|
Advanced Search Options
Case Laws
Showing 41 to 60 of 230 Records
-
1985 (9) TMI 314
Whether the resales effected by the assessee were sales within the State?
Held that:- Appeal allowed. As the assessee resold the goods within the State as mentioned in the declarations in form No. S.T. 17 furnished by the assessee to the selling dealers and it cannot be said that the assessee used the goods for a purpose other than that mentioned in the declarations. We must therefore allow these appeals and set aside the assessments made on each assessee to the extent that the assessments sought to include in the taxable turnover the purchase price paid by the assessee in respect of the goods purchased against declarations in form No. S.T. 17 furnished to the selling dealers. The respondents will pay to the assessee in each appeal costs throughout including the costs of the appeal.
-
1985 (9) TMI 313
Whether the movement of the goods from the registered office at Hyderabad is occasioned by the order placed by the buyer or is an incident of the contract?
Whether the sale is one which occasions the movement of goods from one State to another?
Held that:- Writ petition dismissed. We direct the Commercial Tax Officer to afford a reasonable opportunity to the company to collect C forms and furnish them to the assessing authority before making an assessment against the company in respect of such transactions. We understand that so far as the turnover for the assessment year 1979-80 is concerned, the assessment order has been set aside in appeal and the case has been remanded to the assessing authority for granting sufficient time to the company to file the C forms in order to enable it to avail of the concessional rate of tax.
The petitioners have prayed for the further relief that as the aforesaid transactions have been held to be inter-State sales their inclusion in the assessment made under the corresponding State Sales Tax Acts should be deleted. We give liberty to the petitioner-company to make an application to the assessing authority concerned for the grant of such relief, and if the application is made within two months from today, we direct the said assessing authority to entertain the application, notwithstanding any period of limitation prescribed for such a proceeding, and to dispose of the claim in accordance with law.
-
1985 (9) TMI 298
Issues Involved:
1. Non-filing of balance-sheet and profit and loss account under Section 220(3) of the Companies Act, 1956.
2. Liability of directors as officers in default.
3. Wilfulness of the default.
4. Bar of limitation for taking cognizance of the offence.
5. Nature of the offence as a continuing offence.
6. Appropriate punishment for the offence.
Issue-wise Detailed Analysis:
1. Non-filing of Balance-sheet and Profit and Loss Account under Section 220(3) of the Companies Act, 1956:
The company, M/s. Orissa Paper Products Ltd., and its directors failed to file the balance-sheet and profit and loss account for the year ending June 30, 1977, with the Registrar of Companies, Orissa, as mandated by Section 220(3) of the Companies Act, 1956. The Registrar issued a notice on September 13, 1978, but no action was taken, leading to the filing of a complaint on July 6, 1979.
2. Liability of Directors as Officers in Default:
Respondents Bhimsen Misra and Himansu Sekhar Misra, being directors, were considered officers of the company under Section 2(30) of the Act. The court dismissed the argument that only employees are officers, citing that directors fall within the inclusive definition of "officer" for the purpose of Section 220(3).
3. Wilfulness of the Default:
The default must be wilful for the directors to be liable. The court referred to previous judgments, including Vulcan Industries P. Ltd. v. Registrar of Companies, which established that acts or omissions under Sections 166, 168, 210, and 220 are punishable only if wilful. The court inferred wilfulness from the directors' inaction even after receiving the notice and failing to provide any lawful excuse.
4. Bar of Limitation for Taking Cognizance of the Offence:
The respondents argued that the complaint was barred by limitation under Section 468(2)(a) of the Criminal Procedure Code, as it was filed beyond six months from the default date. However, the court treated the default as a continuing offence under Section 472 of the Criminal Procedure Code, relying on the Supreme Court's interpretation in Bhagirath Kanoria v. State of M.P. and State of Bihar v. Deokaran Nenshi.
5. Nature of the Offence as a Continuing Offence:
The court determined that the offence under Section 220(3) is a continuing offence, as the penalty involves a fine for each day the default continues. This interpretation aligns with the Supreme Court's definition of a continuing offence, where non-compliance recurs daily, constituting a fresh offence each day.
6. Appropriate Punishment for the Offence:
The court emphasized that punishment serves to compel duty performance and warn others. Despite the Registrar's delay in filing the complaint, the directors' responsibilities as trustees of the shareholders necessitated accountability. Considering the circumstances, including the six-year delay in proceedings, the court imposed a fine of Rs. 50 on each respondent, with a default sentence of one week of simple imprisonment.
Conclusion:
The appeal was allowed, the trial court's order was set aside, and the respondents were convicted under Section 220(3) of the Companies Act, 1956, with the specified fine and default imprisonment.
-
1985 (9) TMI 283
Issues:
Application to restrain sale of company's assets by the corporation and direction to official liquidator for supervision.
Analysis:
The applicant, a shareholder and ex-managing director of the company under liquidation, sought to restrain the Orissa State Financial Corporation from selling the company's assets and requested the official liquidator to oversee the sale. The corporation objected, asserting its jurisdiction under section 29 of the State Financial Corporations Act, 1951, to deal with the property. The court examined the provisions of the Companies Act, 1956, particularly sections 456 and 529, which dictate the custody of company assets and the rights of secured creditors. It was noted that all company assets are deemed to be in the court's custody upon liquidation, and a secured creditor may exclude their properties securing the debt from the liquidator's charge by paying expenses.
