Mumbai Court September 2003 Judgments

themis Pharmaceuticals and ors. Vs. Commissioner of Central Excise

Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai

Reported in: (2003)(157)ELT569Tri(Mum.)bai

1. These 17 applications involve a common issue: Whether the Tribunal can grant stay beyond a period of 180 days. The newly-inserted sub-section (2A) of Section 35C of the Central Excise Act, 1944 reads as under: - " The Appellate Tribunal shall, where it is possible to do so, hear and decide every appeal within a period of three years from the date n which such appeal is filed: Provided that where an order of stay is made in any proceeding relating to an appeal filed under sub-section (1) of section 35B, the Appellate Tribunal shall dispose of the appeal within a period of one hundred and eighty days from the date of such order; Provided further that if such appeal is not disposed of within the period specified in the first proviso, the stay order shall, on the expiry of that period, stand vacated." The learned J.C.D.R as well as the learned counsels appearing for various applicants inform us that there are as yet no decisions of the Apex Court or any of the High Courts on this issue...

New Nirmal Inds. Pvt. Ltd., P.L. Vs. Commissioner of Central Excise

Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai

1. Shri K.V. Sahasrabudhe, learned consultant appearing for the appellants states that the impugned order is non-speaking and does not deal with the punchanama and the statements. He further states that the appellants have been charged with clandestine manufacture and clearance of impregnated cloth to the nearby unit, but they neither have a machine to manufacture impregnated fabrics nor they have purchased the raw-material for such manufacture. In fact, the nearby unit namely M/s.Amisha Engineering Co. had the machinery for such manufacture, they had filed a classification list for impregnated cloth, they had purchased the raw-material for the same and were also entitled to full duty exemption under Notification No. 175/86 for goods falling under Heading 3905.20 and taken for captive consumption. He states that the department has relied on a report of inspector of factory, which was a combined report for both the parties and does not show that the impregnating machinery was installed...

Unitech Prefab Ltd. Vs. Commissioner of C. Ex.

Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai

Reported in: (2003)(158)ELT330Tri(Mum.)bai

1. These three applications have been filed for extension of stay granted earlier. We have since dealt with this very same issue in the case of M/s. Themis Pharmaceuticals and Others [2003 (157) E.L.T. 569 (Tri. - Mumbai)] holding as follows :- (i) Section 35F requires pre-deposit of duty and penalty pending appeal. (ii) Proviso to the said Section 35F gives statutory power to the Tribunal to waive such pre-deposit in suitable cases. (iii) Since no amendment has been made to Section 35F, Tribunal's power to waive pre-deposit during the pendency of appeal remains unaltered. (iv) Power of the Tribunal to stay recovery and to grant stay of an order appealed against is incidental to exercising its appellate function. (v) Amendment of Section 35C by the Finance Act, 2002 places a specific legal restraint on exercise of such incidental power beyond 180 days as per clear wording of Sub-section (2A) of the said Section 35C. (vi) Tribunal being a creature of the same statute cannot question th...

Commissioner of Customs Vs. H.B.L. Nife Power Systems Pvt.

Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai

Reported in: (2003)(158)ELT340Tri(Mum.)bai

1. None appeared for the respondents. Shri A. Chopra, learned J.D.R.appearing for the Revenue states that the Miscellaneous application has been filed by the Applicant Commissioner seeking two specific reliefs:- (1) Till the Reference Application filed by the Department is disposed off by the Hon'ble High Court, Tribunal's Order No. C-II/11/91/WZB dtd.22/05/2003 should be stayed.2. We have heard the learned J.D.R. and perused the case records. We find that in the aforecited order dtd.22/05/2003, the Tribunal has held that this was a case where inherent power of the Tribunal can be exercised and thereafter has allowed payment of interest to the respondents from 27/04/2001 till 05/03/2003. We also find that a Reference Application has been filed by the Department before the Hon'ble High Court of Bombay on 22/07/2003 against the aforecited order of the Tribunal seeking determination on the following points:- "a) Whether on the facts and in the circumstances of the case the Tribunal was r...

Ganesh International Vs. Commissioner of Customs (import)

Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai

Reported in: (2004)(170)ELT23Tri(Mum.)bai

1. The application by Ganesh International is for waiver of deposit of total duty of Rs. 63,82,644/- out of which Rs. 3,30,548/- relates to consignment currently for clearance and remainder for past clearance, and penalty of Rs. 11,50,000/-. Application by Gautam Overseas is for waiver of deposit of duty of Rs. 9,75,795/- and penalty of Rs. 2 lakhs.The duty has been demanded and penalty imposed, on the ground that the long pepper imported by the applicant is classifiable as a spice in Heading 9.04 of the Tariff and not as a part of plant used primarily in pharmacy classifiable in Heading 12.11.2. Counsel for the applicant contends that long pepper (piper longum L) which is different from black pepper is primarily used as an ayurvedic medicament and only as a minor culinary use. He relies upon the list under Appendix V to Rule 5 under the Prevention of Adulteration Rules indicates black pepper a long pepper and indication in the book Indian Material Medica by Nadkarni and the book Weal...

GramIn Vikas Sanstha and ors. Vs. State of Maharashtra and ors.

