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Case Laws
Showing 41 to 60 of 249 Records
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1984 (1) TMI 308
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... ... ..... ase before the Asstt. Collector of Central Excise. Shri Durve was, however, not able to produce any evidence to support his submission that the said amount of ₹ 21,954.96 was recovered by the Asstt. Collector in the manner stated by him. 2. The Departmental Representative stated that he has nothing to say in this case in view of the judgment referred to above. Though the above judgments were not in respect of the case covering aluminium strips, which is the case under consideration, the ratio of these judgments would cover the aluminium strips as well. The goods in question, therefore would be classifiable under Item 27(b) of the Central Excise Tariff and not Item 68 of CET, as done by the Asstt. Collector and the Appellate Collector of Central Excise, Bombay. The appeal is accordingly allowed in respect of the classification of the goods. The department would examine and dispose of the claim for refund in the light of these observations and if otherwise in order.
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1984 (1) TMI 307
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... ... ..... 978 E.L.T. 158. In the instant case, the appellant had undoubtedly made an error but it was a bona fide mistake. As soon as he discovered the error he made the payment voluntarily prior to the detection by the department and also had written a letter to the Revenue Authorities on 8th Dec., 1983, which has been reproduced above. It is a settled law that penalty proceedings are quasi-criminal proceedings and no penalty is leviable unless the element of mens rea is established. In this case, I am satisfied that there is complete absence of element of mens rea and no penalty is leviable. I very respectfully follow the observation of the Hon’ble Supreme Court in the case of Hindustan Steel Ltd. v. State of Orissa. I quash the order as to the imposition of penalty of ₹ 500/-. The Revenue is directed to refund the amount of penalty within two months from the date of this order, after necessary verification as to the payment. 7. In the result, the appeal is allowed.
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1984 (1) TMI 306
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... ... ..... y referring to one last matter. The Appellate Collector said that the product manufactured by Jayant Paper was not marketed as pulp board. We wonder about this. It is doubtful if anybody sells his pulp board as pulp board. Pulp board is a technical definition that helps in segregating or identifying a paper/board from those that are not pulp board. A seller may or may not market his board as pulp board; but if the thing is a pulp board, we do not understand why not marketing it as one will make it less so. To say what has been said is to imply that if a seller sells a straw board as pulp board it becomes pulp board and acceptable as such, an unsatisfactory procedure every way. We cannot go by extraneous details in respect of articles/products that are known and defined in the taxation tariff. Marketing cannot change a technically defined product. The definition may be exact or it may be loose, but as long as the definition in the law enables identification, we must go by it.
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1984 (1) TMI 305
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... ... ..... redit was taken and utilised under valid permission of the proper authority, after filing the D3 intimation to the proper officer, credits have been taken in RG 23 Part II the RT 12 returns have been finally assessed for the material period”. It, therefore, appears that there had been substantial compliance with the procedure. It was because of this that the Appellate Collector had further held that there was no suppression of facts on the part of the appellants. We are of the view that the sanction of the Central Government for remission or adjustment of duty paid on parts and accessories of motor vehicles contained in Notification No. 166/79, continued to be operative and valid by virtue of Notification No. 201/79, dated 4-6-1979 even after Notification No. 166/79 was rescinded on 1-8-1980. In the circumstances, we allow the appeal and direct that the consequential relief shall be granted to the appellants within 3 months from the date of communication of this order.
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1984 (1) TMI 304
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... ... ..... d of 5 years. Before removing these goods which were excisable goods falling under Item No. 68 of the Central Excise Tariff, M/s. Hindustan Shipyard Limited should have made it known to the excise authorities by claiming exemption under Notification No. 56/75-C.E., dated 1-3-1975 and if after knowing these facts the excise authorities had allowed these goods to pass for nil duty and later on raised the demand of the excise duty, in that case the department could not be said to be justified in raising the demand under Rule 9(2) of the Central Excise Rules. This is not the case here. The Appellate Collector has not correctly appreciated the provisions of Rule 9(2) and therefore, we have got no alternative but to set aside the order of the Appellate Collector on this point and to accept the appeal filed by the Department. 29. In view of our findings above, we accept the appeal filed by the Department and reject the cross objections filed by M/s. Hindustan Shipyard Limited.