The court reviewed past proceedings and the order of liquidation, which directed the official liquidator to take over assets except those already taken by the corporation under section 29. It was emphasized that the corporation's possession had been established, and the official liquidator could not be directed to take charge of those assets. The court also addressed the argument that the corporation's takeover under section 29 was without jurisdiction, stating that such issues were not within its purview post-winding-up order.
Regarding the corporation's authority to sell pledged assets, the court clarified that properties excluded from the official liquidator's control under section 29 were subject to the corporation's powers. The court declined to rule on the nature of security involving land and buildings, as it could prejudice future disputes. The court concluded that the sale advertisement fell within mortgaged properties excluded from the court's jurisdiction, and any challenge to the sale should be addressed in an appropriate forum separate from the current proceeding.
Ultimately, the court found no merit in the applicant's application and dismissed it without costs due to the specific circumstances of the case.
-
1985 (9) TMI 282
Issues Involved: Interpretation of section 370 of the Companies Act, 1956 regarding loans to bodies corporate and the distinction between loans and deposits.
Judgment Summary:
The petitioners filed a petition u/s 633 of the Companies Act, 1956, challenging a notice from the Registrar of Companies alleging contravention of section 370 of the Act. The notice raised concerns about a company depositing funds with other companies exceeding the prescribed limits without obtaining prior approval from the Central Government.
During the hearing, the respondent argued that the funds given by the company should be considered a loan under section 370, not a deposit, as claimed by the petitioners. The respondent relied on legal interpretations emphasizing the relationship of debtor and creditor in monetary transactions and the distinction between borrowing and lending companies under the Companies Act.
The court considered precedents such as V. E. A. Annamalai Chettiar v. S. V. V. S. Veerappa Chettiar and Ram Janki Devi v. Juggilal Kamlapat to highlight the importance of parties' intentions and circumstances in determining whether a transaction constitutes a loan or a deposit. The court noted the fine but appreciable distinction between loans and deposits, especially in terms of the Limitation Act.
Ultimately, the court rejected the respondent's argument that the funds given by the company should be classified as a loan u/s 370 of the Companies Act. It emphasized that treating certain deposits as loans would lead to inconsistent interpretations of the Act, as deposits with scheduled banks are not covered by section 370.
As a result, the court ruled in favor of the petitioners, granting them relief as per the prayers in their petition.
-
1985 (9) TMI 268
Issues:
1. Whether post facto permission can be granted and be effective for the continuation of a suit instituted prior to obtaining permission under section 446 of the Companies Act, 1956.
Analysis:
The judgment pertains to a case where a suit was filed against a company in voluntary liquidation without obtaining prior leave as required under section 446 of the Companies Act, 1956. The court addressed the issue of whether post facto permission could validate the suit filed before obtaining leave. The court referred to conflicting views from different High Courts and the Supreme Court's ruling in Bansidhar Shankarlal v. Mohd. Ibrahim [1971] 41 Comp. Cas. 21. The court noted that the provision under the Companies Act, 1956, is similar to the one in the Companies Act, 1913, and emphasized the importance of obtaining court permission to proceed with legal proceedings against a company in liquidation.
The court discussed the interpretation of section 446(1) of the Companies Act, 1956, which mandates obtaining court leave to commence or continue legal proceedings against a company in liquidation. The court compared the provisions of section 171 of the Companies Act, 1913, with section 446 of the present Act to analyze any changes in the law. The court highlighted that the addition of certain words in the later provision did not alter the fundamental requirement of obtaining court leave before initiating or continuing legal proceedings against a company in liquidation.
The judgment further examined the divergent views of different High Courts on the issue of post facto permission for suits against companies in liquidation. The court referenced judgments from the Bombay, Gujarat, and Madras High Courts to elucidate the varying interpretations of the law. Ultimately, the court concurred with the interpretation laid down by the Supreme Court in Bansidhar Shankarlal's case, emphasizing that obtaining court leave is not a condition precedent for instituting a suit against a company in liquidation. The court held that once leave is granted, the legal proceeding would be deemed valid from the date of obtaining such permission. Consequently, the court ruled that the suit in question could proceed after obtaining post facto sanction, and scheduled the case for further trial before the single judge.
-
1985 (9) TMI 267
Issues:
- Dismissal of winding-up petition based on disputed interest payment.
Analysis:
The judgment pertains to Company Application No. 19 of 1984, which arose from the dismissal of a winding-up petition, Company Petition No. 77 of 1983, against the respondent company. The appellant had supplied goods to the respondent company, and a dispute arose regarding the payment of the balance amount and interest. The respondent company made partial payment but disputed the liability for interest. The learned company judge dismissed the petition solely based on the disputed interest payment, stating that since there was no agreement for interest, the claim could not be a basis for winding up the company.
