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Case Laws
Showing 81 to 100 of 354 Records
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1990 (8) TMI 322 - HIGH COURT OF KARNATAKA
Winding up – Exclusion of certain time in computing periods of limitation ... ... ... ... ..... wledge until the respondent received the notice of the claim petition. This court may view leniently the first prayer for payment in instalments. The second prayer is not convincing as the winding up order was published in leading newspapers of India and therefore the liability to remit the entire amount to the official liquidator was entirely on the subscriber and knowledge of that must be presumed. Therefore, he cannot claim any waiver of interest. He is bound to pay interest. He had the use of the money all these years and therefore he cannot make a grievance of not paying the interest. Therefore, that prayer must be rejected. In the result, the claim application is allowed as prayed for with a direction that the decretal amount as drawn up by this court shall be paid in 12 equal instalments, the first instalment falling due on the 1st of November, 1990, with a single default clause. In the event of default, the entire balance amount is liable to be executed and recovered.
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1990 (8) TMI 302 - HIGH COURT OF KERALA
Public deposits ... ... ... ... ..... s given in the counter affidavit for such acceptance, I do not think that the petitioner-company was at fault in following the same procedure for the return as on March 31, 1984, as well. It is not as if the petitioner is concealing anything by making the return in the manner done as on March 31, 1984. In fact, the figures under the earlier balance-sheets are all available with the respondent so that the petitioner does not really stand to gain anything by adopting the same procedure which they had adopted in the previous years. The respondent has, therefore, gone wrong in insisting that the petitioner should adopt the figures as per the balance-sheet for the year ending March 31, 1982, for the return as on March 31, 1984. I, therefore, quash exhibits P-4, P-6, P-8 and P-11 and direct the respondent to deal with the return, exhibit P-3, which the petitioner has furnished, as one made in compliance with rule 10 of the Rules. The original petition is allowed as above. No costs.
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1990 (8) TMI 291 - CEGAT, BOMBAY
Appeal - Refusal to grant permission for removal of semi-finished goods appealable ... ... ... ... ..... B. The impugned order is therefore liable to be set aside for the aforesaid reasons. We, therefore, remand the matter to the Collector to pass a fresh order in accordance with law after giving an opportunity to the applicants/appellants for personal hearing. The Collector is also directed to dispose of the matter within a period of three months from the date of receipt of this order. For passing the aforesaid order we rely on this Bench rsquo s order in the case of Collector of Central Excise, Bombay-III v. Reliance Textile Industries Ltd. 1985 (19) E.L.T. 497 (Tri.) brought to our attention by the learned advocate for the applicants. Accordingly, while allowing the stay application unconditi-onally, we remand the matter to the Collector for de novo adjudication as per our observations above. In the meantime, the Collector would allow their clearances in accordance with the facility granted to them prior to 1988 subject to such safeguards for revenue as he might consider fit.
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1990 (8) TMI 290 - CEGAT, NEW DELHI
Stay Application by Department ... ... ... ... ..... uable. It is not disputed that the financial position of the respondents is very sound. 10. Keeping in view the totality of the facts and circumstances of the case, we are of the view that the facts and circumstances do not justify the grant of stay. The above captioned eight stay applications are dismissed. While disposing of the stay applications, we have duly taken into consideration the financial position of the respondents. 11. Before we part with the matters, we would like to make further observations that while disposing of the stay applications which are in the nature of interlocutory orders, the facts and circumstances of each and every case have to be looked into. 12. Both the sides plead before us that a very large number of matters are pending before the Tribunal and there is also recurring effect and as such early hearing be ordered in these cases. In the interest of justice, we order that the above-captioned appeals will be heard on merits of 19th October, 1990.
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1990 (8) TMI 289 - CEGAT, BOMBAY
Import Licence ... ... ... ... ..... ty to go into the alleged claim of their possessing the alternative licences even at the time of import of the goods. With these observations, we allow their appeal by way of remand for considering the validity of import under the alternative licences, having due regard to the ratio of the decision of the Spl. Bench in East Punjab Traders reported in 1988 (34) E.L.T. 98 (Tri.). 13. The appellant is directed to furnish the import licences which are claimed to be in his possession even at the time of import in 1984 and connected documents before the Department within a period of 15 days from the date of communication of this order. 14. If the Collector is satisfied on their claim of possession of these alternate licences even at the time of import and adjudication, he may thereafter proceed to decide on the validity of import under the alternate licences in the light of the decision of the Special Bench cited supra. 15. With the aforesaid observations, we dispose of the appeal.
