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Showing 61 to 80 of 110 Records
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1978 (10) TMI 51 - HIGH COURT OF RAJASTHAN AT JODHPUR
Sentence - Prosecution - Seizure of gold - Burden of proof - Reasonable belief ... ... ... ... ..... re 4) and it refers to the aforesaid order. Thus Annexure 5 should be read in the light of the order (Annexure 4) and should be considered to have been issued in compliance therewith. The Dy. Collector has ordered the confiscation of the excisable goods and has given option to the owner to redeem the same on payment of Rs. 2500/- in lieu of confiscation. The same should hold good while reading the notice (Annexure 5) given by the Inspector. It is not obligatory on the petitioner to make payment of the amount of Rs. 2500/- but he has an opinion to pay the amount if he wants the release of the confiscated goods. Similarly a penalty of Rs. 2500/- is imposed personally on Chanalal and is not recoverable form the petitioner. In case the petitioner desires to challenge the order (Annexure 4), he should do so in an appeal to the competent authority in accordance with law. As an alternative remedy is available to the petitioner, the writ petition is not maintainable and is dismissed.
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1978 (10) TMI 50 - GOVERNMENT OF INDIA
Cotton fabrics Calendering with plate rollers - Dutiability ... ... ... ... ..... ether the fabrics had earlier undergone any excisable process or not is irrelevant to the issue. This was the view in fact held by Government earlier vide Order No. 1363 of 1977 dated 11-7-1977 copy of which was placed by the Counsel during the course of personal hearing. 3. In the circumstances, revision application is allowed. Consequential relief if any may be granted to the petitioners.
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1978 (10) TMI 49 - GOVERNMENT OF INDIA
Exhausters/blowers used in Ammonia Printing and Developing Machines - Liability to duty ... ... ... ... ..... e classified under sub-item (2) of Item 33. The view taken by the authorities below that these would be classified under Item 33(2) is therefore not correct. 3. Government however observe that the Blowers in question would fall under sub-item (3) of Item 33 as electric fans not otherwise specified. The blowers would be so classifiable only if these come into existence as a separate and distinct commodity before these are fitted to the Ammonia Printing and Developing Machines. In the circumstances, Government direct that the Asstt. Collector should determine the classification of the goods under Item 33(3) of the Central Excise Tariff, keeping in view the above observation of the Government.
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1978 (10) TMI 48 - GOVERNMENT OF INDIA
P.L.A. - Cheque for payment of excise duty dishonoured ... ... ... ... ..... lready been credited in the PLA and utilised for payment of duty on goods which were cleared in the meantime the same results in over-drawal from the PLA and, consequently, there is clearance of goods without payment of duty in contravention of Rule 173Q. Since in the petitioners case goods had been cleared on payment of duty when there was no sufficient balance in the PLA to cover the duty liability these imposition of penalty on them for contravention of Rule 173G is in order. In the circumstances, the revision application fails and is rejected accordingly.
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1978 (10) TMI 47 - GOVERNMENT OF INDIA
Penalty - Violation of provisions -Validity ... ... ... ... ..... as well as under other Acts. Since the officers were competent to seize under DIR there was no need for any separate proceeding to be drawn under those rules. In the case cited by the applicant there was no reasonable belief in the mind of the officers at the time of seizure that Gold Control Rules had been violated. But in the present case from the records it is clear that there was reasonable belief in the mind of the seizing officers that provisions of Defence of India Rules had been violated. 7. Government further observe that the penal action taken under the Customs Act are under consideration in appeal and those proceedings are quite independent of those taken under Defence of India Rules. The penalty imposed under Defence of India Rules is Rs. 10,000/- only which is lot severe considering the facts and circumstances of the case. 8. Government therefore do not find any justification to interfere with the order-in-appeal and accordingly reject the revision application.
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1978 (10) TMI 46 - GOVERNMENT OF INDIA
Skull scrap is not melting scrap but waste not liable to duty ... ... ... ... ..... is the scrap sticking to the ladle when the steel is tapped from the furnace into the ladle. Hence the product has been collected from the floor. The chemical examiner has tested the sample and observed it to have contained oxides of iron, aluminium, chromium, magnesium and other inorganic silicates. During personal hearing the applicants urged by producing I.S.I. Specification 1529/1953 that skull scrap used for remelting should contain 5 slag whereas in the present case the product contains 5 metal and 95 waste. Govt. is thus of the view that the impugned product is not skull scrap fit for remelting but waste. Govt. further observe that the impugned goods are products of 1962 and 1963 and was heaped in the open field in the factory s yard and the fact of export of the same goods from that place was not disputed. Hence the question of charging Central Excise duty on the impugned product does not arise. 4. Under the circumstances Govt. of India allow the revision application.