The appellant contended that the petition was not solely based on the interest dispute, as the principal amount was admitted and partially paid by the respondent company. The appellant argued that the interest on the admitted principal amount should have been adjudicated upon. On the other hand, the respondent company argued that without an agreement for interest or established custom, the appellant could not claim interest on the principal amount. The court noted that the liability for the principal amount was admitted and paid by the respondent company during the proceedings, and therefore, the question of entitlement to interest should have been decided by the learned company judge.
The court set aside the order of the learned company judge and directed that the question of whether the appellant is entitled to interest on the principal amount and whether the non-payment of interest falls under the grounds for winding up as per the Companies Act should be decided by the learned company judge. The court emphasized that the issue of interest entitlement was not so disputed that it could not be addressed within the scope of a winding-up petition. No costs were awarded in this matter.
-
1985 (9) TMI 251
Issues:
- Appeal timelines and verification
- Correctness of assessable value determination
- Valuation of imported goods under Customs Act
Analysis:
Issue 1: Appeal Timelines and Verification
The appeals were filed against the order of the Collector of Customs (Appeals) dated 30-8-1983. The department filed the appeal on 5-3-1984, which was within the time limit, as the order was communicated on 6-12-1983. The verification of the appeals was obtained subsequently, and it was argued that this irregularity should not lead to rejection. The tribunal held that the appeals were not liable to be rejected on the ground of limitation, citing precedents where defects in verification were considered mere irregularities.
Issue 2: Correctness of Assessable Value Determination
The Assistant Collector determined the assessable value of imported goods based on wholesale market rates from newspapers, leading to a significant difference from the actual value paid by the importers. The Collector (Appeals) found insufficient evidence of invoice manipulation and lack of proof of comparable quality goods in the newspapers. The tribunal upheld the Collector's decision, emphasizing the need for proper grounds for back calculation and proof of comparable quality.
Issue 3: Valuation of Imported Goods under Customs Act
The valuation of imported goods is governed by Section 14 of the Customs Act, 1962. Section 14(a) specifies the criteria for determining the value of goods in international trade transactions. The tribunal highlighted the importance of arm's length transactions and the limitations of Section 14(b) for cases where the value is not ascertainable under Section 14(a. It was noted that the concept of deduced landed cost is outdated post the introduction of Section 14, and reliance on newspaper rates alone is insufficient to determine international trade prices. The tribunal emphasized the need for a legal nexus to establish the price in the course of international trade.
In conclusion, the tribunal dismissed all appeals and cross-objections, upholding the Collector's decision on the assessable value of the imported goods. The judgment clarified the legal requirements for valuation under the Customs Act and emphasized the need for proper evidence and grounds in valuation disputes.
-
1985 (9) TMI 250
Issues: Classification of product "Bituminous Black Varnish" under Central Excise Tariff Item 14II(ii).
The judgment by the Appellate Tribunal CEGAT, New Delhi pertains to the classification of the product "Bituminous Black Varnish" under the Central Excise Tariff Item 14II(ii). The case originated from a Revision Application filed by M/s. Jenson & Nicholson (India) Ltd., Calcutta, which was transferred to the Tribunal for disposal as an Appeal. The product in question was found to be a black colored liquid composed of Bitumin, Resin, and volatile organic solvent, resembling Varnish. The dispute arose when the Assistant Collector classified the product under Tariff Item 14II(ii) based on its composition and use for painting Oxygen Gas Cylinders.
During the hearing, the Appellant did not appear, but submitted a written letter requesting a decision based on the Revision Application. The Respondent, represented by Shri B.R. Tripathi, acknowledged that the case was similar to a previous judgment in the case of Dr. Beck & Co., which favored the Appellant. The Respondent left the decision to the Tribunal.
After considering the facts, arguments, and the previous judgment, the Tribunal found no reason to deny the benefit of the earlier decision in favor of the Appellant. The Tribunal referred to the previous judgment's analysis, highlighting that the product in question, containing bituminous matter and epoxy resin, was more appropriately classified as Coal Tar Black under Item 14II(ii) of the Central Excise Tariff. The Tribunal emphasized that the presence of resin did not preclude classification as Bituminous or Coal Tar Black, as varnish is defined as a liquid composition that forms a transparent film when applied, without the necessity of being resin-free.
Consequently, the Tribunal allowed the appeal, ruling in favor of the Appellant based on the classification of the product as Coal Tar Black under the Central Excise Tariff. The judgment provided a detailed analysis of the product's composition, characteristics, and relevant definitions to support its classification decision.
-
1985 (9) TMI 246
Issues:
Claim of benefit under Notification No. 80/80-C.E. for plywood manufactured in 1981-82.
Consideration of various goods for the limit of Rs. 20 lakhs under the notification.
Exclusion of sawn timber from the total value of clearances.
Validity of Tribunal's decision regarding sawn timber as an excisable product.
Challenge to the Tribunal's previous decision by the Department.
Interpretation of the definition of excisable goods.
Applicability of the exemption under Notification No. 80/80.