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1984 (1) TMI 303
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... ... ..... hed products from the factory for export." 10. We hold that neither Notification No. 43/74 nor 153/77 helps the appellants’ case. For the same reasons and for a further reason that it is only a departmental letter, we do not attach any importance to the letter dated 8-4-1974 of the T.R.U. which has been relied upon by the appellants. 11. The appellants have also made a plea in the revision application (and not during the hearing) that illegal adjustments were made by the Collector in regard to the amounts of rebate sanctioned and paid in the first 25 cases after the lapse of six months. The appellants did not cite any particular case and argued on the basis of date of payment and date of show cause notice to show that the adjustment was illegal as claimed by them. Such information not being available and no fresh arguments having been brought before us, we reject this ground as unsubstantiated. 12. In view of the above, the 43 appeals are dismissed.
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1984 (1) TMI 301
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... ... ..... sound recording, release positive films etc. The subject “Leader Films” do not belong to this category of motion picture films at all. Indian standard Institute Glossary draws the distinction between sheets and films at a thickness of 250 microns. As per the invoice specification, the goods imported by the appellants have a thickness of (0.0083 inch) 207 microns and therefore they are films and not strips. The Encyclopaedia Britannica (in 30 volumes), Maicropaedia - at P. 336 - describes the Film structure and forms. As per the description given of a film, its thickness may range from 0.08 to 0.2 mm (0.003 to 0.008 inch). The appellants are not entitled to the benefit of Notification No. 26/79-Cus., dated 31-1-1979, as they have failed to show and prove that they squarely fall within the purview of this notification. 17. In these circumstances, we do not find any ground to interfere with the findings of the authority below. We, therefore, reject the appeal.
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1984 (1) TMI 300
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... ... ..... made the original assessment or when the appeal was heard by the Appellate Assistant Commissioner he is governed only by the findings of the Appellate Assistant Commissioner. He is not bound by his own findings arrived at in the original assessment they do not operate as res judicata and undoubtedly have not the force of an order. The findings arrived at by the Appellate Assistant Commissioner and the directions given by him are binding on him, not as res judicata, but as orders to which he is subject. He is free to take into consideration any relevant material that came into existence for the first time after the original assessment order was made by him. We are in respectful agreement with the view taken in the cases cited above. For reasons aforementioned, we answer the question referred to us in the affirmative, i.e., in favour of the assessee and against the revenue. The assessee shall have his costs, which are assessed at Rs. 100. Reference answered in the affirmative.
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1984 (1) TMI 299
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... ... ..... materials involved in the sale of the drugs and syrups sold by the assessee. Though there is no separate sales of packing materials as such we can infer a sale of packing materials as the property in the goods passes along with the articles agreed to be sold. In this case, therefore, when we infer a sale of packing materials it is not possible to say that there is a disposal of the goods of the packing materials in any manner other than by way of sale in the State. Therefore, the purchase of packing materials such as dealwood boxes will not fall under section 7-A(1)(b) of the Tamil Nadu Act as has been held by the Tribunal. Thus, in respect of the turnover relating to empty bottles as well as dealwood boxes we have to hold that section 7-A(1) of the Tamil Nadu General Sales Tax Act cannot be applied. 6.. The result is the order of the Tribunal is set aside and the assessment of the turnover of Rs. 30,578.99 is set aside. There will be no order as to costs. Petition allowed.
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1984 (1) TMI 298
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... ... ..... rtiorarified mandamus will, therefore, issue quashing the assessment orders dated 24th January, 1975, 24th January, 1975, 29th January, 1975, 30th October, 1976 and 15th April, 1977, for the assessment years 1971-72 to 1975-76 in so far as they relate to the levy of surcharge and directing the respondents in the writ proceedings to refund a sum of Rs. 97,880.00, Rs. 88,270.00, Rs. 82,903.00, Rs. 1,26,774.00 and Rs. 1,73,889.00 respectively (totalling to Rs. 5,69,716.00) to the company. 13.. In the result, W.P. Nos. 3364 and 3365 of 1979 and W.A. Nos. 489 to 491 of 1979 will stand allowed as prayed for. Since the company has been granted the relief prayed for by it in the writ proceedings, it is unnecessary to pass orders to the same effect in the tax revision cases also. In that view, Tax Revision Cases Nos. 1077 to 1081 of 1979 are dismissed. There will, however, be no order as to costs in the writ appeals, writ petitions and the tax revisions cases. Writ petitions allowed.
