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Case Laws
Showing 81 to 100 of 229 Records
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1985 (3) TMI 238
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... ... ..... etc.) These principles stated in have been well settled and are hardly ever doubted. It is in the application of those principles that one has to bear in mind that though the benefit of the ambiguity must go to the subject and the taxing provision must receive a strict construction, that is not the same thing as saying that a taxing provision should not receive a reasonable construction . If the Administrator feels that the modification of the rate at 2 per cent should not be available to the dealers in woollen carpet yarn, then he must step in as was done by the State of U.P., but till then the petitioner is entitled to get the benefit of the tax relief. For the above reasons the writ petition succeeds and is hereby allowed. The impugned order is, hereby, quashed in so far as it computes the taxable turnover of woollen carpet yarn at the rate of 10 per cent instead of 2 per cent and imposed penalties. On the facts and circumstances of the case I make no orders as to costs.
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1985 (3) TMI 237
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... ... ..... now apparent that the commodity which was being transported was tea and not motor parts and that it had erroneously been misdescribed in form 34 which misdescription was corrected by the Sales Tax Officer of the check post Naubatpur after being satisfied about the mistake in the manner stated above. The order of seizure of the tea which was being transported on truck No. WMK 9166 as stated above therefore, deserves to be quashed and further direction deserves to be issued to release the aforesaid goods without any security being furnished. In the result this writ petition succeeds and is allowed and order of the seizure of the goods aforesaid is quashed and the respondents are directed to release the aforesaid goods without getting any security furnished for the said purpose and permit the goods to proceed on its destination. There shall be no order as to costs. A copy of this order may be supplied to counsel for the petitioner on payment of usual charges within three days.
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1985 (3) TMI 236
Stay - Interim order - Appeal ... ... ... ... ..... to seek an interim order. On facts stated above and on the unrebutted allegations made before Tribunal it does not call for any argument that in case an interim order is not granted in favour of petitioner then the entire business which is on a small scale shall come to a stand still. The petitioner is not like Dunlop India Ltd. or big industrial magnate whose assets run in crores who has no difficulty in finding liquid assets for furnishing bank guarantee. Here is a case of small Industrial enterpreneur and on the principle laid down by Supreme Court the power under article 226 can be exercised of granting interim relief to save the assessee from grave private injury. 7. For reasons mentioned above we are of opinion that the operation of the order passed by the Tribunal directing deposit of 25 per cent cash and bank guarantee for the balance for entertaining the appeal shall remain stayed. This order shall not prevent the Tribunal from deciding the appeal at an early date.
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1985 (3) TMI 235
Whether Tribunal was right in holding that the provisions of s. 2(m)(iii)(a) were not applicable in respect of liabilities arising under the wealth-tax assessments of the assessee - held that Where a notice of demand pursuant to the order is served on the assessee before the valuation date and it is claimed by the assessee that the tax is not payable, such demand cannot be claimed as a deduction u/s 2(m)(iii)(a) even though appeal or other proceedings are not pending as on the valuation date
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1985 (3) TMI 234
Entitlement of refund - Held that:- Appeal allowed. The burden of paying the amount in question was transferred by the respondents to the purchasers and, therefore, they were not entitled to get a refund. Only the persons on whom lay the ultimate burden to pay the amount would be entitled to get a refund of the same.
The amount deposited towards the fund was to be utilised for the development of sugarcane. If it is not possible to identify the persons on whom had the burden been placed for payment towards the Fund, the amount of the Fund can be utilised by the Government for the purpose for which the Fund was created, namely, development of sugarcane. There is no question of refunding the amount to the respondents who had not eventually paid the amount towards the Fund. Doing so would virtually amount to allowing the respondents' unjust enrichment. Thus the judgment and decree of the High Court for the refund of the amount of Rs. 50,000 and interest thereon is set aside.
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1985 (3) TMI 226
Whether the property in the trees which were the subject- matter of the timber contracts passed to the respondent-firm while the trees were still standing or after they were severed?