Analysis:
The appeal pertains to the appellant's assertion that they were eligible for the benefit of Notification No. 80/80-C.E. for plywood produced in 1981-82, subject to a clearance value limit of Rs. 20 lakhs. The total value of various goods cleared by the appellants exceeded the threshold, including plywood for teachests, teachest battens, sawn timber, and fuel wood. The lower authorities rejected the appellant's argument that goods exempt under a separate notification should not be considered excisable. The appellant's advocate contended that sawn timber should be excluded from the calculation based on a previous Tribunal decision, allowing similar relief in a different case for the year 1983-84.
The Department's representative did not dispute the similarity with the previous case but questioned the correctness of the Tribunal's decision regarding sawn timber's excisability. The Department challenged the Tribunal's interpretation that sawn timber was not a distinct excisable article, arguing that any residue or by-product emerging during manufacturing should result in a new excisable product. The Department sought to overturn the Tribunal's decision based on the nature of the final product and the emergence of new commodities during processing.
The appellant's advocate countered the Department's argument by emphasizing that challenging the Tribunal's previous decision was not permissible before the Tribunal itself. The Tribunal, after considering the submissions, upheld its earlier decision and rejected the Department's contention that sawn timber should be considered an excisable product. The Tribunal affirmed that the value of sawn timber should be excluded from the clearance value for applying the Rs. 20 lakhs ceiling under Notification No. 80/80, granting the appellants the associated relief.
In conclusion, the Tribunal maintained consistency with its prior ruling and affirmed that sawn timber should be excluded from the calculation for the exemption under Notification No. 80/80. The appeal was allowed in favor of the appellants, providing them with the intended relief as per the notification.
-
1985 (9) TMI 245
Issues:
1. Interpretation of duty exemption under Central Excise Notification No. 46/71 for corrugated boards.
2. Classification of corrugated boards manufactured with hessian laminated bitumenized paper.
3. Comparison between bitumenized water proof paper and bitumenized hessian laminated paper for duty exemption eligibility.
Analysis:
1. The appeal involved the interpretation of Central Excise Notification No. 46/71 concerning duty exemption for corrugated boards. The dispute arose regarding the duty leviable on 5 ply corrugated boards manufactured by the appellants, claiming exemption under the said notification. The department contended that the boards did not qualify for the exemption and were chargeable at 40% ad valorem under a different notification. The Collector of Central Excise confirmed the duty demand and imposed a penalty, which was later modified by the Board to 5% ad valorem. The key issue was whether the boards fell within the ambit of the duty exemption notification.
2. The classification of the corrugated boards manufactured by the appellants, specifically those with a fifth ply of hessian laminated with kraft paper using bitumen, was a crucial aspect of the case. The appellants argued that hessian laminated bitumenized paper should be considered as bitumenized paper, thus eligible for duty exemption under the relevant notification. They relied on Indian Standard Institution specifications and trade notices to support their claim. On the other hand, the departmental representative contested this classification, emphasizing the distinction between bitumenized water proof paper and bitumenized hessian laminated paper.
3. The comparison between bitumenized water proof paper and bitumenized hessian laminated paper was central to determining the eligibility for duty exemption. The appellants argued that the presence of hessian did not disqualify the product from being considered bitumenized paper, citing precedents and industry standards. The Tribunal referred to a similar case involving wax-coated paper to support the view that the presence of additional materials does not necessarily alter the classification. Ultimately, the Tribunal ruled in favor of the appellants, holding that the presence of hessian did not exclude the product from being termed bitumenized paper, thus entitling it to duty exemption under the notification.
This detailed analysis of the judgment highlights the key legal issues, arguments presented by both parties, and the Tribunal's reasoning leading to the decision in favor of the appellants.
-
1985 (9) TMI 240
Issues Involved:
1. Non-grant of registered quota for canalised items.
2. Violation of Import-Export Policy provisions.
3. Failure to supply registered demand within stipulated time.
4. Requirement for a "No Objection Certificate" for direct imports.
5. Entitlement to import license for balance registered demand.
6. Refund of earnest money.
Issue-wise Detailed Analysis:
1. Non-grant of registered quota for canalised items:
The Petitioners, M/s. Umrao Industries, challenged the Respondents' action of not granting the registered quota of two canalised items, M.S. Steel Sheets (Defective) and tin plate waste/waste, as per the Import-Export Policy for April 1984 to March 1985. The Petitioners had previously imported these items directly before they were canalised. Upon canalisation, they were required to import through the Steel Authority of India (SAIL), the designated canalising agency.
2. Violation of Import-Export Policy provisions:
The Petitioners submitted applications for importing the items along with the prescribed earnest money. They specified their yearly requirement and other details. However, SAIL offered only 106 M.T. of tin plate waste/waste instead of the required 800 M.T. and provided inferior quality material. This offer did not adhere to the specifications and violated Clause 69 of the Import-Export Policy, which limits financial cover to the sale value for three months at a time.
3. Failure to supply registered demand within stipulated time:
As per para 155(1) of the Import-Export Policy, the canalising agency must indicate the supply arrangement within 60 days of registration. SAIL's demand for opening a Letter of Credit (L/C) for the full sale value for the balance goods was contrary to para 69, indicating their refusal or inability to perform their duty. The Petitioners were justified in approaching the Chief Controller of Imports & Exports (CCI&E) for relief.