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1984 (1) TMI 297
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... ... ..... he turnover taxable under section 7-A is concerned, it is only the book turnover that is to be taken into account and the assessing authority cannot make any estimate under section 12(2) will be inconsistent with the object sought to be achieved by bringing in section 7-A by the Legislature. We cannot, therefore, accept the view of the Tribunal in this case that in relation to turnover taxable under section 7-A there cannot be any estimate as correct. We have already held that the turnover taxable under section 7-A is also covered by section 12 and, therefore, if the assessee s account books are incorrect or incomplete, then the best judgment assessment could be made under section 12(2) and the turnover taxable under section 7-A can be estimated under that section. In this view, we set aside the order of the Tribunal and restore the order of the Appellate Assistant Commissioner so far as the turnover taxable under section 7-A is concerned. There will be no order as to costs.
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1984 (1) TMI 296
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... ... ..... ices it is not mentioned that any sales tax had been charged. So, it is apparent that the Tribunal had no evidence before it to hold that the assessee had collected Central sales tax during the years 1967-68 and 1968-69. The Tribunal has also failed to consider and pronounce upon the relevant and material documentary evidence in the form of contracts for sales certificates issued by the dealers, the covering letter dated April 29, 1968 and the objections dated February 12, 1970. Therefore, these conclusions are vitiated. The Tribunal while deciding the appeals under the State and Central Acts, performs judicial functions. He has to consider every fact for and against the assessee and has to give findings on all the objections raised before him. In this context observations of Bhagwati, J., in Omar Salay Mohamed Sait v. Commissioner of Income-tax 1959 37 ITR 151 (SC) are instructive. For the foregoing reasons, we answer the question referred to us for opinion in the negative.
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1984 (1) TMI 295
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... ... ..... a carbon copy is also in respect of a bill and not only in respect of the cash memo. This requirement of law is because in the case of a carbon copy the checking authority can be sure that that part of the bill or credit memo which was given to the purchaser was the same as the carbon copy. The view taken by the Tribunal is erroneous. Answer to question No. (1) is that the Tribunal was not legally justified to hold that the provision of section 8-A(4) applies only in case of cash memo and not in case of bills. The second question is not answered, it will be for the Tribunal to consider the question whether or not the books of account should be accepted, in the light of the answer to question No. (1) given by this Court. In the result, the revision is allowed. The case is sent back to the Tribunal under section 11(8) of the Act for a fresh determination of the appeal in the light of what has been held above. In the circumstances of the case there will be no order as to costs.
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1984 (1) TMI 294
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... ... ..... o. In this view, the petitioner is not liable to pay any Central sales tax for the assessment year 1963-64. When once it is found that the petitioner is not liable to pay any Central sales tax for the assessment year 1963-64, he is entitled for refund of the amounts, if any, paid by him for that period and he is not liable to pay any further amounts that have not already been paid by him for the aforesaid period. 9.. In the light of my above discussion, I make the following orders and directions (a) I declare that there is no legal and effective order made under the Central Sales Tax Act, against the petitioner for the assessment year 1962-63 and therefore, he is not liable to pay any Central sales tax for the aforesaid period. (b) I direct the respondent to refund the taxes, if any, paid by the petitioner for the assessment year 1963-64. 10.. Writ petition is disposed of in the above terms. But, in the circumstances of the case, I direct the parties to bear their own costs.
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1984 (1) TMI 293
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... ... ..... to the best judgment of the assessing officer and the High Court in a reference would, therefore, have no jurisdiction to substitute its best judgment for that of the statutory authority. But, where there is caprice or arbitrariness in making the assessment according to the best of judgment, the same becomes vulnerable. A Bench of this Court in the case of Allied Dealers v. State of Orissa 1972 29 STC 464, relying upon an earlier decision of the Supreme Court has indicated the limitations, which, in our view, are appropriate . 5.. After hearing counsel for both sides, keeping the principles referred to above in view and in the facts and circumstances of the case we are of the opinion that the enhancement of the gross turnover by the Tribunal has no rational basis and has no nexus to the materials available on record and the circumstances of this case. Our answer to the question referred to is, therefore in the affirmative. Parties to bear their own costs. MISRA, J.-I agree.
