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Case Laws
Showing 81 to 100 of 422 Records
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1999 (7) TMI 634 - ALLAHABAD HIGH COURT
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... ... ..... id appeal of the dealer, was restricted to the sum of Rs. 3,33,110 only and it could not have set aside the assessment order with regard to the turnover of Rs. 5,65,34,586.84 and ordered a re-investigation. 5.. Learned Standing Counsel who placed reliance on the provisions of sub-section (5) of section 10 could not place any authority in support of the action of the Tribunal. The aforesaid provision has been considered by this Court in the aforesaid two judgments holding that the same does not confer jurisdiction on the Tribunal to order an enhancement on the assessee s appeal or on a second appeal by the Commissioner when the matter was not in dispute before the first appellate authority. Therefore, the Tribunal s order is without jurisdiction and deserves to be set aside. 6.. This revision petition is, therefore, allowed. The Tribunal s order under revision is set aside and the Tribunal shall dispose of the aforesaid appeal afresh, in accordance with law. Petition allowed.
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1999 (7) TMI 633 - ANDHRA PRADESH HIGH COURT
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... ... ..... at the total polyester film and gum used during the relevant previous year is liable to tax at the rate of 9 per cent on polyester film and 5 per cent on gum. This is contested by the dealers in the present batch of revisions. 14.. The contention of the learned counsel is whether the material used in the works contract is liable to tax treating it as a sale. 15.. As we have already considered this issue in the earlier batch of cases in the above paras the activity of the assessee could not be considered as a mere sale of polyester film and gum. The work satisfies the definition of the works contract as defined under section 2(t) of the Act. Therefore, the material used in carrying out such works contract is to be taxed in terms of the definition of works contract as defined under section 2(t) of the Act. Therefore, the assessing authority is accordingly directed to modify the assessments. The revisions are accordingly disposed of. No costs. Petitions disposed of accordingly.
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1999 (7) TMI 632 - ANDHRA PRADESH HIGH COURT
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... ... ..... he Appellate Deputy Commissioner. In the circumstances, the course adopted by the Tribunal in not going into the merits of the issues raised in the appeal and dismissing it on the ground that it has become infructuous cannot be faulted. The argument of the learned counsel for the petitioner that the order passed by the Tribunal is not contemplated by section 21(4) of the APGST Act, 1957 cannot be accepted. Passing of such order as may be deemed fit encompasses within its scope the order of the nature passed by the Tribunal in the instant case. The decision in 1970 25 STC 425 (AP) (Oversea Mica Exports v. Secretary, Sales Tax Appellate Tribunal) relied on by the learned counsel for the petitioner has no application to a situation of this nature. Hence the T.R.C. is dismissed at the admission stage. However, we direct that the first appeal pending before the Appellate Deputy Commissioner shall be disposed of within a period of two months from the date of receipt of this order.
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1999 (7) TMI 631 - ANDHRA PRADESH HIGH COURT
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... ... ..... een filed by the State Government. 5.. The contention of the learned Government Pleader is that the Appellate Tribunal was not justified in accepting the contention of the assessee that the activity of the dealer in supply, erection and commissioning of lifts, amounts to works contract and not a sale. 6.. The learned counsel for the respondent has supported the order of the Appellate Tribunal. 7.. After considering the rival contentions, we do not find any merit in the tax revision case. The decision rendered by the Sales Tax Appellate Tribunal was in accordance with the decisions of the various High Courts as well as the Supreme Court. In fact, the nature of the work undertaken by the dealer, clearly shows that the activity of the assessee is only the works contract and it could not be considered as a sale falling under entry 82 of the First Schedule to the Andhra Pradesh General Sales Tax Act. 8.. Under the above circumstances, this T.R.C. is dismissed. Petition dismissed.
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1999 (7) TMI 630 - SUPREME COURT
Whether compliance with Section 50 of the Narcotics Drugs and Psychotropic Substances Act, 1985 is mandatory and, if so, what is the effect of the breach thereof?