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1990 (8) TMI 288 - KERALA HIGH COURT
Prosecution - Adjudication ... ... ... ... ..... strict construction and as stated by Maxwell on Interpretation of Statutes ldquo The court must always see that the person to be penalised comes, fairly and squarely within the plain words of the enactment. It is not enough that what he has done comes substantially within the mischief, aimed at by the statutes ldquo the sooner this misunderstanding is dispelled and the supposed doctrine given its quietus the better it will be for all concerned, for the doctrine seems to involve substituting rdquo the uncertain and crooked cord of discretion for ldquo the golden and straight metwand rdquo of the law . In my view, there was no contravention of the provisions of the Act by the petitioner by refusing to attend before the Enforcement Officer as per summons he received. The prosecution for an offence under Section 56 of the Act was certainly misconceived. I am unable to sustain the conviction and sentence and they are hence set aside. Petitioner is acquitted. Cri. R.P. is allowed.
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1990 (8) TMI 287 - MADRAS HIGH COURT
... ...
... ... ..... ot lifted the full quantity of the goods within the stipulated period, the quantity discount allowed by the manufacturer will be permissible under the Act. 9. The learned counsel for the respondents also cited certain passages in the Interpretation of Statutes by G.P. Singh for the proposition that when a law is declaratory, it can be made to apply retrospectively. I am clearly of the opinion that this will not apply in respect of Central Excises and Salt Act. In this case, where the amendment introduced by Act 22 of 1973 has far reaching consequences because the assessable value is enhanced by virtue of the amendment. Therefore, I am clearly of the opinion that the amendment introduced by Act 22 of 1973 cannot be applied to the facts of this case. 10. For all the above reasons, I am inclined to allow the writ petition and it is accordingly allowed. The impugned order is set aside and the order of the 2nd respondent will stand restored. 11. There will be no order as to costs.
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1990 (8) TMI 286 - CEGAT, CALCUTTA
Demand - Loss or destruction of excisable goods ... ... ... ... ..... 10. The party should pay the duty within 30 days from the date of communication of this order . In this cryptic order there is no indication that it is in pursuance of the special bond or in terms of Rule 49. The Collector (Appeals) has held that the Assistant Collector was not the competent authority for a case covered under the second proviso to Rule 49 of Central Excise Rules. This proviso is not the appropriate provision here. The proper provision is the first proviso to the said Rule. The demand could be only in terms of this proviso, for which again the Assistant Collector was not the competent authority. Hence, I hold that while the finding of the Collector (Appeals) that the Assistant Collector rsquo s order is without jurisdiction is correct, it is so, not for the reason given by him, but because the Assistant Collector had no authority under the first proviso to Rule 49 of the Central Excise Rules, which is applicable in the present case. The appeal therefore fails.
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1990 (8) TMI 285 - CEGAT, BOMBAY
Rectification of mistake ... ... ... ... ..... medy can be sought for only under Sec. 130 of the Customs Act, which has already been exhausted by the applicants with no success. Hence the present application seeking for review of our order treating it as a mistake apparent from the record, is not at all maintainable. A mistake apparent on record should be evident from the record itself, and it is not a point for argument whether the ratio of the Special Bench could be applied in such cases and on that basis the findings already recorded should be revised and re-written. In view of the fact, that there is no mistake apparent on record, the Misc. application, which could be brought only under purview of Sec. 129B (2) is not sustainable and deserves to be rejected. Since on the very same point a reference application has already been moved under Sec. 130 of the Customs Act and also disposed of by this Bench, no further action is called for by this Bench and the present application is totally misplaced and deserves rejection.
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1990 (8) TMI 284 - CEGAT, CALCUTTA
MODVAT credit ... ... ... ... ..... The department as well as the appellants have treated the said debit of the available balance in the credit account as payment of duty whereby the present dispute. The said debit to the credit account was not payment of duty as no such payment was called for. Payment of duty arises when dutiable goods are cleared. Here, the appellants wanted the credit to be utilised for payment of duty on the inputs themselves but it was clarified by the learned Counsel in reply to my specific query that no clearance of the inputs as such took place. The debit to the P.L.A. was only by way of the disallowance or forgoing of the credit taken as it was not eligible for utilisation for payment of duty. When the said credit amount had actually been disallowed by debiting it, there is no justification to ignore that reality and insist on the payment of equivalent amount in cash or debit to P.L.A. Accordingly, I have no hesitation in allowing the appeal setting aside the impugned Order-in-Appeal.
