, who is only a CHA, should be called upon to alert the authorities that they were permitting clearance of an imported perishable cargo. Since no other violation is found against the appellant and since in the entire evidence on record I do not find any contravention of law alleged against him for forfeiting Rs. 10,000 excepting that he did not alert the customs authorities that the cargo was imported which was plain as a pikestaff. I am inclined to think that the impugned order is not sustainable either in law or on facts. In this view of the matter, the impugned order is set aside and the appeal allowed.
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1995 (4) TMI 187
Dutiability of by-products arising as a result of chemical processes ... ... ... ... ..... dquo It is seen that the learned lower authority has conceded that the solvent as such emerged after the reaction was a weak organic compound and that it retains the characteristics of the solvent to certain extent. This itself shows that what emerged as a bye-product was prima facie in the nature of a spent solvent. The plea of the appellant should have been decided by analysing the chemical process involved and the strength of the solvent as it emerged after taking due notice of the evidence brought on record by the enquiries of the department regarding the actual use of the materials. In view of the above, we hold that the order of the learned lower authority is not proper and has to be set aside and the matter remanded for de novo consideration. The matter is, therefore, remanded to the learned lower authority for de novo consideration after giving the appellants an opportunity of hearing in the light of the above observations. The appeal is, therefore, allowed by remand.
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1995 (4) TMI 186
Exemption to goods ... ... ... ... ..... ce the Department rsquo s case because what the Tribunal held therein was that if the work carried out at two different places is so inter-connected that the work of manufacture would not be complete without the activity at both places, the two places together would constitute one factory for the purpose of that manufacturing activity. In the present case, it is not as if the two units are carrying out such interdependent manufacturing activity. Having regard, on the other hand, to the consistent view of the Tribunal regarding the interpretation of the notification in 1984, 1989 and latest in 1993, it has to be held that in the present case also, following the ratio of the aforesaid decisions, the goods manufactured in the premises at Plot No. 19F in Sector 2 of Parwanoo employing less than ten workers are eligible for exemption under Notification 46/81 and exemption cannot be denied on the ground taken by the lower authorities in this case. The appeal is, therefore, allowed.
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1995 (4) TMI 182
Reference to High Court - Samples ... ... ... ... ..... lots thereafter till the next sample is drawn. I find some force in the plea of the learned Advocate for the cross- objectioner. According to the ratio of the decision of the Division Bench of the Hon rsquo ble High Court of Madras, extracted supra, it appears that the test results are to be made applicable in respect of the lots from which the sample was drawn and the lot which was produced thereafter till the drawal of the next sample. In the light of the above the point of law raised is a mixed question of law and facts. The cross-objectioner has raised three questions of law. Since the learned Advocate has not pressed for the other two questions of law, the following question of law is referred to the Hon rsquo ble High Court of Madras under Section 35G(1) of the Central Excises and Salt Act, 1944 Should not the Hon rsquo ble Tribunal have held that the test results apply only to the lots from which the sample had been drawn and not to the lots produced earlier or later?
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1995 (4) TMI 181
Excess production - Incentive credit ... ... ... ... ..... Supreme Court in the case of General Labour Union v. B.V. Chavan and Others reported in 1985 1 S.C. Cases 312, wherein it has been observed, that in lock out, the employer refuses to continue to employ the workmen employed by him, even though the business activity was not closed down nor intended to be closed down. The essence of lock out is the refusal of the employer to continue to employ the workmen. There is no intention to close the industrial activity. Viewed in the context of this decision, we may not be able to hold that the term closed rsquo can be viewed differently for the purpose of the notification. In any case, if there is an ambiguity in the notification with regard to cases of factories affected by strike or lock out, where partial production and clearances are noticed, the benefit of ambiguity in the law has to go to the citizen. Viewed from the angle also, the Collector (Appeals) rsquo order cannot be disturbed. Hence, we reject the appeal from the revenue.
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1995 (4) TMI 180
Modvat credit ... ... ... ... ..... d subsequently of the differential higher notional credit on account of the operation of Rule 57B. The entire differential or additional credit including the notional higher credit, due to application of Rule 57B has been shown as having been taken at one go. While there is no express provision for taking credit in more than one stage in respect of Rule 57B cases, there is no bar either against such a step as decided by the Tribunal in the Mysore Lac case. Here the case is even stronger. The subsequent taking of the differential duty is not on account of only the higher notional credit of duty in terms of Rule 57B but due to additional duty payment of duty by the manufacturer. The said differential duty paid by the manufacturer also qualifies for higher notional credit in terms of Rule 57B, just like the original payment of duty at the time of clearance of the said inputs. In the circumstances, the department rsquo s appeal discloses no merit and is comprehensively dismissed.