Whether any search is made without informing the person of his such right would the search be illegal even if he does not of his own exercise his right under Section 50(1)? And
Whether a trial held in respect of any recovery of contraband articles pursuant to such a search would be void ab initio?
Held that:- When an empowered officer or a duly authorised officer acting on prior information is about to search a person, it is imperative for him to inform the concerned person of his right under Sub-section (1) of Section 50 of being taken to the nearest Gazetted Officer or the nearest Magistrate for making the search. However, such information may not necessarily be in writing
That failure to inform the concerned person about the existence of his right to be searched before a Gazetted Officer or a Magistrate would cause prejudice to an accused
That a search made, by an empowered officer, on prior information, without informing the person of his right that, if he so requires, he shall be taken before a Gazetted Officer or a Magistrate for search and in case he so opts, failure to conduct his search before a Gazetted Officer or a Magistrate, may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered from his person, during a search conducted in violation of the provisions of Section 50 of the Act
A conviction resulting from an unfair trial is contrary to our concept of justice. The use of evidence collected in breach of the safeguards 50 have by Section 50 at the trial, would render the trial unfair
Without giving an opportunity to the prosecution to establish, at the trial, that the provisions of Section 50, and particularly the safeguards provided therein were duly complied with, it would not be permissible to cut- short a criminal trial
We do not express any opinion whether the provisions of Section 50 are mandatory or directory, but, hold that failure to inform the concerned person of his right as emanating from Sub-section (1) of Section 50, may render the recovery of the contraband suspect and the conviction and sentence of an accused bad and unsustainable in law and an illicit article seized from the person of an accused during search conducted in violation of the safeguards provided in Section 50 of the Act cannot be used as evidence of proof of unlawful possession of the contraband on the accused though any other material recovered during that search may be relied upon by the prosecution, in other proceedings, against an accused, notwithstanding the recovery of that material during an illegal search;
A presumption under Section 54 of the Act can only be raised after the prosecution has established that the accused was found to be in possession of the contraband in a search conducted in accordance with the mandate of Section 50. An illegal search cannot entitle the prosecution to raise a presumption under Section 54 of the Act
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1999 (7) TMI 629 - CALCUTTA HIGH COURT
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... ... ..... or can proceed to audit the accounts of the assessee. 35. In the appeal being G.A. No. 425 of 1999 as in the Appeal No. 401/99, we have taken the view that the appointment of special auditor is justified. We direct the Assessing Officer not to insist on the assessee to produce all the documents referred in his notice under section 142(1) in pursuance of the order of this Court dated 5-4-1999, unless the particular evidence or document is necessary to be looked into for completion of the assessment order. 36. However, it is made clear that the assessment so made in pursuance of the report of the special auditor shall not be communicated to the assessee or effect should not be given to the order till disposal of the petition in question pending before the learned Single Judge. 37. Consequently, we allow Appeal No. 401 of 1999 and dispose the Appeal No. 425 of 1999 as discussed above. 38. All the parties are to act on the operative part of this judgment on the usual undertaking.
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1999 (7) TMI 628 - APPELLATE TRIBUNAL FOR FORFEITED PROPERTY
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... ... ..... nd received by the Competent Authority at the belated stage after the passing of the impugned order, he did not raise any grounds on merits for not confirming the freezing order. We have, therefore, no hesitation in holding that there was no violation of the principles of natural justice and we reject the contention of learned counsel for the appellant. After all, the freezing order and the subsequent order of confirmation has not concluded the matter and has not put an end to all the proceedings which are pending with the Competent Authority. The Competent Authority has to make an inquiry in accordance with the law and pass an order under section 68-I. The Competent Authority will hold an inquiry as required in the law and will complete the proceedings and pass the final order within four months from the date of receipt of this order, or earlier, provided the appellant co-operates and does not make requests for adjournments. With the above direction, the appeal is dismissed.
