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1995 (11) TMI 116
... ... ... ... ..... each of the employees and not from the tax total salary reimbursed and further when the shortfall had been made good within the financial year, there would be no cause of action for levying the interest and deleted the interest. 7. A similar ratio has been laid down by the Hyderabad Bench of the Tribunal in the case of Executive Engineer, T.L.C., A.P. State Electricity Board. In the instant case there is no dispute that the tax was deducted from the salary of the employees whose income was liable to be taxed every month it was paid to the credit of the Central Government and the shortfall, if any, was made good and paid to the credit of the Central Government within the financial year. Hence in view of the express provisions of s. 192(3) and the ratio laid down in the two cases cited supra, we hold that there is no justification for charging of interest under s. 201(1A) of the Act. We accordingly uphold the finding of the CIT(A). 8. In the result, the appeals are dismissed.
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1995 (11) TMI 115
Assessment Proceedings ... ... ... ... ..... ed when notice under section 143(2) was issued or in any event when assessment was made on 31-7-1975 prior to 1-10-1975 when the amendment came into force. Accordingly the Hon ble Calcutta High Court held that law as stood prior to 1-10-1975 governed the case and appeal was maintainable. In the case before us the return of income was filed on 21-3-1991 and the assessment proceedings started with the issue of notice under section 143(2) thereafter, i. e., much after 1-4-1989 when the amended provisions of section 249(4)(a) came into effect. We do not agree with the contention of the assessee s counsel that the assessment proceedings started with the search at the assessee s premises on 24-9-1987 because such an interpretation will produce a manifestly absurd and unjust result which could never have been intended by the Legislature. We accordingly reject the contention of the assessee s counsel and concur with the finding of the CIT(A). 7. In the result, the appeal is dismissed
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1995 (11) TMI 114
Valuation Of Land ... ... ... ... ..... of the Calcutta Bench of the Tribunal in the case of Sachindra Chowdhury it is noted that the decision of the Calcutta High Court in the case of Gouri Prasad Goenka and Family (HUF) is dated 3-5-1991 but it was reported in 1993 and the above decision of the Calcutta Bench of the Tribunal is dated 18-11-1992 and accordingly the Calcutta Bench of the Tribunal in their above decision did not get the benefit of a decision of the jurisdictional High Court, viz., the Calcutta High Court in the case of Gouri Prasad Goenka Family (HUF). Therefore, the decision of the Tribunal Calcutta Bench cannot be of any benefit to the Revenue s case because it will be a decision, as they say, PER INCURIAM. 7. In the light of the above discussion, we direct the Assessing Officer to value the surplus land under the Land Ceiling Act on the basis of the compensation which the assessee is entitled to receive under the said Act, i.e., Rs. 4 per sq. mtr. 8. In the result, the appeals are allowed in part
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1995 (11) TMI 113
Issues Involved: 1. Classification of imported silica crucibles for customs duty. 2. Refund claim for additional duty paid. 3. Applicability of the doctrine of unjust enrichment. 4. Retrospective application of amended refund provisions. 5. Limitation period for refund claims. 6. Availability of alternative remedies before invoking writ jurisdiction.
Summary:
1. Classification of Imported Silica Crucibles for Customs Duty: The Assistant Collector of Customs classified the imported silica crucibles under Customs Tariff Heading 70.21 as "other articles of glass" and levied additional or countervailing duty under item 23-A(4) of the Central Excise Tariff (CET). The company contested this classification, arguing that silica crucibles should be classified under Heading 69.03 of CUSTA, which covers crucibles and not glassware, thus not liable to additional duty under item 23 of CET.
2. Refund Claim for Additional Duty Paid: The company filed for a refund of the additional duty paid, asserting that the duty was levied under a mistaken impression of law. The Assistant Collector of Customs (Refunds) and the Appellate Collector of Customs rejected these claims. The Tribunal later ruled that fused quartz and fused silica should not be considered as 'glass' under CET, thus not liable to countervailing duty. The company then sought a refund through writ petitions.
3. Applicability of the Doctrine of Unjust Enrichment: The court examined whether the doctrine of unjust enrichment applied to the company's refund claims. It was determined that the company had not passed on the incidence of the duty to its customers as the silica crucibles were used as refractory goods in manufacturing synthetic gems and were not sold or traded. Thus, the question of passing on the duty did not arise.
