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Showing 41 to 60 of 216 Records
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1983 (7) TMI 303 - CEGAT NEW DELHI
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... ... ..... nd ancillary powers as an appellate authority. 22. In the light of the foregoing discussion, I would answer as follows the two questions on which the two Members of the West Regional Bench had differed and which have been referred for my opinion - (i) The Order, dated 24-9-1982 of the Collector is an effective order against which an appeal lies to the Tribunal (though the extent of relief which can be granted by the Tribunal is limited, as explained in paragraphs 18 and 19 above); and (ii) Since an appeal lies to the Tribunal, it can be entertained and a stay also granted if the Tribunal deems fit. 23. The case will now go back to the West Regional Bench to dispose of the stay application according to law. As indicated in paragraph 2 above, the present stay application and the related appeal are deemed to be in respect of Bond No. 510, dated 24-5-1980. The two supplementary appeals and the related stay applications would have to be disposed of separately.
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1983 (7) TMI 302 - CEGAT NEW DELHI
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... ... ..... tement. On the contrary, the foreign supplier’s letter dated 20-11-1979 talks of the goods possessing excellent resiliency properties. If the goods were made of hardened rubber, they could not have possessed such resiliency properties. Further, the goods must have been vulcanized; otherwise, they would be tacky or gummy and hence quite useless to serve as a support base to the textile fabric under print. In the circumstances, the goods clearly answer the description “........other articles of a kind used on machinery, mechanical or electrical appliances or for other industrial purposes, of unhardened vulcanized rubber (for example, washers) (Heading No. 40.05/16)” given in the exclusion Note 1(a) to Section XVI. The effect of this note is that the goods, even though a part of the textile printing machinery, are not classified in Chapter 84 but are to be classified in Heading 40.05/16. 5. Accordingly, we uphold the impugned order and reject this appeal.
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1983 (7) TMI 301 - CEGAT NEW DELHI
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... ... ..... ) also, is without force. CCCN, and so also the Customs Tariff which is largely based on the CCCN, have an elaborate scheme of section notes and chapter notes which determine the scope of their various chapters and headings. To be specific for the present case before us, textile and textile articles are excluded from the scope of Chapter 39 of the Customs Tariff by virtue of Note 1(f) to Chapter 39 of the said Tariff. There is no corresponding exclusion note or explanation in the Central Excise Tariff. It cannot, therefore, be said that the scope of Item 15A(2) is on par with Heading 39.07 of the CCCN/Customs Tariff. In such a situation, the analogy drawn by the Appellate Collector does not hold good. In the circumstances, we hold that since Item 15A(2) CET is more specific to cover HDPE woven sacks, they cannot be consigned to the Residuary Item 68. 6. Accordingly, we allow the appeal. The duty demanded from the appellants and the penalty imposed on them are set aside.
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1983 (7) TMI 300 - CEGAT NEW DELHI
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... ... ..... but all the same it appears that presently the goods under issue are being classified under Tariff Item 34-II formerly Tariff Item 34(3a) as per that advice. We are also convinced that the goods in issue would squarely fall within the ambit of Tariff Item 34(3a) (now 34-II) as per the reasoning given in tariff advice referred to above. We strongly feel that the demand issue arose only because of the incorrect classification and as such we do not agree with the arguments of Shri Jain that the classification issue is not before us but on the other hand we feel that is the main or rather real issue which is now before us and hence we feel that the goods under issue would squarely fall under the old Tariff Item No. 34(3a) of the Central Excise Tariff with consequential relief to the appellants. When once the classification issue is decided, it is totally unnecessary to go into the matter whether any portion of the period for which demand notice was issued was time-barred or not.
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1983 (7) TMI 299 - CEGAT NEW DELHI
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... ... ..... ere classifiable under Item 236B and the Collector’s earlier Trade Notice of November 1981 classifying these goods under Item 68, which decision was perhaps the provocation for the impugned order, stood cancelled. He wanted time to check the position firmly from the Department before conceding the appellants’ case. He agreed with the appellants that the Collector had not given any reasons for classifying the goods under Item 68. 4. We have carefully considered the matter. We agree with the earlier Tribunal order cited above. Goods specifically included in Item 26B(1) have to be assessed under that item only, read with the relevant exemption notification in force, and not under the residuary Item 68. Though zinc dust was not specifically mentioned in Item 26B(1), it is similar to zinc dross and ash and it too, therefore, was classifiable as zinc unwrought under the said item. 5. We allow the appeal accordingly with consequential relief to the appellants.