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1978 (10) TMI 45 - HIGH COURT OF MADHYA PRADESH, JABALPUR (INDORE BEN
Packing and tinning - Vegetable product - Valuation - Alternative remedy - Existence of ... ... ... ... ..... n the circumstances of the case it is not disputed that orders are passed every now and then in such matter. In this view of the matter, therefore, in our opinion, there was no remedy whereby the petitioners could seek the redress that they seek by this petition for getting the question of law decided and, therefore, the bar of the alternative remedy provided in Art. 226(3) of the Constitution could not be applicable in the present case. 23. In the light of the discussion above, therefore, the petition is allowed. The order passed by Respondent No. 3 dated 20-3-1975 is quashed and it is directed that the Respondent No. 3 shall assess the value for the purpose of computation of excise duty in the light of the decision of this petition excluding the price of the containers and excluding the freight and transportation charges, if any. In the circumstances of the case parties are directed to bear their own costs. Security amount be refunded to the petitioners after verification.
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1978 (10) TMI 44 - GOVERNMENT OF INDIA
Putty - Classification ... ... ... ... ..... under Item 14-I(5), C.E.T. as paint not otherwise specified. The party in their reply to the show cause notice have submitted that the putty has neither the properties of pigment, colour, enamels nor has their composition. Both by method of manufacture and end use putty is different from paint and is so recognised in the trade. The party has submitted that in the absence of any definition of paint given in the Central Excise Tariff, resort should be had the to meaning assigned to it ii trade and how it is understood in common parlance by those who are familiar with its use. Putty and Paint are treated as two distinct items in trade as well as technical books like B.T.N. and Chemical Dictionary etc. 5. Government of India accepts the above pleas advanced by the party. Government of India is, therefore, of the view that putty for use in window frames (Glazier Putty) is not classifiable under Tariff Item 14-CET as paint. In the circumstances, the review proceedings are dropped.
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1978 (10) TMI 43 - GOVERNMENT OF INDIA
Price list - Change in prices ... ... ... ... ..... mum net assessable value of T.R. Belting 25mm x 4 ply will be Rs. 1.40 per metre. The petitioners have submitted that even if they were a party to the resolution, the price cannot be enhanced on the price list effective from 1-10-1975 as the resolution was passed in November, 1975 relating to the manufacture in future. A revised price list was submitted with effect from 1-3-1975 showing an increase in the minimum price. 3. Government of India after scrutiny of the records accept the above plea of the petitioners and allow the revision application.
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1978 (10) TMI 42 - GOVERNMENT OF INDIA
Trade Notice - Binding effect on Government - Refund ... ... ... ... ..... s it has been established, that the refund in this case is governed by the provisions of Rule 11 of Central Excise Rules, one cannot go beyond the limitation laid down by the Central Excise Law and process to grant refund. This was the observation made by the Karnataka High Court in the case of Guari Shankar Silk Weaving Mill v. Union of India. W. P. 1730 and 1731 of 1967 decided on 8-2-1970. To clinch the issue a reference may be made to the judgment in Indian Tobacco Company case M.P. No. 1151 of 1975, decided on 6-4-1977 where the Bombay High Court, on analysing the various Supreme Court decisions, pronounced on the subject that the law of limitation is applicable to the proceedings before the Court and not quasi-judicial proceedings. 6. In view of the foregoing discussions the Government of India confirm the tentative views in the show cause notice for review of Order-in-Appeal No. 728-C.E./77, dated 5-5-1977 passed by the Appellate Collector of Central Excise, New Delhi.
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1978 (10) TMI 41 - HIGH COURT OF MADRAS
Valuation - Uniform sale prices throughout India ... ... ... ... ..... ation charges have actually been incurred as seen from column No. 8 of the statement. So all these three elements are fully satisfied in the present case. The entire confusion arose because the excise authorities were of the view that the list price is uniform it cannot be otherwise. From this point of view, I am unable to appreciate the orders of the excise authorities. I hold that the petitioner will be entitled to the benefit of Sec. 4(2) of the Act, and the transport charges incurred by the petitioner as shown in the statement will stand excluded for computation of the assessable value. The claim relating to packing charges is conceded by the department and interim orders have already been passed in favour of the petitioner, and therefore, I need not determine that question. The bonds executed by the petitioner pursuant to the interim orders of this court will stand cancelled. 10. In the result, the writ petitions are allowed with costs. Counsel s fee Rs. 250/-, one set.
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1978 (10) TMI 40 - HIGH COURT OF ALLAHABAD
Tax Collected without the authority of law - Excise duty ... ... ... ... ..... wrongly collected by the dealer. It would be seen that the aforesaid observations were made even in respect of a law made for the purpose. In the instant case the excise duty at the rate of Rs. 55/- for the period between 1st April, 1978 and 16th April, 1978, is not sought to be recovered on the basis of any law but only on the basis of a notice. This apparently cannot be done in view of the decision in Abdul Quader s case (supra). 4. In the result each of these two writ petitions succeeds and is allowed and the respondents are directed to adjust back the excise duty at the rate of Rs. 15/- per litre of alcohol in the Advance Duty Account of petitioner No. 1 for the period between 1st April, 1978 and 16th April, 1978, and to make the entry in the said account that for this period the duty recoverable was at the rate of Rs. 40/- per litre of alcohol only. This shall be done within a month from today s date. In the circumstances of the case there will be no order as to costs.
