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Case Laws
Showing 41 to 60 of 312 Records
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1998 (5) TMI 382 - CEGAT, NEW DELHI
Demand - Limitation ... ... ... ... ..... and misdeclared the product to evade payment of duty. 5. emsp We find that for the earlier period that is from 1-12-87 to 30-11-88, a show cause notice dated 16-6-88 was issued to the appellants regarding the same product on the same ground. The Asstt. Collector, C. Ex. vide order dated 17-4-89 dropped the proceedings. Against this order, the Revenue filed an appeal and the Collector, C. Ex. dismissed the appeal being time-barred. 6. emsp For the above facts, the Revenue was aware on 16-6-88 when first show cause notice was issued, regarding the activity and manufacturing process of the goods manufactured by the appellants. Therefore, we find that in the present proceedings, the Revenue cannot claim that the appellants had misdeclared the product or suppressed the facts. 7. emsp In view of the above discussions without going into the merits of the case, we find that the present demand is time-barred. Consequentially, the impugned order is set aside and the appeal is allowed.
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1998 (5) TMI 380 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... ndent does have a dividing thread and as contended by the ld. Advocate, a predetermined towel of a particular size and shape could be seen. It has a cross border and it cannot be used for any other purposes other than as towels. Note 5 to Section XI makes it very clear that if any product is separated by cutting, dividing threads, it will remain within the ambit of made up articles classifiable under Chapter 63 of the Tariff. We are not convinced by the submission of ld. DR that the dividing thread in the product of the manufacturer is not a dividing thread but it is a continuous fabrics. We also observe that by cutting the dividing thread, the towel is, therefore, ready for use. If it is hemmed, it will not take it away from the purview of made up article because it can be used as a towel without such sewing. In these facts and circumstances, we do not find any reason to interfere with the impugned order in appeal. Accordingly, the appeal filed by the Department is rejected.
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1998 (5) TMI 378 - CEGAT, MUMBAI
Confiscation of goods and penalty ... ... ... ... ..... the order impugned in the appeal. 3. emsp Since the goods were not declared on arrival, penalty has rightly been imposed on both the appellants. However there is no reason as to why reshipment of the goods should not be allowed particularly since what was brought in was ornaments. Although they are stated to be in crude form there is nothing to show by way of assay or other evidence to show that the goods were bullion attempted to be brought in as ornaments. In these circumstances we set aside the order of confiscation and permit either or both the appellants to reship the goods on payment of a fine of Rs. 8,000/- within three months from the receipt of this order.
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1998 (5) TMI 377 - CEGAT, CALCUTTA
Rectification of mistake ... ... ... ... ..... the hook and eye setting machine not being covered by OGL. In their appeal the revenue has only challenged the findings of the Collector that the imported hook and eye stitching machine was covered by Sl. No. 5(33) of Appendix I part-B of the ITC Policy 1985-1988 and as such was an OGL item. In fact I find that before the adjudicating authority also this was the only ground for initiating proceedings against the respondents. The classification of the goods under Heading No. 9801.00 read with Notification No. 132/85, dated 19-4-1985 was consequence of the import of the said goods under project import regulation. There was no dispute as regards the classification or the rate of duty. No other competitive classification was offered by the department. In the circumstances I hold that there was no dispute regarding the classification or the rate of duty, the only question being of import under OGL. Accordingly the application filed by the revenue is mis-conceived and is rejected.
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1998 (5) TMI 376 - CEGAT, NEW DELHI
Refund - Limitation - Protest ... ... ... ... ..... ut they continued to pay duty at a higher rate because the approved classification list was not communicated to the respondents. In these facts, the refund claim cannot be termed as time barred. 5. emsp We have carefully considered the pleas advanced from both sides. It is settled proposition of law that Rule 233B is merely procedural in character and is, therefore, directory, so long as it is not disputed by the Revenue that they had become aware of lodgment of protest. It is not disputed that classification list in the present case did mention that the product under consideration were not excisable. This classification list was also duly approved, therefore, the filing of classification list by itself, which is not denied by the Revenue is a protest lodged by them with the Revenue. Looking at the problem in the aforesaid view, the refund claim cannot be considered to be barred by time. Hence, we do not find any substance in the Revenue rsquo s appeal and we reject the same.
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1998 (5) TMI 358 - CEGAT, NEW DELHI
... ...
