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Commissioner of C. Ex. and Cus. Vs. Krishna Filaments Ltd.

Commissioner of C. Ex. and Cus. vs Krishna Filaments Ltd.

Disposition Appeal dismissed Court Mumbai Decided Jul 20, 2007
~2 min read
https://sooperkanoon.com/case/369042

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Citation
Court
Mumbai High Court
Judge
Decided On
Case Number
Central Excise Appeal No. 188 of 2006
Subject
Excise
Disposition
Appeal dismissed

Case Summary

AI-generated summary - not the official court judgment text.

- BOMBAY STAMP ACT, 1958. Schedule 1, Article 36: [Y.R. Meena, CJ & D.A. Mehta & A.S. Dave, JJ] Deed of Mortgage Liability to pay stamp duty Held, Any instruments in respect of transactions, relating to loans and advances, loans and mortgages, cash credit or overdraft bonds, agreements of pawn or pledge and letter...

Key legal issue
Excise
Outcome / disposition
Appeal dismissed
Acts & sections
Central Excise Act, 1944 - Sections 35E

Parties & Advocates

Appellant / Petitioner

Commissioner of C. Ex. and Cus.

Advocate S.V. Bharucha, Adv.

Respondent

Krishna Filaments Ltd.

Advocate Kiran Doiphode, Adv., i/b., Doiphode and Co.

Legal References

Acts
Central Excise Act, 1944 - Sections 35E
Reported In
2009[16]STR369

Excerpt

- bombay stamp act, 1958. schedule 1, article 36: [y.r. meena, cj & d.a. mehta & a.s. dave, jj] deed of mortgage liability to pay stamp duty held, any instruments in respect of transactions, relating to loans and advances, loans and mortgages, cash credit or overdraft bonds, agreements of pawn or pledge and letters of hypothecation executed by farmers for agricultural and land development purposes in favour of all commercial bank etc. are entitled to remission of entire duty chargeable under the stamp act with effect on and from 1.4.1979 under government notification dated 23.3.1979. thus, where loan was granted by bank of india under agricultural finance scheme towards purchase of air compressors, drilling rods and other accessories. use of the air compressors, drilling rods and other accessories in case of applicant who is a farmer can only be for purpose of drilling a bore-well for purpose of irrigation in process of carrying on agricultural activities. thus, it is apparent that loan was availed of by applicant-farmer for agricultural and land development purposes because a bore-well would go to increase the utility of agricultural land by ensuring round the year irrigation. the instrument in question would therefore fall within scope of complete remission granted to instrument of mortgage under government notification dated 23.3.1979 and hence not liable to stamp duty under article 36 of schedule i of the act. order1. the appellants had preferred this appeal against the order dated 6-9-2004 dismissing the appeal on the ground that the cce (aurangabad) had no authority to prefer appeal and cce (adjudication) was authorised to file the appeal. a corrigendum was issued on 1st september, 1999 whereby expression 'commissioner (adjudication) of c. excise, mumbai' was to read as 'commissioner, central excise & customs, aurangabad'. on the date when the order was passed by the appellate authority in appeal, the corrigendum was not brought to his notice and the same was produced while deciding miscellaneous application which has also been rejected.2. in our opinion, considering section 35e of the central excise act, 1944 as it then stood, the issuance of corrigendum can have no effect as the power could only be conferred on the regional commissioner of central excise who was the adjudicating authority. in the instant case, the commissioner of central excise (aurangabad) was not adjudicating authority. even otherwise also he could not have preferred the appeal.3. in that view, the question of law as framed could not arise. hence, the appeal is dismissed.4. it will be open to the appellant to take such steps to which they are entitled to in law.5. the appeal is disposed of with no order as to costs.

Full Judgment

ORDER

1. The appellants had preferred this appeal against the order dated 6-9-2004 dismissing the appeal on the ground that the CCE (Aurangabad) had no authority to prefer appeal and CCE (Adjudication) was authorised to file the appeal. A corrigendum was issued on 1st September, 1999 whereby expression 'Commissioner (Adjudication) of C. Excise, Mumbai' was to read as 'Commissioner, Central Excise & Customs, Aurangabad'. On the date when the order was passed by the Appellate Authority in Appeal, the corrigendum was not brought to his notice and the same was produced while deciding miscellaneous application which has also been rejected.

2. In our opinion, considering Section 35E of the Central Excise Act, 1944 as it then stood, the issuance of corrigendum can have no effect as the power could only be conferred on the Regional Commissioner of Central Excise who was the adjudicating authority. In the instant case, the Commissioner of Central Excise (Aurangabad) was not adjudicating authority. Even otherwise also he could not have preferred the appeal.

3. In that view, the question of law as framed could not arise. Hence, the appeal is dismissed.

4. It will be open to the appellant to take such steps to which they are entitled to in law.

5. The appeal is disposed of with no order as to costs.

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