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1976 (11) TMI 197
... ... ... ... ..... w of the fact that it contained allegations of mala fides against the respondents. We are unable to accept this contention. It has been held time and again by this Court that the High Court would be justified in refusing to carry on investiga- tion into the allegations of mala fides if necessary partic- ulars of the charge making out a prima facie case are not given in the writ petition. Keeping in view the well estab- lished rule that the burden of establishing mala fides lies very heavily on the person who alleges it and considering all the allegations made by the appellant in regard thereto, we do not think that they could be considered as sufficient to establish malus animus. The High Court was, therefore, not wrong in dismissing the petition in limine on seeing that a prima facie case requiring investigation had not been made out. In the result, the appeal fails and is hereby dismissed but in the circumstances of the case without any order as to costs. Appeal dismissed.
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1976 (11) TMI 196
... ... ... ... ..... ng stay of dispossession is set aside. 11. Counsel for the appellants suggested that some time should be given to the appellants to bottle the liquor manufactured and lying at the Distillery for disposal. Rule 10 of the Punjab Distillery Rules 1932 is as follows If a license be revoked, cancelled or determined the licensee shall dispose, under the conditions of his license of his stock of spirit, apparatus, storage vessels and other distilling plant in such manner as the Financial Commissioner may direct. 12. The Financial Commissioner will give suitable directions in accordance with Rule 10 of the Punjab Distillery Rules, 1932 for disposal of the stock of spirit, apparatus, storage vessels and other distilling plant. 13. For the foregoing reasons the appeal is accepted and the order of the High Court granting stay of dispossession is set aside. We do not propose to pass any order on the application for initiating proceedings for contempt. There will be no order as to costs.
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1976 (11) TMI 195
... ... ... ... ..... hagmal Jain on behalf of the appellant, we see no cogent ground to take a view different from that taken by the High Court. There cannot, in our opinion, be any doubt on the point that the extent of purity of the gypsum won by the appellant is a question of fact. It has also been brought to our notice that after the dismissal of the writ petition by the High Court, the appellant has filed a suit, in which he has agitated the same question which is the subject matter of the writ petition. In our opinion, the appellant cannot pursue two parallel remedies in respect of the same matter at the same time. Mr. Sobhagmal points out that the suit brought by the appellant has been dismissed in default and that an application for the restoration of the suit has been filed in the trial court. Learned counsel for the. respondents state that they would not oppose the application for restoration of the suit. We, therefore, dismiss the appeal but with no order as to costs. Appeal dismissed.
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1976 (11) TMI 194
defence against recovery of amount on dishonour of a cheque drawn by partner. - leave under Order 37, Rule 2, of the Code to defend.
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1976 (11) TMI 192
... ... ... ... ..... The circumstances, therefore, are not such as lead to a clear-cut conclusion that the appellants were trying to evade duty. In the light of these circumstances the Board considers that the penalty of ₹ 1,00,000/- was excessive. Taking into account the sum of ₹ 18,276/- which has been appropriated against the amount which might have been imposed as fine in lieu of confiscation of the seized 85 pumps, the Board considers that a personal penalty of ₹ 10,000/- would meet the needs of the case. Accordingly, the personal penalty is reduced from ₹ 1,00,000/- to ₹ 10,000/- (Rupees ten thousand only). 21. The Board also, having regard to the extenuating circumstances, sets aside the fine of ₹ 5,000/- in lieu of confiscation of the appellants’ land, factory etc. The appeal is allowed to this extent only and is rejected otherwise and specifically in regard to the amount of ₹ 18,276/- appropriated in lieu of the value of the 85 pumps.
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1976 (11) TMI 191
... ... ... ... ..... ove dirt and grease effectively.” Thus according to the advertisement of the appellants themselves all the three products are used for the care of the hair. They are therefore rightly assessable under Item No. 14-F(ii) of the Central Excise Tariff. 4. This leaves the question of time-bar to be considered. The demand has been made after a period of more than one year of the removal of the goods. The officers below approved the classification list holding the above three products to be non excisable. There is no evidence to show that the removal of the goods by the appellants was clandestine and without the knowledge of the Central Excise Officers. This being the position rule 10A would not apply and the enabling rule to recover the short levy was rule 10 of the Central Excise Rules. Under Rule 10 of the Central Excise Rules his demand is time-barred. Therefore on this question of time bar I vacate the order of the Assistant Collector and allow consequential relief.