... ... ..... he valuation of the goods cleared also needs to be done in the very condition in which the goods are at the time and place of removal. The assessment of duty and valuation are not dependent upon sale. Shri Anand submitted that this is the legal position laid down in CEGAT rsquo s order in the case of Indian Oil Corporation Ltd. reported at 1987 (27) E.L.T. 482 . He submitted that the Collector rsquo s order should be upheld, as it is in conformity with this decision of the Tribunal. 5. emsp In the instant case, valuation of the goods has been done according to the aforesaid principle. Therefore, the submission on behalf of M/s. Omkar Textile Mills that the valuation has been correctly done and there was no requirement to re-fix the assessable value and to demand differential duty has to be accepted. The Supreme Court rsquo s decision in Bombay Tyre International case is not attracted in this case. 6. emsp In the circumstances, the appeal of the Revenue fails and is dismissed.
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1998 (5) TMI 357 - CEGAT, NEW DELHI
Compressors, for Air-conditioners, Transmission parts - Evidence - Misdeclaration - Valuation
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1998 (5) TMI 345 - HIGH COURT OF KERALA
Winding up - Circumstances in which a company may be wound up ... ... ... ... ..... respondent is in a state of commercial insolvency. Though in the counter-statement the respondent has contended that it is solvent and has got huge commercial transactions running into crores of rupees annually, apart from the allegations made in the counter-affidavit absolutely no evidence is adduced by the respondent to prove that the respondent is solvent and able to meet all its current liabilities. Therefore, in the absence of reliable and acceptable evidence adduced by the respondent to the effect that the respondent-company is in a solvent position and commercially solvent and able to meet its current liabilities, that contention of the respondent cannot be accepted. Therefore, it is clear that the petitioner had made out sufficient grounds to order winding up of the respondent-company under section 433(e) and all the objections raised by the respondent in this case are not sustainable. Hence, the objections raised by the respondent are overruled. SCL q APRIL 20, 1999
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1998 (5) TMI 344 - HIGH COURT OF CALCUTTA
Oppression or mismanagement ... ... ... ... ..... ons of the Companies Act, as amended by the various Amending Acts, vests the CLB with power to make interim orders in specific circumstances and not in general terms. Following the obser-vations made by the Supreme Court in Morgan Stanley Mutual Fund s case (supra), we are of the view that the CLB had no jurisdiction to pass the impugned order and the same is liable to be set aside. 41. We, therefore, allow the appeal and set aside the order passed by the CLB on 21-1-1998, on the application filed by the Central Government in the pending proceeding under section 408, being C.P. No. 46 of 1996. It may be recorded that a submission has been made before us to the effect that the hearing in respect of the proceedings, both under sections 397 and 398 and under section 408, has been completed and judgment has been reserved. 42. Considering the nature of the issues involved, the parties will bear their own costs in the appeal. Shyamal Kumar Sen J. - I agree. SCL q SEPTEMBER 20, 1998
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1998 (5) TMI 342 - SUPREME COURT
Whether the unregistered charge created by the mortgagor was kept alive or extinguished or replaced by an order of sale created by the decree; if upon a construction of the decree, the Court found that the unregistered charge was kept alive?
Held that:- Appeal allowed. On the construction of the decree as already held that the charge was kept alive till 28-8-1982 and thereafter, in default of payment of decree amount the sale order would take effect. In this case, admittedly the decree amount was not paid before 28-8-1982, as such the matter had passed from the domain of contract to the realm of the judgment. The official liquidator filed application on 21-3-1983 seeking to declare the decree as void. By that date what was operative in the decree was not a mere unregistered charge but an order for sale of mortgaged property for realisation of decree amount. The preliminary decree cannot therefore be said to be void and inoperative.
Thus the Division Bench ought not to have held that the preliminary decree passed by the Competent Court on 25-5-1980 was void and un-enforceable and accordingly we set aside the order under appeal dated 29-1-1986 by allowing the appeal with costs.
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1998 (5) TMI 341 - SUPREME COURT
Whether in any form the unregistered body has converted itself into a registered body as a company?
Held that:- Appeal dismissed. The fact that the appellant is a distinct legal entity as found by the authorities below and affirmed by the High Court. Cannot be seriously disputed. Since the appellant is a distinct legal entity other than the unregistered bodies and there is no material to show that it is a successor thereto it is not understandable as to how it became a tenant in respect of the premises in question without an agreement with the society or respondent No. 2 who is a member thereof. It baffles us and thus the view taken by the High Court appears to us to be correct.
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1998 (5) TMI 334 - SUPREME COURT
Whether it could be said that the conduct of the appellant-Company before the High Court on account of the contrary pleas taken by it before the High Court and the BIFR and on account of the suppression of facts would render the reference under section 15 and the registration of the reference and the subsequent orders of the BIFR bad?
