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Showing 201 to 220 of 268 Records
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1994 (2) TMI 68 - HIGH COURT OF JUDICATURE AT CALCUTTA
Adjudication - Delay in adjudication - Show cause notice ... ... ... ... ..... ion proceeding within seven days without fail. The writ petitioner must be given personal hearing before passing any order. The operation of the order under appeal, however, is stayed. The writ petitioner will be at liberty to remove the goods by furnishing the bank guarantee of the value of Rs. 15 lakhs. The bank guarantee must be furnished to the satisfaction of the Collector of Customs. 4. For gross delay and negligence the Collector of Customs must be penalized with costs. It has also been brought to our notice that the Customs Department has included the show cause notice in the paper book but has deliberately left out the reply to the show cause notice. This tactic is also to be discouraged. The appellants must pay costs assessed at Rs.10,000/- immediately to the respondents within 72 hours failing which this order will stand vacated and this petition will stand dismissed. 5. All parties are to act on a signed copy of the minutes of this order on the usual undertaking.
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1994 (2) TMI 67 - HIGH COURT OF JUDICATURE AT MADRAS
Demand - Excise duty ... ... ... ... ..... t two years ago and have enjoyed the benefit of the entire amount, it is not a case in which the Court should accede to the submission made by the appellants. It is submitted on behalf of the appellants that it would be possible for the appellants to pay the entire amount in six monthly instalments of Rupees one lakh each and the last instalment being the balance of the amount, namely Rs. 1,78,562.30 and the first instalment will be paid by the 20th of March, 1994 and the subsequent instalments will be paid on the 20th of each successive month. The submission is placed on record. While dismissing the Appeals, the appellants are directed to deposit the sum of Rs. 6,78,562.30 in six monthly instalments of Rupees one lakh and the last instalment shall be of Rs. 1,78,562.30. The first instalment shall be paid on or before the 20th of March, 1994 and the successive instalments on or before the 20th of each succeeding month. There will be no order as to costs in these Writ Appeals.
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1994 (2) TMI 66 - HIGH COURT OF JUDICATURE AT MADRAS
Prosecution - Acquittal - Appeal against - Culpable mental state - Existence of ... ... ... ... ..... red, but that section is not relevant to our case because it relates to the question whether the seized goods were smuggled goods or not, and in our case that the goods seized were smuggled goods is in no doubt, and the question that arises as said above is whether the first accused had knowledge that the handles of the brief cases contained the gold bits. In that case there was evidence showing that the accused, who pleaded that he was carrying the packet which was found to contain gold bars for another person without knowing the contents of the packet, secreted the packet, which circumstance implied his guilty mind. 14A. It must be remembered that this appeal is against an order of acquittal, and only because a view different from the view taken by the Court below is possible the appeal cannot be allowed. I find that one of the two grounds on which the Appellate Court found the first accused not guilty is quite reasonable. In this view of the matter the appeal is dismissed.
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1994 (2) TMI 65 - HIGH COURT OF JUDICATURE AT MADRAS
Refund - Export rebate ... ... ... ... ..... or, before the expiry of the period specified in Section 11B of the Act. In other words, Clause V does not fix any period of limitation. Clause V only refers to the period of limitation under Section 11B of the Act. The Collector has not been given any power to dispense with the period of limitation prescribed under Section 11B of the Act. 4. The issue is not res integra. The following judgments support the plea of the respondents - (1) Collector of C.E., Chandigarh v. M/s. Doaba Co-op. Sugar Mills Ltd. - 1988 (37) E.L.T. 478 AIR 1988 S.C. 2052 (2) Bhutan Duars Tea Association Ltd v. Collector of Central Excise - 1991 (55) E.L.T. 220 (3) Kannabiran Mill Ltd. v. Collector of Customs - 1993 (66) E.L.T. 136 and (4) Ashok Leyland Ltd., Madras v. Collector of Central Excise, Madras - 1983 (14) E.L.T. 2106. 5. The impugned orders are therefore, perfectly legal and justified and they are accordingly upheld. The writ petition is dismissed. However, there will be no order as to costs.