Held that:- Appeal allowed. Entries Nos. 2 and 17 in the Schedule to Notification No. 67181-C.T.A. 135/77-F (S.R.O. No. 901/77) dated December 29, 1977 levying purchase tax at the rate of ten per cent on the purchase of bamboos agreed to be severed and standing trees agreed to be severed, are not ultra vires either entry 54 in List II in the Seventh Schedule to the Constitution of India or the Orissa Sales Tax Act, 1947 but are constitutional and valid.
Under the impugned provisions the taxable event is not an agreement to sever standing trees or bamboos but the purchase of standing trees or bamboos agreed to be severed.
The absence in the impuged provisions of the words "before sale or under the contract of sale" is immaterial for the impugned provisions read as a whole clearly show that the severance of standing trees or bamboos has to be under the contract of sale and before the purchase thereof has been completed and not before sale of such trees or bamboos.
The subject-matter of the impugned provisions is goods and the tax that is levied thereunder is on a completed purchase of goods. When under section 3-B of the Orissa Sales Tax Act, 1947 any goods are declared to be liable to tax on the turnover of purchases, such goods automatically cease to be liable to sales tax by reason of the proviso to that section.
The word "supersession" in the notifications dated December 29, 1977 is used in the same sense as the words "repeal and replacement" and, therefore, does not have the effect of wiping out the tax liability under the previous notifications.
The timber contracts are not works contracts but are agreements to sell standing timber.
Under the timber contracts the property in the trees which were the subject-matter of the contracts passed to the respondent-firm, Messrs. M.M. Khara, only in the trees which were felled, that is, in timber, after all the conditions of the contract had been complied with and after such timber was examined and checked and removed from the contract area. The impugned provisions, therefore, did not apply to the transactions covered by the timber contracts.
Timber and sized or dressed logs are one and the same commercial commodity. Beams, rafters and planks would also be timber. As the sales of dressed or sized logs by the respondent firm have already been assessed to sales tax, the sales to the first respondent firm of timber by the State Government from which logs were made by the respondent firm cannot be made liable to sales tax as it would amount to levying tax at two points in the same series of sales by successive dealers, assuming without deciding that the retrospectively substituted definition of "dealer" in clause (c) of section 2 of the Orissa Sales Tax Act, 1947 is valid.
During the period June 1, 1977 to December 31, 1977 the sales of logs by the respondent firm would be liable to tax at the rate of ten per cent.
The bamboo contract is not a lease of the contract areas to the respondent company, the Titaghur Paper Mills Limited.The bamboo contract is also not a grant of an easement to the respondent company. The bamboo contract is a grant of a profit a prendre which in Indian law is a benefit to arise out of land and thus creates an interest in immovable property.
Being a benefit to arise out of land, any attempt on the part of the State Government to tax the amounts payable under the bamboo contract would be not only ultra vires the Orissa Act but also unconstitutional as being beyond the State's taxing power under entry 54 in List II in the Seventh Schedule to the Constitution of India.
Thus the judgment of the High Court in so far as it holds the impugned provisions to be unconstitutional and ultra vires the Orissa Sales Tax Act, 1947 requires to be reversed. Though the High Court did not give these consequential reliefs in view of its findings that the impugned provisions were invalid, it becomes necessary for us to do so in order to do complete justice between the parties as we are entitled to do under article 142 of the Constitution of India.
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1985 (3) TMI 218
Officer who is in default – Meaning of ... ... ... ... ..... int out any act of the petitioner wherein the petitioner had knowingly subscribed to the borrowings beyond the limits, or of the petitioner having wilfully authorised or permitted someone to borrow the monies in excess of the limits. Mr. Bulchandani was unable to point out a single act to satisfy this position or even indicate remotely as to how the petitioner could be said to be an officer in default . In view of this discussion, what emanates is that whilst the company may be liable for breaches of the provisions of section 58A, there is no material placed before this court even to indicate as to how the petitioner could be said to be an officer in default . In the circumstances, the petitioner would be entitled to relief as against the penal action contemplated. In the result, there will be an order in terms of prayer (a ) of the petition save and except that the words all liabilities will be substituted by the words criminal liability . There will be no order as to costs.
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1985 (3) TMI 217
Winding up – Suits stayed on winding-up order, Avoidance of certain attachments, executions, etc.