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1983 (7) TMI 298 - MADRAS HIGH COURT
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... ... ..... . We find that there is no provision in the Surcharge Act excluding the provision in section 22 of the principal Act. So long as there is no exclusion contemplated by section 3(2) of the Surcharge Act, it must be understood as attracting all the provisions of the principal Act, as are applicable to the levy of sales tax, for the levy of surcharge as well. Following the decision of the Supreme Court in Ashok Service Centre v. State of Orissa 1983 53 STC 1 (SC) we hold that the penalty has rightly been levied in this case under section 22 of the Tamil Nadu General Sales Tax Act, 1959 read with section 3(2) of the Surcharge Act. In view of the decision of the Supreme Court in Ashok Service Centre v. State of Orissa 1983 53 STC 1 (SC), the decision rendered by this Court in State of Tamil Nadu v. Mathurai Veerasamy and Co. 1983 52 STC 131 cannot be taken as laying down the law correctly. The tax case is accordingly allowed, as indicated above. There will be no order as to costs.
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1983 (7) TMI 297 - MADRAS HIGH COURT
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... ... ..... evenue has chosen to impose 1 1/2 times the tax due on the amount of turnover suppressed. But the 1 1/2 times is the maximum percentage prescribed under the Act and there is always a descretion on the part of the authority to impose the penalty not exceeding 1 1/2 times. The Board of Revenue has chosen to impose the maximum penalty contemplated by section 12(3) of the Tamil Nadu General Sales Tax Act without exercising its discretionary powers which it admittedly has. Having regard to the circumstances of this case, we are inclined to exercise our discretion as an Appellate Court over the decision of the Board of Revenue and reduce the penalty to 50 per cent of the tax due on the suppressed turnover which comes to Rs. 485. Thus, while the assessment on the suppressed turnover of Rs. 32,970 is upheld, the penalty of Rs. 1,454 imposed by the Board of Revenue is reduced to Rs. 485. The tax case is partly allowed to the above extent. There will, however, be no order as to costs.
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1983 (7) TMI 296 - RAJASTHAN HIGH COURT
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... ... ..... 31st March, 1974 but before 31st March, 1979. The tax concession available under sub-section (1) of section 5CC is also limited up to March 31, 1979. Thus, the intention of the Legislature appears to be to allow tax concession or relief by way of exemption from tax to the new industrial units during the period of their infancy, so that they may get some help during their teething period. Thus, it appears that the provisions of section 5CC are not violative of article 14 of the Constitution, as those provisions cannot be said to be either arbitrary or discriminatory and they are in the nature of incentives provided for establishment of new industrial units, in the shape of tax concession for a limited period during which the new industrial unit is expected to get firmly established. In view of the aforesaid discussion, there appears to be no substance in the writ petition and the same is dismissed. The parties are, however, left to bear their own costs of this writ petition.
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1983 (7) TMI 295 - KARNATAKA HIGH COURT
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... ... ..... ssuming that the Act provides only for a single point levy, it cannot bind the Legislature for all time to come. It is always open to the Legislature to provide for multi-point levy by properly amending the Act. Thirdly, section 6B is an independent and self-contained provision for taxing a higher class of dealers whose total turnover in a year exceeds rupees one lakh. There is no discrimination made among this class of dealers for the purpose of levy. The petitioners cannot, therefore, successfully challenge the constitutional validity of that section. 20.. In the result and for the reasons stated, these petitions fail and are dismissed with no order as to costs. Order on oral application 21.. Sri Srinivasan, counsel for the petitioners, seeks a certificate for appeal to the Supreme Court. We do not think that the case involves a substantial question of law of general importance which needs to be decided by the Supreme Court. The certificate prayed for is therefore refused.
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1983 (7) TMI 294 - MADHYA PRADESH HIGH COURT
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... ... ..... unsel for the assessee contended that the assessee in second appeals had assailed the orders of the first appellate authority imposing penalty under section 17(3) of the State Act. However, the Tribunal has not given any finding on the question whether on the facts and in the circumstances of the case penalty under section 17(3) of the State Act was imposable on the assessee or not and therefore, question No. (4) does not arise out of the order of the Tribunal. The stand taken by the learned counsel for the assessee seems to be correct. It does not appear from the orders of the Tribunal that it has recorded a finding on the question whether the penalty under section 17(3) of the State Act was imposable on the assessee. In the circumstances question No. (4) does not arise out of the orders of the Tribunal. We, therefore, decline to answer the said question. 19.. Reference is answered accordingly. In the circumstances the parties shall bear their own costs of these references.