4. Requirement for a "No Objection Certificate" for direct imports:
The Petitioners requested a "No Objection Certificate" from SAIL, as per para 155 of the policy, due to SAIL's failure to supply the registered demand. Despite repeated requests, SAIL did not issue the certificate, further complicating the Petitioners' situation.
5. Entitlement to import license for balance registered demand:
The court held that the Petitioners were entitled to an import license for the balance quantity of tin plate waste/waste and M.S. Steel Sheets (Defective) due to SAIL's failure to supply within the stipulated time. The CCI&E was directed to issue the necessary import licenses.
6. Refund of earnest money:
The court directed SAIL to refund the earnest money of Rs. 50,000/- to the Petitioners within a month. Additionally, the Petitioners were awarded costs of Rs. 2,000/-, payable by SAIL.
Conclusion:
The court issued a mandamus to Respondents No. 2 and 3 (CCI&E and Monitoring Committee) to issue the necessary import licenses for the balance quantities of the canalised items. SAIL was directed to refund the earnest money and pay the costs assessed. The judgment emphasized the importance of adhering to the Import-Export Policy provisions and the rights of actual users to seek relief in case of non-compliance by the canalising agency.
-
1985 (9) TMI 237
Issues: Time limit for duty demand under Rule 173PP(10) of Central Excise Rules.
In this judgment by the Appellate Tribunal CEGAT, the issue revolved around the time limit for duty demand under Rule 173PP(10) of the Central Excise Rules. The Collector (Appeals) had held that duty demanded for the period prior to 1-7-1977 was not sustainable due to the time limit, but supported the demand for the period after 1-7-1977. The rule required duty assessment at the close of the accounting year followed by the assessee, with a provision for debit or credit entries based on the return submitted by the assessee. The accounting year for the assessee was July to June. The judgment highlighted that the show cause notice issued on 27-3-1979 was time-barred as it exceeded the six-month time limit from the close of the financial year. The Collector's interpretation of the time limit as one year was deemed incorrect, rendering the demand invalid and of no effect. Both the appellant and the department's counsels focused on the time bar issue during the hearing, which ultimately led to the demand being declared void, relieving the appellants from meeting it.
The judgment emphasized the importance of adhering to statutory time limits for duty demands under the Central Excise Rules. It clarified the specific provisions of Rule 173PP(10) regarding duty assessment and the time frame for issuing demands based on the accounting year followed by the assessee. The Tribunal scrutinized the show cause notice date and the applicable time limit, ultimately concluding that the demand was time-barred and, therefore, invalid. The judgment underscored the significance of precise interpretation and application of statutory provisions to ensure the legality and enforceability of duty demands. It also highlighted the duty of authorities to accurately assess and impose duties within the stipulated time frames to maintain procedural fairness and compliance with the law. The decision provided a clear illustration of how procedural irregularities, such as exceeding prescribed time limits, can render demands void and unenforceable, safeguarding the rights of the appellants in this case.
-
1985 (9) TMI 236
Issues:
1. Valuation of imported goods based on newspaper rates and deduced landed cost.
2. Application of Customs Act, 1962, specifically Section 14(a) and 14(b) in determining assessable value.
3. Timeliness and verification of appeals filed by the respondents.
4. Burden of proof and shifting of onus in customs valuation disputes.
Issue 1: Valuation of imported goods based on newspaper rates and deduced landed cost:
The case involved importers of Apricot Dry/Pista Kernel/Figs Dry challenging the assessment of customs duty based on rates deduced from newspapers by the Assistant Collector. The respondents argued that the deduced landed cost did not accurately reflect wholesale rates and contested the application of Section 14(l)(b) of the Customs Act, 1962. The Collector of Customs (Appeals) found insufficient evidence of manipulation of invoices and lack of comparability between goods in newspapers and those under assessment. The Tribunal noted that the reliance on deduced landed cost was outdated post the introduction of Section 14 and emphasized the need for establishing the international trade nexus for valuation based on newspaper rates.
Issue 2: Application of Customs Act, 1962, specifically Section 14(a) and 14(b) in determining assessable value:
The Tribunal analyzed the provisions of Section 14(a) and 14(b) of the Customs Act, 1962, governing the valuation of imported goods. It highlighted that Section 14(a) mandates the value to be based on prices in international trade, with the absence of a business interest between buyer and seller. Section 14(b) is invoked when the price is unascertainable under Section 14(a. The Tribunal stressed that Section 14(b) can only be applied when there is a specific finding that Section 14(a) cannot determine the value. It emphasized the need for contemporaneous imports and the irrelevance of deduced landed cost post the introduction of Section 14.
Issue 3: Timeliness and verification of appeals filed by the respondents:
The respondents raised objections regarding the timeliness and verification of appeals filed by the department. The Tribunal found the appeals to be filed within the stipulated time frame, rejecting objections based on verification irregularities. It differentiated the present case from precedents concerning mandatory verification requirements, asserting that the absence of proper verification was a curable irregularity and did not warrant rejection of the appeals.
