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Case Laws
Showing 81 to 100 of 675 Records
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2000 (11) TMI 1184 - ITAT DELHI
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... ... ..... tative. We find that the facts of the said case are different from the facts of the present case. In the present case expenditure was incurred ex necessitate. This aspect was not considered in the case of Zdzizlaw Skakuz v. CIT 1986 158 ITR 420 (AP). Besides each case depends on its own facts, and a close similarity between one case and another is not enough, because even a single significant detail may alter the entire aspect. In deciding such cases, one should avoid temptation as said by Cordozo, by matching the colour of one case against the colour of another. We are reminded of the great philosopher Heraclitus who said ldquo You never go down the same river twice. rdquo What the great philosopher said about time and flux can relate to law as well. The apex court in the case of Mumbai Kamgar Sabha v. Abdulbhai Faizullabhai, AIR 1976 SC 1455 has said (headnote) the principle that a ruling of a superior court is binding law is not of scriptural sanctity, but is of ratio-wise
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2000 (11) TMI 1183 - ITAT KOLKATA
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... ... ..... he decision of the Calcutta High Court in the case of CIT v. M. N. Dastur and Co. P. Ltd. 2000 243 ITR 10, wherein it was stated that insurance and repair charges are allowable under section 37 of the Act and, therefore, those expenses are beyond the purview of sections 37(3A) and 37(3B) of the Act. This is because of the non obstante clause in section 37(3A) which reads notwithstanding contained in sub-section (1) , which means the expenditure which is covered by section 37(1) alone would be the subject to the disallowance under section 37(3A) in that case and section 37(4) in the present case. We may also refer to in this connection the decision of the Special Bench of the Tribunal in the case of Bhilai Engineering Corporation Ltd. v. Deputy CIT 1997 63 ITD 223 (Nagpur) and the Third Member decision in the case of Mahindra and Mahindra Ltd. v. Deputy CIT 1999 235 ITR (AT) 12 (SB) (Mumbai).In the result, the assessee s appeal is allowed and the Revenue s appeal is dismissed.
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2000 (11) TMI 1182 - ITAT KOLKATA
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... ... ..... by paragraph (iii) of the Central Board of Direct Taxes Circular No. 9 and there was no legal infirmity in the orders of the Assessing Officer granting such depreciation. In our considered view, therefore, the order granting depreciation on the assets purchased under the hire purchase arrangement with the Tea Board were neither erroneous nor rdquo prejudicial to the interests of the Revenue. rdquo A large number of case laws have been cited at the Bar, in support of and against the proposition that ownership is not a mandatory pre-condition for allowance of depreciation, but, in our opinion, it is not necessary to deal with those erudite submissions in the present context. We, accordingly, leave the matter at that. In view of the above discussions, we hold that the impugned order passed by the Commissioner of Income-tax (West Bengal-IX) under section 263 of the Income-tax Act, is unsustainable in law and, accordingly, we set aside the order. In the result the appeal-allowed.
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2000 (11) TMI 1181 - ITAT KOLKATA
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... ... ..... er the Explanation to section 32A(1), for the purpose of granting investment allowance under section 32A in the assessment year 1989-90, the ldquo actual cost rdquo of the plant and machinery would have to be reduced by that part of such cost which has been met out of the amount released to the assessee under sub-section (6) of section 32AB. In the impugned order, the Commissioner of Income-tax (Appeals) has directed the Assessing Officer to make verification of the allowance already granted to the assessee under section 32AB(6) and to effect reduction of the amount from the cost of the plant and machinery under consideration. Hence, the second objection of the Assessing Officer also cannot stand. In view of above discussions, we uphold the order of the Commissioner of Income-tax (Appeals) in directing the Assessing Officer to grant deduction under section 32A subject to the verification to be made by the Assessing Officer. In the result, the departmental appeal is dismissed.
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2000 (11) TMI 1180 - KARNATAKA HIGH COURT
Foreign Exchange and Prevention of Smuggling Activities Act, 1974 for short, COFEPOSA, Act. ... ... ... ... ..... eventive detention of the detenu, is not tenable. The very object of COFEPOSA Act in so far as conservation of foreign exchange is concerned, is to prevent violation of foreign exchange which was governed by FERA. Detention of detenu is also to prevent violation of foreign exchange regulations, as contained in FERA. When FERA has been repealed, naturally violations contemplated under FERA are no longer in existence. Therefore, the detention order passed when FERA was in force cannot be sustained. 25. While it is open to the authority concerned to consider afresh the matter with reference to the provisions of FEMA, read with provisions of COFEPOSA Act, the detention made earlier can no longer be continued. On this limited ground, the order of detention is liable to be interfered with. 26. In the result, we allow this petition and the detention order dated 8.2.2000 (Annexure-A) is quashed, directing that the detenu be set free forthwith, if he is not required in any other case.
