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kosom ammar
CIO 1974 SC 1
[Date of Order: 1974-04-03]
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STO 1973 Mad 1
[Date of Order: 1973-08-22]

Customs : Sections 110(2) and 124 of the Customs Act : SCN was not served within six months from the date of seizure : Service of notice by registered post : A notice had been sent by registered post duly addressed to the Appellant. The section requires that notice shall be served by sending it by registered post to the person for whom it is intended. The section does not require that effective service should be effected by the appellant receiv¬ing it. This position is made clear by reference to section 27 of the General Clauses Act which states that where any Central Act requires any document to 'be served by post, then, unless a different intention appeals, the service shall be deemed to be effected by properly addressing pre-paying and posting by regis¬tered post, a letter containing the document, and unless the con¬trary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post. The normal presumption, unless the contrary is proved, is that the service shall be deemed to have been properly effected when a letter is properly addressed, pre-paid and posted by registered post. That the notice was sent to proper address, pre-paid and posted by registered post is not under dispute. No other attempt has been made to prove the contrary. The endorsement 'left' is not sufficient to prove the contrary. We find no difficulty in coming to the conclusion that there has been proper service of notice. The Writ Petition was rightly dismissed. This appeal fails and it is dismissed.(Para3).

 

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STO 1972 SC 1
[Date of Order: 1972-12-01]

Central Excise : Valuation of goods : Wholesale price : The 'wholesale cash price' has to be ascertained only on the basis of transactions at arms length. If there is a special or favoured buyers to whom a specially low price is charged because of extra commercial considerations, e. g. because he is relative of the manufacturer, the price charged for those salts would not be the 'wholesale cash price' for levying excise under Section 4 (a) of the Act. The fact that the appellant sold 90 to 95 of the articles manufactured to consumer direct would not make the price of the wholesale sales of the rest of the articles and the less the 'wholesale cash price' for the purpose of s. 4 (a) even if these sales were made pursuant to agreement stipulating for certain commercial advantages, provided the agreements were entered into at arms length and in the ordinary course of business. (Para 18). It is not necessary for attracting the operation of s. 4 (a) that there should be a large number of wholesale sales. The quantum of goods sold by a manufacturer on wholesale basis is entirely irrelevant. There are facts that such sales may be few or scanty does not alter the true position.(Para 20). The argument before the High Court proceeded on the basis of direct sales by the respondent to consumers constituted the major portion of the sales and that the sales to the wholesale dealers only represented a minor portion and, therefore, the price charged for the sale to wholesale dealers would not represent the 'wholesale cash price' of the articles sold. No data was placed before the High Court by the appellant to show that the 22 per cent discount did not represent 'trade discount' is a percentage deduction from the regular list or catalogue price of goods. As there was no case for the appellants that there was any secret arrangements between the wholesale dealers and the respondent in respect of the sales to them or that the price of the articles was understated in the agreements or that any extra-commercial advantages to the dealers were taken into account in fixing the price we do not think that we should go into the question whether the discount allowed to the wholesale dealers was 'trade discount' or not for the purpose of the explanation. The High Court was right in its conclusion. We dismiss the appeal(Para 21).

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CEO 1972 Guj 1
[Date of Order: 1972-09-13]

Tariff Item 17 of Schedule I of the Central Excises and Salt Act, 1944.

(a) If it is found that what the manufacturer is doing is making articles out of paper as distinguished from making any kind of paper then it is obvious that since he is not bringing into existence a new kind of paper, the manufacturer would be totally exempted from duty. (b) Mere application of gum on one side of paper does not convert that paper into a new commodity known to the market. (c) Mere printing of design and monograms and other descriptions of goods regarding the quantity of the name of manufacturers does not convert packing or wrapping paper into any other kind of paper, it still continues to be printing or wrapping paper on which something has been printed. (d) Trade Notices. - Even if a trade notice amounts not more than executive instructions, it would be binding on the department and department would be estopped from contending that what was mentioned in the trade notice should not be adhered to. A.l.R. 1968 S.C. 718 relied upon.

 

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STO 1972 SC 2
[Date of Order: 1972-08-09]

Central Excise : Valuation : Determination of wholesale price : Final and provisional assessment : The determination as to whether a wholesale market exists at the site of the factory or the premises of manufacture or production etc. or which is the nearest wholesale market, or the price at which the goods or goods of like kind and quality are capable of being sold must necessarily be complicated question and must be determined carefully upon evidence and not arbitrarily. Such determination cannot wholly be made ex parte, that is to say, behind the back of the assessee. A satisfactory determination can only be made by giving all information to the assessee and after giving the assessee an opportunity of establishing his own point of view, or checking and or challenging any material or evidence upon which the Excise Authorities wish to depend.(Para 4). If no quasi-judicial proceeding, which could be described as an "assessment" either under R. 52 or "provisional assessment" under R. 10-B (now Rule 9-B) takes place at the proper time and in accordance with the rules, is the Collector debarred completely afterwards from assessing or completing assessment of duty payable? That seems to us to be the real question to be decided here.(Para 17).