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1983 (7) TMI 293 - MADRAS HIGH COURT
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... ... ..... llows ...When the facts are fully disclosed in a return and are not misstated, the raising of a legal plea of exemption cannot make the return a false return within the meaning of section 43(1), even if the assessee knew that the plea of exemption was not sustainable. A return will be a false return when some statement of fact in the return is falsely made. But when the facts are fully and correctly disclosed, raising of a false legal plea cannot make the return false. We are in respectful agreement with the view taken in the aforesaid decision. 6.. We are, therefore, of the opinion that the Tribunal was fully justified in holding that on the facts and in circumstances of the case the return filed by the assessee cannot be said to be false and in setting aside the order passed by the assessing authority imposing penalty under section 43(1) of the Act. 7.. The references are answered accordingly. In the circumstances the parties shall bear their own costs of these references.
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1983 (7) TMI 292 - ALLAHABAD HIGH COURT
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... ... ..... notice was served or the direction for making the deposit was given, i.e. 18th November, 1976. The Act did not prescribe the authority to whom the appeal could be filed. Rule 20 prescribed that an appeal could be filed before the Excise Commissioner within 30 days of the order. This rule was non-existent on the 18th November, 1976, or even within one month of the passing of the impugned order. Consequently, there was no prescribed or effective remedy to be had from an appellate authority when the said impugned order was passed. This contention is also without substance. We are therefore satisfied that the petitioner did not have any adequate or substance alternative remedy, so as to deny him the relief obtainable under article 226 of the Constitution. In the result the writ petition is allowed, the impugned notice dated 13th October, 1976 and the order passed by respondent No. 2 dated the 18th November, 1976, are hereby quashed. The petitioner will be entitled to its costs.
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1983 (7) TMI 291 - MADHYA PRADESH HIGH COURT
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... ... ..... e department that this reference has been made to this Court. 3.. Having heard the learned counsel for the parties, we have come to the conclusion that this reference deserves to be answered in the affirmative and against the department. Freight charges cannot be treated as if they were goods as seems to have been done by the assessing authority and the Appellate Assistant Commissioner. If these charges are included in the turnover, on the facts and in the circumstances of a particular case and if those charges relate to transactions in respect of which C forms had been produced by the assessee and acted upon by the assessing authority, then it follows that freight charges, which are included in the sale price, would be taxable at the concessional rate. The Tribunal was, therefore, right in holding that the assessee should have been given the benefit of concessional rate in that behalf. 4.. Reference answered accordingly. Parties shall bear their own costs of this reference.
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1983 (7) TMI 290 - MADRAS HIGH COURT
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... ... ..... are inclined to hold that the State had consciously excluded RMA graded rubber sheets from being levied with sales tax during 19th June, 1974, and 11th November, 1981. In the above view of the matter, we hold that under item 74 of the First Schedule to the Tamil Nadu General Sales Tax Act, as it stood during the assessment years, the purchase turnover of RMA graded rubber sheets of the assessee are not liable to sales tax levy and hence the assessment made on the purchase turnover of the assessees and the eventual levy of penalty by the Sales Tax Appellate Tribunal (Additional Bench) in M.T.A. No. 442 of 1976 deserves to be set aside. In the result, therefore, T.C. Nos. 1235 and 1236 of 1980 are dismissed with costs (one set), Counsel s fee Rs. 250/and T.C. No. 1296 of 1977 is allowed with costs. The order of the Sales Tax Appellate Tribunal (Additional Bench), Madurai, passed in M.T.A. No. 442 of 1976 is set aside. The revenue shall pay the cost of Rs. 250 to the assessee.
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1983 (7) TMI 289 - MADRAS HIGH COURT
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... ... ..... manufactured and sold by the assessee. If the article manufactured is substantially used for earthing purposes, then to whomsoever it is sold it should be brought in under entry 41. If it is found that the user of the wire as earthing wire is not a substantial user and the main use is different, then it cannot be brought under entry 41. Since the question of dominant or substantial use of the article manufactured by the assessee has not been gone into in this case which alone will decide the question as to whether, the manufacture by the assessee will fall under entry 41, we will have to remit the matter to the assessing authority to investigate into that matter and finalise the assessment on the basis of his finding on the question as to whether the use of the wire for earthing purposes is a dominant or substantial use. The tax case is accordingly allowed to the extent indicated above and the matter is remitted to the assessing authority. There will be no order as to costs.
