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Case Laws
Showing 21 to 40 of 233 Records
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1987 (6) TMI 377
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... ... ..... e therefore to go back to the Tribunal for fresh disposal. The Tribunal win take back the appeals on file and deal with the question whether the Deputy Commissioner was justified in rejecting the appeals in limine and whether he should have entertained the appeals on merits. 24.. The tax revision cases are disposed of as above. 25.. The writ petitions had been filed by the assessee challenging the validity of the second proviso of section 34(1) of the Act. Counsel states that these petitions are filed only in the alternative and that they will be unnecessary, and may be allowed to be withdrawn, if the tax revision cases are allowed. In view of this submission, we do not enter into the merits of the various contentions raised in the original petitions. They are allowed to be withdrawn with liberty to raise the points urged, if necessary, at any subsequent stage. 26.. There will be no order as to costs in the tax revision cases and in the original petitions. Petitions allowed.
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1987 (6) TMI 376
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... ... ..... tification being Notification F. No. A-3-7-1986 (22)-ST-V, dated 20th March, 1986. By this notification, footwear made of rubber or plastic the price whereof does not exceed Rs. 50 per pair and straps of chappals made of rubber or plastic have been completely exempted from payment of sales tax under sub-section (1) of section 6 of the Act. In view of the foregoing discussion we are of opinion that use of the word exclusively in column (4) of the notification has absolutely no nexus with the purpose sought to be achieved by the aforesaid notification and since no justification whatsoever for use of that word is forthcoming the same is arbitrary and deserves to be quashed. 6.. In the result, all these three writ petitions succeed and are allowed to this extent that the word exclusively used in column (4) of the impugned notification dated 7th April, 1981, is quashed. There shall be no order as to costs. The security amount be refunded to the petitioners. Writ petition allowed.
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1987 (6) TMI 375
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... ... ..... ax under section 9-B could have arised only if the principal was assessable to tax under the Act and the turnover of each or any of the principal exceeded the turnover of Rs. 30,000 and then only the liability of the assessee in respect of excess part of the turnover could have arisen under section 9-B of the Act. There was no material before the assessing authority on the basis of which it could be said that the turnover of the various principals whose ghee was sold by the assessee as commission agent exceeded Rs. 30,000. In these circumstances no liability for tax under section 9-B of the Act could be imposed on the assessee. I am, therefore, of the opinion that the order passed by the Chairman of the Board of Revenue, which has been affirmed by the Division Bench of the Board of Revenue in special appeal, does not suffer from any legal infirmity. In the result the revision fails and is dismissed, but in the circumstances, without any order as to costs. Petition dismissed.
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1987 (6) TMI 374
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... ... ..... assessment passed on 30th January, 1960, was set aside by the Appellate Tribunal. There was a remit. On that day, the Kerala General Sales Tax Act had come into force. The proceedings started under the General Sales Tax Act, 1125 had not ended. They were pending. The final assessment order was yet to be passed, after the remit. That order was made only after the Kerala General Sales Tax Act, 1963 came into force. The Appellate Tribunal did not care to apply its mind to the principle of law enunciated by the Supreme Court in Ghanshyamdas v. Regional Assistant Commissioner of Sales Tax 1963 14 STC 976. In the light of the said decision, it cannot be said that there was no assessment proceedings pending when the new Act came into force. The decision of the Appellate Tribunal is erroneous in law. 3.. We set aside the order of the Appellate Tribunal dated 10th April, 1984. The T.R.C. is allowed. The order passed by the Deputy Commissioner (Appeals), is restored. Petition allowed.
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1987 (6) TMI 373
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... ... ..... ntly the sales tax authorities have rightly rejected the contentions of the petitioner and, therefore, the references have to be answered against the assessee and in favour of the respondents. 10.. The Supreme Court in recent decisions reported in 1987 65 STC 48 (1987) 2 SCC 371 (Central Wines, Hyderabad v. Special Commercial Tax Officer) and 1987 65 STC 172 (1987) 2 SCC 395 (Hyderabad Asbestos Cement Products Ltd., Hyderabad v. State of Andhra Pradesh) while dealing with the question of turnover of sales tax has also found that such collections would be liable to sales tax. 11.. Thus, after hearing the learned counsel and after considering the facts and circumstances of the case as also the case law cited, we have reached the conclusion that the question referred to us for our decision has to be answered against the petitioner-assessee and in favour of the Revenue. 12.. The references are answered accordingly with no order as to costs. Reference answered in the affirmative.