Assessment : It is unable to accept the view that merely because the "account current", kept under the third proviso (erroneously mentioned as second proviso by the Division Bench) to Rule 9, indicated that an accounting had taken place, there was necessarily a legally valid or complete levy. The making of debit entries was only a mode of collection of the tax. Even if payment or actual collection of tax could be spoken of as a de facto ''levy" it was only provisional and not final. Moreover, it is the process of assessment that really determines whether the levy is short or complete. It is not a factual or presumed levy which could, in a disputed case, prove an "assessment". This has to be done by proof of the actual steps taken which constitute "assessment''. (Para 21). If the cause does not clearly come within the classes specified in Rule 10, this rule should not be invoked because, as was rightly contended for the appellant, a too wide construction put on Rule 10 would make Rule 10A useless. The two rules have to be read together.(Para 29). It is true that Rule 10-A seems to deal only with collection and not with the ascertainment of any deficiency in duty or its cause by a quasi-judicial procedure. If, however, it is read in conjunction with Section 4 of the Act, a quasi-judicial proceeding in the circumstances of such a case; could take place under an implied power. It is well established rule of construction that a power to do something essential for the proper and effectual performance of the work which the statute has in contemplation may be implied.(Para 30). We think that from the provisions of Section 4 of the Act read with Rule 10A an implied power to carry out or complete an assessment, not specifically provided for by the rules can be inferred.(Para 31). We allow this appeal and set aside the orders of the Calcutta High Court.(Para 32).

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CIO 1972 SC 1
[Date of Order: 1972-02-07]
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CIO 1972 P&H 2
[Date of Order: 1972-01-04]
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CEO 1971 SC 3
[Date of Order: 1971-01-28]
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CEO 1971 SC 4
[Date of Order: 1971-01-22]
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STO 1971 SC 1
[Date of Order: 1971-01-13]

Customs : Smuggling of the ruby stone : Penalty : Appeal and pre-deposit : Section 129 does not expressly provide for the rejection of the appeal for non-compliance with the requirement regarding the deposit of penalty or duty; but when sub-Section (1) of Section 129 makes it obligatory on an appellant to deposit the duty or penalty pending the appeal and if a party does not comply either with the main sub-Section or with any order that may be passed under the proviso the appellate authority is fully competent to reject the appeal of non-compliance with the provisions of Section 129(1).(Para 18). Therefore, rejection of the appeal by the first respondent was legal and the order of the High Court dismissing the writ petition is valid.(Para 19). The appeal fails and is dismissed with costs.(Para 20).

 

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STO 1970 Ker 1
[Date of Order: 1970-10-07]

Customs : Service of show cause notice : Whether relevant date is the date of issue of the notice or the date of receipt of the notice of the person concerned : Section 124 (a) deals with issue of show cause notice before confiscation of the goods etc.; and that section also states that the owner of the goods or the person on whom the penalty is proposed to be imposed shall be given notice in writing. That by itself does not give any indication whether the relevant date is the date of issue of the notice or the date of receipt of the notice of the person concerned. Provision under Section 153 of the Act shows that a notice issued under the Act can be served by sending it by registered post to the person for whom it is intended or to his agent, and that if it cannot be served in that manner it can be served by affixing on the notice board of the Customs Office. It gives an indication that in giving notice under the Act receipt of the same by the person concerned is not relevant; but what is relevant is issuing of the notice in any one of the manners provided in that section. In this view of the matter, it follows that the show cause notice in this case has been given to the petitioner under Section 110 of the Act within the prescribed period of 6 months, as it has been admittedly sent by registered post within that time. (Para 2).