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1983 (7) TMI 288 - CALCUTTA HIGH COURT
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... ... ..... threat or coercion as alleged and 1 am also of the view that the petitioners by their repeated representations in the shape of producing the records, not only mislead them, but also kept them at the dark, for the purpose of gaining time to frustrate the proceedings before them and such act and action was not certainly bona fide. The earlier disposal of a similar proceedings like the present one and that too in the facts and circumstances of the case, in my view, may not be a bar to maintain this application. I am also of the opinion that the points as sought to be raised and contended now, can very well and easily be agitated in the concerned proceedings and thereafter before the higher tribunals and as such also, no interference need or should be made at this stage. Thus, the submissions of Mr. Bhattacherjee should fail, so also the rule and I order accordingly. The rule is discharged. There will be no order as to costs. Prayer for stay of operation of the order is refused.
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1983 (7) TMI 287 - MADRAS HIGH COURT
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... ... ..... 3) in the case of defaulted instalments it is found that in the G.O. it has been specifically mentioned in paragraph 2(c) that the petitioner is liable to pay penal interest at 24 per cent on the outstanding arrears till the date of clearance of the arrears under section 24(3) of the Tamil Nadu General Sales Tax Act and the penal interest will not be waived at any cost. Having regard to the conditions imposed in the said G.O., by granting permission to the petitioner to pay the tax in instalments, the operation of section 24(3) is kept intact and that is to be applied in the case of outstanding arrears and it also provides that penal interest cannot be waived at any cost. Therefore the petitioner s request for waiver of the penal interest could not be with complied by the respondent in view of the specific language contained in the G.O. In this view of the matter I do not see any merit in this writ petition. The writ petition is dismissed. There will be no order as to costs.
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1983 (7) TMI 286 - MADRAS HIGH COURT
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... ... ..... ecisions in (T.C. No. 1284 of 1977 dated 15th April, 1982) State of Tamil Nadu v. Kutty Flush Doors and Furniture Co. (P.) Ltd. 1984 57 STC 217, (T.C. No. 1304 of 1977 dated 26th August, 1982) State of Tamil Nadu v. Pyarelal Malhotra 1984 57 STC 215 and (T.C. No. 1564 of 1977 dated 9th February, 1983) State of Tamil Nadu v. Rallis India Limited 1984 57 STC 218. In the face of the said consistent view taken by this Court, the view taken by the Tribunal that it cannot enhance since the subject-matter of enhancement petition was not before the Appellate Assistant Commissioner cannot be legally sustained. The tax case is therefore allowed. Since the Tribunal has not gone into the merits of the enhancement petition filed by the Revenue and it has dismissed the enhancement petition only on the ground that it is not maintainable, the matter has to go back to the Tribunal and the Tribunal will have to dispose of the enhancement petition on merits. There will be no order as to costs.
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1983 (7) TMI 285 - MADRAS HIGH COURT
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... ... ..... as such the sales were transactions falling within the definition of business under the Act and therefore those sales attracted liability to tax under the Act. Having regard to the fact that the Supreme Court in State of Tamil Nadu v. Binny Ltd., Madras 1982 49 STC 17 (SC) has reaffirmed its earlier view in the Burmah Shell case 1973 31 STC 426 (SC), the Tribunal in this case was not right in overlooking the decision of the Supreme Court in the Burmah Shell case 1973 31 STC 426 (SC) and in holding that the sale of the car by the assessee cannot be taken to be in the course of its usual business and therefore not exigible to tax. The decision of the Tribunal is clearly inconsistent with the decisions of the Supreme Court in the Burmah Shell case 1973 31 STC 426 (SC) and State of Tamil Nadu v. Binny Ltd. 1982 49 STC 17 (SC). Hence the tax case is allowed, the order of the Tribunal is set aside and that of the appellate authority is restored. There will be no order as to costs.
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1983 (7) TMI 284 - ALLAHABAD HIGH COURT
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... ... ..... entifiable with the caps sold by the assessee. At least, the contrary has not been shown. The answer to this line of argument is that the caps sold by the assessee change before they are fitted on to the bulbs. It is not suggested that they cannot be recognised in their original shape or form after they are fitted on to the bulbs. A minor process, even if it can be termed as a manufacturing process, does not alter the caps into something different. The caps continue to be caps and are essential for the completion of bulbs and consequently it appears that the caps are component part of the bulb. In the result the revision is partly allowed, the order of the Tribunal is modified to the extent that the ales of coal-dust by the assessee would not be held liable to tax. The findings of the Tribunal in regard to the caps sold by the assessee are confirmed. The papers will go back to the Tribunal under section 11(8) to make appropriate orders. The parties will bear their own costs.
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