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Case Laws
Showing 361 to 380 of 465 Records
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1997 (2) TMI 105
Whether ammonia which was utilised by way of captive consumption by the appellant for manufacture of molten urea was subjected to a continuous process of manufacturing which had resulted in the end product melamine which was admittedly not a fertiliser?
HeLd that:- On the express language of the notifications, in question, it is not possible to agree with the contention of Shri Bhat, learned Additional Solicitor General that the term `fertiliser' employed by the said notification must be understood by adopting the common parlance test to be referred to soil fertiliser only.
As a result of the aforesaid discussion, it must be held that the Collector of Central Excise (Appeals) as well as the CEGAT had patently erred in law in taking the view that Notification No. 40 of 1985 did not cover captively consumed ammonia utilised by the appellant as input for manufacturing molten urea. It must also be held that Notification No. 75 of 1984 applied to raw naphtha utilised by the appellant for manufacturing ammonia and molten urea. The condition for earning concessional rate of duty under Notification No. 75 of 1984 on raw naphtha and total exemption from duty as per Notification No. 40 of 1985 on ammonia must be held to have been fully satisfied by the appellant. Hence show cause notices were clearly incompetent and were liable to be quashed and were rightly vacated by the Assistant Collector. Appeal allowed.
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1997 (2) TMI 104
Whether the input of pig iron ultimately bears the full burden of excise duty as leviable on the said pig iron at a stage when the said input results into the final product?
Held that:- When the amount of excise duty so recovered on 90 metric tons of steel ingots which had exhausted the entire pig iron, accounted for full duty on the entire quantity of input of pig iron, it is difficult to appreciate as to how the very same quantity of 100 metric tons of pig iron as input can again be subjected to excise duty because a further unintended product of 10 metric tons of steel scrap also resulted from the very same process of manufacture undertaken by the appellant in its steel making furnace. Consequently, it must be held that the impugned demands of excise duty clearly resulted in seeking to recover excise duty twice on the input of pig iron utilised by the appellant in manufacturing the final product of steel ingots and which in the same process as a by-product gave rise to steel scrap which was fully exempted from excise duty on account of the concerned exemption Notification.
Thus the impugned demand of duty on the supposed embedded input of pig iron which resulted into the steel melting scrap were clearly unauthorized and incompetent. The appellant is entitled to succeed on this ground alone. In the result, the appeal is allowed.
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1997 (2) TMI 103
Prosecution ... ... ... ... ..... counsel appears to have been established. No such situation is permissible under Section 377 (2) of the Code of Criminal Procedure. The reason is obvious because the law presumes that it is the Central Government, who through its Public Prosecutor can voice grievance before the High Court in relation to the inadequacy of sentence. The complainant has full say only in an appeal against acquittal under Section 378 (4) of the Code of Criminal Procedure but has no locus standi to move under Section 377 (2) of the Code of Criminal Procedure. The competency of the appeals having not been established we are not obliged to examine the correctness of the answer to the question whether an officer of the Customs Department would be such an agency as is empowered to make investigation into an offence under the provisions of the Indian Customs Act within the meaning of Section 377 (2) of the Code of Criminal Procedure. That question remains as it is. The appeals are accordingly dismissed.
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1997 (2) TMI 102
Whether the malt and malt extract produced by the respondent, Barmalt (India) Private Limited (Barmalt), falls within the expression "food product" in Exemption Notification No. 55 of 1975, dated March 1, 1975?
Whether the respondent is entitled to refund of the excess duty paid by him pending the decision of the High Court?
Held that:- The High Court was right in saying that malt and malt extract do qualify as food products and, therefore, the respondent has been rightly held entitled to the benefit of the aforesaid Notification.
In view of the admitted fact that it has passed on the burden of duty to its purchasers - that Barmalt should refund to the State the amount received by them by way of refund (pursuant to the impugned judgment of the Delhi High Court) except a sum of Rupees eight lakhs. In view of the fact that H.M.M. Limited is now before us and it has admittedly received the said sum of Rupees eight lakhs from Barmalt, the H.M.M. Limited is directed to reverse the credit taken by it to the extent of ₹ 8,00,000/- (Rupees eight lakhs only) and pay it over to the State.
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1997 (2) TMI 101
Whether the Customs authorities have taken relevant factors into account in making the final assessment of the said plant?