Issue 4: Burden of proof and shifting of onus in customs valuation disputes:
The Tribunal addressed the burden of proof and the shifting onus in customs valuation disputes. It noted the department's reliance on the substantial difference in values but emphasized the necessity of outlining such grounds in the show cause notice. The Tribunal upheld the Collector of Customs (Appeals) findings, highlighting the importance of establishing the department's lack of alternatives before resorting to Section 14(b) valuation methods.
In conclusion, the Tribunal dismissed all appeals and cross-objections, affirming the Collector of Customs (Appeals) decision based on the lack of merit in challenging the valuation of imported goods and the application of relevant provisions of the Customs Act, 1962.
-
1985 (9) TMI 229
Issues Involved:
1. Condonation of delay in filing appeals.
2. Correct classification of polyvinyl alcohol (PVA) under the Central Excise Tariff.
3. Interpretation of the term "polyvinyl derivative" under Item 15A(1)(ii).
4. Applicability of previous Tribunal decisions.
5. Request for a larger bench to reconsider the matter.
Issue-Wise Detailed Analysis:
1. Condonation of Delay in Filing Appeals:
The appeal in respect of six appeal Nos. CD/SB/1670/86-C to 1675/86-C were filed beyond the prescribed time limit. After hearing both parties on the request for condonation of delay made by the appellant's counsel, the Bench condoned the delay and proceeded with the hearing of the appeals.
2. Correct Classification of Polyvinyl Alcohol (PVA) Under the Central Excise Tariff:
The appellants argued that PVA should be classified under Sub-item 2 as "Articles of Plastic" rather than under item 15A(1)(ii) of the central excise tariff. They contended that PVA, being produced by alcoholysis or hydrolysis of polyvinyl acetate, is not a derivative of polyvinyl but a modification, and thus should not be classified under 15A(1)(ii). The learned counsel cited various chemical dictionaries and books to support this argument, emphasizing that the processes involved in creating PVA are not polymerization or co-polymerization.
3. Interpretation of the Term "Polyvinyl Derivative" Under Item 15A(1)(ii):
The Tribunal examined the definitions and descriptions from several authoritative sources, including the CONDENSED CHEMICAL DICTIONARY and PLASTICS MATERIALS by J.A. Brydson. It was established that PVA, despite being a product of modification, retains the fundamental structure of polyvinyl acetate and thus qualifies as a derivative. The Tribunal noted that modification in chemical terms involves replacing some radicals of a high polymer with other chemical entities, resulting in significant changes in properties without destroying the polymer's structural identity. Therefore, PVA, being derived from polyvinyl acetate, fits within the scope of "polyvinyl derivatives" under Item 15A(1)(ii).
4. Applicability of Previous Tribunal Decisions:
The learned counsel for the appellants referenced previous Tribunal decisions (Order Nos. 57 to 60/1984 and 83/84-C) but sought to distinguish them, arguing that the current case required reconsideration. However, the learned SDR read these orders and argued that the appeals deserved to be rejected based on the established precedent.
5. Request for a Larger Bench to Reconsider the Matter:
The appellants requested that a larger bench hear the matter, suggesting that the Tribunal's previous decisions needed re-evaluation. However, the Tribunal found this request premature, as the bench had not yet concluded its decision on the classification of PVA. The request for a larger bench was thus rejected.
Conclusion:
The Tribunal concluded that polyvinyl alcohol is a derivative of polyvinyl acetate and is correctly assessable under Item 15A(1)(ii) of the Central Excise Tariff. The arguments that PVA, being a modification product, should not be classified as a polyvinyl derivative were not convincing. Consequently, the appeals were dismissed, and the request for a larger bench was denied.
-
1985 (9) TMI 226
Issues Involved:
1. Confiscation of 55,600 Y.K.K. zip fasteners of Japanese origin.
2. Imposition of fines and penalties on respondents.
3. Validity of the purchase invoice produced by the respondents.
4. Voluntariness and credibility of the statements made by the respondents.
5. Board's consideration of evidence and circumstances.
6. Option to redeem confiscated goods.
7. Penalties imposed on individual respondents.
Detailed Analysis:
Issue 1: Confiscation of 55,600 Y.K.K. zip fasteners of Japanese origin
The Additional Collector of Central Excise and Customs, Madurai, confiscated 55,600 Y.K.K. zip fasteners of Japanese origin under Sec. 111(d) of the Customs Act, 1962, read with Sec. 3(2) of the Import and Export (Control) Act, 1947. The Central Board of Excise and Customs reversed this order, but the Government of India initiated suo moto proceedings in revision.
Issue 2: Imposition of fines and penalties on respondents
The Additional Collector imposed a fine of Rs. 10,000/- in lieu of confiscation of car MDO 5022 under Sec. 125, and penalties of Rs. 10,000/- each on respondents Mittalal and Parasmal, Rs. 5,000/- on respondent Ramdoss Alias Kannan, and Rs. 1,000/- on Ganesa Thevar under Sec. 112 of the Act. The Board's reversal was challenged, and the Tribunal ultimately upheld the penalties with some modifications.