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1999 (7) TMI 627 - APPELLATE TRIBUNAL FOR FORFEITED PROPERTY
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... ... ..... the issuance of notice under section 6 or 10. We have come across some cases in which the competent authorities have released from forfeiture such properties, under the impression that the properties which have already been transferred prior to issue of notice under sections 6 and 10 are not liable to be forfeited. In the view we have taken that such properties are liable to be forfeited, unless the present holder as per section 2(2)(e), is able to establish that he is a bona fide purchaser for adequate consideration. It is necessary for the competent authorities to go into such question, if it is raised by the present holder. If it is not established by the present holder that he is a bona fide purchaser for adequate consideration, such properties will be liable to be forfeited, even though the transfer took place prior to the issue of notice under section 6 or 10. For all the aforesaid reasons, we uphold the impugned order of the competent authority and dismiss the appeals.
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1999 (7) TMI 626 - CEGAT, MUMBAI
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... ... ..... mport shown as indicated in the statement that the price varies from 1950 to 2000 per MT. Unfortunately date of shipment is not the same. The Good Year rsquo s price do indicate a particular trend in the market. We, therefore, accept the Good Year rsquo s price as the goods which could be available on price at which ordinarily sold at the place of importation. Hence the transaction value has to be accepted in this case. 8. emsp We may also note that the Collector (Appeals) has dismissed the cases that no evidence has been given. We feel that when the prices were available, the lowest of the price has to be taken in terms of Rule 5 (3) of the said rules. In view of the above, we are not considering the other points discussed by both sides. Since we are allowing the appeals, other points, raised by Dr. Kantawala including case laws have not been considered by us. We, therefore, allow the appeal of the appellant and accept the transaction value as the correct value in this case.
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1999 (7) TMI 625 - CEGAT, NEW DELHI
Accounts, records and returns - Maintenance of - Confiscation - Penalty ... ... ... ... ..... erned, it is not disputed by the Revenue that serial number of debit entries of RG.23A/Pt.II was already available in the invoices. It is also admitted that the invoices are computer generated. Therefore, having regard to the computer generated invoices, apprehension of the lower authorities that these could be destroyed is without any foundation. Consequently, I hold that it is only a technical error insofar as the non-debiting entries in RG 23A/Pt.II is concerned particularly when the concerned man was on leave and a new man was working for the last three days and he was not aware of the Central Excise Procedure. Same way, non-making of entries in respect of other two accounts is also explained on account of their regular person being on leave. The contraventions are of technical nature. Therefore, I am of the view that there is no justification for confiscation of goods as also for imposition of penalty. Hence, I allow the appeal with consequential relief to the appellant.
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1999 (7) TMI 624 - CEGAT, NEW DELHI
Valuation - Notional interest on advances ... ... ... ... ..... by both sides. We find that the issue in this case is no longer res integra in view of the decision of the Apex Court in the case of VST Industries referred to above. There is no conflicting view in between the earlier decision of the Supreme Court in the case of Metal Box India Ltd. and the VST Industries. The important point to be considered while adding the notional interest is whether there was any nexus between the interest earned and the activities of the assessee. That burden squarely lies on the department. No such evidence is forthcoming to prove that there was nexus between the notional interest and the manufacturing activity of the assessee. In the facts and circumstances and in view of the ratio of the decisions of the Apex Court referred to above, we accept the contention of the appellant that notional interest is not to be added in determining the value of the goods manufactured and cleared by the assessee. Thus this appeal is allowed with consequential relief.