4. Retrospective Application of Amended Refund Provisions: The court considered whether the amended provisions of Section 27 of the Act and Sections 28C and 28D, introduced by the Central Excises and Customs Laws (Amendment) Act, 1991, applied retrospectively to pending refund claims. It was concluded that these provisions do apply retrospectively, as established by the Supreme Court in ITC Limited's case.
5. Limitation Period for Refund Claims: The court held that the bar of limitation under Section 27 of the Act does not apply when the duty was paid under a mistake of law and there were no laches on the part of the company in seeking redress. The company had filed the writ petitions within a reasonable time after discovering the mistake.
6. Availability of Alternative Remedies Before Invoking Writ Jurisdiction: The court acknowledged that normally, statutory remedies should be exhausted before invoking writ jurisdiction. However, in this case, since the refund claims were filed within a reasonable time and involved interpretation of law, the court exercised its jurisdiction under Article 226 of the Constitution. The court found that the alternative remedy was not efficacious as the Assistant Collector could not entertain claims beyond the statutory period of limitation.
Conclusion: The writ appeals were dismissed, affirming the company's entitlement to a refund of the customs duty paid on silica crucibles. The court held that the company had not passed on the incidence of duty to its customers, and the bar of limitation did not apply. The retrospective application of the amended refund provisions was upheld. The writ petition by SRF Limited was dismissed as the company failed to provide evidence that the duty was not passed on to customers.
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1995 (11) TMI 112
Writ Petition ... ... ... ... ..... competent authority, it could be realised from the Company unless a stay is granted by the Appellate Authority or Tribunal. In the instant case, after dismissal of the application for staying the recovery of the amount, if the amount has been recovered, it cannot be said to be illegal or without jurisdiction. Of course, if the appeal filed by the Company is allowed, the amount shall be refunded to it. Whether the levy of the excise duty is correct or not, is a question that will be decided in the appeal. So far as this petition is concerned, it has become infructuous and as such, it is hereby dismissed. 5. However, in the facts and circumstances, we direct that the appeal filed by the petitioner Company which is pending before the Commissioner of Central Excise (Appeals), New Delhi, be heard and disposed of expeditiously and the concerned authority shall make efforts to decide the same within three months from the date of submitting a certified copy of this order before it.
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1995 (11) TMI 111
Whether the said strapping is a fabric, manufactured, either wholly or partly, from rayon?
Held that:- The Division Bench cited judgment in support of the view that it was not necessary to refer the respondents to the authorities under the Act. It does not appear to have appreciated that regard must be had to the facts of each case. Where sufficient evidence is placed before the writ court for an unambigous conclusion upon technical matters to be reached. Those authorities might be apposite, but we must stress that where intricate technical processes are involved, it is proper that the writ court should direct writ petitioners to agitate their grievances before statutory authorities who are more competent to assess the merits thereof. Thus the decision of the Division Bench was given upon inadequate material.
Appeals are allowed. The judgment and order under appeal is set aside. The respondents shall be at liberty to adopt appropriate proceedings under the Kerala General Sales Tax Act, 1963, to claim exemption for the said strapping for the years 1970-71 and 1971-72. If the appropriate proceedings are adopted by 1-1-1996, the same shall be decided without taking the aspect of limitation into account.
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1995 (11) TMI 110
Valuation (sale price) ... ... ... ... ..... .Shri Chaphekar very frankly submitted that the decision rendered by this Court in (1982) 15 VKN 337 (Central Coalfields Ltd. v. Commissioner of Sales Tax) is affirmed by the Supreme Court on August 11, 1994, in Civil Appeal No. 1486 of 1981 (Central Coal Fields Ltd. v. Commissioner of Sales Tax) and in view of this position no question of law survives for reference and opinion. 12.The question as referred in these reference applications now stands concluded by the Supreme Court decision in (Central Coal Fields Ltd. v. Commissioner of Sales Tax). In the result there is no referable question in these applications. 13.Accordingly we are satisfied with the correctness of the decision of the Tribunal. 14.Consequently we reject all these applications with no order as to costs. The Counsel fee shall, however, of Rs. 500/- in each case for each side, if certified. 15.Retain the order in Misc. Civil Case No. 264 of 1987 and place one copy each in other connected cases as noted above.