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1985 (3) TMI 216
Winding up - Company when deemed unable to pay its debts, Substitution of creditor or contributory for original petitioner
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1985 (3) TMI 215
Shares warrants and entries in register of members, Registers, etc., to be Evidence, Meetings and proceedings - Presumptions to be drawn where minutes duly drawn and signed, Oppression and Mismanagement – Right to apply under section 397 and 398
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1985 (3) TMI 191
Winding up – Application for ... ... ... ... ..... ssly approve. We also keep the matter at the pre-admission stage to enable the petitioning creditors and the company to arrive at some settlement in respect of the claim without the necessity of advertisement and ascertainment of the views of other creditors. Accordingly, Company Petition No. 355 of 1979 will stand remanded to the company judge and will be posted for hearing before him in the week commencing April 15, 1985. The company petition to be placed peremptorily for hearing (for admission) on Wednesday the 17th of April, 1985, before the company judge. The company to file any further affidavits, if so advised on or before April 10, 1985. Copy of the same to be furnished to the attorneys or to the advocates of the petitioning creditors on or before April 8, 1985. The petitioning creditors may, thereafter, with leave of the company judge, tender an affidavit by way of reply to the further affidavit, if so advised. Costs of the appeal to be costs in the company petition.
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1985 (3) TMI 190
Affidavit verifying petitions ... ... ... ... ..... e the handmaid and not the mistress, the lubricant and not resistant in the administration of justice. In the present case, if the affidavit is allowed to be taken, it will not cause injustice to the respondent. On the other hand, it will do injustice to the petitioner if the application is disallowed. Learned counsel for the other side made a reference to ray decision in Mool Chand Wahi s case 1984 PLR 183. In that case, the petitioner did not file an amended affidavit and did not make a statement that the petition be treated to be filed on the date of filing the amended affidavit. In the circumstances, the observations in that case are of no assistance to the learned counsel for the respondent. Therefore, I accept the application and allow the petitioner to place on record the amended affidavit and order that it should be read in place of the earlier affidavit dated October 18, 1983. It may, however, be stated that the main petition shall be deemed to have been filed today.
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1985 (3) TMI 173
Additional Duty of Excise ... ... ... ... ..... contumacious conduct of the assessee. rsquo rsquo It was observed that the Supreme Court regarded penalty as an additional tax imposed upon a person in view of his dishonest or contumacious conduct. It was therefore held that the words ldquo assessment levy and collection rdquo would also cover proceedings under which penalty could be levied. 7. It appears to me that following the same reasoning the provisions of the Central Excises and Salt Act relating to confiscation for contravention of the provisions of the Excise Law would also be within the ambit of the phrase ldquo Levy and collection rdquo as mentioned in Section 3(3) of the Act 58/1957. The contention to the contrary of Sri Bhangoo is therefore rejected. So far as the quantum of redemption fine and penalty imposed they had been suitably reduced by the Board and I am satisfied there is no ground made out for any modification thereof. 8. In the result the orders of the Board are confirmed and this appeal is dismissed.
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1985 (3) TMI 172
Valuation - Mopeds cleared with rear shock absorbers ... ... ... ... ..... rom 1-3-1974 to 23-10-1975. 14. In regard to the penalty the learned counsel for the appellants argued that the appellants had no intention to evade payment and the officers could have verified the particulars though the clearances were under S.R.P. From the facts of the case it is clear that the appellants were removing the mopeds with these fitments as integral parts, but did not disclose them in the price lists. It is not open to them to say that the departmental officers should have verified the particulars. The liability to pay appropriate duty is on the appellants. It is reasonable to conclude that the infringement of Rule 173Q has been made out. However, considering the period involved and in the circumstances of the case, we direct that the penalty be reduced to Rs. 4,00,000/- (Rupees four lakhs only). 15. In the result, we hold that the claim for recovery of differential duty is time barred. The penalty is reduced to Rs. 4,00,000/-. Appeal is disposed of accordingly.