Issue 3: Validity of the purchase invoice produced by the respondents
The respondents claimed they purchased the zip fasteners from M/s. Shankerjee Moolchand at Madras under invoice No. 851, dated 9-11-1979. However, the invoice was produced only on 19-12-1979, 36 days after the seizure. The Tribunal found this delay unexplained and questioned the invoice's authenticity, stating that the Board failed to consider this critical delay.
Issue 4: Voluntariness and credibility of the statements made by the respondents
The respondents argued that their inculpatory statements were made under coercion and were not voluntary. However, the Tribunal found the statements to be true and voluntary, noting that retractions were made belatedly and without convincing reasons. The Tribunal also noted that the language similarity in the statements was due to oversight by a common officer, which did not undermine their credibility.
Issue 5: Board's consideration of evidence and circumstances
The Tribunal criticized the Board for not considering the non-production of the invoice for 36 days and for not appreciating the incriminating statements and other evidence against the respondents. The Tribunal found that the Board's order was cryptic and lacked reasoning.
Issue 6: Option to redeem confiscated goods
The Tribunal decided that the interests of justice would be met by allowing the respondents to redeem the confiscated goods on payment of a fine. Specifically, it directed that 3,76,000 zips be permitted to be redeemed on payment of a fine of Rs. 15,000/- under Sec. 125 of the Act.
Issue 7: Penalties imposed on individual respondents
- Parasmal: The Tribunal set aside the penalty on Parasmal, giving him the benefit of the doubt as he was away from Madurai when the goods were received.
- Mittalal: The penalty on Mittalal was reduced to Rs. 1,500/- considering that Ganesa Thevar, the landing agent, was let off with a nominal penalty.
- Ramdoss Alias Kannan and Ganesa Thevar: The penalties imposed on them were upheld.
- Rajaram: Since there was no appeal from Rajaram, the penalty of Rs. 1,000/- imposed by the Additional Collector stood.
The Tribunal concluded by setting aside the Board's order, upholding the Additional Collector's order regarding the confiscation of the goods, and making specific modifications to the penalties and redemption options.
-
1985 (9) TMI 225
Issues:
1. Violation of principles of natural justice by the Collector in levying duty without giving an opportunity for explanation.
2. Whether the demand for duty is barred by limitation under Section 11A of the Central Excises & Salt Act, 1944.
3. Applicability of Section 11A over Rule 160 in determining duty recovery and time limits.
Analysis:
1. The appeal was filed against the Collector's order levying duty on excess kerosene oil beyond the permissible loss during storage. The appellants argued that the duty was imposed without providing an opportunity to explain the loss, violating natural justice principles. They contended that the demand for duty should be set aside due to lack of explanation opportunity and request for condonation of the loss.
2. The Departmental representative acknowledged the absence of a show cause notice to the appellants but argued that it was unnecessary as the RT-12 return submitted voluntarily indicated a storage loss exceeding 0.5%. The representative claimed that Section 11A did not apply to warehoused goods and defended the Collector's order based on Rule 140 and Rule 160, stating that it was not a penal action warranting natural justice principles.
3. In response, the appellants referenced a previous Tribunal case to support their argument that the demand under Rule 160 was subject to time limits prescribed under Rule 10 read with Rule 173J. The Tribunal analyzed the conflict between Section 11A and Rule 160, emphasizing that Section 11A's provisions on recovery of duty within a specific timeframe override the Rules. The Tribunal ruled in favor of the appellants, setting aside the Collector's order as not in accordance with the law and allowing the appeal with consequential relief to the appellants, M/s. Hindustan Petroleum Corporation Ltd.
-
1985 (9) TMI 219
Issues: Delay in filing appeal, Excusing the delay
In this case, the appeal by the Union of India and the Deputy Director, Enforcement Directorate, was filed against the order of the Foreign Exchange Regulation Appellate Board, setting aside the confiscation of 2200 U.S. Dollars from the respondent and imposing penalties for contravention of the Foreign Exchange Regulation Act, 1973. The appeal was filed with a delay of 77 days, leading to the filing of an application, hotly contested, to excuse the delay. The delay was explained through a series of events starting from the decision to file the appeal on 15th November, 1984, to the actual filing on 22nd January, 1985. The delay was attributed to procedural delays within the government machinery, involving communication between different offices and officials. The Assistant Legal Adviser's discussion with the Counsel and the subsequent clarification sought from the Delhi office were highlighted as reasons for the delay. The Assistant Legal Adviser's proposal not to lodge the appeal was overruled by the Special Director, directing the filing of the appeal, leading to the eventual lodging of the appeal on 21st February, 1985.
The court considered the nature of governmental functioning, emphasizing that governmental decisions are collective and institutional, distinct from individual decisions. The court acknowledged the procedural delays inherent in government processes and the need for some latitude in assessing what constitutes "sufficient cause" for delay. It was noted that while the law of limitation applies equally to private citizens and governmental authorities, the circumstances peculiar to the functioning of the government must be taken into account. The court cited the need for a liberal construction of "sufficient cause" to advance substantial justice in cases where no negligence or inaction is imputable to the appellant. The court recognized the challenges faced by governmental authorities in decision-making due to procedural red tape and emphasized the necessity of allowing some leeway within reasonable limits. The court ultimately allowed the application to excuse the delay and condoned the delay, enabling the appellant to proceed with the appeal on the merits.