Held that:- The letter dated 24th August, 1982, written by the Assistant Collector of Customs to the appellants intimating to them that the said contract had been registered, stated that spares to the extent of 10 per cent of the value of the main machinery were eligible for the concessional rate of assessment under Item 84.66. It goes without saying that this percentage must now be calculated on the basis of the enhanced value of the said plant. Spares to that extent would form part of the project import and must be valued on par with the said plant, that is to say that the rate of exchange which is applied in respect of the said plant must also be applied to this percentage of the spares. Appeal allowed.
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1997 (2) TMI 100
Valuation (Customs) ... ... ... ... ..... and engineering specifications provided by Davy. We are of the opinion that the Tribunal was right in holding that the agreement relating to purchase of equipment cannot be dissociated from the other agreements and that the authorities were right in loading the design and engineering charges at Pounds 11.50 lakhs on to the value of the imported equipment under Rule 9 read with Rule 4 of the Customs Valuation (Determination of Price of Imported Goods) Rules, 1988. The facts set out by the Tribunal in Paras 32 to 34 do support the conclusion arrived at by it. We see no reason to differ from the view taken by the Tribunal. The appeal accordingly fails and is dismissed. No costs.
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1997 (2) TMI 99
Whether value of 7-ply corrugated cartons be included in the value of the goods packed?
Held that:- The factual situation considered by this Court in 1986 in Geep Industrial Syndicate [this very assessee] and the factual situation now obtaining is no different. It was held by this Court in the said decision that packing in wooden boxes was not necessary for putting the articles in the condition in which they are generally sold in the wholesale market at the factory gate and that it was done only for the purpose of protecting them from damage during the course of transport, i.e., transport after delivery. The 7-ply corrugated cartons have now taken the place of wooden boxes. But for this, there is no change in the factual situation since 1986. In such a factual situation, it would not be permissible for us to arrive at a different conclusion than the one arrived at in 1986. On this ground alone, we hold in favour of the assessee.
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1997 (2) TMI 98
Whether there was no proper notice and opportunity to explain given to assessee?
Whether the Appellate Tribunal was totally in error in discarding the Trade Notice No. 220/81 based on Tariff Advice No. 83/81, dated 24-8-1981 of the Central Board of Excise and Customs which was communicated to the appellants for information?
Held that:-The show cause notice dated 20-11-1978 was issued for the period from March 1977 to September, 1978. But the order of the Assistant Collector given effect to by the proceedings of the Superintendent dated 4-5-1983 has levied the duty for a longer period, from March 1977 to February, 1982. The show cause notice served for a shorter period cannot be relied on for the purpose of levy for a much longer period. We should say that the appellant was not served with a proper notice before saddling the liability for a period beyond September, 1978. This is unfair and vitiates the proceedings.
Whether the later tariff advice No. 6/85 adverted to all relevant aspects or deviated from 1981 tariff advice and if so, to what extent, are not detailedly stated in the order of the Tribunal. The Appellate Tribunal casually referred to a later tariff advice No. 6/85, without fully and effectively appreciating its contents, its scope and the impact of the earlier tariff advice No. 83/81. The above aspect is vital and fundamental to the basis of which the Appellate Collector granted relief to the appellant. We are of the view that the Appellate Tribunal has failed to consider the matter according to law and the order appealed against should be set aside and we hereby do so. Appeal allowed and restore the order of the Appellate Collector of Central Excise.
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1997 (2) TMI 97
Whether the confessional statement of the appellant given to the Customs officers under Section 108 of the Customs Act, 1962 though retracted at a later stage, is admissible in evidence and could form basis for conviction?
Whether retracted confessional statement requires corroboration on material particulars from independent evidence?
Held that:- On scanning the evidence and going through the reasoning of the learned Single Judge we find that the learned Judge was right in accepting the confessional statement of the appellant, Ex. P-4 to be a voluntary one and that it could form the basis for conviction. The Magistrate had dwelt upon the controversy, no doubt on appreciation of the evidence but not in proper or right perspective. Therefore, it is not necessary for the learned Judge of the High Court to wade through every reasoning and give his reasons for his disagreement with the conclusion reached by the Magistrate. On relevant aspects, the learned Judge has dwelt upon in detail and recorded the disagreement with the Magistrate and reached his conclusions. Therefore, there is no illegality in the approach adopted by the learned Judge. We hold that the learned Judge was right in his findings that the prosecution has proved the case based upon the confession of the appellant given in Ex. P-4 under Section 108 of the Evidence Act and the evidence of PWs 2, 3 and 5. The prosecution proved the case beyond doubt and the High Court has committed no error of law.
