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kosom ammar
CIO 1989 Guj 5
[Date of Order: 1989-10-06]
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STO 1989 Kar 1
[Date of Order: 1989-07-28]

Central Excise: Writ to prevent unnecessary harassment in appropriate cases: It is impossible to arrive at any definite and precise number of bottles produced and not shown in RG I Register, clearance bottles shown in RG I Register but cleared without payment of duty, excess production detected from production slips seized and not taken into account. Having regard to huge quantities of bottles of various sizes produced every day and stocked at various places all over the factory premises before sorting out the sound bottles meant for clearance, it is impossible to conclude that all the bottles which are found in the factory premises on physical stock verification that all the bottles had reached the stage of packing and delivery. The bottles after the production stage include seconds, rejects and defective bottles besides the usual breakages while handling. It is, therefore, well nigh impossible for the Department to count all the bottles in the premises and take a total figure of 30,29,745 bottles for adopting the same as unaccounted or excess production cleared without payment of duty. Therefore, this Court should interfere at the stage of show cause notice for more than one reason and the same is liable to be struck down. As regards the basis for arriving at the revised assessable value on the assumption of some discrepancies in the size of the bottles, there are no supporting documents for making the said additions. So far as realisation by way of interest is concerned, such a levy of interest on the consumers for the delayed payments is customary in the commercial field to charge interest for delayed payment and such recovery is only a collection of post sale interest, and that, therefore, it does not form part of the assessable value. Thus this is a fit-case to interfere at the stage of show cause notice. The petitioners have succeeded in making out a case that they should not be exposed to unnecessary harassment, and on the admitted facts, the proposed adjudication would be without jurisdiction. (Para 31,32,33,42).

Writ petition allowed.

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STO 1989 Bom 10
[Date of Order: 1989-06-06]

Customs: Transfer of R.E.P. import licence: Scope: The dates on which the bills of entry were filed are prior to the date on which the said licence was suspended. This indicates a bona fide transfer. This was a freely transferable licence and the conclusion of fraud cannot be easily drawn. Fraud would have to be established. And, even if established, the principle that would apply is laid down in the judgment of the S. C. in M/s. East India Commercial Co. Ltd. v. Collector of Customs, Calcutta -STO 1962 SC 2, namely, that a licence obtained by fraud is voidable and is good till avoided. Therefore, goods imported prior to its avoidance are validly imported. The petition, therefore, succeeds.(Para 5,6).

Petition allowed.

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CEO 1989 Guj 16
[Date of Order: 1989-05-02]
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STO 1989 Ker 24
[Date of Order: 1989-02-28]

Central Excise: Condition to make pre-deposit under Section 35F: Financial position of the appellant is an important and relevant factor in the consideration of undue hardship: It is evident, that the petitioner was not in a sound financial position and that deposit of the duty and penalty levied will place further stress and strain on their resources. In the light of the finding entered by the Tribunal about the financial position of the petitioner, it has to be held that the direction to pay rupees three lakhs as pre-deposit was not made in sound exercise of the judicial discretion vested in the Tribunal. The primary reason which weighed with the Tribunal in making this direction was the fact that this amount was more or less admitted to be due. In placing reliance on this factor as a relevant circumstance, the Tribunal has mis-directed itself in law. This factor is extraneous in the consideration of an application under the proviso to Sec. 35F, though very much relevant in dealing with a prayer for stay. The right to appeal though hedged in with a condition, is, nevertheless, a very valuable right and ought not to be denied unless no undue hardship will be caused to the appellant by insistence on the deposit of the duty and the penalty. In U.P. Laminations v. Union of India [1985 (20) E.L.T. 243] a Division Bench of the High Court of Allahabad relieved a small scale entrepreneur who had difficulty in granting liquid assets for furnishing bank guarantee, as directed by the Appellate Tribunal, of the obligations on the ground that it caused undue hardship to the appellant. In Goel v. Union of India [1988 (35) E.L.T. 449] another Bench of the same High Court granted the benefit of the proviso to a firm which was incurring losses repeatedly. In Uptron Powertronics v. Collector of Central Excise [CEO 1987 Del 16] the High Court of Delhi held that an enquiry into the financial difficulties of the appellant was necessary in deciding the question of undue hardship. In re: American Refrigeration Company Ltd. [1986 (23) E.L.T. 74], the High Court of Calcutta was dealing with an appellant who was incurring "huge" losses. The Court held that this was also a factor to be taken into consideration in dealing with an application for dispensing with prior deposit. The financial position of the appellant is thus an important and relevant factor in the consideration of undue hardship.(Para 9,10,11).

Petition allowed.

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STO 1989 Del 13
[Date of Order: 1989-02-22]

Import and Exports Control Act, 1947 and Export (Control) Order, 1988: Apparel Export Promotion Council (for short 'the AEPC'): Charging of premium by the government on quota fixation is illegal and not backed by any authority of law and it is violative of Article 19(1) of the Constitution: The premium charged/collected cannot be the price of any privilege which State can be said to have parted in favour of the exporters. The premium in the present case is not of voluntary nature but it is a compulsory extraction and is more in the nature of a tax which is not authorised. Element of quid pro quo is totally absent. There is no co-relation whatsoever between the fee charged by way of premium and the services rendered. The premium is not authorised by the Act and the Exports Order. It is not uniform. It depends upon the capacity of the person to pay and has to pay the maximum in order to be entitled to the quota. The charging of premium in the instant case cannot be supported on any principle. There is no co-relation whatsoever between the services and the levy which has no limit of excessiveness. It is not a fee in reality. The levy cannot also be justified on the ground as to how the amount collected would be utilised. It is difficult to see how a new exporter who pays premium under OTS would at all be benefited, even indirectly, by giving air freight subsidy to the exporters of other items to Latin American countries etc. The press note showing measures to be taken by the Government to boost the export of textiles after collecting premium under OTS is undated. It does not advance the case of the respondents. Charging of premium is not a fee and there is no authority of law to support such a charge. It clearly infringes fundamental right of the petitioners guaranteed under Article 19(l)(g) of the Constitution and has to be struck down.(Para 18, 21).