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2000 (11) TMI 1179 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... sion of the Larger Bench in Light Publications Ltd. (supra). 4. emsp In Light Publications (supra), the Larger Bench held that in a classification dispute viz. CTH 84.34 v. CTH 90.10, the appropriate classification of the equipment would be under the latter heading if it worked on the photographic principle. In the instant case, it was the definite finding of the adjudicating authority that the imported equipment worked on photographic principle. This finding was not reversed by the lower appellate authority. The case of the Revenue that the equipment involved photographic principle has gone uncontested also. In the circumstances, we are inclined to uphold the finding of the adjudicating authority and set aside the order of the lower appellate authority and hold that the imported equipment was appropriately classifiable under CTH 90.10, following the ratio of the decision of the Larger Bench in Light Publications Ltd. (supra). 5. emsp The appeal of the Revenue stands allowed.
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2000 (11) TMI 1178 - CEGAT, NEW DELHI
Natural justice - Speaking Order ... ... ... ... ..... e find that the Asstt. Commissioner while passing the Adjudicating Order has not given any reason as to why classification of the various parts has to be changed from the classification sought by the Assessee Company. In the absence of any reasoning given by him, it is not possible to pass any order on the classification of any of the impugned goods. Similarly department has relied upon two letters dated 26-8-94 and 29-9-94 said to have been written by the Assessee but these letters have not been brought on record, and therefore, no reliance can be made on them. We also find that written submissions given by the assessee has not been considered by the Commissioner (Appeals). In view of these facts we are constrained to remand these matters to the Asstt. Commissioner with the direction to adjudicate afresh the matter expeditiously and pass a well-reasoned speaking order after following the principle of natural justice. Both the appeals are, therefore, allowed by way of remand.
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2000 (11) TMI 1177 - CEGAT, NEW DELHI
Clandestine manufacture and removal ... ... ... ... ..... ents nor they have appeared for hearing in the matter at any time. Accordingly the finding of the Collector that the charges levelled against them have been proved remains unrebutted and as such it has to be upheld. The Collector had not confirmed the demand of duty as according to him the demand of duty was made considering the impugned goods falling under Chapter 39 whereas the goods were held to be classifiable under Chapter 48 of the Central Excise Tariff. The dispute regarding the classification of the impugned product has been set at rest by the Supreme Court in the case of Bakelite Hylam, supra, according to which the impugned product is classifiable under Chapter 39 of the Central Excise Tariff only. In view of these facts and circumstances the demand of central excise duty demanded under show cause notice becomes payable by the Respondents. Accordingly we uphold the demand of Central Excise duty amounting to Rs. 62,25,187-50 and allow the appeal filed by the Revenue.
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2000 (11) TMI 1176 - CEGAT, NEW DELHI
Refund - Bar of unjust enrichment ... ... ... ... ..... ng company. It is therefore observed that the invoice prices of the appellants to the leasing companies did not truly meet the requirements of normal price as envisaged in Section 4(1)(a). In these circumstances, the Tribunal held that the assessable value of such machines should be worked back from the retail price of the machine in terms of Rule 6(a) of Central Excise (Valuation) Rules, 1975. In the present case, issue is not as to what should be the assessable value of the cylinders. The question under consideration is whether the element of Central Excise duty paid to the Department has been realised from the buyer which happens to be a leasing company. As already stated above, in view of the sale invoices issued by the appellants, it is clear that the full amount of excise duty paid to the Department has been realised from the buyer and therefore, this amount is not liable to be refunded to the appellants. The appeal therefore fails and the same is accordingly, rejected.
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2000 (11) TMI 1175 - CEGAT, NEW DELHI
Appeal - Limitation ... ... ... ... ..... on by the labour to the management from entering the factory premises. They state that the strike was called off on 4th August, 2000 and some time was required to have access to the papers and prepare the appeal. 2. emsp On hearing the learned DR, we satisfied that this is a fit case for condoning the delay and accordingly we condone the delay and allow the COD application.