Whether the period fixed under Section 110 (2) of the Act can be extended even after the expiry of the said period : No question of extension of time can arise after the time has expired. When the time expires, the person from whose possession the goods were seized, gets the right for the return of the goods. The extension can only be before that right accrues: and if the time is extended, the right does not accrue. The Collector of Customs can extend the period of six months fixed in S. 110(2) of the Act only "on sufficient cause being shown". The cause has to be shown before him by the officer investigating the case and who wants the extension. In that matter, the accused does not come into the picture; and there is no question of hearing him. The Collector has to be satisfied on the facts placed before him that there is sufficient cause for extension. I, therefore, reject the contention that the extension of time allowed by the Collector in the instant case is bad. (Para 3). It is clear from the facts of this case that the time was extended due to some omission or negligence in the office of the Collector or Customs in despatching the notice which was signed by him on 12-1-1970. When it was brought to his notice it was only just and proper that he extended the time, so that the proceedings may not be defeated; and he has done so before the expiry of the period. Therefore the objection that the extension has been done without sufficient cause cannot be sustained.(Para 4). In the result, this Original Petition is dismissed.(Para 5).

 

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STO 1970 SC 2
[Date of Order: 1970-09-29]

The Chief Controller of Imports & Exports : Import licence : According to Condition (c) reproduced on the reverse of the import licence the licence-holder had to utilise the goods imported only for consumption in his own factory and its sale to or use by other parties was specifically prohibited. The licence-holder was further prohibited from pledging the imported goods in whole or in part except with a scheduled bank duly authorised to deal in foreign exchange and that also with prior permission of the Licensing Authority.(Para 1).

Special leave : Our attention has not been drawn to any provision of law which can be said to deprive the Deputy Chief Controller the lawfully authorised complainant in this case to seek special leave and prosecute this appeal. In any event Article 136 of the Constitution and the Supreme Court Rules are wide enough in their language to empower this Court to grant special leave to the Deputy Chief Controller in cases like the present and deal with the appeal on the merits. The preliminary objection must accordingly be repelled.(Para 7).

The words used in the licence have to be construed in the back-ground of the scheme of the Import Control Order, 1955 : What particular meaning should be attached to words and phrases in a given instrument is usually to be gathered from the context, the nature of the subject matter, the purpose of the intention of the author and the effect of giving to them one or the other permissible meaning on the object to be achieved. The context, in which a word conveying different shades of meanings is used," is of importance in determining the precise sense which fits in with the context as intended to be conveyed by the author. The words used in the licence have accordingly to be construed in the back-ground of the scheme of the Import Control Order, 1955, the entry No. 67 of Schedule I to this Order and the Import Trade Control Policy. The word "consumption" as used in Clause (c) in the licence seems to us to convey the idea of using up the goods by fixing them in the factory along with other components. This is clear from the fact that Entry No. 67(1) in Schedule I of the Import Control Order does not contain any single item denoting a complete printing press and from the fact that the various articles mentioned in this item seem as if to have been intended to constitute "raw material". This construction fits in with the scheme and policy of the Import Trade Control as we will presently show. The dictionary meaning of the three words in Clause (c) on which the respondent relies also seems, in our opinion to harmonise with this view. The word "consumption" as used in Clause (c) in the licence seems to us to convey the idea of using up the goods by fixing them in the factory along with other components. This is clear from the fact that Entry No. 67(1) in Schedule I of the Import Control Order does not contain any single item denoting a complete printing press and from the fact that the various articles mentioned in this item seem as if to have been intended to constitute "raw material". This construction fits in with the scheme and policy of the Import Trade Control as we will presently show. The dictionary meaning of the three words in Clause (c) on which the respondent relies also seems, in our opinion to harmonise with this view. (Para 8). The printing presses are treated by legislative intendment as Printing material or Printing machinery. Form `B' used in the present case indicates that the Press intended to be imported was not considered to fall under the Capital Goods Licensing Procedure. It seems that it is for all these reasons that in the licence it was provided that these goods would be utilised only for consumption as raw material or accessories in the licence-holder's factory. The words "utilised", "consumption" and "raw material" have to be fitted into the clearly discernable statutory scheme and this is possible without doing violence to the dictionary meaning of these words. The appropriate dictionary meaning of words possessing variable shades of meanings has not to be arbitrarily selected and mechanically applied without considering the setting in which they are used and the purpose sought to be achieved.(Para 10).

Breach of conditions for import of goods : Their own application is proof positive of their awareness of the true position and the breach of the conditions of the licence on their part was deliberate. Indeed, as observed earlier, the permission for the import of the second press was apparently sought with the object of its resale. Breach of conditions for import of goods is a serious matter because it prejudicially affects our country's national economy. The import licence for the second press having, in our view, been sought on false representation with the object and purpose of its resale the breach of the licence was, therefore, fully intended and designed. The respondents are guilty of malpractices and of abuse of the import licence with the object of making money.(Para14)

 

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STO 1969 SC 3
[Date of Order: 1969-10-28]