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1976 (11) TMI 190
Whether a quota prescription, willy nilly, does postulate exnecessitate a rota process in practice?
Held that:- The quota system does not necessitate the adoption of the rotational rule in practical application. Many ways of working out 'quota' prescription can be devised of which rota is certainly one. While laying down a quota when filling up vacancies in a cadre from more than one source, it is open to Government, subject to tests under Art. 16, to choose 'a year' or other period or the vacancy by vacancy basis to work out the quota among the sources. But once the Court is satisfied, examining for constitutionality the method proposed, that there is no invalidity, administrative technology may have free play in choosing one or other of the familiar processes of implementing the quota rule. We, as Judges, cannot strike down the particular scheme because it is unpalatable to forensic taste.
Seniority, normally is measured by length of continuous, officiating service--the actual is easily accepted as the legal. This does not preclude a different prescription, constitutionally tests being satisfied. A periodisation is needed in the case to settle rightly the relative claims of promotees and direct recruits. 1960-62 forms period A and 1962 onwards forms period. B. Promotees regularly appointed during period A in excess of their quota, for want of direct recruits (reasonably sought but not secured and because tarrying longer would injure the administration) can claim their whole length of service for seniority even against direct recruits 'who may turn up in succeeding periods.
Promotees who have been fitted into vacancies beyond their quota during the period B--the year being regarded as the unit--must suffer survival as invalid appointees acquiring new life when vacancies in their quota fall to be filled up. To that extent they will step down, rather be pushed down as against direct recruits who were later but regularly appointed within their quota - On this basis, the judgment of the High Court stands substantially modified, but preparation of a new seniority list becomes necessitous - Appeal allowed.
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1976 (11) TMI 189
... ... ... ... ..... either in the appeal, which was pending at the time or in a particular appeal which has already been decided, they can always approach the High Court on a reference so that the matter can be ultimately decided or they can come to the High Court in the exercise of the revisional powers. Under these circumstances, this contention based on section 20(2-A) cannot help the petitioner. In the light of the above discussion, it is clear that each of the three contentions urged by Mr. Dasaratharama Reddi on behalf of the petitioner must be decided against the petitioner. Each of these petitions therefore fails and is dismissed with costs. Advocate s fee Rs. 150 in each case. We wish to make it clear that we are not deciding any of the points except those which we have specifically dealt with, and it is open to the petitioner to raise the contentions other than those specifically dealt within this judgment when the matter is argued before the Deputy Commissioner. Petitions dismissed.
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1976 (11) TMI 188
... ... ... ... ..... s Private Ltd. v. State of Mysore 1967 19 S.T.C. 290., Commissioner of Sales Tax v. Asha Watch Company 1971 28 S.T.C. 395., Variety Body Builders v. Commissioner of Sales Tax, Gujarat 1971 28 S.T.C. 339. and State of Madras v. Champion Motor Works 1974 34 S.T.C. 338. It may be pointed out that the decision of the Supreme Court in State of Gujarat v. Variety Body Builders 1976 38 S.T.C. 176 (S.C.). is against the decision of the Gujarat High Court in Variety Body Builders v. Commissioner of Sales Tax, Gujarat 1971 28 S.T.C. 339. In view of the facts of this case, we have come to the conclusion that the Tribunal was right in holding that the supply of spare parts amounted to sales within the meaning of the sales tax law. Under these circumstances, each of these tax revision cases is decided against the assessee and in favour of the revenue. The tax revision cases are, therefore, dismissed. There will be no order as to costs. Advocate s fee Rs. 150 in each. Petitions dismissed.