-
1985 (9) TMI 218
Issues:
1. Interpretation of Customs Act regarding valuation of imported goods.
2. Application of Import (Control) Order, 1955 and related laws on import of parrots.
3. Compliance with the Convention on International Trade in Endangered Species of Wild Fauna and Flora.
4. Determination of whether parrots were imported as pets or for commercial purposes.
5. Validity of absolute confiscation of parrots by the Additional Collector of Customs.
Analysis:
1. The case involved a Revision Petition transferred to the Appellate Tribunal concerning the valuation and clearance of 15 parrots imported as unaccompanied baggage. The dispute arose when the appellant contested the assessed value of the parrots and the subsequent confiscation order issued by the Assistant Collector of Customs, Delhi.
2. The Tribunal considered the application of the Import (Control) Order, 1955 and related laws governing imports, particularly focusing on the prohibition and restrictions imposed on the import of certain goods. The appellant argued against the confiscation, stating that the parrots were not covered under the Convention on International Trade in Endangered Species and were permissible under Baggage Rules.
3. The Tribunal analyzed the compliance with the Convention on International Trade in Endangered Species of Wild Fauna and Flora, emphasizing the expert opinion obtained regarding the species of the imported parrots. The Additional Collector modified the order to absolute confiscation based on the violation of import restrictions under the relevant laws.
4. The issue of whether the parrots were imported as pets or for commercial purposes was pivotal in the case. The appellant's claim that the parrots were brought for breeding and local sale was countered by the Tribunal's observation that the import was unauthorized and required an import license, which the appellant did not possess.
5. Ultimately, the Tribunal upheld the absolute confiscation of the parrots by the Additional Collector of Customs, Delhi, based on the findings related to the import prohibition, lack of necessary licenses, and the commercial intent behind the import. The appeal was rejected, affirming the validity of the confiscation order.
-
1985 (9) TMI 217
Issues Involved:
1. Starting point for limitation: Date of payment of duty vs. Date of assessment of the RT 12 return.
2. Reference date for computation of the period of limitation under Rule 11.
Detailed Analysis:
1. Starting Point for Limitation:
The primary issue in the case was determining the starting point for the limitation period for claiming a refund of duty. There was a difference of opinion between the two members of the West Regional Bench, Bombay. One member, Shri Venkatesan, opined that the limitation period began from the date of payment of duty, whether in cash or by debit in the Personal Ledger Account (P.L.A.), and not from the date of assessment by the proper officer on the RT 12 return. Conversely, Shri Hegde believed that the reference date for the computation of the period of limitation prescribed in Rule 11 should be the date of adjustment that the assessee makes in the P.L.A. on receipt of a copy of the RT 12 return from the proper officer.
2. Reference Date for Computation of the Period of Limitation Under Rule 11:
Shri Kampani, representing the appellant, supported Shri Hegde's view and relied on the observations of the Patna High Court in Rohtas Industries Ltd. v. Superintendent of Central Excise (AIR 1973 Patna 446). He argued that the duty payment made by the assessee at the time of removal of the goods became final only when the RT 12 return was filed and assessed by the proper officer. The payment of duty by debit in the P.L.A. at the time of removal of the goods was merely a debit entry and not a final payment of duty. He cited various decisions, including 1985 ECR 636, 1977 E.L.T. 127, and 1982 E.L.T. 478, to support his argument. However, he did not go so far as to say that the reference date for limitation purposes should be the date of adjustment in the P.L.A. as a consequence of the assessment by the proper officer but rather the date of assessment by the proper officer.
Shri Iyer, representing the respondent, contended that Rule 11 did not reference the assessment process but rather the fact of payment of duty by debit in the P.L.A. He argued that under the Self Removal Procedure (S.R.P.), the payment of duty followed the self-determination of duty due by the assessee based on approved classification and price lists, and this payment constituted the reference date for the computation of the period of limitation.
The Tribunal member, after considering the matter, concluded that the term "adjustment" in Rule 11 referred to adjustments in the account-current maintained with the Collector under Rule 9. Under the Physical Control procedure, the payment of duty followed the assessment process, but under the S.R.P., the payment of duty by debit in the P.L.A. followed the self-determination of the duty due by the assessee. The Tribunal member opined that the date of payment of duty by book-debit on self-determination of the duty liability by the assessee should be the reference date for the computation of the period of limitation under Rule 11. If, upon assessment of the RT 12 return by the proper officer, the assessee was required to pay an additional sum, the date of payment of such additional duty by debit in the P.L.A. would constitute a second reference date for the computation of limitation, but strictly limited to the additional sum paid.
Judgment:
The Tribunal, in view of the majority opinion, dismissed Appeal No. 1/85 filed by the appellant. The Appeal No. 6/85 filed by the Collector of Central Excise, Thane, was allowed in part. The refund claim for the period of one year prior to 5-4-1977, i.e., from 6-4-1976 to 5-4-1977, was considered as not being barred by limitation.
........
|
9911796707
