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Case Laws
Showing 341 to 360 of 915 Records
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2010 (7) TMI 891 - BOMBAY HIGH COURT
Whether, on facts and circumstances of the case and on a true and correct interpretation of Schedule A, entry 36 appended to the Bombay Sales Tax Act, 1959, the Tribunal was legally justified in holding that the "bouquet of fresh flowers" is not covered by the said Schedule A, entry 36 pertaining to "natural flowers" but it is covered by the residuary Schedule C, Part II, entry 152 and hence liable to tax at 13 per cent?
Whether, on facts and circumstances of the case and on a true and correct interpretation of section 2(17) of the Bombay Sales Tax Act, 1959, the Tribunal was legally justified in holding that the activity of preparing bouquets from the natural flowers brings into existence commercially a different product and hence is a "manufacture"?
Held that:- If the "flower bouquet" as submitted by the learned advocate for the respondent is an arrangement of cut flowers, such arrangement of cut flowers by itself would not convert the said flowers into a different commercial commodity nor will it amount to an activity which would have an impact on the nature of the goods and will therefore not fall within the definition of the word "manufacture". Since bouquet of fresh flowers prepared using golden grass, earthen pot or basket, silver foil, chamki, ribbons and other decorative material, not being a subject-matter of dispute involved herein, we do not propose to go into the question whether such change or transformation in substance qua the fresh flowers would fall within the definition of the term "manufacture". Each product will have to be examined on its own facts and determined for the purpose of its taxability.
In the instant case the invoice submitted by the applicant and on the basis of which, the decision has been given by the Tribunal shows description of the goods as "fresh flowers bouquet". We, considering the simple arrangement of fresh flowers, answer both the questions set out in paragraph 2 of this judgment in the negative, i.e., in favour of the applicant and against the Revenue.
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2010 (7) TMI 890 - GUJARAT HIGH COURT
Levy of purchase tax under section 15B of the Gujarat Sales Tax Act on the purchases from a new industry
Held that:- The goods purchased by the appellants from a new industry having sales tax exemption vide notification issued under section 49 of the Gujarat Sales Tax Act, 1969 are not "taxable goods" within the meaning of section 2(33) of the Act and as such are not liable to purchase tax under section 15B of the Act. The Tribunal was, therefore, not justified in confirming the levy of purchase tax under section 15B of the Gujarat Sales Tax Act, 1969 on the purchases from a new industry, which had been granted exemption by notification issued under section 49(2) of the Act. The questions stand answered accordingly.
The impugned orders made by the Tribunal are hereby quashed and set aside. The appeals are accordingly allowed with no order as to costs.
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2010 (7) TMI 889 - KARNATAKA HIGH COURT
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... ... ..... f the Deputy Commissioner of Commercial Taxes passes any order adverse to the interest of the petitioner, the petitioner can avail of the appeal remedy provided under section 62 of the VAT Act. On hearing the learned advocates, this court finds that these petitions are premature, as no firm cause of action has arisen to the petitioner. In the fitness of the case, the petitioner has to await the outcome of the proposition notice having filed its objection thereto. Just because a similar matter is pending before the KAT, the Deputy Commissioner cannot be directed to defer the consideration of the proposition notice. It is not the case of the petitioner that the impugned proposition notice is barred by delay or without jurisdiction. I am afraid the prayer made is not grantable. The petitioner cannot mandamise the prohibitory/injunctive relief. In the result, these petitions are rejected expressing no opinion whatsoever on the petitioner 39 s tax liability. No order as to costs.
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2010 (7) TMI 888 - ALLAHABAD HIGH COURT
Validity of the notice under section 21 of the U.P. Trade Tax Act, dated March 20, 2010 issued by the Deputy Commissioner, Commercial Tax, sector 12, Meerut Zone, Meerut challenged
Held that:- Initiation of the proceedings under section 21 of the Act under the Central Sales Tax Act cannot be said to be without any basis and merely on account of change of opinion. We decline to interfere in the matter under article 226 of the Constitution of India and to quash the proceeding at this stage. However, it will be open to the petitioner to participate in the proceedings under section 21 of the Act and file the necessary reply. Writ failed.
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2010 (7) TMI 887 - UTTARAKHAND HIGH COURT
Rate of tax on "whip topping" which was sold by the revisionist in Uttarakhand - Held that:- Admittedly, "whipping top" is not an item mentioned exclusively as such in the Schedule. Therefore, it being an unclassified item has to be charged tax at the rate of 12.5 per cent. Moreover, fiscal matter has to be strictly interpreted, if the Legislature of the State in its wisdom has decided that the "whip topping" has to be treated as unclassified item, then it has to be treated as such. The court cannot impose either its opinion or wisdom on this aspect.