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1976 (11) TMI 187
... ... ... ... ..... the record nay the part of the order. It is not as if any other material was being relied on by the authority of which any notice was required to be given. After perusing the record, we find ourselves unable to hold that any defect of want of particularised notice can affect the order made. In the result, we find no merit in the present petitions and the same would stand dismissed with costs. Mr. Manohar prayed for leave to appeal under article 133 of the Constitution of India. Though the question is one of jurisdiction, we feel that we have decided the same by applying the ratio of the decision of the Supreme Court and the prayer, therefore, cannot be granted. Leave is refused. Samesaid points are urged with regard to the orders made by the revisional authority for the period 1st January, 1965, to 31st December, 1965, in Special Civil Application No. 200 of 1970. For the above reasons, the said petition and prayer for leave is also dismissed with costs. Petitions dismissed.
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1976 (11) TMI 186
... ... ... ... ..... learned counsel for the petitioners next submits that in any view of the matter the taxing authorities have no jurisdiction to attach the properties belonging to person or persons other than M/s. Kar Brothers and, in the instant case, it is submitted by the learned counsel that the properties belonging to some other person, namely, M/s. Raja Stores, have been attached. This is a disputed question of fact and we do not like to enter into it, but we would like to observe that if there are any taxes due under the Act by M/s. Kar Brothers, those may be realised in accordance with law from M/s. Kar Brothers, the dealer, or its partners. But the taxes due under the Act by M/s. Kar Brothers cannot be realised from persons other than M/s. Kar Brothers or its partners. In the result, we find that this petition has no merits and it is rejected. The rule is discharged. The stay order stands vacated. We, however, make no order as to costs. IBOTOMBI SINGH, J.-I agree. Petition dismissed.
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1976 (11) TMI 185
... ... ... ... ..... depend on the fact as to whether a dealer has or has not charged any sales tax from its customers, or has charged a higher amount. Thus, if a sale is liable to be charged at a lower rate, the State cannot insist on realising a higher amount solely on the ground of a larger amount being charged. Relief can be given when an illegal impost not authorised by the law is made. This apart, as the petitioner has all along been challenging the rate of tax and has undertaken to refund the excess amount to its purchasers, we see no ground for not interfering with an illegal order imposing a tax not authorised under the law. We, accordingly, allow this petition in part and direct the Sales Tax Officer to reframe the assessment as indicated above, after deciding the question as to whether properzi redraw rods come within the description of metals and alloys in the light of the observation made above and in accordance with the law. Parties to bear their own costs. Petition partly allowed.
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1976 (11) TMI 184
... ... ... ... ..... be anything else. As a matter of fact, the Supreme Court in District Controller of Stores, Northern Railway, Jodhpur v. Assistant Commercial Taxation Officer 1976 37 S.T.C. 423 (S.C.). , dealt with a case of sale of unserviceable materials and scrap iron by the railway and held that having regard to the definition of the term business found in the Rajasthan Sales Tax Act, 1954, which was similar to the definition referred to already, found in the Tamil Nadu Act, the turnover was liable to tax. Consequently, we hold that even the turnover relating to the sale of print waste and cut waste will be liable to tax since the same cannot be said to be not ancillary or incidental to the business of printing, publishing and selling newspaper. Therefore, we allow this tax revision petition and set aside the order of the Sales Tax Appellate Tribunal in respect of the two sums referred to above totalling a turnover of Rs. 6,24,373.30. There will be no order as to costs. Petition allowed.
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1976 (11) TMI 183
... ... ... ... ..... e such further evidence as it considered fit to determine the legality or propriety of the order of the Assessing Authority. It was expressly pointed out that the bogus signature or the falsity of the deductions or exemptions allowed could also be gone into. In the present case, the revising authority found from the record, which was before the Assessing Authority, that certain transactions appeared to be bogus. On the basis of what was found in the record, the revising authority made further enquiry which he was competent to do. It was not a case where the revising authority initiated the proceeding for revision on the basis of any fresh information received by him which was not already part of the record. The proceeding for revision was initiated on the basis of suspicious features found in the record itself. The revising authority was, therefore, perfectly competent to issue the impugned notice. The writ petitions are, therefore, dismissed with costs. Petitions dismissed.