Court: Mumbai

Reported in: 2004(1)ALLMR942; 2004(1)MhLj664

R.M. Lodha, J.1. Vidya Niketan Shikshan Pratisthan was granted permission by the State Government to start a new Arts and Commerce College at Hinganghat by order dated 29-6-2001. Shri Bapuraoji Deshmukh Foundation, Hinganghat was granted permission to start new Arts College at Hinganghat by the State Government vide its order dated 14-7-2001. Gramin Vikas Sanstha the first petitioner runs R.S. Bidkar College at Hinganghat having Arts, Commerce and Science faculties. The said college is being run since 1961 and by this petition the first petitioner and the two other petitioners who are teachers working in R.S. Bidkar college seek to challenge the orders dated 29-6-2001 and 14-7-2001 whereby the State Government granted permission to the institutions afore-referred for starting new Arts and Commerce colleges at Hinganghat.2. On facts, there is no dispute that no Perspective Plan as contemplated under Section 82 was prepared by Nagpur University for educational development, for location o...

Boman P. Irani Vs. Manilal P. Gala

Court: Mumbai

Reported in: AIR2004Bom123; 2004(2)ALLMR191; 2004(1)BomCR324; (2004)187CTR(Bom)331; [2004]267ITR555(Bom); 2004(2)MhLj128

S.J. Vazifadar, J.1. Mr. Sampat, the learned counsel appearing on behalf of the plaintiff while cross-examining defendant No. 1 called upon him to produce a letter dt. 31st Dec., 1975, purportedly addressed by the witness to the CIT. Mr. Shah, the learned counsel appearing on behalf of defendant No. 1 objected even to the production of the document on the ground that the same was barred under Section 12 of the Voluntary Disclosure of Income and Wealth Act, 1976 (hereinafter referred to as the '1976 Act').2. The document that the witness is called upon to produce is a covering letter in respect of the disclosure made by the witness under the Voluntary Disclosure Scheme of 1975. The letter refers to certain facts and attached thereto is the statement of income assessed, income to be disclosed, total tax due, tax paid and a token for balance of tax paid for the years 1967-68 to 1974-75.3. The objection is of considerable importance. I would have marked the document tentatively as an exhib...

Hindustan Aeronautics Limited Vs. the State of Maharashtra, Through th ...

Court: Mumbai

Reported in: 2004(2)ALLMR465; 2004(4)BomCR386

A.M. Khanwilkar, J.1. Rule. This matter was heard forthwith for final disposal by consent of both the sides on 17th September 2003, having regard to the fact that short question is involved.2. This writ petition under Article 227 of the Constitution of India takes exception to the judgment and order passed by the Principal Secretary, Revenue & Forests Department, Government of Maharashtra, dated 21st April 2003, holding that the Petitioner is liable to pay non-agricultural assessment in respect of lands situated at Villages Ojhar, Konkangaon and Sakore, taluka Niphad, district Nasik. It is common ground that the said lands were acquired by the State Government and the acquisition proceedings concluded some time in 1968. As the lands thereafter vested in the State Government, the same were made over to the President of India for establishing MIG factory and related purposes by a registered document dated 19th November 1971. It is also not in dispute that the President of India thereafte...

Multiform Machinery (Bom.) Pvt. Ltd. Vs. Deepak Industries Ltd.

Court: Mumbai

Reported in: 2003(4)ALLMR689; 2004(2)ARBLR316(Bom); 2004(3)BomCR887

S.K. Shah, J.1. Heard the learned counsel on both sides.2. This is an application under Section 11 of the Arbitration and Conciliation Act, seeking an appointment of the Arbitrator. There is Arbitration clause, being at Item No. 16 of the agreement. In the terms and conditions of the contract, which speaks for referring the matter to the Arbitrator, in case any dispute arises out of the agreement between the parties and it remains unresolved after notice.3. What is agreed upon by the parties is that the appointment shall be of two Arbitrators, one to be nominated by each of the parties.4. In reply, the respondents have vehemently objected to the maintainability of this application under Section 11 of the Act, particularly, on the ground that the respondents have already filed suit in the Court of Civil Judge, Senior Division in Calcutta and the petitioners have appeared in that suit and filed application under Section 8 of the Arbitration and Conciliation Act, 1996, seeking appointment...

Commissioner of Central Excise Vs. R.H. Founders and Engineers and

Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai

Reported in: (2004)(166)ELT334Tri(Mum.)bai

1. In the order impugned in this appeal, the Commissioner (Appeals) has said that the credit could be taken under Rule 57Q of the duty paid on sand mix muller, a machine which is used for preparing sand moulds.2. The credit had been denied by the order of the Assistant Commissioner on the ground that sand moulds being exempted from duty, the capital goods would not be considered to have been used in or in relation to the manufacture of the finished excisable goods. It is the requirement of Rule 57Q that for credit to be taken capital goods must be used in the manufacture of dutiable finished goods. Sub-rule (2) of Rule 57R contains an exception to this rule. It provides that credit cannot be denied on the ground that exempted or nil rated intermediate product come into existence during the course of manufacture of final product and it is this rule that the Commissioner (Appeals) has relied upon.3. In my view, he has wrongly relied upon this rule. Sand mix muller is used only to make t...