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1995 (4) TMI 179
Demand - Modvat credit - Natural justice ... ... ... ... ..... ing orders under Rule 57-I, the third respondent should issue show cause notice to the petitioners stating the circumstances under which the powers of the said rule are to be invoked and an opportunity to the petitioners should be given to state their case. rdquo In the circumstances, we hold that the Collector (Appeals) was correct in holding that no show cause notice was issued in this case. As this observation is correct, his further observation that the appellants were issued no notice for recovery of duty within six months under Section 11A and therefore, the Assistant Collector was not competent authority to adjudicate the case and the impugned order passed by him is accordingly not sustainable has no significance. As no notice was at all issued, whether within six months or beyond that period, neither the Asistant Collector nor any other officer say the Collector could have confirmed the demand. We, therefore, uphold the impugned order in appeal and dismiss the appeal.
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1995 (4) TMI 178
Modvat Scheme - Declaration ... ... ... ... ..... his aspect of the matter had been disposed of by the Additional Collector with the finding that since the inputs which have been used in the manufacture of bare copper wire have already been cleared, they will not be entitled to take the equivalent amount of modvat credit and this amount has to be denied. We do not agree. The utilisation of credit has been objected to and the duty directed to be paid from P.L.A. or in cash. We have confirmed this direction. When the duty is so paid, the Modvat credit which was utilised and utilised wrongly has to be restored. Once the credit is restored to the R.G. 23A account, its utilisation for payment of duty for an eligible final product cannot be objected to as there is no one to one correlation between the input and the final product, the only situation where credit cannot be allowed being when the final product is wholly exempt from duty or chargeable to nil rate of duty under Rule 57C. 6. The appeal is dispused of on the above terms.
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1995 (4) TMI 177
Stay/Dispensation of pre-deposit - Appeal ... ... ... ... ..... application only yesterday, and prayed for modification of earlier order. 2. Heard Shri Jha, ld. SDR. 3. emsp We have considered the submissions made before us. We note that admittedly the appellant did not comply with the order of the Tribunal dated 23-11-1994 directing them to furnish bank guarantee for a sum of Rs. 8 lakhs within a stipulated time. Further, the fact remains that the appellant did not take out any application before the expiry of time fixed in the stay order of the Tribunal seeking any modification of the order or extension of time. In the above circumstances, we have no alternative except to dismiss the appeals under Section 129E of the Customs Act, 1962 and order accordingly. However, if the appellant complies with the order of the Tribunal in regard to furnishing of bank guarantee within a reasonable time from today, it will be open to the appellant to take out an application seeking restoration of the appeals for disposal on merits. Ordered accordingly.
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1995 (4) TMI 176
Hearing at appellate stage - Notice of hearing ... ... ... ... ..... nce Act stands unrebutted. 16. emsp Learned Advocate has made a fervent plea that if such presumptions are allowed to stand the position of the citizens will be very unsafe. Such an argument will be defeating the very provision of Section 114 of Indian Evidence Act. On the contrary, wherever it is denied by the party concerned if it is held otherwise, that would create an anomalous position. The presumptions arising out of Indian Evidence Act as held by the Supreme Court can be rebutted only if the evidence is produced and it has to be decided on the facts and circumstances available in each particular case. Having bestowed our attention to the facts and circumstances in the instant case as discussed above, we are of opinion that the appellant/applicant Firm has not rebutted the same and therefore, the presumption under Section 114 of I.E.A. that they have received the hearing notice for the appointed date i.e. 13-2-1991 stands unrebutted. Hence this application is dismissed.
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1995 (4) TMI 175
Exemption from duty vis-a-vis Modvat Scheme ... ... ... ... ..... effect Section 11A is also attracted. But we have already held (in para 5.9) that modvat credit was rightly taken by the Appellants because they had the option to pay duty ignoring the exemption notification. Our finding in this para does not affect the result of the Appeal. 6.3 emsp Another plea of the learned Advocate for the Appellants is that if credit on the inputs is disallowed and recovered, they shall be given the refund of duty under Section 11B paid on the final product which was fully exempted. This plea also cannot be accepted because of the condition in Section 11B that burden of duty should not have been passed on to the customer. There is no plea from the Appellants that they have not passed on the burden of duty to the customers of their final product. Again, our finding in this para does not affect the result of the Appeal because of our finding in para 5.8. 6.4 In view of our finding in para 5.9, Appeal is allowed with consequential relief to the Appellants.