.Having reached the finding that the appellant has committed the offences under Section 135 (1)(i) of the Act and Sections 85(1)(a) and 86 of the Gold (Control) Act, 1968 we think that instead of being committed to jail, the appellant should be sentenced to pay fine of ₹ 10,000/- and ₹ 5,000/- respectively for the two aforementioned offences, within 4 months from today. In default, he shall undergo imprisonment for a period of 2 months and 1 month respectively which are directed to run consecutively. Appeal is accordingly allowed to the above extent of modification.
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1997 (2) TMI 96
High Court, Supreme Court ... ... ... ... ..... that even in the judgment of the High Court, this aspect does not seem to have been argued or dealt with. In the circumstances, it is not possible for us to examine the theory of device. These appeals are dismissed accordingly. No costs.
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1997 (2) TMI 95
Assessment Year, Provident Fund ... ... ... ... ..... id by him. It is the year of payment that is relevant, not the year for which the contribution was payable. Even though the employers contribution was due for the period ending March 31, 1985, admittedly, it was actually paid on April 15, 1985. Therefore, the assessee cannot claim deduction in view of the provisions contained under section 43B. As far as the second question raised by the assessee is concerned, we find that during the relevant period, the second proviso to section 43B was not available in the statute and therefore there is no necessity to consider the second proviso or the Explanation below clause (va) of sub-section (1) of section 36. In the light of the above discussion, we answer question No. 1 in the affirmative against the assessee and in favour of the Revenue. We decline to answer question No. 2. A copy of this judgment under the seal of this court and the signature of the Registrar, shall be forwarded to the Income-tax Appellate Tribunal, Cochin Bench.
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1997 (2) TMI 94
Special Deduction ... ... ... ... ..... o reason to hold that provisions contained under sub-section (8) of section 40A of the Income-tax Act would not be applicable to deposits made by directors or shareholders. A similar view was taken by the Rajasthan High Court in CIT v. Gandhi Metals Mills (P.) Ltd. 1993 200 ITR 252. The decision of the Madhya Pradesh High Court relied on by learned counsel for the assessee is of no help to him. On the facts of the case it is seen that the Tribunal had found that interest was not paid by the assessee in respect of any deposit received by it. In the light of the above discussion, we hold that the authorities below were justified in disallowing 15 per cent. of interest paid to directors and shareholders. We, therefore, answer the questions referred in the affirmative, in favour of the Revenue and against the assessee. A copy of this judgment under the seal of the High Court and the signature of the Registrar will be forwarded to the Income-tax Appellate Tribunal (Cochin Bench).
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1997 (2) TMI 93
Failure To Disclose Fully And Truly ... ... ... ... ..... o the decision of the Supreme Court in Parashuram Pottery Works Co. Ltd. v. ITO 1977 106 ITR 1 in which the Supreme Court following the principles laid down in its earlier decision in Calcutta Discount Co. Ltd. v. ITO 1961 41 ITR 191 observed that any remissness on the part of the assessing authority can only be at the cost of the national exchequer and that there must be a point of finality in all legal proceedings, so that stale issues are not reactivated beyond a particular stage and the controversies are set at rest. Under the above circumstances, we are of the view that the impugned notices could not have been issued after the period of four years from the end of the relevant assessment year had lapsed since the conditions for exercise of the power beyond four years contemplated by the proviso to section 147 did not exist. The impugned notices are, therefore, quashed as being illegal and without jurisdiction. Rule is made absolute accordingly, with no order as to costs.
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1997 (2) TMI 92
Failure To Deduct Tax At Source, Sanction For Prosecution ... ... ... ... ..... f the said section does not and cannot arise. The Legislature in section 43B of the Income-tax Act has used the expression by way of . Therefore, it is the obligation of the Assessing Officer to ascertain whether the amount payable is by way of tax or duty or fee or cess although the amount payable may not be described as tax or duty or fee or cess. Therefore, the conclusion is that where the amount is described as fee but in fact, is not, the question of applying section 43B in regard to such payment will not arise. In that view of the matter, the answer to questions Nos. (2) and (3) is in the affirmative and against the Revenue. In view of our opinion on questions Nos. (2) and (3) we need not answer question No. (1). Therefore, question No. (1) is sent to the Tribunal unanswered. Let our opinion on question Nos. (2) and (3) be sent to the Tribunal forthwith. In view of the facts and circumstances of the case, there shall be no order as to costs. BARIN GHOSH J. --- I agree.