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1995 (11) TMI 109
Demand - Limitation ... ... ... ... ..... not indicate when the order of provisional assessment was passed and it is not permissible to assume that such order must have been passed on the date of issuance of the show cause notice. In our judgment, the Excise Authority had ample jurisdiction to pass order of provisional assessment and issuance of show cause notice, cannot be disturbed in exercise of writ jurisdiction. It is obvious that by securing an interim order from this Court, the Company had postponed payment of duty of over Rs. one crore for the last several years and the filing of the writ is nothing but a ruse to further postpone the order of adjudication determining the duty payable and recovery thereof. We decline to exercise writ jurisdiction on the facts and circumstances of the case. Apart from that, even on merits, we do not find any acceptable claim. In our judgment, the order of the learned Single Judge is not required to be disturbed and appeal must fail. Accordingly, appeal is dismissed with costs.
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1995 (11) TMI 108
Adjudication - Demand ... ... ... ... ..... clearly erroneous. It is not necessary for this Court to examine whether the issue was a vexed question or otherwise when the adjudicating authority had decided the issue on more than two occasions. It is not open to re-examine the issue as and when the authorities like and the principle of finality of decisions cannot be thrown to winds only because some officer in the Department feels that the orders passed by the adjudicating authority are not correct. Mr. Menon, learned counsel referred to decision of this Court reported in ILR 1992 KAR 605, Gurupriya Tele Auto (P) Ltd. v. Superintendent of Central Excise, but in our judgment, the said decision has no application whatsoever to the issue involved in this case. 11.Accordingly, appeal is allowed and the judgment dated February 24, 1992 delivered by the learned Single Judge is set aside and petition is allowed and Rule made absolute in terms of prayer (a). In the circumstances of the case, there will be no order as to costs.
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1995 (11) TMI 107
Recovery of Government ... ... ... ... ..... e stay application was not decided and the appeal was heard, it was the duty of the appellate authority to decide the appeal without delay and further it is reasonable for respondent No. 3 to await appeal decision before proceeding with the recovery. 4. On the facts and circumstances of the case we direct the appellate authority, respondent No. 1 to decide the appeal expeditiously and we further direct respondent No. 3 not to proceed further with the recovery until decision of appeal operation of order dated 2-11-1995. (Annexure 6 ) detaining the goods of the petitioners will remain stayed until decision of appeal. 5. A copy of the order may be issued to the parties on payment of usual charges within two days.
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1995 (11) TMI 106
Issues Involved: The judgment involves the confiscation of foreign exchange and imposition of penalty based on statements recorded under Section 108 of the Customs Act, the use of co-accused's statement as evidence, and the legality of the order of confiscation and penalty imposition.
Confiscation of Foreign Exchange: The Customs officials apprehended individuals involved in attempting to export foreign exchange out of India, leading to the confiscation of the currency and imposition of a penalty. The petitioner challenged the confiscation, which was initially set aside by the Collector but later restored by the Government and affirmed by the High Court.
Use of Co-Accused's Statement: The revisional authority considered the statement of Mr. Dudani, a co-accused, as incriminating evidence against the petitioner. The authority concluded that the statement, along with other intrinsic material, established the contravention of passing off foreign currency out of India. However, it is argued that Dudani's statement alone cannot be used as substantive evidence without corroboration from other independent evidence, as per Section 30 of the Evidence Act.
Legality of Confiscation and Penalty Imposition: The judgment clarifies that statements recorded under Section 108 of the Customs Act, though not under Section 161 of the Criminal Procedure Code, are admissible as evidence collected by Customs officials. The material gathered incriminated the petitioner in contravening Customs Act provisions by exporting foreign currency. The court found no illegality in the order of confiscation and penalty imposition, stating that the evidence, including Dudani's statement, connected the petitioner to the contravention.
Conclusion: The Supreme Court dismissed the special leave petition, upholding the order of confiscation of foreign currency and the imposition of the penalty, as there was no ground for reducing the fine based on the evidence presented.
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1995 (11) TMI 105
Issues Involved: The judgment involves the issue of customs duty assessment on imported goods, the correct date for determining the rate of duty, the application of Section 154 of the Customs Act for correction of errors, and the interpretation of relevant legal provisions.