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1990 (8) TMI 283 - CEGAT, MADRAS
Modvat - Credit taken before obtaining Assistant Collector’s acknowledgement of the declaration
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1990 (8) TMI 282 - BEFORE THE COLLECTOR OF CUSTOMS (APPEALS), BOMBAY
Classification ... ... ... ... ..... 90 is preceded by - and covers the articles falling under second part of Heading 48.23. Since first part of Heading 48.23 has already been covered by the entry lsquo others rsquo at 4823.19, the entry lsquo Others rsquo at 4823.90 has necessarily to be a sub-heading covering the second part of the articles covered by Heading 48.23 namely articles of paper pulp, paper, paper boards, cellulose wadding, or webs of cellulose fibres. 9. The impugned goods have been classified under Heading 48.23. This classification is not in dispute either by the appellants or by the department. So far as the sub-heading is concerned, in view of the above discussions there is no doubt that the correct classification of the impugned goods would be under sub-heading 4823.19 and not 4823.90. The impugned order is, therefore, set aside with directions that for the purpose of additional duty of Customs the goods are classifiable under C.E.T. 4823.19 and consequential relief be given to the appellants.
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1990 (8) TMI 281 - CEGAT, BOMBAY
Refund - Limitation ... ... ... ... ..... as addressed to the Assistant Collector and filed before the Supdt. pursuance to the direction from the Assistant Collector. When the Assistant Collector himself directed the party to file the claim before the Range Supdt. and not direct to him, it is absolutely unwarranted of him to consider the claim as time barred by holding that the same claim was received after the expiry of the period of six months. In my opinion, the order of the Assistant Collector rejecting the claim as confirmed by the Collector (Appeals), is totally erroneous and is going contrary to the instructions given by him, not to file the same before him but to file only before the Range Supdt. Under the circumstances, the order is set aside and the matter is, remanded back to the Assistant Collector for considering the refund claim on merits. As the matter is very old, the jurisdictional Assistant Collector is directed to dispose of the matter within two months from the date of communication of this order.
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1990 (8) TMI 280 - CEGAT, MADRAS
Value of clearance ... ... ... ... ..... r as to whether the inputs in respect of which MODVAT Credit was availed of have been used in the manufacture of the goods other than those falling under Tariff heading 32.08. In this regard, therefore, the learned lower authority should do necessary verification and allow the appellants the benefit as claimed by them, in case their plea as made before us is found to be correct. We clarify that in respect of a particular specified product if the appellants at any stage during a financial year availed of the MODVAT Credit, the provisions of sub-clause (a)(i) of the Notification 175/86 in respect of that commodity will get attracted. The provisions of sub-clause (a)(i) makes no distinction as to at what stage in a financial year manufacturer avails of the MODVAT Credit in respect of the specified goods. With these observations we allow the appellants rsquo plea and remand the matter to the lower original authority as mentioned above. Accordingly the appeal is allowed by remand.
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1990 (8) TMI 279 - CEGAT, NEW DELHI
Incentive rebate on sugar ... ... ... ... ..... thereon under the Central Excises and Salt Act, 1944 (1 of 1944), and the Additional Duties of Excise (Goods of Special Importance) Act, 1957 (58 of 1957) . 9. If the intention of Notification No. 84/69 is to grant exemption only for Palmyra and Khandsari Sugar or other varieties of sugar where the basic excise duty is wholly exempt there is no need to mention separately in these notifications exempting these varieties of sugar from additional excise duty leviable thereon that is under notification Nos. 9 and 10/58 and 84. The very fact that these two notifications separately grant exemption in respect of additional excise duty for Khandsari and Palmyra Sugar makes it clear that Notification 84/69 applies only to the sugar covered by T.I.1(i). Therefore, the contention of Shri Chakraborthy for the department is without any substance. We, therefore, allow the appeal as it is not only covered by the order of this Tribunal referred above and also for the reasons mentioned above.