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1984 (1) TMI 292
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... ... ..... n terms of section 22(4)(i)(a) of the Act cannot be held to be illegal. 5. The second contention advanced on behalf of the petitioner is that till its representation for exemption under section 12 of the Act is decided, the petitioner cannot be held to be liable to pay any tax. The contention cannot be upheld. The liability of a dealer to pay tax in accordance with the provisions of the Act is not suspended till a decision is taken by the State Government on the representation made by a dealer for exemption. No provision of law or any authority to that effect was brought to our notice. In our opinion, therefore, no case has been made out by the petitioner for holding that tax is being illegally demanded from the petitioner. 6.. The petition, therefore, fails and is accordingly dismissed. In the circumstances, parties shall bear their own costs. Security amount, if any, be refunded to the petitioner after verification. The interim order passed on 30th August, 1983 is vacated.
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1984 (1) TMI 291
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... ... ..... ion 4-B and so was not liable to tax on the purchase of oil-seeds worth Rs. 28,62,000.00? The learned Standing Counsel has not been able to show any notification or other provision wherein oil-cake is notified goods for purpose of section 4-B of the Act. Since oil-cake was not one of the notified goods, the requirement contained in the provisions of section 4-B of the Act that the notified goods should be sold either in U.P. or in the course of inter-State trade and commerce or exported out of India, are not applicable to this commodity. In the case of the assessee oil-cakes were merely a by-product and were not the main goods for manufacture of which recognition certificate was obtained under section 4-B of the Act. The view taken by the Tribunal is, therefore, legally correct. Question No. (1) is decided in the negative and question No. (2) is decided in the affirmative. There is no merit in this revision and it is accordingly dismissed. There will be no order as to costs.
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1984 (1) TMI 290
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... ... ..... rials, the contention on behalf of the petitioners that there has been a variation or modification of the contract entered into between the mills or factories and the sugarcane growers pursuant to which delivery was taken at the fields, cannot be accepted. Equally, the transport charges paid for initially by the petitioners and subsequently deducted cannot be treated as post-purchase expenses so as to enable the petitioners to claim the benefit of a deduction from the turnover. 6.. Thus on a careful consideration of the facts and circumstances of these cases, we are of the view that the petitioners cannot claim to exclude the transport charges from their assessable turnover. We do not therefore consider it necessary to advert to the decisions relied on by the petitioners. The authorities below were therefore quite correct in their conclusions and no interference is called for. Consequently, these tax revision cases are dismissed. There will be, however, no order as to costs.
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1984 (1) TMI 289
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... ... ..... nce with rule 38-A shall be binding on the assessing authority. Our view finds support from the following decisions of the Madras High Court, viz., (i) Eltex Engineering Corporation Private Ltd. v. Joint Commercial Tax Officer, Avanashi Road Division, Coimbatore 1972 30 STC 146 and (ii) Premier Electro Mechanical Fabricators, Madras-2 v. State of Madras 1968 22 STC 269. In the instant case, it is not in dispute that the petitioner has furnished the declaration in form 37 as required under the Rules. They must, therefore, be held binding on the assessing authority. 6.. In the result, this revision petition is allowed, the orders of the authorities below are set aside and the assessing officer is directed to re-do the assessment in accordance with law after perusing the declaration furnished by the assessee. The petitioner must appear before the assessing authority on 6th February, 1984, to receive further notice. In the circumstances of the case, we make no order as to costs.
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1984 (1) TMI 288
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... ... ..... tiate his claim that no penalty could be levied under section 12(5)(ii). The learned counsel then contends that it is only a technical default and for that the levy of penalty is not justified, especially when the assessee itself has voluntarily submitted a consolidated return comprising February and March, 1980. Even assuming that the assessee has filed a consolidated return including the months of February and March, 1980, it is not proper compliance with the statutory provisions which required a monthly return to be filed for each month within 25th of the next succeeding month. Therefore, the assessee cannot be said to have complied with the statutory requirement of filing the monthly returns for the months of February and March, 1980. This default comes within the scope of section 12(4)(ii), and therefore, section 12(5)(ii) stands attracted. We cannot, therefore, say that the Tribunal is in error in sustaining the penalty. This tax revision case is, therefore, dismissed.
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