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1995 (4) TMI 174
Stay/Dispensation of pre-deposit ... ... ... ... ..... ehabilitation has been approved by the BIFR we are of the view that if the appellants are desired to deposit the total duty amount of Rs. 83,45,919.75 and penalty of Rs. 25,00,000.00, it will amount to undue hardship. We dispense with the pre-deposit of the same on the condition of the appellants rsquo depositing Rs. 20,00,000.00 (rupees twenty lacs only) in cash within four months from today. It will be open to the appellants to pay the amount ordered by us in instalments, if they so choose, but the total amount must be paid within four months from today. We further direct that during the pendency of the appeals, the revenue authorities shall not pursue the recovery proceedings for the balance duty and penalty amounts. In case the appellants fail to comply with the terms of this order, the stay order will stand automatically vacated. The appellants will report compliance of this order within five months from today. The matter to come up for compliance on 5th September, 1995.
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1995 (4) TMI 173
Demand and penalty for shortage of yarn ... ... ... ... ..... r, it has been brought to our notice that some tolerance in the manufacture of cotton yarn is permitted by the authorities. This tolerance, it has to be seen is only to allow margin for the purpose of assessment of the yarn of a particular count as there is likelihood that when machines are adjusted for manufacture of a particular count of cotton yarn the production that emerges may not be exactly of the same count but may vary for a particular lot. It is not possible to believe that margin of error in yarn of a particular count produced by the appellants was such that count was always on a lower side resulting in the theoretical weight being less than the actual weight. The error in the manufacture of a particular yarn count would be averaged out over a period of time and therefore it cannot be said that the errors can be read in favour of the assessee. In view of this, I hold that there is no merit in the plea of the appellants and therefore, the appeal has to be dismissed.
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1995 (4) TMI 172
Import - Heavy melting scrap also importable against additional licence ... ... ... ... ..... the benefit of Notification 480/86-Cus., as melting scrap, they are squarely covered by S. No. 17 of Appx. 5A. Moreover, on a careful reading of Para 21(c), it would emerge that any item with a specific description in Appx. 2B or 3A will prevail over an item with a generic description in any of these appendices, which means inter se interpretation of the items figuring in these two appendices. If it seeks to cover all the appendices, the wording would have been ldquo all the appendices rdquo and not these Appendices rsquo . I am fortified in taking this view, in view of the ratio of the decision of this Bench in the case of Chirag International, 1988 (38) E.L.T. 339 (vide Para 5). Hence, when the item scrap for remelting in any form or condition is specified in Appx. 5A, Sr. No. 17, it will prevail over any item in Appx. 2B as per Para 21(b). Hence, I am to hold that the licence is valid for import of melting scrap. In the result, I allow the appeal with consequential relief.
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1995 (4) TMI 171
Reference to High Court ... ... ... ... ..... ontinue to be document showing payment of duty even after one or two endorsements, they do not cease to be such duty paying document if further endorsements are put on them. The proviso or the rules elsewhere relating to modvat do not confer upon the Board powers to limit the number of endorsements. Therefore directions issued by the Board with regard to the number of endorsement being duty paying document, either specified in the rule or prescribed under it cannot have been issued in exercise of its statutory powers. They would therefore be in the nature of administrative instructions. Therefore orders passed by this Tribunal have only impunged upon the orders issued by the Board in its administrative capacity. It was therefore to be held that the question framed in the applications for reference to the High Court itself does not arise from the orders of this Tribunal. 7. A reference to the High Court therefore is not warranted. 8. The applications are dismissed accordingly.
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1995 (4) TMI 170
Modvat Credit ... ... ... ... ..... the said view. The question of applicability of Rule 57C de hors Rule 57-I has been referred to a Larger Bench in Collector of Central Excise v. Sreeram Drinks (P) Ltd. - 1994 (69) E.L.T. 372. As the present appeal has also given rise to the same issue for decision and as the Larger Bench decision in Kirloskar Engines is in favour of applying Rule 57-I, a reference to Larger Bench is called for in the present case particularly as the applicability thereof has been assailed in the present appeal. We refer the matter to the Honourable President for constituting a Larger Bench to decide the following - ldquo Whether the disallowance and recovery of Modvat credit taken or utilised as the case may be on account of the final product being removed without payment of duty availing on exemption Notification can be regulated under Rule 57-C of the Central Excise Rules without applying Rule 57-I ibid or whether such cases are to be decided with reference to the latter Rule only. rdquo
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