Mumbai Court April 2005 Judgments

C.V. Shah and A.V. Bhat, Now Known as Shah Promoters and Developers Th ...

Court: Mumbai

Reported in: 2005(3)ALLMR197; 2006(3)BomCR216

R.M. Lodha, J.1. The arguments advanced before us in this batch of three writ petitions have crystalised two issues for our determination. These issues are:(i) Whether the designation of the land bearing survey Nos.577 Hissa No.1, 577 Hissa No.2, 577 Hissa No.3 and 578 Hissa No.1 (part) in the revised development of Pune City for the timber industry is for the public purpose. (ii) Whether the designation of the aforesaid land for the timber industry in the revised development plan of Pune City notified on 5.1.1987 has lapsed under section 127 of the Maharashtra Regional Town Planning Act, 1966 (for short, the MRTP Act, 1966 ) for want of any steps for acquisition of the said land within six months of the service of the purchase notice.2. Bereft of unnecessary details, the aforesaid two issues arise in the facts and circumstances which we briefly state hereunder. WRIT PETITION NO.7846 OF 20043. The petitioners in this writ petition claim to be the owners of the land comprising of survey...

Shapoorji Pallonji and Co. and K.B. CaptaIn Vs. Union of India (Uoi),

Court: Mumbai

Reported in: 2005(192)ELT92(Bom)

V.C. Daga, J.1. These two writ petitions under Article 226 of the the Constitution of India impugn the action of the respondents to levy and/or attempt to levy excise duty on fabrication and construction of 'structurals' contending that such activities do not amount to manufacture within the meaning of section 2(f) of the Central Excise and Salt Act, 1944 and the Rules framed thereunder (hereinafter referred to as 'the said Act' and the 'Rules' respectively for the sake of brevity). 2. The facts in both the writ petitions are more or less similar though differing on marginal facts having no bearing on the ultimate decision. The legal issues involved in both the petitions are identical so this common judgment and order would dispose of both the petitions. For the sake of convenience we propose to refer to the relevant facts drawn from Writ Petition No. 3121/1989. Factual Matrix:3. The 1st petitioners are a company registered under the Companies Act, 1956, inter alia engaged in civil eng...

Ramkrishna Jagannath Patil Vs. Chandrakant Bhaurao Khaire

Court: Mumbai

Reported in: 2005(6)BomCR110

Dabholkar N.V., J.1. By this petition under Section 80 of the Representation of the People Act, 1951 (henceforth referred to as the R.P. Act), petitioner challenges the election of the respondent as a Member of the Parliament (Lok Sabha) from Aurangabad Parliamentary Constituency. The brief details of the election are as follows :(1) Election programme declared 31-3-2004(2) Date for filing nominations 7-4-2004(3) Polling took place 26-4-2004(4) Result was declared 13-5-2004(5) Election petition filed 26-4-2004(6) Application to file affidavit 8-12-2004To say in brief, petitioner has challenged the election of respondent by contending that respondent has indulged into corrupt practices as contemplated by Section 123(4) of the R.P. Act. It is alleged that respondent or his agent or any other person on this behalf with the consent of respondent, has published an advertisement in the newspapers, Daily 'Sanz Warta' and Daily 'Lokmat' with the text as reproduced in para 4 of the petition (An...

Makarand Bhikaji Bagade and ors. Vs. State of Maharashtra and ors.

Court: Mumbai

Reported in: 2005(6)BomCR280

Shah A.P., J.1. Heard Mr. Warunjikar, learned Counsel appearing for petitioners and Mr. Nitin Deshpande, learned Asst. Government Pleader for respondents.The 1st petitioner is a society registered under the provisions of the Societies Registration Act as well as Bombay Public Trusts Act. The 1st Petitioner is running the 2nd petitioner school for mentally retarded children at Wai, District Satara. There are approximately 29 boys and 26 girls taking education in the petitioner's school. The students come from remote place of Wai Taluka and for their transport the 1st petitioner has procured a mini bus with the financial aid given by the German Consulate. The 3rd petitioner has been engaged as driver of the bus since 1997. The State of Maharashtra has formulated the Special School Code of 1935, hereinafter called the 'Code' for the schools for handicapped children. The posts of driver and attendant were shown in the staffing pattern prescribed by the Code. The Code was revised in 1997 an...

Rakesh Navinbhai Shah Vs. Commissioner of C. Ex.

Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai

Reported in: (2005)(187)ELT211Tri(Mum.)bai

2. A sum of Rs. 1,00,000/- has been imposed on the appellant towards penalty for having purchased the goods without cover of Central Excise duty under Rule 209A.3. The contention of the appellant is that he has no knowledge that the goods were purchased without payment of Central Excise duty by the manufacturer. He has purchased in the open market through the brokers.It is beyond one's imagination that the goods were being sold without payment of Central Excise duty in the open market. No knowledge can be attributed to the appellant as provided under Rule 209A merely because he has purchased the goods without coverage of Central Excise documents as they are meagre in quantity. Under the said circumstances, imposition of penalty is not justified. Accordingly, set aside. The appeal is allowed....