Writ petition allowed.

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STO 1989 Ori 22
[Date of Order: 1989-01-23]

Central Excise: Constitutional validity of levy of duty on Electricity: Controversy was raised before the Supreme Court in a decision reported in The Commissioner of Sales-tax, Madhya Pradesh, Indore v. Madhya Pradesh Electricity Board, Jabalpur (A.I.R. 1970 S.C. 732). While considering whether sales-tax can be levied under the Madhya Pradesh General Sales tax Act, on electricity, the Supreme Court upheld such levy by observing as follows:- Whether electric energy is 'goods' within the meaning of the relevant provisions of the two Acts. The definition in terms is very wide according to which 'goods' means all kind of movable property. Then certain items are specifically excluded or included and electric energy or electricity is not one of them. The term, 'movable property' when considered with reference to 'goods' as defined for the purposes of sales-tax cannot be taken in a narrow sense and merely because electric energy is not tangible or cannot be moved or touched like, for instance, a piece of wood or a book it cannot cease to be movable property when it has all the attributes of such property. It is needless to repeat that it is capable of abstraction, consumption, and use. It can be transmitted transferred, delivered, stored, possessed etc. in the same way as any other movable property....." The aforesaid passage would have a strong bearing to the present case in view of the fact that power to Legislate for levy of tax on sale or purchase of goods is provided in Entry 54 in List II of the Seventh Schedule to the Constitution and power to Legislate for levy of tax on manufacture and production of goods is authorised under Entry 1984 in List 1 of the seventh schedule and 'goods' has been defined in the Constitution where in both the Entries levy of tax on goods is dealt with 'goods' having an inclusive definition in the Constitution is to be given a wide meaning. Electricity has a value, which has utility and the same is transferable also.(Para 7).

Writ application dismissed.

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STO 1988 Bom 19
[Date of Order: 1988-04-15]

Refund: Classification of PVC as cotton fabrics: Petitioners paid excise duty under a mistake of law. They discovered their mistake in 1985 after the Supreme Court judgment in the case of Union of India v. Ahmedabad Manufacturing and Calico Printing Co. Ltd. Immediately thereafter they have applied for revised classification and refund. The petitioners are therefore entitled to claim refund of excise duty so paid under a mistake of law.

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CIO 1988 Bom 10
[Date of Order: 1988-04-13]
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STO 1988 Guj 8
[Date of Order: 1988-03-04]

Appeal: Dismissal: Review: Restoration: Appeal dismissed for non-deposit of penalty amount. Whether restoration of such an appeal would amount to reviewing the earlier order. Such an order of dismissal can hardly be regarded as a final order under Sec. 129B(4) of the Customs Act, 1962: Restoration of appeal ordered.

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STO 1988 Bom 6
[Date of Order: 1988-01-13]

Appeal: Condonation of Delay: Relevant date: Under Section 128 of the Customs Act, the period of limitation will commence against the party who has suffered the order only from the date of receipt of the order. It is not disputed before me that from the date of receipt of the order, the appeal filed by the petitioner would be in time.

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CEO 1987 Cal 1
[Date of Order: 1987-12-24]
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CEO 1987 All 26
[Date of Order: 1987-12-10]
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CEO 1987 All 27
[Date of Order: 1987-10-29]
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CEO 1987 Bom 24
[Date of Order: 1987-10-13]
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STO 1987 Del 5
[Date of Order: 1987-08-28]

Review: Section 82: In exercise of jurisdiction under Section 82 of the Act, the Central Government can call for, and examine the record of any proceeding in which an adjudicating authority subordinate to it has passed any order or decision under the Act for the purpose of satisfying itself as to the legality or propriety of any such decision or order. This power has to be exercised essentially on the basis of the record of proceedings before the subordinate authority. The legality or propriety of any decision or order of the subordinate authority must be tested on the basis of the material placed before that authority. No fault can be found with it on the basis of material which could be, but was not, obtained at the proper stage of investigation or on material obtained later. The revisional authority can call for and examine the record only for the purpose of satisfying itself as to the legality or propriety of any decision or order of an adjudicatory nature but it cannot restart investigation on the basis of material obtained later. There has to be finality of investigation and also finality of adjudicatory proceedings.

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CIO 1987 Bom 11
[Date of Order: 1987-06-11]
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STO 1987 All 2
[Date of Order: 1987-03-25]

Confiscation: Service of Notice: language of Section 79 or the scheme of the Act does not justify the conclusion that if the notice is not served within six months the proceedings for confiscation ipso facto or automatically lapse.

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CEO 1987 Cal 26
[Date of Order: 1987-03-13]
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HC-EX-34
[Date of Order: 1987-03-09]
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