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1978 (10) TMI 39 - SUPREME COURT
Whether in view of the provisions of Section 43 of the Defence of India Act, 1962, the respondent was entitled to be released on probation of good conduct under the Probation of Offenders Act, 1958?
Whether the bar to the respondent's invoking the benefit of the provisions of the Probation of Offenders Act has been removed by the expiry of the Defence of India Act?
Held that:- The contention advanced on behalf of the appellant upheld that recourse to the provisions of the Probation of Offenders Act, 1958 cannot be had by the Court where a person is found guilty of any of the offences specified in Rule 126P(2)(ii) of the D.I. Rules relating to gold control which prescribes a minimum sentence in view of the emphatic provisions of Section 43 of the Defence of India Act. The question No. 1 is accordingly answered in the negative.
In the instant case, not only was the criminal liability in respect of the aforesaid offences under Rule 126P(2)(ii) of the D.I. Rules duly made under the Defence of India Act, 1962 incurred by the respondent before the Defence of India Act came to an end but the penalty or punishment prescribed therefor was also incurred and imposed on him while the Defence of India Act was very much in force, the benefit of the aforesaid provisions of the Probation of Offenders Act, 1958 cannot be invoked by the respondent and he has to suffer the imprisonment awarded to him by the trial court in view of the unambiguous language of Section 1(3) of the Defence of India Act. The second contention urged by Mr. Javeri is, therefore, rejected and question No. 2 is also answered in the negative.
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1978 (10) TMI 38 - SUPREME COURT
Whether the three partners can be held liable for the tax assessed against the firm ?
Whether the sanction given by the Commissioner for prosecution under section 46(1)(c) is sustainable in law?
Held that:- Non-payment of tax against a firm cannot be visited on individual partners of the firm. It was only the firm that was assessed for liability for tax for all the three periods. In spite of repeated notices the firm did not pay the assessment or the penalty that was imposed. In the absence of a specific provision as found in s. 18 of the Bombay Act the partners of the firm cannot be held liable for the tax assessed on the firm. On this point, we agree with the High Court that the partners cannot be made liable for the tax assessed on the firm.
In the present case, it is seen, under s. 46 before a prosecution can be launched, it is necessary that the assessee should have failed to pay the tax due within the time allowed without reasonable cause. The duty of the Commissioner is, therefore, to be satisfied that the assessee has failed without reasonable cause and without recourse to prosecution under s. 46(1)(c) the tax due cannot be collected. The provisions of s. 22(4A) can be read as being applicable to cases in which the stringent step of prosecution is considered not necessary. The option is with the Commissioner and if he thinks levy of penalty would achieve the purpose of collection of the tax he can have recourse to the provisions of s. 22(4A). Before levying a penalty under s. 22(4-A), the Commissioner shall give reasonable opportunity of being heard as to why the penalty should not be levied. Reading the two provisions harmoniously, we are of the view that the discretion is given to the Commissioner to resort to one of the two remedies as the facts of the case may require. In graver cases, he will be justified in taking the drastic remedy and resorting to prosecution in the criminal court if he is satisfied that such a course is necessary for the collection of the tax expeditiously. On a consideration of the decisions on the point we are satisfied that there is nothing illegal in conferring different procedures on the authorities. Thus the provisions of the Act conferring different procedures for collection of tax cannot be held to be invalid.
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1978 (10) TMI 37 - SUPREME COURT
Whether an assesses having once exercised the option regarding the method of computation of his agricultural income by filing the requisite declaration along with his return is entitled to change the option under the U. P. Agricultural Income-tax Act, 1948 ?
Held that:- It seems to us clear that s. 6 as originally framed gave an assessee the right to exercise the option, unfettered, only once after the commencement of the Act and if he once selected one method of computation of agricultural income he could not vary it subsequently in any year without the permission of the Board of Revenue which was given absolute discretion to grant or to refuse such permission. In this view of the matter it is not possible to accept the view of the Division Bench of the High Court that if once option is exercised by an assessee by filing the requisite declaration along with his return for a particular year he will have no right to change his option by filing a fresh return or a revised return before the assessment is made for that year.