Central Excise : Nitro-cellulose lacquer : Speaking adjudication/revision orders : Right to appeal to this Court would be futile, if the authority chooses not to disclose the reasons in support of the decision reached by it : The question raised before the Collector of Customs was with the chemical composition and physical properties of nitro-cellulose lacquers and of the substance produced by the appellant company. There were before the Collector conflicting opinions of the Chemical Examiner and the Silk Mills Research Association, Bombay. The orders made by the Central Government are subject to appeal to this Court under Article 136 of the Constitution. It would be impossible for this Court, exercising jurisdiction under Article 136, to decide the dispute without a speaking order of the authority, setting out the nature of the dispute, the arguments in support thereof raised by the aggrieved party and reasonable disclosing that the matter received due consideration by the authority competent to decide the dispute. Exercise of the right to appeal to this Court would be futile, if the authority chooses not to disclose the reasons in support of the decision reached by it.(Para 7).

Proper exercise of the Judicial power vested in the Central Government : In this case the communication from the Central Government gave no reasons in support of the order; the appellant Company is merely intimated thereby that the Government of India did not see any reasons to interfere "with the order in appeal". The communication does not disclose the "points" which were considered, and the reasons for rejecting them. This is a totally unsatisfactory method of disposal of a case in exercise of the judicial power vested in the Central Government. Necessity to give sufficient reasons which disclose proper appreciation of the problem to be solved, and the mental process by which the conclusion is reached in cases where a non-judicial authority exercises judicial functions, is obvious. When judicial power is exercised by an authority normally performing executive or administrative functions, this Court would require to be satisfied that the decision has been reached after due consideration of the merits of the dispute, uninfluenced by extraneous considerations of policy or expediency. The Court insists upon disclosure of reasons in support of the order on two grounds : one, that the party aggrieved in a proceeding before the High Court or this Court has the opportunity to demonstrate that the reasons which persuaded the authority to reject his case were erroneous; the other, that the obligation to record reasons operates as a deterrent against possible arbitrary action by the executive authority invested with the judicial power.(Para 11). The appeal is allowed and the order passed by the Central Government is set aside. The case is remanded to the Central Government with the direction that it be disposed of according to law.(Para 12).

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CEO 1969 SC 1
[Date of Order: 1969-10-18]
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STO 1969 SC 2
[Date of Order: 1969-08-04]

Penalty: Penalty not ordinarily imposeable unless the party obliged either acted deliberately in defiance of law or was guilty of conduct contumacious or dishonest, or acted in conscious disregard of its obligation.

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STO 1969 SC 1
[Date of Order: 1969-04-25]

Bombay Municipal Boroughs Act, 1925 : Section 73 of the Act allows the municipality to levy "a rate on buildings or lands or both situated within the municipal borough : Gujarat Imposition of Taxes by Municipalities (Validation) Act, 1963 :

Validity of the Validation Act under Articles 19(1)(f), (g) and 265 of the Constitution : When a legislature sets out to validate a tax declared by a court to be illegally collected under an ineffective or an invalid law, the cause for ineffectiveness or invalidity must be removed before validation can be said to take place effectively. The most important condition, of course, is that the legislature must possess the power to impose the tax, for, if it does not, the action must ever remain ineffective and illegal. Ordinarily, a court holds a tax to be invalidly imposed because the power to tax is wanting or the statute or the rules or both are invalid or do not sufficiently create the jurisdiction. The validity of a validating law, therefore, depends upon whether the legislature possesses the competence which it claims over the subject-matter and whether in making the validation it removes the defect which the courts had found in the existing law and makes adequate provisions in the validating law for a valid imposition of the tax. (Para 4). Section 99 was outside the powers of the legislature. In view of entry 49 of List II of the Seventh Schedule to the Constitution. That entry reads: "Taxes on lands and buildings" and a tax on lands and buildings based upon capital value falls squarely within the entry. The doubt which is created by entry 86 of List I "Taxes on the capital value of assets", no longer exists after the decision of this court in Sudhir Chandra Nawn v. Wealth-tax Officer, Calcutta [(1968) 69 I.T.R. 897 (S.C)]. In that case the respective ambits of the two entries are explained. It is pointed out that unlike the tax contemplated by entry 49 (List II) the tax under entry 86 (List I) is not a direct tax on lands and buildings but on net assets, the components of which may be lands and buildings and other items of assets excluding such liabilities as may exist.(Para 5).