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1994 (2) TMI 64 - HIGH COURT AT CALCUTTA
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... ... ..... d with the absoluteness of his title or his right to immediate possession over the car. 12. The petitioner is therefore clearly entitled to relief. The order of the Collector dated 31-1-1994 is quashed and there shall be a Rule Absolute in the nature of Certiorari in that regard. 13. The respondents and all of them and their concerned officers, servants and agents are directed to return the car unconditionally to the petitioner within a period of a fortnight from date hereof. There shall be a Rule absolute in the form of Mandamus in this regard. The Collector is also directed to issue a detention certificate to the petitioner prior to the delivery so that the petitioner is not compelled to pay any demurrage or other detention charges to the Trustees for the Port of Calcutta or to any other authority. 14. Stay of operation of this order is prayed for but the same is refused. 15. All parties concerned to act on a signed xerox copy of the dictated order on the usual undertaking.
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1994 (2) TMI 63 - HIGH COURT OF JUDICATURE AT MADRAS
Writ Jurisdiction - Existence of alternative remedy ... ... ... ... ..... t there would be no injustice caused to the respondents, if the appellant is permitted to file an appeal, within a specified period and the Appellate Tribunal to proceed to decide it on merits and in accordance with law, because it cannot be said, as on the date the writ petition was filed, the appeal was barred by time. 8. For the reasons stated above, the writ appeal is disposed of in the following terms - This is not a case, in which the exercise of jurisdiction under Article 226 is called for. However, liberty is reserved to the appellant to prefer an appeal, within 30 days from today against the order dated 28th September, 1993 passed by the Collector of Central Excise (Appeals) before the Appellate Tribunal. If such an appeal is preferred, the Appellate Tribunal shall decide the appeal, on merits and in accordance with law, without going into the period of limitation. The order of the learned single Judge stands modified accordingly. There will be no order as to costs.
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1994 (2) TMI 62 - SUPREME COURT
Demand after finalisation of assessment ... ... ... ... ..... e first respondent. So far as the directions made by the High Court are concerned, we are substantially in agreement with it. Before the first respondent is made liable for higher or enhanced duty, it must be told on what grounds it is sought to be made liable for additional duty and it must be given an opportunity of meeting those grounds. This is the minimum requirement of the principle of natural justice which must be read into sub-rule (5) of Rule 9B, wherever called for. 5. We are also told that pursuant to the judgment of the High Court, proceedings have already been initiated, a show cause notice served upon the first respondent and that the proceedings are now in progress. The said proceedings shall now be concluded expeditiously without waiting for orders of the Tribunal or any Court. The appeal is accordingly disposed of. It is obvious that against the order passed by the assessing authority, the aggrieved party shall have the remedies prescribed by law. No. costs.
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1994 (2) TMI 61 - SUPREME COURT
Whether the appellant was entitled to the benefit of Notification No. 281-Cus/76 granting some exemption from payment of customs duty in respect of rod bushes and camshaft bushes/
Held that:- It may be that the Collector should have finally disposed of this order. But he has not. In view of this, it may as well be that the Court has no jurisdiction to entertain the present appeal because of what has been held in Navin Chemicals Manufacturing and Trading Company Ltd. v. Collector of Customs [1993 (9) TMI 107 - SUPREME COURT OF INDIA] as there is yet no assessment for the period in question. So, we refrain.The appeal, therefore, stands dismissed.
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1994 (2) TMI 60 - HIGH COURT OF JUDICATURE AT MADRAS
Warehousing ... ... ... ... ..... e, he cannot permit the goods to be stored in a warehouse. In other words, it is only where the authorities are forced to take some time for permitting clearance that the question of warehousing under Section 49 will arise. Where the authorities have a suspicion that the importer had committed irregularities and the goods are liable for confiscation, they are not bound to give permission under Section 49 of the Customs Act. In this case both the importer and the Customs House Agent are suspected to have subscribed to a declaration, the truth of which is highly doubtful. Therefore, the alternative submission of the learned counsel for the petitioners for permitting them to warehouse the goods under Section 49 of the Customs Act, cannot be conceded. 4. The only direction that can be given in the writ petition is to direct the respondents to proceed to adjudicate the matter and pass orders on or before 23-2-1994. The writ petition is dismissed with the above direction. No costs.
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1994 (2) TMI 59 - SUPREME COURT
Whether sales of turmeric powder and pepper powder obtained from whole turmeric and whole pepper are exigible to sales tax under West Bengal Sales Tax Act, 1954?