Whether, once the BIFR had registered the reference dated 17-7-1997 on 24-7-1997 under section 15 of the Act read with the Regulations, it was permissible for the Division Bench of the High Court to pass orders on 8-8-1997 vacating the stay order dated 20-12-1996 and confirming the appointment of provisional liquidator on the company side and also whether it was permissible for another Division Bench of the High Court to appoint a receiver on 28-7-1997 in the proceedings arising out of the suit, in view of section 22?
Held that:- If any orders were obtained by the Company from the High Court by way of fraud it was certainly open to the respondent to ask the High Court to recall such orders. No such thing was done. We, therefore, cannot accept the conten- tion of the respondents that the reference under section 15 and the registration thereof by the BIFR became bad because of any conduct of the Company before the High Court. It follows that equally the subsequent orders passed by the BIFR on the reference cannot, on that account, be said to be invalid. This contention of the respondents is rejected. Point 1 is held against the respondents.
No difficulty in holding that after the amendment to regulation 19 with effect from 24-3-1994, once the reference is registered and when once it is mandatory simultaneously to call for information/documents from the informant and such a direction is given, then inquiry under section 16(1) must - for the purposes of section 22 - be deemed to have commenced. Section 22 and the prohibitions contained in it shall immediately come into play. In that view of the matter, we need not go into the correctness of the view expressed by the Calcutta, Rajasthan and Bombay High Courts which relied upon the unamended regulation 19. Point 2 is decided accordingly.
The impugned orders dated 28-7-1997 and 8-8-1997 of the High Court have been passed after the BIFR proceedings reached the stage of the second part of regulation 19(5) on 24-7-1997 that is to say, when proceedings as per the amended regulation 19(5) reached the stage of inquiry under section 16(1). It must, therefore, be deemed that the said orders are illegal and are in violation of the prohibition contained in section 22. Thus the order passed by the Division Bench on 28-7-1997 appointing receiver and the order passed by another Bench of the High Court on 8-8-1997 restoring the provisional liquidator, are set aside.
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1998 (5) TMI 333 - HIGH COURT OF BOMBAY
Investigation - Imposition of restrictions upon transfer of shares & debentures ... ... ... ... ..... in case such orders are necessary, recourse to section 250 can be taken. The provisions of section 250 are merely in the nature of conferring powers on the Company Law Board to make interim orders in aid of the investigation that is directed to be held by the Company Law Board. In the result, therefore, the appeal succeeds and is allowed. The order impugned since reported as Bakhtawar Construction Co. ( P.) Ltd. v. Blossom Breweries Ltd. 1998 91 Comp Cas 744 1998 1 Comp LJ 150 (CLB) is set aside. Company Petition No. 36 of 1997 is remanded back to the Company Law Board for consideration and decision in accordance with law. The parties undertake to appear before the Company Law Board on May 18, 1998. The Company Law Board is directed to consider the application for interim relief filed by the appellant before it on that date or on any subsequent date. In view of the orders passed in the petition, interim applications do not survive and hence rejected. Certified copy expedited.
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1998 (5) TMI 319 - CEGAT, CHENNAI
SSI Exemption - Value of clearances - Demand - Limitation ... ... ... ... ..... corded by officers during the investigation in January, 1989. Therefore, it was held that extended period of limitation was not applicable in respect of demand notice issued on 27-1-1992 for the period 5-1-1989 to 18-1-1989. The Bench also referred to the judgment in the case of Mopeds India Ltd. v. CCE reported in 1991 (56) E.L.T. 241 wherein the Tribunal held that non-disclosure of material information amounted to suppression. However, the department became aware of the malpractices even on 23-10-1975 but since show cause notice was issued only on 5-1-1977 the department was entitled to recover the duty from 1-4-1974 to 23-10-1975. The appeal against this order was dismissed by the Apex Court as reported in 1991 (53) E.L.T. A79. 12. emsp In view of these judgments, we have to hold that the demand raised in this case after a period of six months is barred by time. On this ground alone the appeals succeeds and we allow the appeals accordingly with consequential relief if any.
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1998 (5) TMI 318 - CEGAT, KOLKATA
Classification ... ... ... ... ..... preme Court was in reference to Notification No. 121/62, dated 13-6-62 and related to the period prior to 1986. However, after taking note of the same, this Bench vide its Order Nos. A/574-581/Cal/97, dated 24-4-97 and another Order Nos. A/1727-1731/Cal./97, dated 2-12-97 reported in 1998 (99) E.L.T. 104 (Tribunal) in the appellants rsquo own case, has held that there being no material difference between the earlier Notification No. 121/62 and the subsequent Notification No. 75/84 (involved in the instant case), the ratio of the Supreme Court rsquo s decision would apply to the facts of the instant case also. In the later judgment dated 2-12-97 passed by this Bench, it has been held that the product pitch creosote mixture is properly classifiable under Heading 2706.00 attracting lsquo nil rsquo rate of duty for the period after 1-3-86. Accordingly, following the above decisions, we set aside the impugned order and allow the appeals with consequential relief to the appellants.