The fact that the appellant had produced some evidence in pursuance notice received under s. 16(2) in relation to its earlier returns or inspection of the records of the assessing authority cannot and does not amount to acquiescence or waiver of its right to file a declaration indicating its option afresh along with the return validly filed in response served under s. 15(3) of the Act
The scheme of s. 16(4) clearly shows that in regard to the best judgment assessment there is nothing sacrosanct about the option exercised by the assessee under s 6(1) of the Act ; equally it can be said that in regard to assessments other than best judgment assessments under the scheme of s. 15, there is nothing sacrosanct about the particular option previously exercised by the assessee and he need not be held bound by it provided he changes the option by filing a subsequent or a fresh or a revised return in accordance with the applicable provisions contained in s. 15, the object being to determine his true agricultural income for the relevant previous year,--though so far as the assessing authority is concerned such option, whether original or subsequent, would indisputably be binding on it.
Thus the learned single judge of the Allalhabad High Court was right in his conclusion that the appellant-assessee was entitled to have the computation of its agricutural income for the previous year 1953-54 (1361 Fasli) relevant to the assessment year 1954-55, done in accordance with s. 6(2)(a) of the Act. Appeal allowed.
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1978 (10) TMI 36 - GUJARAT HIGH COURT
Income Tax Act, Jurisdiction Of High Court, Recovery Proceedings, Refund Of Tax, Treasury Officer, Writ Jurisdiction
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1978 (10) TMI 35 - GUJARAT HIGH COURT
Actual User, Agricultural Land, Brick Kiln, Capital Gains Tax, Wealth Tax Act ... ... ... ... ..... he facts which we have discussed, the only possible conclusion in law is that the land was agricultural land at the date of the sale and, therefore, the amount of Rs. 8,13,363 said to be gross capital gains could not be assessed as capital gains. The Tribunal was, therefore, in error in law in deciding in favour of the revenue and against the assessee. We, therefore, answer the question referred to us in the negative, that is, in favour of the assessee and against the revenue. The Commissioner will pay the costs of this reference to the assessee. Before leaving the matter, we may mention that we are fully conscious of the fact that the Tribunal is the final fact-finding body and the High Court has not to decide any question of fact. We have only to draw an inference in law on facts appearing on the record of the case and the facts found by the Tribunal. We have not found any facts for ourselves nor have we drawn any inference of law except from facts appearing on the record.
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1978 (10) TMI 34 - KARNATAKA HIGH COURT
Banking Company, Capital Receipt, Income Tax ... ... ... ... ..... portion of such annual payments which represented interest, would not alter the character of such annual payments, namely, that they represented partly capital payment and partly interest. In our opinion, the annual payments received by the assessee in respect of these bonds, represent partly capital and partly interest and income-tax is payable only on the portion representing interest. The income-tax authorities have to ascertain what proportion of such annual payments represents interest. As a result of the foregoing discussion, our answer to the two questions referred to us, is as follows On the facts and in the circumstances of the case, only that portion of the annual payments received by the assessee during the said accounting years, which represents interest, is assessable to the tax under the Income-tax Act and the portion which represents capital, is not assessable to such tax. In the circumstances of these references, we direct the parties to bear their own costs.
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1978 (10) TMI 33 - KERALA HIGH COURT
Agricultural Income Tax Act ... ... ... ... ..... Tea Co. Ltd. s case 1961 41 ITR 751. The Supreme Court there pointed out that the expression deriving income cannot be construed narrowly but must be understood in a wide and comprehensive sense. This principle again has not been kept in mind by the Agricultural Income-tax Appellate Tribunal. As the approach made by the Tribunal in the determination of this question has not been correct and has not taken into account the pronouncements of the Supreme Court or of this court referred to earlier, we are unable to sustain the finding of the Tribunal. In the circumstances, we decline to answer the question of law and direct the Tribunal to rehear the appeal and dispose of the same afresh in accordance with law and in the light of the observations contained in this judgment. We make no order as to costs. A copy of this judgment under the seal of this court and the signature of the Registrar will be communicated to the Agricultural Income-tax Appellate Tribunal as required by law.
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1978 (10) TMI 32 - GUJARAT HIGH COURT
Agricultural Income Tax, Assessment Year, Carrying On Business ... ... ... ... ..... iness of partnership had taken place and it was by the invoking of s. 155(5)(ii)(c) or any other similar provision of s. 155(5) that the ITO, after allowing development rebate, if at all, could have, under the deeming provision of s. 155(5), withdrawn the development rebate already granted for the assessment years under consideration. However, since there was no voluntary utilisation but there was non-utilisation of the development rebate reserve in the instant case because non-utilisation, if any, had taken place by virtue of the rearrangement of the business, it cannot be said that cl. (c) of s. 155(5) could be invoked. We, therefore, hold that the Tribunal was in error in law in holding that the provisions of s. 155(5) were attracted to the facts and circumstances of this case. We, therefore, answer the question referred to us in the negative, that is, in favour of the assessee and against the revenue. The Commissioner will pay the costs of this reference to the assessee.
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