Held that:- So far as whole black and white pepper and pepper powder is concerned, they are the same goods, whether applying the functional test or the test of common parlance/commercial parlance. The analogy of paddy and rice or of wheat and wheat powder is not apt. Nobody consumes paddy as it is. Similarly, no one eats whole wheat. They are consumed after milling them into rice or flour, as the case may be. But so far as the pepper is concerned, it is used equally in whole as well as powdered form. It is for this reason perhaps that the entry in Notification No. 885-F.T. dated May 1, 1955 speaks of "Black and white pepper—whole, broken, ground or powdered or of any other form or description whatsoever". It is equally significant that the Notification No.1915-F.T. dated May 10, 1963 refers to these commodities "as specified in Notification No. 885-F.T. dated 1st May, 1955". Black and white pepper "as specified in Notification No. 885" : means black and white pepper, whether whole, powdered, broken or in any other form.
So far as turmeric and turmeric powder is concerned, the position is not identical, applying the functional test. But inasmuch as turmeric is also described in Notification No. 885 in the same manner as black and white pepper and also because Notification No. 1915 refers to it with reference to the said earlier Notification, we are inclined to say that turmeric and turmeric powder must also be treated as same goods. Appeal allowed.
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1994 (2) TMI 58 - SUPREME COURT
Whether `rexin cloth' produced by the respondent falls under Tariff Item 19-III of the Schedule to the Central Excise Act, as it obtained at the relevant time?
Held that:- Learned Judge has given two reasons for his conclusion, namely, (1) since the P.V.C. Compounding was done simultaneously with the weaving of the fabric, there was no pre-existing base fabric and (2) having regard to the higher percentage of P.V.C. Compound in the ultimate product, it cannot be treated as a man-made fabric within the meaning of T.I. 22. Though the learned counsel for Revenue sought to distinguish the first ground given by the Bench saying that in that case the P.V.C. Compounding was done simultaneously with the weaving of the fabric, the said distinction is, in our opinion, without a difference. It does not matter whether the P.V.C. Compounding is done simultaneously with the weaving or is done on a pre-existing fabric. Be that as it may, the more relevant aspect is the second ground given by the Bench wherein they applied the test of predominance to the final product and not to the base fabric. This was evidently done because the attention of the Bench was not invited to the proviso. As indicated hereinabove, while setting out T.I. 22, the proviso is omitted which, however, has material bearing. It is not known what would have been the conclusion if the proviso would have been noted. Thus the matter is placed before a Bench of three Judges
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1994 (2) TMI 57 - SUPREME COURT
Whether it can be said that the furnishing of a bank guarantee for all or part of the disputed excise duty pursuant to an order of the court is equivalent to payment of the amount of excise duty?
Held that:- The answer is in the negative.The bank guarantee is security for the Revenue, that in the event the Revenue succeeds its dues will be recoverable, being backed by the guarantee of a bank. In the event, however, unlikely, of the bank refusing to honour its guarantee it would be necessary for the Revenue or, where the bank guarantee is in favour of the principal administrative officer of the Court, that officer to file a suit against the bank for the amount due upon the bank guarantee. The amount of the disputed tax or duty that is secured by a bank guarantee cannot, therefore, be held to be paid to the Revenue. There is no question of its refund, and Section 11B is not attracted.
The bank guarantees given by the appellants were not properly the subject matter of the writ petition before the High Court and the High Court was in error in directing the appellants to renew the same. We reiterate our direction to the 1st and 2nd respondents forthwith to re-pay to the State Bank of Patiala, Overseas Branch, Millar Ganj, Ludhiana, the amount of ₹ 1,18,00,000/- collected upon the bank guarantees within two weeks - review petition is dismissed.
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1994 (2) TMI 56 - SUPREME COURT
Whether the prestressed cement concrete poles manufactured by the appellant, Andhra Pradesh State Electricity Board, are "goods" within the meaning of Section 3 of the Central Excises and Salt Act, 1944?
Held that:- In the appeals the fact that in Kerala these poles are manufactured by independent contractors who sell them to Kerala State Electricity Board itself shows that such poles do have a market. Even if there is only one purchaser of these articles, it must still be said that there is a market for these articles. The marketability of articles does not depend upon the number of purchasers nor is the market confined to the territorial limits of this country. The appellant's own case before the excise authorities and the C.E.G.A.T. was that these poles are manufactured by independent contractors from whom it purchased them. This plea itself - though not pressed before us - is adequate to demolish the case of the appellant. In our opinion, therefore, the conclusion arrived at by the Tribunal is unobjectionable. Appeal dismissed.
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1994 (2) TMI 55 - SUPREME COURT
Whether it is obligatory to follow rule 1D while valuing the unquoted equity shares of companies (other than investment companies and managing agency companies) or is it merely optional ?