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2010 (7) TMI 886 - ALLAHABAD HIGH COURT
Whether, interest under section 8(1) can be demanded from the due date of the return in which turnover was disclosed and exemption/concession has been claimed and tax at the normal rate has not been paid or from the date of assessment order or under section 8(1B) in case of non-payment even after the assessment order?
Whether in case of non-furnishing of requisite form by the time of assessment proceeding, the tax assessed at a normal rate can be said to be tax admittedly payable under section 8(1) of the Act?
Whether there is any scope for the consideration of legitimate expectation or hope or bona fide belief under section 8(1) of the Act and what is the stage of determination of liability of tax whether return or assessment?
Held that:- Even though declaration form for claiming exemption/concession may be required to be filed during the course of assessment proceedings but, in cases of non-furnishing of declaration forms during the assessment proceedings or subsequent thereto in appeal, tax has to be levied at the normal rate which would become the admitted tax and interest under section 8(1) of the Act would be leviable from the due date of the return in which turnover was disclosed and exemption/concession has been claimed and tax at the normal rate has not been paid. The provisions of section 8(1B) of the Act would not be applicable.
Non-furnishing of requisite form by the time of assessment proceedings or in appellate proceedings, the tax assessed at the normal rate would be treated as the tax admittedly payable under section 8(1) of the Act.
There is no scope for consideration of legitimate expectation or hope or bonafide plea under section 8(1) of the Act and the stage of determination of liability of tax for the purposes of section 8(1) would be the date for filing the return.
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2010 (7) TMI 885 - BOMBAY HIGH COURT
Whether, on true and correct interpretation of rule 42-I of the Bombay Sales Tax Rules, 1959, the Tribunal is justified in refusing to grant set-off on purchase tax levied under the Bombay Sales Tax Act, 1959 in respect of purchases of gold which was used in the manufacture of mangalsutra, when the mangalsutra is covered by Schedule entry A30 appended to the Bombay Sales Tax Act, 1959 for the assessment period April 1, 1990 to March 31, 1991, though subsequently referred in rule 42-I with notification dated May 1, 1992?
Held that:- The words "for any period" will bring within itself the period prior to the date of insertion of entry relevant to mangalsutra. The entry relating to mangalsutra was, no doubt, inserted with effect from May 1, 1992 but manufacture thereof and use of gold therein could be prior to the amendment. In order to cover such cases of manufacture, the words "for any period" appear to have been used in the subject rule and were retained even after amendment. Therefore, in our considered view, the gold used in manufacture of mangalsutra prior to the date of amendment will also be entitled for set-off.
In the above view of the matter, the question referred is answered in the negative, i.e., in favour of the assessee and against the Revenue.
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2010 (7) TMI 884 - UTTARAKHAND HIGH COURT
Whether the assessing authority was justified in imposing the tax on the air-conditioning and cold storage plant for the assessment years 1995-96, 1996-97, 1997-98 and 1998-99 under section 3F of the U.P. Trade Tax Act, 1948 by holding that air-conditioning and cold storage plant is a movable property?
Whether the learned Tax Tribunal was justified in equating the air-conditioning plant and cold storage plant of the hotel with the water pump by holding that plant is fixed only for the purpose of operational efficiency?
Held that:- Even from the MOU and agreement executed by the revisionist themselves their intention is indicated that the air-conditioning plant is one of the movable assets, which was leased out by the revisionist by a separate agreement to the Jaypee Hotel. Accordingly, we answer the question No. 1 in the affirmative holding that air-conditioning and cold storage plant is a movable property.
The test as to whether the machine or article is immovable or movable property, is that the machine or article could be sold in the market and could be removed for installation at other place. Therefore, the question No. (ii) does not survive at all. Appeal dismissed.
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2010 (7) TMI 883 - KERALA HIGH COURT
Whether "10 gram gold rectangular bars" marketed by that bank and classifiable under HSN Code 7108.13.00 falls under entry 4(4) of the Third Schedule to the Act and is taxable at four per cent?
Held that:- We are of the view that the impugned clarification by the Commissioner under section 94 clarifying that 10 gm. gold rectangular bar marketed by SBI falls under HSN Code 7108 13 00 applies to the appellant's case also in respect of gold coins of similar size, i.e., 5 gm., 8 gm., 10 gm., etc., marketed by them. Appeal dismissed.