New meaning to the expression "rate" : The legislature not only equated the tax collected to a tax on lands and buildings, which it had the power to levy, but also to a rate giving a new meaning to the expression "rate" and while doing so it put out of action the effect of the decisions of the courts to the contrary. The exercise of power by the legislature was valid because the legislature does possess the power to levy a tax on lands and buildings based on capital value thereof and in validating the levy on that basis, the implication of the use of the word "rate" could be effectively removed and the tax on lands and buildings imposed instead. The tax, therefore, can no longer be questioned on the ground that Section 73 spoke of a rate and the imposition was not a rate as properly understood but a tax on capital value. In this view of the matter it is hardly necessary to invoke the 14th clause of Section 73 which contains a residuary power to impose any other tax not expressly mentioned.(Para 6). In our judgment these appeals possess no merit after the passing of the Validation Act and must be dismissed (Para 7).

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CEO 1969 SC 4
[Date of Order: 1968-10-18]
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CIO 1968 SC 1
[Date of Order: 1968-10-16]
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STO 1968 SC 1
[Date of Order: 1968-05-03]

Central Excise : Revision Application : M.G. Poster paper : Classification :

Quasi-judicial function : No provision in the Act empowering the Board to issue directions to the assessing authorities or the appellate authorities in the matter of deciding disputes : If the power exercised by the Collector was a quasi-judicial power that power cannot be controlled by the directions issued by the Board. No authority however high placed can control the decision of a judicial or a quasi-judicial authority. That is the essence of our judicial system. There is no provision in the Act empowering the Board to issue directions to the assessing authorities or the appellate authorities in the matter of deciding disputes between the persons who are called upon to pay duty and the department. It is true that the assessing authorities as well as the appellate authorities are judges in their own cause; yet when they are called upon to decide disputes arising under the Act they must act independently and impartially. They cannot be said to act independently if their judgment is controlled by the directions given by others. Then it is a misnomer to call their orders as their judgments; they would essentially be the judgments of the authority that gave the directions and which authority had given those judgments without hearing the aggrieved party.(Para 8).

Quasi-judicial function, must be left absolutely free to deal with the matter according to their best judgment. : It would be legitimate to assume that the legislature intended to respect the basic and elementary postulate of the rule of law, that in exercising their authority and in discharging their quasi-judicial function, the tribunals constituted under the Act must be left absolutely free to deal with the matter according to their best judgment. It is of the essence of fare and objective administration of law that the decision of the Judge or the Tribunal must be absolutely unfettered by any extraneous guidance by the executive or administrative wing of the State. If the exercise of discretion conferred on a quasi-judicial tribunal is controlled by any such direction, that forges fetters on the exercise of quasi-judicial authority and the presence of such fetters would make the exercise of such authority completely inconsistent with the well-accepted notion of judicial process. It is true that law can regulate the exercise of judicial powers. It may indicate by specific provisions on what matters tribunals constituted by it should adjudicate. It may be specific provisions lay down the principles which have to be followed by the tribunals in dealing with the said matters. The scope of the jurisdiction of the tribunals constituted by statute can well be regulated by the statute and principles for guidance of the said tribunals may also be prescribed subject of course to the inevitable requirement that these provisions do not contravene the fundamental rights guaranteed by the Constitution. But what law and the provisions of law may legitimately do cannot be permitted to be done by administrative or executive orders.(Para 10).

Administrative duties and judicial functions are separate : This Court as well as the High Courts have repeatedly tried to impress upon officers that their two functions are separate; while functioning as quasi-judicial officers they should not allow their judgments to be influenced by administrative considerations or by the instructions or directions given by their superiors. In this case both the Collector as well as the Central Government have ignored the line that demarcates their administrative duties and their judicial functions.(Para 11). Even if the question of the legality of the directions issued by the Board had not been taken before the authorities under the Act, as that direction completely vitiates the proceedings and makes a mockery of the judicial process, we think we ought to consider the legality of that direction. For the reasons already mentioned, we hold that direction was invalid and the same has vitiated the proceedings before the Collector as well as the Government.(Para 12). Appeals are allowed and the orders of the Central Government as well as that of the Collector are set aside, and the proceedings remitted to the Collector for deciding the question whether "M.G. Poster paper" should be assessed as "printing and writing paper" or as "packing and wrapping paper" afresh.(Para 14).

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STO 1967 Del 1
[Date of Order: 1967-04-25]

Central Excise : Examination of witnesses :Violation of demands of natural justice : The party was entitled to examine the concerned officers to prove the facts. The Superintendent, Central Excise, was wrong in disallowing the examination of the witnesses and resorting to the suggested procedure for clarification of certain points from those witnesses. There has thus been a violation of the demands of natural justice, compliance with which is indispensable in the administration of law by quasi-judicial authorities.(Para 4). In view of conclusion as to violation of the demands of natural justice, the three impugned orders cannot be sustained.(Para 5).

 

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