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1998 (5) TMI 317 - CEGAT, MUMBAI
... ...
... ... ..... d by the appellant for a long period, it must be concluded that the interest must have formed part of the price. 4. emsp The issue is covered by the decision of the Supreme Court in VST Industries Ltd. v. Collector of Central Excise - 1998 (97) E.L.T. 395 which contained the ratio in Metal Box India Ltd. v. Collector of Central Excise - 1995 (75) E.L.T. 449 (S.C.). Following this decision the Tribunal has also applied the ratio in its order in Kessal Engg. Co. v. Commissioner of Central Excise in Appeal No. E-213/91. The factors relied upon by the Commissioner such as the fact that advances were taken in every case not utilized have already been considered in these decisions. The contention of the Commissioner that the interest on the advances must have formed part of the price is not based on any evidence. We find no distinguishing features in this case as to justify not applying these decisions. 5. emsp Following these decisions, we allow the appeal and set aside the order.
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1998 (5) TMI 297 - CEGAT, KOLKATA
Benefit of exemption under Notification No. 281/86-C.E. ... ... ... ... ..... ry or in any other factory of the same manufacturer for repair and maintenance of the machinery installed therein. 1.2 emsp The Revenue, however, denied the benefit of the said Notification on the ground that the Refractory bricks have not been manufactured within a separate workshop inside the factory. 2. emsp We have carefully considered the pleas advanced from both sides. This issue stands settled by a series of judgment of the Tribunal in favour of the assessees. One such judgment is in the case of Indian Iron and Steel Co. Ltd. v. CCE - 1990 (46) E.L.T. 409 . It holds that the notification does not define a workshop. The notification can refer to some place within the factory only. Therefore, so long as the goods are manufactured within the factory for maintenance and repair of the machinery installed, the benefit of notification has to be extended to the assessees. Following respectfully the said judgment, we allow the appeal with consequential relief to the appellants.
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1998 (5) TMI 289 - CEGAT, NEW DELHI
Production based assessment ... ... ... ... ..... on to a certificate from the National Institute of Secondary Steel Technology which is established by the Ministry of Steel, Govt. of India showing the capacity as 1 M.T., there was no need for the Commissioner to ascertain the position by an alternate method provided under sub-rule (2) of Rule 3. If the Commissioner was not for any reason satisfied with the certificates and other evidence brought before him by the applicants, he should have recorded the reasons for rejecting the same and for making a further enquiry as provided under Rule 3(2). 5. emsp In view of the facts mentioned above, we accept the prayer of the applicants for setting aside the order of the Commissioner dated 31-3-1998. Accordingly, we set aside the aside the said order and remand the matter to the Commissioner, to determine the capacity of the induction furnace afresh under the Rules with a proper and reasoned order. 6. emsp The stay application as well as the appeal are disposed of in the above terms.
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1998 (5) TMI 288 - CEGAT, NEW DELHI
... ...
... ... ..... oked have been proved and are sufficient to support the case of the department. Therefore, we hold that show cause notice is not barred by time. 6. emsp The impugned order is set aside to the extent it relates to inclusion in the assessable value cost of PDI, free services and training to the customers. The order stands in regard to the inclusion in the assessable value of the cost of labour involved in replacing defective part during the period of warranty. The demand has to be quantified afresh and for this purpose, the case is remanded. Since the appellant has mainly succeeded in appeal, we set aside the confiscation and penalty imposed. 7. emsp For the reasons indicated above, the case is remanded to the jurisdictional Adjudicating authority for passing a fresh order in the light of the above findings and observations and restricting the demand to the period contemplated in the proviso to Section 11A of the Act prior to the date of service of the second show cause notice.
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1998 (5) TMI 287 - CEGAT, MUMBAI
Clandestine removal - Confiscation ... ... ... ... ..... rvation of the Commissioner (Appeals) in the facts of this case that it is unfair that the search and seizure at Metal Exports having taken place in the absence of its owner, giving no opportunity to them to explain the position for four to five months, and not accepting the explanation when they did so in a statement branding it as after thought. We are also of the view that Commissioner (Appeals) is right in holding that the Department instead of rejecting the explanation of Metal Exports relating to the goods under seizure outright, the goods should have been compared with documents produced with reference to quantity, quality and weight. The Commissioner (Appeals) has gone into the evidence produced having found it acceptable and on an appreciation thereof, has concluded that the duty paid character of the goods under confiscation has been established. 7. emsp We find no reason to interfere with the findings of the Commissioner (Appeals). The appeal is therefore rejected.
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