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2010 (7) TMI 882 - MADHYA PRADESH HIGH COURT
Whether the sale could be said to be inter-State sale?
Held that:- The transactions of sale of bamboos and tendupatta not to be in the inter-State trade or commerce as contemplated under section 3(a) of the Central Sales Tax Act. Thus, the commercial tax/ VAT was payable in accordance with law on the transactions in question.
The writ petitions being devoid of merits, deserve dismissal, they are hereby dismissed
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2010 (7) TMI 881 - CALCUTTA HIGH COURT
Whether a director of a company would be deemed to be in charge of, and responsible to the company for conduct of the business of the company and, therefore, deemed to be guilty of the offence unless he proves to the contrary?
Held that:- It is the admitted case of the petitioner that he is the General Manager, West Bengal of Indian Oil Corporation Limited. He being the General Manager of the company by very nature of his duty it can always be prima facie inferred that being the General Manager he is in charge and responsible to the accused company for carrying on its day to day business. Therefore, there is a prima facie case so far as the petitioner no. 2 is concerned that he is vicariously liable for the offences committed by the accused company of which he is the General Manager. Hence, even in absence of requisite averment in the petition of complaints, the question of quashing of the case against him does not at all arise. In the result, while both the criminal revisions so far as the petitioner no. 1 is concerned succeeds and the criminal case against him stands quashed, but both the aforesaid criminal revisions so far as the petitioner no. 2 is concerned stands dismissed for the reasons stated hereinabove.
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2010 (7) TMI 880 - CESTAT AHMEDABAD
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... ... ..... order had observed that Shri Prakash M. Seth, authorized signatory had shown his full agreement with the method of stock taking and facts mentioned in the panchnama. However in para 4 of the order in original under brief facts of the case, it is mentioned that the authorized signatory stated that he did not have any idea regarding difference in physical stock and he was not in a position to explain the same and he would give the reply/explanation within a week which he promptly did. Therefore this observation of the Commissioner which would have strengthened the case of the department is not based on facts of the case. Under these circumstances it has to be held that no excess was found during the visit of the officers and regarding shortage whether any proceedings have been undertaken or not is not coming under the purview of these proceedings. In view of the above discussion, the impugned order is set aside and all the appeals are allowed. (Dictated and Pronounced in Court)
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2010 (7) TMI 879 - MADRAS HIGH COURT
Whether "dyes" used for leather finishing falls under entry 49 of Part C or entry 16(iii) of Part E?
Held that:- while "pigments" would straightaway fall under entry 16(iii). "pigments or water pigments" when used for leather finishing works would also fall under the said entry 16(iii. Certainly "dyes" which are classified as such under entry 49 of part C can be taxed only at the rate it is specified for that entry and the said classification cannot be clubbed with entry 16(iii) even if such "dyes" were used for the purpose of leather finishing works and thereby brought under entry 16(iii) of Part E. To put it differently, the "dyes" which squarely falls under entry 49 of Part C can never be classified as "pigments" and brought under entry 16(iii) merely because such "dyes" are used the process of leather finishing works.
Once we come to such a definite conclusion, we have no hesitation in answering the question in favour of the assessee and consequently, the order impugned in these revision petitions cannot be sustained. The impugned orders are set aside. The tax levied initially at the rate of 5% alone would survive. Any levy of tax over and above 5% is hereby set aside.
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2010 (7) TMI 878 - MADRAS HIGH COURT
Whether the purchase made by the assessee being an oil miller is liable for purchase tax or not?
Held that:- On consideration of the facts available on record, we are of the considered view that the Tribunal has made a total error in setting aside the assessment order as confirmed by the First Appellate Authority by relying upon the judgment of the Apex Court in SHANMUGA TRADERS v. STATE OF TAMIL NADU [1998 (4) TMI 484 - SUPREME COURT OF INDIA] without appreciating the scope of Section 7-A of the Act as well as the entry 6(viii) of the II Schedule to the Act and the notification passed in G.O.Ms.No.976, Revenue, dated 28th March, 1959. Revision allowed.
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2010 (7) TMI 877 - SUPREME COURT
Whether appellant has made any other application to the Supreme Court or the High Court in respect of the same matter and how that application has been disposed of?
Whether writ will lie against a private person?