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2000 (11) TMI 1174 - CEGAT, NEW DELHI
Demand and penalty - Limitation ... ... ... ... ..... from 1-3-92 and it will not be applicable to a case anterior to this date. Since in this case the period relates to prior to 1-3-92, the appeal must fail on merits. However, as is evident from evaluation of the evidence narrated above, prior to the decision of the Larger Bench in L and T case (supra) the view held on the issue in a number of decisions was in favour of the appellants. Therefore, one cannot say that by not paying the duty on the parts/components captively used in the manufacture of the end products cleared to the 100 EOU without payment of duty, the appellant had suppressed the facts or violated the provisions of Central Excise law with intent to evade payment of duty etc., calling for invocation of larger period for the payment of duty under the proviso to Section 11A. In this view of the matter, the demand is time barred. The duty and the penalty amount confirmed on the appellants are therefore set aside. 4. emsp The appeal is disposed of in the above terms.
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2000 (11) TMI 1173 - CEGAT, NEW DELHI
SSI Exemption ... ... ... ... ..... foot valves) and the non-availability of benefit of Notification No. 166/86 to the appellants in respect thereof. Ld. Counsel has only stated that direction should be given to the adjudicating authority that availability of the benefit of SSI exemption Notification No. 175/86 to the appellants should be considered, while quantifying the duty demand, in accordance with the law, as they are small scale unit. 3. emsp Ld. SDR has got no objection if such a direction is given to the adjudicating authority. 4. emsp Since the impugned order of the Collector (Appeals) has not been challenged before us on merits, the same is ordered to be affirmed and accordingly the appeal of the appellants stands dismissed. However as requested by the Counsel, the adjudicating authority is directed to consider the availability of benefit of the Small Scale Exemption Notification No. 175/86 dated 1-3-1986, to the appellants in accordance with law, while quantifying the duty amount after hearing them.
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2000 (11) TMI 1172 - CEGAT, MUMBAI
Stay/Dispensation of pre-deposit - Valuation ... ... ... ... ..... . If the explanation is to be interpreted, in the manner in which it has been done in the Tribunal s cited case then in a case where the manufacturer brings a different prices on bottles for different regions, he would be entitled to pay duty at the lowest price so printed and the explanation would seem to aid the evasion of duty. Such interpretation placed on this explanation, would be the entire purpose of the said section. 8. emsp Being a co-ordinate Bench we are required to follow the Judgment given by another Bench. We therefore, grant waiver of pre-deposit of the duty and the penalty as prayed for and stay the recovery thereof, during the pendency of this appeal. We however, observe that this may not be an isolated case. This issue of the manner in which the explanation is to be interpreted requires greater deliberation. We therefore place this issue before the Hon ble President of the CEGAT with the request that this appeal be placed before a Larger Bench for Disposal.
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2000 (11) TMI 1171 - CEGAT, NEW DELHI
Appeal by department - Limitation ... ... ... ... ..... He submits that the Department has given the reasoning for preparing an appeal. He submits that since the delay has not been explained properly and adequately, therefore, the application may be rejected. 3. emsp I have heard the rival submissions. I find that in a Govt. organisation, consultation at various levels is necessary. In the instant case, I find that the delay is only of 33 days or so. The delay does not appear to be of a substantial quantum. In the circumstances, I accept the explanation given by the authorities below and condone the delay. The application for condonation of delay is, therefore, allowed. The matter should now come up for hearing in due course.
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2000 (11) TMI 1170 - CEGAT, MUMBAI
Demand - Limitation - Import Policy - Jurisdiction of Collector - Territorial Jurisdiction ... ... ... ... ..... the Commissioner had jurisdiction over that import for which he has cited provisions of Sections 4 and 178 of the Criminal Procedure Code. The provisions of that code would apply to criminal trials but would not apply to an adjudication under the Customs Act, 1962. The notification issued by the Board under Section 4 of the Customs Act, 1962 delineate the territorial jurisdiction of Commissioner and other officers of the Customs within which they have to exercise their jurisdiction. Unless therefore there was a notification at the relevant time which extended the power of the Collector (P) and its officers over Ahmedabad airport (as it did for example for over Bombay, Nhava Sheva and Sahar airport), he could not have jurisdiction to adjudicate on offences relating to imports at Ahmedabad and his officers could not have issued notice. Accordingly, the entire case of the department found on a criminal conspiracy fails. 9. emsp The appeals are allowed. Impugned order set aside.