Gujarat Alkalies and Chemicals Vs. Commissioner of Customs and

Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai

1. These stay applications arose out of the order of Commissioner of Central Excise, Vadodara. In the impugned order the Commissioner ordered recovery of CENVAT Credit of duty amounting to Rs. 4,62,11,753/- under Rule 57U (1)(2) of the Central Excise Rules, demanded interest on the duty confirmed, imposed equal amount of penalty under Section 11AC and imposed personal penalty of Rs. 2 lakhs an the Deputy Manager Excise of the appellant company.2. The appellant company availed of credit of duty paid on the capital goods and simultaneously claimed depreciation from the Income Tax authorities on the machinery involved. The allegation is that MODVAT/CENVAT credit has been availed after a lapse of more than five years after the receipt of capital goods; that the declaration under Rule 57T(1) was filed 23 months after receipt of capital goods in their factory and that the appellant filed a wrong declaration stating that the company would not claim any depreciation on goods (Hydrogen Peroxid...

Haldyn Glass Limited Vs. Commissioner of Central Excise

Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai

Reported in: (2005)(187)ELT263Tri(Mum.)bai

1. The issue in dispute in these two appeals is eligibility to exemption in terms of Notification No. 67/95 castings falling under CET Sub-heading 7325.10 for further use in the manufacture of moulds and for manufacture of glass bottles. According to the department, exemption is not admissible for the reason that the castings are used in the manufacture of moulds, which are exempted from payment of duty as mould falls for classification under CET sub-heading No. 8480.00.2. We have heard both sides. The issue now stands settled in favour of the assessee by the Apex Court decision in Collector of Central Excise, New Delhi v. Hindustan Sanitaryware & Industries 2002 145 ELT 3 SC wherein it has been held that exemption to captive consumption of Plaster of Paris used in making of moulds, which are in turn used as inputs in relation to manufacture of sanitaryware (final products) is available under Notification No. 217/86-CE.which is the predecessor to notification No. 67/95-CE, which i...

Kalyani Brakes Ltd. Vs. Commissioner of C. Ex. and Cus.

Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai

1. These stay applications arise out of the order of the Commissioner of Central Excise & Customs, Nashik, who in the impugned order disallowed credit taken on the capital goods, imposed penalties on the company and its Dy. Manager. The credit disallowed on this count is Rs. 60,85,274/-. Under Rule 4(2)(b) of Cenvat Credit Rules, 2001, an assessee can take 50% of the duty paid on the capital goods as credit after receipt of goods and the balance credit in any financial year subsequent to the financial year in which the capital goods were received in the factory only when capital goods are in possession and use of the manufacture of final product in such subsequent years. The applicants in their letter dated 14-5-2002 have informed the Department that the capital goods were not duly installed and it could be done so subsequently. It appears that when the balance 50% credit was taken, the entire machine was not fully installed. The applicants' contention is that part of the machiner...

Shri V.i. Patil and Essel Propack Vs. Commissioner of Customs and

Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai

1. These stay application arose out of the order of the Commissioner (Appeals). In the impugned order the Commissioner upheld the order of the lower authority who demanded CENVAT Credit of Rs. 25,79,496/- availed on three invalid documents, imposed penalty of Rs. 5 lakhs on M/s. Essel Propack Ltd. under Rule 25 of Central Excise Rules and imposed a penalty of Rs. 1 lakh on the Dy. Manager of the said company under Rule 26 of Central Excise Rules, 2002 read with Rule 13(1) of Cenvat Credit Rules, 2002. Hence these applications.2. M/s. Essel Propack Ltd. are manufacturers of goods falling under Chapter Heading No. 3923.90. They have taken Cenvat Credit on the strength of supplementary invoices issued to them by their sister concern M/s. Essel Propack Ltd. Vasind during December 2002. It is the Department's contention that the supplementary invoices were issued after paying additional amount of excise duties when the audit pointed out that the assessable value of the inputs was not prope...

Amitasha Enterprises Pvt. Ltd. Vs. Commissioner of Customs and

Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai

1. The application for waiver of pre-deposit of duty of Rs. 5,28,899/- and penalty of Rs. 3,17,644/- arises out of the order of the Commissioner (Appeals), Nagpur, who upheld the duty demand on the ground that the applicants were required to pay duty equivalent to the credit availed, as the off cuts/cut lengths of angles arising during the manufacture of the products cannot be considered as the inputs and removals thereof cannot be treated as the removal of 'inputs as such' and therefore, the clearance of cut pieces of angles and plates have to be treated as clearances of angles and plates, and accordingly the duty is payable on such clearances.2. We have heard both sides. Prima facie, the issue on merits stands settled by the decision of Larger Bench in the case of Commissioner of Central Excise, Mumbai-II v. Crompton Greaves Ltd. - 2004 (174) ELT 231 (Tri. Mumbai) wherein the contention of the Revenue that on waste and scrap and cut sheets of silicon electrical/hot-rolled/cold-rolle...