Held that:- Appeal dismissed. This Court hopes and trusts that in exercising its power either under Article 226 or 227, Hon'ble High Court will follow the time honoured principles discussed above. Those principles have been formulated by this Court for ends of justice and the High Courts as the highest Courts of justice within their jurisdiction will adhere to them strictly.
The High Court committed an error in entertaining the writ petition in a dispute between landlord and tenant and where the only respondent is a private landlord. The course adopted by the High Court cannot be approved. Of course, High Court's order of non- interference in view of concurrent findings of facts is unexceptionable.
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2010 (7) TMI 876 - SUPREME COURT
Whether it was a case of clubbing - Held that:- The matter requires to be remanded to the Competent Authority in the Electricity Board to determine and record the clear findings afresh as to whether it was a case of clubbing or not in accordance with the provisions and observations afore-referred with liberty to the parties to produce any further documents, if they so desire. The authority shall pass a final order expeditiously. The fate of the notices and consequences thereof shall be subject to the final order that may be passed by the Competent Authority. Parties are at liberty to challenge the order so passed in accordance with law.
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2010 (7) TMI 875 - SUPREME COURT
What is the date of commencement of limitation?
Whether the period of three months can be counted as 90 days?
Whether only three months plus twenty eight days had expired when the petition was filed as contended by the appellant, or whether petition was filed beyond three months plus thirty days, as contended by the respondent?
Held that:- Appeal allowed. The period of “three months from the date on which the party making that application had received the arbitral award” shall be computed from 13.11.2007.
When the period prescribed is three months (as contrasted from 90 days) from a specified date, the said period would expire in the third month on the date corresponding to the date upon which the period starts. As a result, depending upon the months, it may mean 90 days or 91 days or 92 days or 89 days
Thus Thirty days from 12.2.2008 under the proviso should be calculated from 13.2.2008 and, having regard to the number of days in February, would expire on 13.3.2008. Therefore the petition filed on 11.3.2008 was well in time and was not barred by limitation.
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2010 (7) TMI 874 - CESTAT NEW DELHI
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... ... ..... iven wrong addresses before the transport authorities. This action of the transport owners cannot be the cause for doubting the documents based on which the respondents have taken credit. M/s. Majestic Industries Ltd. were a manufacturer themselves and they also had a registration as a dealer from another address. The evidence relied upon do not throw any doubt about the receipt of the materials by the respondent. Under these circumstances, the acceptance of the explanation of the respondent and dropping proceedings in respect of 16 invoices cannot be faulted. Commissioner (Appeals) has rightly upheld the order of the original authority. The basis on which the department has challenged the concurrent findings of the authorities below which were in favour of the assessee, is not sound. There are no valid grounds to interfere with the orders of the authorities below. 9. Appeal is therefore rejected. Misc. Application is also disposed off. (Dictated and pronounced in open Court)
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2010 (7) TMI 873 - CESTAT MUMBAI
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... ... ..... e equated with the availment and in turn it cannot be termed as misdeclaration merely on the premise that they have claimed the benefit. The Tribunal in the case of J.K. Industries Ltd., (supra) held that as there was no misdeclaration of the goods. Therefore, I find that the confiscation of the goods in question is not sustainable in law. The Ld. Commissioner (Appeals) has absolved the importer from penalty and department has not challenged the same. Once the penalty upon the importer is set aside there is no justification in imposing penalty on the CHA, since the department has not brought out anything to show that CHA was working for availing the benefits of the exemption notification solely for his own interest and could get away with the benefits in case the same would have been extended and gone un-noticed. Therefore, I set aside the penalty on the CHA. In view of the above, Commissioner (A) s impugned order is set aside, and the appeals are allowed. (Dictated in Court)
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2010 (7) TMI 872 - CESTAT MUMBAI
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... ... ..... ply to inputs in WIP. Ld. Commissioner, in his impugned order, dealt with various aspect at length, barring the aforesaid aspect relating to applicability of Rule 21 ibid. Evidently, recovery of Cenvat credit or subsequent refund/re-credit thereof is no body s case, here. In these circumstances, even if, the O-I-O is upheld it would only result into a naught since it would not confer any right on department to recover Cenvat credit which is not the subject matter of the case. In case appeal is allowed it would not give suo motu benefit to the appellant for non-payment Cenvat credit if proceeding already initiated or likely to be initiated on this count, since, the same would be considered on its on terms. Therefore, I am of the considered view that the application for remission, the O-I-O and the appeal are not maintainable, in the case. In the interest of justice, the application for remission, the O-I-O and the appeal are dismissed as not maintainable. (Pronounced in court)
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