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1990 (8) TMI 278 - CEGAT, NEW DELHI
Import - Misdeclaration of description of goods ... ... ... ... ..... e Collector has held that the correct assessable value of the goods is Rs. 5,38,030.64. Considering the value of the goods, the redemption fine of Rs. 1,20,000/- imposed by the Collector is not considered to be excessive. 9. Decorative rivets imported into India for use in the leather industry was partially exempted from customs duty under Notification No. 224/85-C.E., dated 9-7-1985, as amended. Since we have held that the imported goods are not rivets, but snap fasteners, the benefit of this exemption notification is not available to the appellants. 10. The Collector has imposed penalty of Rs. 1,00,000/- on the appellants. The description and value of goods were misdeclared with a view to evading I.T.C. restriction and to evade payment of a large amount of duty. In the facts and circumstances of the case we do not consider this penalty to be excessive commensurate with the gravity of the offence. 11. In the circumstances, we uphold the impugned order and dismiss the appeal.
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1990 (8) TMI 277 - CEGAT, CALCUTTA
Smuggled goods ... ... ... ... ..... list did not bear the country of origin. The Collector in his order, as underlined by me above, has held that the goods merely described as of lsquo foreign origin rsquo is a vague term having no legal force to sustain the lawful seizure and confiscation of the goods in question. If this be the case, then by his own reasoning he should have accepted the party rsquo s contention that item Nos. 12 to 21 did not bear any foreign origin, which, as I have observed, has not been rejected by the Assistant Collector also. In view of the findings of both the authorities, item numbers from 12 to 21 are required to be re-examined for release by the Collector (Appeals) in the light of his own observation. The Collector may call for the goods for his personal examination to note whether they are genuine foreign branded goods or duplicates as contended by the learned Consultant. The matter is remanded to the Collector (Appeals) for de novo examination in the light of the above observation.
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1990 (8) TMI 276 - CEGAT, NEW DELHI
Pre-deposit of duty and penalty ... ... ... ... ..... Meerut reported in 1987 (28) E.L.T. 61 (Del.) this judgment was followed by the Tribunal in the case of Jayashree Insulators Ltd. v. Collector of Central Excise, Calcutta-11 reported in 1987 (28) E.L.T. 279 (Tri.) in view of the notification issued by the Central Government, prima facie benefit has to be given to the applicants. The matter at this stage is sub judice. It will not be proper for us to give further observations. 8. In view of the above discussion, notification issued by the Central Government under Section 11C, we modify the earlier stay order No. 601/86-B1 dated 22nd September, 1986 read with later miscellaneous order No. 145/86-B1 dated 3rd December, 1986. We dispense with the predeposit of the balance duty amount of Rs. 3,89,508.13 - Rs. 65,000.00 Rs. 3,24,508.13 and penalty amount of Rs. 2,500.00. We further order that during the pendency of the appeal, the revenue authorities shall not pursue the recovery proceedings for the balance duty and penalty amount.
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1990 (8) TMI 275 - CEGAT, NEW DELHI
Exemption notification withdrawing exemption ... ... ... ... ..... n 10-5-1985 i.e. to say after the export of the black pepper in question as contended by the appellants. That apart, circumstances on the record are eloquent against both the appellants. According to their own admission both the appellants filed their Shipping Bills on 7-5-1985 in three cases and on 9-5-1985 in the fourth case and paid the duty in terms of the said Notifications namely 147/Cus and 148/85 both dated 7-5-1985. This could not have happened had the appellants were not aware of the said Notifications levying the duty as contended by them. This circumstance by itself conclusively establishes that the Official Gazette containing both the said Notification Nos. 147/85-Cus., dated 7-5-1985 and 148/85-Cus., dated 7-5-1985 was made available to the public on 7-5-1985 itself. 6. In the light of above, we find no substance in the contention raised by the learned Counsel for the appellants. 7. Thus in the result we uphold the impugned order and reject all the four appeals.
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1990 (8) TMI 274 - CEGAT, MADRAS
MODVAT Credit ... ... ... ... ..... n take the credit due to them so long as they satisfy all the other criteria for eligibility for MODVAT credit. In the present case there is no doubt about the eligibility of the respondents for availing of the MODVAT credit. It is not as if the respondents had taken the credit after 6 months, which can be taken as a reasonable limit within which they should take the credit, taking into consideration the provisions for refund under Section 11B of the Act. We find no force in the plea of the Appellant-Collector that in the absence of any provision for varying a credit once taken in favour of the assessee the respondents are ineligible for taking the differential additional credit. The right conferred on the respondents under Rule 57A and Rule 57B cannot be taken away unless the same is shown to have lapsed on account of limitation, which, in our view, in this case is not the case. We, therefore, find no merits in the appeal by the Department and dismiss the appeal accordingly.
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