Customs Duty Assessment: The case involved M/s. Aluminium Industries Ltd., Kundara importing aluminium rods, with a dispute arising over the assessed import duty amount. The Customs authorities initially assessed duty at Rs. 5,37,670/-, later correcting it to Rs. 11,99,211/- based on new rates effective from 1-8-1982. The dispute centered on the correct duty amount payable by the importer.
Date for Determining Duty Rate: The judgment clarified that the relevant date for determining the rate of duty on imported goods is the date of entry of the vessel in the port, not the date of bill of entry presentation. The date of arrival of the vessel at the port was 2-8-1982, and the duty rate applicable was the one in force on that date, which supported the corrected duty amount of Rs. 11,99,211/-.
Application of Section 154 of the Act: The court examined the applicability of Section 154 of the Customs Act for correcting errors in the duty assessment process. Section 154 allows for correction of clerical or arithmetical mistakes, errors from accidental slips or omissions. The correction made by the authorities to impose the duty of Rs. 11,99,211/- was deemed justifiable under this section to ensure accurate records and duty assessment.
Interpretation of Legal Provisions: The judgment referenced legal principles from the Code of Civil Procedure and previous court decisions to support the application of Section 154 for error correction in customs duty assessment. It distinguished between errors in duty assessment and duty short levied, emphasizing the authority of customs officials to demand payment based on correct duty rates even if new rates came into force shortly before the vessel's entry.
Conclusion: The High Court allowed the appeal by the Union of India, reversing the decision of the learned single Judge and dismissing the original petition by M/s. Aluminium Industries Ltd., Kundara. The judgment upheld the customs authorities' power to correct errors in duty assessment and demand payment in accordance with the correct duty rates, emphasizing the importance of accurate record-keeping and duty assessment procedures.
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1995 (11) TMI 104
Refund - Precedent - Principles of judicial discipline ... ... ... ... ..... of the Appellate Authority dated 14-10-1994. The petitioner claimed refund of Rs. 27,74,339/- together with interest at 18 per annum. I am of the view that interest at 18 per annum now claimed is on the high side. Even under Section 11BB interest at the rate of 15 is payable for refund cases. Therefore, the 3rd respondent is directed to refund Rs. 27,74,339/- together with interest at 15 per annum to the petitioner. 4. For the foregoing reasons, a writ of mandamus directing the 3rd respondent to refund a sum of Rs. 27,74,339/- with interest at 15 per annum from the date of payment till the date of refund in accordance with the order in Appeal No. 226/94(M), dated 14-10-1994 shall issue and the third respondent shall refund the entire sum of Rs. 27,74,339/- together with interest at 15 per annum within one month from today. The writ petition is allowed with costs. Consequently, W.M.P. Nos. 7138 and 15981 of 1995 are dismissed. Counsel fee for petitioner is fixed at Rs. 1000/-
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1995 (11) TMI 103
Order - Implementation of - Judicial Discipline ... ... ... ... ..... o in the earlier part of my order only relates to the release of the goods on the facts and circumstances and on a prima facie consideration of the case. Since, the appellate authority has followed the judgment of the CEGAT of the South Regional Bench, there cannot be any second opinion on the question that the lower authority of this region are bound by the decision of their superior authorities and that they are bound to follow such decision. Therefore, all the writ petitions are allowed and the third respondent is directed to release the goods forthwith imported by the respective petitioners for home consumption. The release will be subject to the conditions imposed by the appellate authority in its order dated 26-9-1996 and 28-9-1995 respectively. The Plant Quarantine authority is directed to consider, examine and certify that the goods imported is fit for home consumption and issue the certificate forthwith if the goods are found to be fit for home consumption. No costs.
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1995 (11) TMI 102
Recovery of Govt. ... ... ... ... ..... nnot be penalised by the Assistant Commissioner of Central Excise by directing them to pay the balance amounts immediately. I, therefore, direct the second respondent herein, the Customs, Excise and Gold Control Appellate Tribunal, South Regional Branch, Madras, to dispose of the appeals and the stay petitions within a period of 30 days from the date of the receipt of the copy of the order from this Court or on proof of the same by the petitioners, whichever is earlier. Till such time, the Assistant Commissioner of Central Excise, Madras IV Division, shall not insist upon the payment of balance amounts by the petitioners or take any coercive steps by way of locking the factory premises or attachment of the plant and machinery with the stock. The Assistant Commissioner of Central Excise shall abide the final orders from the second respondent and proceed further in accordance with the orders to be passed by the second respondent. The writ petitions are disposed of accordingly.