Whether the Valuation Officer is bound by rule 1D when valuing the unquoted equity shares of the companies ?
Whether the application of the break-up method in rule 1D means that the capital gains tax, which would be payable in case the said shares are sold on the valuation date, is liable to be deducted from the market value determined ?
Where the date of a balance-sheet of the company is earlier to the valuation date of the assessee, is it obligatory to follow rule 1D ? (The same question arises where in the absence of such a balance-sheet, the balance-sheet drawn up on a date immediately following the valuation date is taken as the basis).
How are sub-clause (a) of clause (i) and sub-clause (e) of clause (ii) of Explanation II to be read and understood ?
Whether the assessee holding shares in a company whose assets comprise wholly tea estates is entitled to exclude such shares from his wealth ?
Held that:- Rule 1D is not ineffective or invalid for any of the reasons suggested by learned counsel for the assessees nor can it be said that the Wealth-tax Officer has an option to follow or not to follow the said rule. He has to follow and apply the said rule in each and every case where he has to value the unquoted equity shares of a company. The contention of the assessees that it is merely directory and that it need not be followed at the choice of the Wealth-tax Officer or the assessee, or in the case of a going concern, cannot be accepted.
The Valuation Officer is equally bound by rule 1D-as indeed he is bound by all the other Rules made under the Act. This is the view taken by the Allahabad High Court in CWT v. Smt. Pushpawati Devi Singhania [1990 (11) TMI 109 - ALLAHABAD High Court]. The contrary view taken by the Delhi High Court in Sharbati Devi Jhalani v. CWT [1985 (8) TMI 61 - DELHI High Court] and other High Courts, if any, is overruled.
For the purpose of determining the market value, the sub-section says that the Wealth-tax Officer shall make an estimate of the price which the asset would fetch if sold in the open market on the valuation date. The sub-section speaks of the market value of the asset and not the net income or the net price received by the assessee. This is not a case where a fiction is created by Parliament. It is only a case of prescribing the basis of determination of market value. On the same reasoning, it must be held that no other amounts like provision for taxation, provident fund and gratuity, etc., can be deducted. The contention of learned counsel for the assessee is, therefore, wholly unacceptable.
It must be remembered that what is sought to be valued is an unquoted equity share. Since it is not quoted on the stock exchange and there are no dealings in those shares, some formula has to be evolved for determining its value. So long as the formula evolved is reasonable having regard to available circumstances and practicable considerations, the formula cannot be faulted. No formula can be evolved to fit all conceivable situations. Even if the dividend method is adopted, the said problem would still be present. The dividend may have been declared on a date different from the valuation date. For all the above reasons, it is not possible to agree that merely because the valuation date and the date of the balance-sheet are not the same, rule 1D need not be followed.
By reading clause (i)(a) and clause (ii)(e) together, the assessee will be getting the benefit of entire ₹ 10 lakhs but so far as the balance-sheet for the purpose of rule 1D is concerned, only ₹ 2 lakhs will be treated as a liability on the valuation date since that is the actual amount still outstanding. We do not think that if the aforesaid clauses are understood as explained herein, there is any prejudice to the assessees or to the Revenue. It indeed reflects the true situation. Thus we do not think it necessary to deal with the opposing views of the High Courts at any length.
An assessee holding shares in a company whose assets comprise wholly or partly of agricultural land, is not entitled to exclude such shares from his wealth.
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1994 (2) TMI 54 - DELHI HIGH COURT
Actual Cost, Backward Area, Depreciation, Developement Rebate ... ... ... ... ..... ssa High Court in CIT v. Orissa Industries Ltd. 1992 198 ITR 251. Here also the court took the view that subsidy was not paid to meet the cost of any asset of the assessee and that it was given as an incentive for setting up industrial units in backward areas. The court also observed that the formula contained for grant of subsidy was merely a measure for determining the amount of subsidy. Sub-section (1) of section 43 of the Act which defines actual cost was held to be not applicable. The Punjab and Haryana High Court, to our mind, did not take the correct view of the matter and we are in respectful disagreement with the same. What was subsidy in common parlance was not adverted to. We are, therefore, of the view that the Tribunal was correct in its view that subsidy was not to be reduced from the cost of the assets of the assessee. We answer both the questions in favour of the assessee and against the Revenue. The respondent will be entitled to costs. Counsel fee Rs. 1,000.