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2000 (11) TMI 1169 - CEGAT, MUMBAI
Steel forgings - Demand - Valuation ... ... ... ... ..... bearings. In any event, there is nothing to show that it has been approved as scrap. In these circumstances, taking into account the fact that these bearing parts were subjected to significant processes and contain significant portion of chromium and are made of specially formulated alloy, it appears to us the price at which the appellant sold the goods were in fact too low. We also note in the case of six sales of the goods, department found evidence of additional consideration over and above the sale price. At the same time, the Commissioner s conclusion that he has decided on an ambit figure increase for which we do not find any evidence or logical reason. We are therefore of the view that this aspect should also be examined once again and determined afresh. Since the major part of the matter is remanded, the liability to penalty on the assessee is also required to be looked afresh, as also confiscation of plant and machinery. 9. emsp The appeal is accordingly disposed of.
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2000 (11) TMI 1168 - CEGAT, MUMBAI
Stay/Dispensation of pre-deposit - Manufacture ... ... ... ... ..... based on the finding of the Dy. Commissioner, confirmed by the Commissioner (Appeals), that the embossing carried out by the applicant on the fabrics amounts to manufacture. 3. emsp In our stay order in application 1377/99 (appeal 1975/99) by Ronak Manufacturing Company, we had come to the prima facie view, after considering technical evidence, that such embossing not being of a permanent nature, but lasting only for a few washes, could not be considered to be manufacture, applying the ratio of the Supreme Court judgment in Siddheswari Cotton Mills v. U.O.I. - 1989 (39) E.L.T. 499. It is not in dispute that the embossing carried out by the processor before us is not different form embossing that we have considered in that order. Accordingly, following that order, we waive deposit of the duty demanded, penalties imposed and fine ordered, and stay their recovery. 4. emsp These appeals are to be tagged with Ronak Manufacturing Co. referred to above, to be heard and disposed of.
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2000 (11) TMI 1167 - CEGAT, MUMBAI
Classification of goods ... ... ... ... ..... cation it proposed that the goods should be classified under heading 2104.10. The Collector accepted this contention and ordered the classification as claimed. Hence this appeal by the manufacturer. 2. emsp From the facts that we have narrated above, it will be evident that the classification proposed by the department before the Collector (Appeals) which he has accepted, was not the one proposed in the notice as it was finally issued. Although this heading was contained in the unamended notice, the result to the corrigendum that was issued was to substitute this heading by heading 2107.91. The Asst. Collector who adjudicated the matter was required to choose between this heading and the heading claimed by the manufacturer. It cannot be said that there was anything illegal or improper in the order. Therefore the order of the Collector (Appeals) allowing the department rsquo s application before him cannot be maintained. 3. emsp Appeal allowed and the impugned order set aside.
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2000 (11) TMI 1166 - CEGAT, MUMBAI
Modvat - Words and Phrases ... ... ... ... ..... plastic rdquo . 2. emsp The only contention in the appeal is that the bags are not made out of fabrics. They are made out of plastic material and classifiable under Chapter 39 of the Central Excise Tariff. Fabric is a textile product for which some dictionary meaning is cited. 3. emsp We are not able to accept this contention. The clause that we have quoted above in the explanation itself refers to fabrics woven from strips obtained from plastics. it is also not possible to accept the contention that the term ldquo fabric rdquo only applies to textile material. McGraw Hill Dictionary of Scientific and Technical terms defines it as ldquo thin classifiable material made out of any combination of cloth fibre polymeric filament sheets or foam rdquo . This meaning and the terminology used in the explanation therefore clearly show that the clause covered and intended to cover bags of the type used by the appellant. 4. emsp We therefore see no reason to interfere. Appeal dismissed.
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2000 (11) TMI 1165 - CEGAT, MUMBAI
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... ... ..... I am of the few that the matter can be decided in the light of the decision of the Tribunal in CCE v. Mysore Lac and Paints Works - 1991 (52) E.L.T. 590. The ratio of the decision that notional credit can be taken at a later date, within reasonable period of taking the credit and that bench of the Tribunal found it to be six months, would squarely apply to the facts of the case. 2. emsp Appeal dismissed.
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