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1995 (11) TMI 101
Issues: Appeal against order of Customs, Excise and Gold (Control) Appellate Tribunal regarding alleged undervaluation of imported ball bearings.
Summary: 1. Undervaluation Allegation: Respondents imported ball bearings from Hungary, facing allegations of gross undervaluation based on complaints. Show cause notices proposed enhancing values, which respondents contested, claiming no undervaluation. Collector of Customs initially accepted invoice prices as correct. Appeals filed with CEGAT, which upheld the invoice prices as correct, dismissing the appeals. Respondents submitted embassy certificates to support invoice prices as latest in the country of origin. 2. Legal Contention: Appellant's counsel argued CEGAT's observation on assessable value under Section 14 was unjustified, claiming no obligation for the department to provide evidence of contemporaneous imports at higher prices to prove undervaluation. CEGAT's judgment was reviewed, clarifying that the observation was specific to the case at hand, emphasizing the need for evidence if disputes arise despite importer's submission of correct invoice prices. No general legal proposition was established by CEGAT. As CEGAT's decision was deemed correct, the appeals were dismissed.
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1995 (11) TMI 100
... ... ... ... ..... GAT, the order of the Collector (Appeals) remains operative and the petitioner is entitled to refund. 3. Upon hearing the petitioner, the petition is allowed and the respondent is directed to refund the amount as a result of the order of the appellate authority within one month from the date a certified copy of this order is produced before the respondent by the petitioner. 4. A certified copy of this order may be given to the learned counsel for the parties on payment of usual charges within a period of two days.
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1995 (11) TMI 99
Appeal - Limitation ... ... ... ... ..... r to file the said appeal. The petitioners filed an appeal on 20-12-1994 which was within the time granted by this Court. This appeal has been dismissed vide Annexure 33 to the writ petition on 22-12-1994 on the ground of limitation. It seems that the petitioners had not been able to submit certified copy of the Judgment dated 6-12-1994 and hence the appeal was dismissed as time barred. In my opinion if the petitioners were unable to file certified copy of this Court s judgment the learned Collector (Appeals) should have granted some more time to the petitioners to obtain certified copy, particularly when an affidavit had been filed before the Collector (Appeals) about the order of the High Court. Thus the impugned order dated 22-12-1994 is arbitrary and is hereby set aside. The Collector (Appeals), Allahabad is directed to decide the petitioners appeal on merit within three months of production of certified copy before him. The writ petition is allowed. No order as to costs.
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1995 (11) TMI 98
Stay/Dispensation of pre-deposit ... ... ... ... ..... inal documents required under the rules. The orders of the Assistant Collector and the Collector show that what was produced were photo copies of the gate passes and not the copy of the gate passes duly certified by the Range Superintendent-in-charge of the factory. As regards, the financial position of the petitioner, I find that the petitioner did not place any material before the Tribunal to show that the requirement of deposit of Rs. 2,16,349.43 paise would cause undue hardship to the petitioner. A vague allegation was made in the petition that the petitioners are operating in the small scale sector with limited financial resources and are unable to bear any undue liability. In my view, therefore, the Tribunal cannot be said to have exercised its discretion arbitrarily and no ground is made out for interference by this Court in the exercise of extraordinary jurisdiction under Article 226 of the Constitution of India. The writ petition is accordingly, dismissed with costs.
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1995 (11) TMI 97
Imports - REP Licences ... ... ... ... ..... atched, the same did not reach the petitioner. In other words, it might be termed as case of loss in transit. The appropriate authority ought to have taken note of the facts and circumstances by liberally construing the guidelines. Neither the petitioner received the licences, nor the same have been misutilized their operation was suspended on the petitioner s complaint. In these circumstances, guidelines, if construed liberally, would definitely entitle the petitioner to the issuance of Duplicate licences. 7.Consequently, we find it to be a fit case where relief must be granted to the petitioner by quashing the impugned orders. 8.Writ petition is allowed. Impugned orders are quashed and set aside and directions are issued to the respondents to issue Duplicate Licences in accordance with law in lieu of licences No. P/L/3260040/C and P/L/3260041/C. The Duplicate licences will be issued within a period of four weeks from the date of receipt of writ order. Rule is made absolute.
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