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1994 (2) TMI 53 - KERALA HIGH COURT
Capital Receipt, House Property, Revenue Receipt ... ... ... ... ..... t when it was filed. This application was considered by the officer who took a decision to allow the renewal. The order thus passed under rule 6 is in force. It is not varied or altered by any higher authority. Now the officer wants to change the above decision as he now holds different opinion. In substance, therefore, what is sought to be done in this case now is not rectification of a mistake but substitution of a different opinion. This cannot be done under section 36. Unless the order allowing the renewal is so altered, the status of firm cannot be substituted as unregistered firm . As long as the order allowing the renewal of registration stands, there is no error apparent on the records, even assuming the application for renewal is part of the record of the assessment. The judgment of the learned single judge in the circumstances of the case, we feel, does not call for any interference. The writ appeal has no merit and therefore it fails. Accordingly, it is dismissed.
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1994 (2) TMI 52 - KERALA HIGH COURT
Capital Receipt, House Property, Revenue Receipt ... ... ... ... ..... lity or in the Co-operative Societies Act, 1969, casting liability on any one other than the society itself or unless the person concerned has undertaken personal liability by his own conduct. This principle is well entrenched in the jurisprudence of this country so that it is not possible to fasten any liability on the members or office bearers of a society merely on the strength of their position as such. I do not find anything in section 26 of the Co-operative Societies Act, 1969, which was incidentally referred to casting any such personal liability on the members of a co-operative society. The proceedings initiated against the petitioner for recovery of the agricultural income-tax due from the third respondent society are, therefore, incompetent. The original petition is, therefore, allowed and exhibit P-6 is quashed but this will not preclude respondents Nos. 1 and 2 from proceeding against the assets of the society for realisation of the amounts due from it. No costs.
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1994 (2) TMI 51 - RAJASTHAN HIGH COURT
False Statement In Verification, Offences And Prosecution ... ... ... ... ..... accused petitioners were discharged for the offences under section 277 read with section 278 of the Income-tax Act and only framed the charges against the accused petitioners for the offence under section 277 of the Income-tax Act. Out of six, only three witnesses have been examined by the prosecution, that too pre-charge witnesses. Therefore, in these circumstances, it cannot be expected from the prosecution that they will prosecute the accused petitioners shortly. The time taken in framing the charge itself is very unreasonable and dragging further these accused petitioners to trial will be against the interest of justice. Hence, I fully agree with counsel for the petitioners that the proceedings deserve to be dropped. Hence, it is ordered that these proceedings are dropped as the prosecution failed to complete the trial within a reasonable time, as well as there are bleak chances of conviction in this case. In the result, all the three miscellaneous petitions are allowed.
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1994 (2) TMI 50 - PATNA HIGH COURT
Income, Mutuality ... ... ... ... ..... or unreasonable. We, therefore, hold that, on the basis of the communication of the Central Board of Direct Taxes, the decision of the Appellate Tribunal is justified in law. In the light of our above reasoning and conclusion, we answer question No. (i) referred to us in the affirmative, against the Revenue and in favour of the assessee. We reframe question No. (ii) by deleting the word devotees occurring therein and reframe the question in the following manner. Whether, on the facts and in the circumstances of the case, the amounts received from members can be taken to be Gurudakshina and held to be exempt ? We answer question No. (ii) so reframed in the affirmative, in favour of the assessee and against the Revenue. The questions referred to the above tax cases are answered as above. There will be no order as to costs. The Registrar of this court shall send a copy of this judgment under his signature and seal of this court to the Income-tax Appellate Tribunal, Patna Bench.
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1994 (2) TMI 49 - GUJARAT HIGH COURT
Installed, Investment Allowance, Plant ... ... ... ... ..... g of the assessee were the same. Since the factory and the office was in the same building, it cannot be said that these books were not installed in the factory building, or that they were installed in the office premises. Therefore, in our view, the proviso to section 32A(1) would not be attracted in this case. We would, therefore, uphold the finding of the Tribunal on the above ground. Since the factory and the office of the assessee are in the same building, it would not be necessary to decide as to what would happen to the books kept in the office as posed in the first part of the question referred to us. We, therefore, hold that the assessee is entitled to investment allowance in respect of the books containing technical know-how under section 32A(1) of the Act and for the reason indicated above answer the question referred to us in the affirmative, in favour of the assessee and against the Revenue. The reference stands disposed of accordingly with no order as to costs.
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