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1999 (7) TMI 623 - CEGAT, NEW DELHI
Steel pipes and tubes - Exemption ... ... ... ... ..... ch exemption was available. 2. emsp The Collector of Central Excise (Appeals) had held that as the inputs were bars, no exemption was available. He, however, reduced the amount of penalty from Rs. 50,000/- to Rs. 5,000/- (Rs. Five thousand only). The appellants have prayed for decision on merits. 3. emsp We have heard Shri T. Singh, ld. JDR and have gone through the facts and circumstances of the case. 4. emsp The classification of the inputs received by the appellants had already been settled by the Tribunal decision and the Tribunal decision had become final, we agree with the view taken by the ld. Collector of Central Excise, that the benefit of Notfn. No. 202/88-C.E. was not available to the pipes and tubes made out of the bars. The Collector (Appeals) had reduced the amount of penalty from Rs. 50,000/- to Rs. 5,000/- (Rs. five thousand only). As the matter stands settled by the aforesaid Tribunal decision, we do not find any merit in this Appeal and the same is rejected.
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1999 (7) TMI 622 - CEGAT, NEW DELHI
Electricity generating stations - Exemption under Notification No. 51/78-C.E. ... ... ... ... ..... Notification in question. We find that proviso to Notification No. 51/78 inter alia provides exemption provided that it is proved to the satisfaction of the Assistant Collector of Central Excise that such electricity is produced by generating stations and supplied to the auxiliary plants of such stations for generation purposes. We have also perused the expert opinion given by the Chief Engineer of U.P. State Electricity Board where we find that electricity produced by the generating stations was being used only to start the auxiliary stations and once the auxiliary stations get started, the main supply from the generating stations is switched off and only electricity produced by the auxiliary stations is used for different purposes. This clarification has not been rebutted by any expert opinion or by any technical literature furnished by the appellant. In this view of the matter, we find no merit in the appeal. We, therefore, uphold the impugned order and reject the appeal.
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1999 (7) TMI 621 - CEGAT, MUMBAI
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... ... ..... r in determining the price, also mentioned that apart from quantity, factors like exchange rate, availability, lead time, would play a part in determining the prices. As has been emphasised by the Supreme Court in Basant Industries v. Additional Collector of Customs - 1996 (81) E.L.T. 195 that a mere comparison of two invoices by itself cannot always justify the view that there has been undervaluation. The Court has emphasised that relationship between the supplier and importer has to be kept in mind and that prices are often negotiated between buyer and seller. While, even without considering this aspects, the fact that the quantity purchased by Godrej is much lower than the quantity purchased by the respondent itself justify lower price, the fact that the respondent being a large scale, regular buyer should have been offered a lower price also can not be ignored. 7. emsp We, therefore, see no reason to interfere with the finding of the Collector (Appeals). Appeal dismissed.
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1999 (7) TMI 620 - CEGAT, NEW DELHI
SSI Exemption ... ... ... ... ..... ue of plant and machinery on the same day of receipt of application. In view of these facts and circumstances, the benefit of doubt goes to the Appellants that they had applied for registration as a small-scale unit on 4-12-1986. No doubt the certificate as such was issued to them on 7-12-1987 but can it be said that they were not a small-scale units during the relevant period as grant of Registration Certificate goes to show that the Appellants were a S.S.I. units eligible for exemption under Notification No. 175/86. The Tribunal has been holding in many cases that delay on the part of the Certificate issuing authority should not affect the availment of benefit of notification by the Appellant. Any delay in issuing the certificate which cannot be attributed to the Appellants, should not deprive them of the benefit of the notification. Accordingly, we hold that the Appellants were eligible to avail of the benefit of Notification No. 175/86 and accordingly we allow the appeal.
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1999 (7) TMI 619 - CEGAT, NEW DELHI
SSI Exemption - Value of clearances - Computation of ... ... ... ... ..... ants. We find that the Tribunal in those cases has held that the department need not look into the investment in plant and machinery of the appellants because there is no provision in the Notfn. No. 175/86, to examine this aspect. Following the ratio of these decisions, we hold that SSI exemption under Notfn. No. 175/86, was correctly claimed by the appellants and admissible to them. 8. emsp Insofar as the limit of aggregate value of clearances during the period 1990-91 is concerned, we find that the forwarding charges included freight and trade discount, if any, out of forwarding charges, the freight and discount is deducted the value of the aggregate value of clearances remained within Rs. 200 lakhs. On this score also, we find that the Revenue has not been able to make a case, therefore the assessee succeeds. 9. emsp In view of the above findings, the impugned order is set aside and the appeal is allowed with consequential relief, if any, admissible in accordance with law.