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1985 (3) TMI 171
Import of Koepfer Relief Grinding Machine ... ... ... ... ..... been highlighted in appellants rsquo letter dated 10-10-1984 (Exhibit-J), categorically certifies that the import of this machine will be covered by Serial No. 24, Appendix I, Part B of the Import Policy (Vol.1) for 1984-85 subject, however, to other conditions laid down in the said policy. There is no indication that any other conditions of the Import Policy remained to be satisfied. 12. We, therefore, are of the considered view that, in the face of this certificate of the DGTD, the view, that the importation of this machine cannot be allowed under OGL, is not sustainable. As a result, the order of confiscation of the machine, as passed by the Additional Collector, is not sustainable. We thus allow the appeal partly to the effect that whereas the order of confiscation is set aside, and so also the consequential imposition of redemption fine of Rs. 3 lakhs the claim for benefit of concessional rate of customs duty under Notification No. 40/78-Cus. dated 1-3-1978 is rejected.
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1985 (3) TMI 168
Epichlorohydrine imported ... ... ... ... ..... nce shows that they are authorised to manufacture, inter alia, Glyceryl Guaicolate. The appellants have produced a certificate from the Drugs Controller and Food (Health) Authority, Government of Andhra Pradesh to the effect that Epichlorohydrine and Guaiacol are used as drug intermediates for the manufacture of a drug Glyceryl Guaicolate. It is also seen from Order No. S/49-651/84CL dated 31-12-1984 passed by the Collector of Customs (Appeals), Bombay that Glyceryl Guaicolate Ether finds mention in the Merck Index as an expectorant. In the circumstances, there appears to be no good reason why the consignment of Epichlorohydrine imported by the appellants should not get exemption from additional duty of Customs in terms of Notification No. 55/75 to the extent the appellants are able to satisfy the concerned Departmental authorities that the imported chemical has been used in the manufacture of the drug. We accordingly, setting aside the impugned order and allowing the appeal.
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1985 (3) TMI 167
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... ... ..... aking any action against them. It was obviously on account of the fact that the demand was barred at that time. As no show cause notice was issued to the appellants asking them to explain their case and no demand was raised within the time prescribed, so the impugned order cannot be said to be justified and legal. If it was a case of erroneous refund, the Department should have issued a show cause notice in accordance with the provisions of the Central Excises and Salt Act, 1944 and Central Excise Rules within the time prescribed after giving an opportunity of showing cause to the opposite party but in this case, unfortunately the departmental authorities kept aside all the provisions of law and forced the appellants to debit their PLA account to the extent of this amount claimed. Adjusting a demand in the future claims in this way cannot be said to be justified and legal. 10. ensp Under these circumstances, we set aside the order of the authority below and accept the appeal.
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1985 (3) TMI 162
Show cause notice for non-levy issued beyond six months by the Collector is without jurisdiction
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1985 (3) TMI 161
CLAASIFICATION ... ... ... ... ..... at the relays are available for use with current transformers having 1, 2 or 5 amps., secondary ratings and the fact that the pilots recommended are of 250 V. grade. He has conceded that, as the appellants have claimed, what should guide the decision as regards classification, is not mere input ratings as indicated but the undoubtful fact that the relay has been designed to protect much higher voltage systems. 4. ensp We have carefully considered the submissions made before us and the evidence on record. On going through the printed literature relating to the product, we find that the product is used for feeder circuits much above 400 Vs. It is not correct for purposes of classification to go only by the current ratings or the voltage of the pilots. 5. ensp In view of the foregoing, we hold that the correct assessment of the goods is under Heading 85.18/27(3) CTA. The impugned order is, therefore, set aside and the appeal is allowed with consequential relief to the appellant.
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1985 (3) TMI 160
Appeal maintainable against order passed by Collector ... ... ... ... ..... by the Collector (Appeals) under Section 35A only and not against any decision or order. Therefore, if the order passed by the Collector (Appeals) falls under Section 35A then only an appeal could be filed to the Tribunal and not otherwise. I, therefore, reject this contention also. 9. ensp Coming to the last of his contentions, suffice it to say that Rule 41 nowhere provides for entertaining an appeal against an order passed by a lower authority. It only confers certain powers on the Tribunal to secure the ends of justice. If the statute does not either expressly or by implication provides for an appeal against an order passed by the Collector (Appeals) under Section 35F it would be an abuse of power of the Tribunal to entertain appeal against such an order and it could never be considered as an order made to secure the ends of justice. 10. ensp In the result and for the reasons stated already, I hold that this appeal is not maintainable and accordingly the same is rejected.
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