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1997 (2) TMI 91
Association Of Persons, Business Income Or Income From Property, Carrying On Business, Partnership Deed
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1997 (2) TMI 90
Business Income, Income From Property ... ... ... ... ..... at the income from the property should be assessed in the hands of the assessee. Accordingly, the Income-tax Officer computed the annual letting value of the property at Rs. 36,000. The Appellate Assistant Commissioner held that the property in question had been used by the assessee only for the purpose of business and hence the notional income therefrom could not be brought to tax. On the Department s appeal to the Tribunal, the Tribunal held that the income derived by the company by letting out its property to its employees is incidental to the business carried on by it and has to be considered as income from business. This was also the view taken by this court in CIT v. New India Maritime Agencies (P.) Ltd. 1994 207 ITR 392. Inasmuch as the order passed by the Tribunal for both the assessment years under consideration is in accordance with the above cited decision of this court, we answer the question referred to us in the affirmative and against the Department. No costs.
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1997 (2) TMI 89
Charitable Trust, Delay In Filing Return, Levy Of Penalty, Reasonable Cause ... ... ... ... ..... has no bearing on the question of levy of penalty when the obligation to file the return within time has not been discharged and the explanation for the late filing of the return has not been found to be acceptable by the fact finding authority. In these circumstances, we have no hesitation in coming to the conclusion that the Tribunal was justified in confirming the penalty even when no tax was payable at all by the assessee on account of exemptions under appropriate provisions of law, namely, sections 11 and 12 of the Act, when it did not find the cause furnished by the assessee, for the delay in filing of the return, reasonable. It is not the case of the assessee that in the assessment of income, exemptions other than under sections 11 and 12 have been taken into consideration. Accordingly, we answer the question referred to us in the affirmative, that is to say, in favour of the Revenue and against the assessee. The reference stands disposed of with no order as to costs.
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1997 (2) TMI 88
Income Tax Authorities ... ... ... ... ..... tion gathered by the concerned authorities in the course of the search and thereafter is not relevant for the purpose of dispute raised in this petition. We have to examine the validity of the order made under section 132 of the Act for search and seizure. Thus, the material which was before the authority at the time of making of the order is the only relevant material which can be examined. The authorities cannot be permitted to rely on the material which is gathered after the order was made under section 132 of the Act to justify their action. However, in this case, we have held that the authorities had sufficient material before them to form the opinion and to make the order under section 132 of the Act. We, therefore, see no merit in the contentions raised by Mr. Shah, learned advocate for the petitioners. The petitions are, therefore, dismissed. Rule is discharged. The petitioners and respondents Nos. 5 and 6 shall pay costs of these petitions to respondents Nos. 1 to 4.
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1997 (2) TMI 87
Reason To Believe, Retirement Of Partner ... ... ... ... ..... e instant case by the retiring partner. Further, Sri Joshi draws my attention to section 184 of the Income-tax Act. Section 184 provides for registration. On the retirement of the partner, the firm was reconstituted as alleged by the petitioner. There was necessity to get the firm registered as required under section 184 of the Income-tax Act. That was also not done. In this connection, Sri Joshi draws my attention to CIT v. Jai Prahash Singh 1996 219 ITR 737 (SC). That was a case where out of ten legal representatives, notice was served upon only on one. It was held that that would not invalidate the assessment. There is no necessity to go into that case inasmuch as under the provision as quoted above, there is no necessity whatsoever to serve any notice on the legal representatives as the original firm must be deemed to continue in the eye of law. Accordingly, this writ application is dismissed. The stay order passed earlier shall stand vacated. I make no order as to costs.
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1997 (2) TMI 86
Carrying On Business, Dissolution Of Firm, Dissolved Firm, Previous Year ... ... ... ... ..... ear ending September 30, 1969. We may also note that the Appellate Assistant Commissioner also recorded a finding that the business of the assessee was a new one and attracted the provisions of section 3(1)(d) of the Act. Thirdly, we find it difficult to hold that a new firm can be said to have not set up a new business merely because it carries on one of the old businesses. In this regard, a useful reference can be made to the decision of the Allahabad High Court in the case of CIT v. Bharat Builders and Engineers 1982 29 CTR 267, relied upon by Sh. O. P. Dua, learned counsel for the assessee, holding that the firm after its reconstitution can elect to adopt a previous year which may be different from the one which was being followed by the old firm because the firm when it is reconstituted, the erstwhile firm ceases to exist. In view of the aforesaid discussion, both the questions are answered in the affirmative, in favour of the assessee and against the Revenue. No costs.
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