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1999 (7) TMI 618 - CEGAT, NEW DELHI
Scrap - Exemption
... ... ... ... ..... kers, it may not be applicable to the scrap generated within the factory in the manufacture of the final products out of the raw materials, etc., which had been brought from outside on payment of central excise duty. Thus while we agree with the ld. Collector of Central Excise (Appeals) that the provisions of Notification No. 214/86-C.E. were not applicable in the facts and circumstances of this case, we find that there is no finding with regard to Rule 57F(2) for whose benefit also an alternative plea had been made by the appellants. As the order is silent about such a request, reluctantly we have to remand this matter back to the jurisdictional Commissioner of Central Excise (Appeals), who should re-examine the matter with reference to Rule 57F(2) of the Rules as applicable at that time and then pass a speaking appealable order as per law after providing an opportunity to the appellants to present their case. The appeal is thus allowed by way of remand. Ordered accordingly.
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1999 (7) TMI 617 - CEGAT, NEW DELHI
Confiscation and penalty - Smuggling ... ... ... ... ..... n, as found by the adjudicating authority, but suspicion, howsoever grave cannot substitute for proof, burden of which is required in this case to be discharged by the department. 8. emsp In view of the foregoing discussion goods are not liable to be confiscated. We set aside the liability to confiscation of the goods. Since the goods have already been sold in auction the money obtained in auction sale of the goods should be refunded in accordance with law. In view of the facts and circumstances of the case as mentioned above and having regard to our finding regarding the liability of confiscation of goods, there is just no warrant for imposition of the appellant. Consequently we set aside the penalty of Rs. 10 lakhs on the appellant. Any pre-deposit made by the appellant at stay stage be refunded to the appellant. In short, the impugned order is set aside to the extent of the appeal of the appellant herein and the appeal is allowed with consequential relief to the appellant.
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1999 (7) TMI 614 - HIGH COURT OF BOMBAY
Penalty - For wrongful withholding of property ... ... ... ... ..... n application fails and the same is dismissed. 7. At this juncture, the learned advocate appearing on behalf of the petitioner-accused has sought for stay of the operation of this order. The learned counsel appearing on behalf of the respondent has vehemently opposed the prayer for stay and, more particularly on the ground that even as per the undertaking filed by the petitioner in favour of the company which is proved and further that as per the allotment of flat in favour of the petitioner which was granted for a period of two years and the petitioner is withholding the said flat unauthorisedly and, in turn, the company requires possession of the said flat for being allotted to other employees of the company. Considering the request for stay of the operation of this order as the petitioner wants to challenge this order in the Apex Court, this request for stay is required to be entertained by giving some reasonable time and, accordingly, this order is stayed up to 15-8-1999.
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1999 (7) TMI 613 - HIGH COURT OF KARNATAKA
Winding up - Circumstances in which a company may be wound up ... ... ... ... ..... hat the respondents are a working company and she submitted that the test as to whether the respondents are financially insolvent is one of the considerations which a Court has to take cognizance of. She submitted that under no circumstances can it be contended that the respondents are unable to pay the amounts because they have only pointed out to the Court that, according to them, they are not required to pay the amount which is why the same has not been done. That aspect of the matter now having been resolved and having regard to the consequences of a winding up petition, I still give the respondents the option to consider their position and therefore, no directions with regard to the advertisement are being issued at this point of time. The petition to be relisted after four weeks and on the next date of hearing, the Court will hear the learned counsels on both sides and pass further orders with regard to the advertisement of the petition. To be relisted after four weeks.
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