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1976 (11) TMI 182
... ... ... ... ..... strike this new path we shall be right in saying that the authority of the decision in Jullundur case(1) remains unshaken. In Raj Kishan Goyal v. Sales Tax Officer1975 Current Tax Reporter (Delhi) 272., Rangarajan, J, held that under the unamended Act there was no provision for assessing a dissolved firm. Rule 39(1A) was relied upon before him as before me. Rejecting the contention of the revenue, he said Sub-rule (1A) does not, however, enable the assessment of a dissolved firm. And Rule 39(1 A) does not constitute or set up any machinery for assessing a dissolved firm. I have reached the same conclusion though by a different route. For these reasons, I would accept the writ petition and quash the proceedings initiated against the dissolved firm of G.L. Amarnath and Company and also quash the assessment orders for the assessment years 1961-62, 1963-64, 1964-65 and 1965-66. In the circumstances of the case I would leave the parties to bear their own costs. Petition allowed.
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1976 (11) TMI 181
... ... ... ... ..... able for the purpose of tax . In this case, admittedly there was no composite price but there were two separate prices. The Board of Revenue might have been right if there had been a consolidated or single or composite price charged for the kerosene in packed condition, but so long as the kerosene and the tins were charged for separately, there being no composite price, the rate applicable to kerosene cannot be applied to the turnover referable to the tins also. We may also point out that Patel Volkart Private Limited v. Commissioner of Sales Tax, M.P.(1), has taken the same view where the court stated that When different articles are transferred under a composite contract, the rate available for either of the two cannot be charged. The different items will have to be charged at the different rates. Consequently, we allow the appeal and set aside the order of the Board of Revenue and restore that of the appellate authority. There will be no order as to costs. Appeal allowed.
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1976 (11) TMI 180
... ... ... ... ..... or resale as well as for use in the manufacture and that so long as the registration certificate authorised the petitioner to import the goods for resale, it would not be found guilty of violation on the ground that it resold the splints themselves. We are of the opinion that this contention is misconceived. The contents of the registration certificate have to be read with the declaration contained in form C for the purpose of finding out whether there has been violation or not. In this case, as we have pointed out already, there is an admission that the splints were imported under form C for manufacturing matches in its own factory, but they were actually resold. Consequently, this will constitute a violation of section 8(3)(b) read with the undertaking or declaration in C form licence. The result is that section 10(d) and section 10A of the Central Sales Tax Act are attracted and the levy of penalty was therefore proper. Hence the petition is dismissed. Petition dismissed.
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1976 (11) TMI 179
Recovery of property with arrears of rent and mesne profits and damages for waste - Held that:- Appeal dismissed. In the present case the provisions in section 50-A, 52 and 73 of the 1964 Act as amended in 1969 were invoked by the appellant. The appellant is disentitled from doing so by reason of Chapter II of the 1964 Act not being applicable to the lease where the lessor is a Government Company. Further these sections came to effect on 1 January 1970. The sections are not retrospective but prospective in operation. The appellant is not entitled to attract these sections
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1976 (11) TMI 178
Whether the forest department is liable to sales tax on the timber covered by the demise?
Held that:- Allow the appeal and remand the case for consideration of the quantum of tax that the State, in the forest department, was legally liable to pay as a dealer, to the sales tax department.
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1976 (11) TMI 170
Whether the respondent is liable to pay interest on the amount due from him as sales tax?
Whether it was necessary for the sales tax authorities to issue a fresh notice of demand to the respondent after the tax assessed by the Sales Tax Officer was reduced on appeal and further reduced on revision?
Held that:- Appeal allowed. There is no dispute in the present case that the notice of assessment and demand was served upon the assessee-respondent. The respondent cannot, therefore, escape liability for payment of interest. And it is apparent from clause (b) of sub-section (9) that where as a result of appeal, revision or other proceedings the amount of the tax or other dues is reduced, it shall not be necessary for the assessing authority to serve upon the dealer a fresh notice.
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