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1987 (6) TMI 372
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... ... ..... different interpretation. Accordingly we hold that in order to say that a person cannot be found, within the meaning of section 55B(b) of the Kerala General Sales Tax Act, it should be found that that person is dead or has disappeared. It cannot apply to a case where the assessee or the particular person is alive and his whereabouts are known or can be ascertained. In this case the endorsement is clear. It is to the effect that the assessee was not seen and so a notice was served by affixure. This is not in compliance with section 55B(b) of the Kerala General Sales Tax Act, 1963. We hold that the Appellate Tribunal was justified in law in holding that there is no valid service of preassessment notice in this case. On that basis, the Appellate Tribunal was further justified in setting aside the orders of the authorities below and in ordering a remit. 4.. This tax revision case is without merit. We dismiss the revision. There shall be no order as to costs. Petition dismissed.
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1987 (6) TMI 371
Winding up – Powers of liquidator ... ... ... ... ..... also the interest of the Canara Bank which is a nationalised bank as well as the interest of the other creditors and shareholders of the company in disposing of the application for sanction. What is provided in sub-clause (2) of clause 3 of exhibit A-2 agreement in case of breach of covenants or conditions, is the right of the lessor to re-enter and determine the lease and proceed against the lessees under the Land Conservancy Act. In the circumstances, the present application is premature. The official liquidator is directed to file the necessary application before the District Collector for sanction to effect the sale immediately. The applicant or the District Collector who is competent to represent the Government will be at liberty to approach the company court again for appropriate orders at a later stage after the disposal of the application for sanction for sale by the District Collector, if necessary. The MFA is disposed of as above. There will be no order as to costs.
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1987 (6) TMI 362
Company when deemed unable to pay its debts ... ... ... ... ..... choice but to relegate the petitioner, at this stage itself, to the civil court for the balance of the price of the alleged undelivered supplies of steel. It is only when such a claim is made in a properly framed suit in a civil court that the respondent will have the opportunity to plead his defence in detail for establishing collusion and fraud. That court which tries that suit will arrive at a proper conclusion and give its decision on the evidence led before it and that should not be anticipated by the company court in its summary jurisdiction. Therefore, on the facts of this case, the proper thing that this court may do is to relegate the petitioner to claim the balance of the price in a properly framed suit, in the appropriate court having jurisdiction. If the petitioner obtains a decree in the suit which he may file, then this court will certainly have no hesitation to pass an order of winding up, on a company petition being filed. Therefore, this petition is rejected.
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1987 (6) TMI 354
Balance sheet - Default in filing copies of ... ... ... ... ..... n of complaint be read as evidence, then there is evidence to direct prosecution. I am unable to accept the above submissions of Mr. Mukherjee. The petition of complaint though tendered in evidence cannot be held to be substantive evidence. The prosecution case has to be proved by evidence at the trial and the petition of complaint cannot be a substitute for legal evidence to be produced to prove the case. I am of the view that petitioners Nos. 2 to 4 cannot be held guilty of default when the decision of the learned single judge referred to above makes it clear that there must be clear evidence before the directors can be convicted. In the circumstances, I am unable to sustain the conviction passed against petitioners Nos. 2 to 4 in this case. In the result, the conviction and sentence against petitioner No. 1 stands but against petitioners Nos. 2 to 4 is set aside. The revision petition is thus allowed in part. Fine, if realised, from petitioners Nos. 2 to 4 may be refunded.
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1987 (6) TMI 353
Officer who is in default - Meaning of, Public deposits ... ... ... ... ..... he evidence referred to by the trial court showing prima facie A-3 and A-4 as officers in default of the company, it cannot be said that the conclusion of the trial court in that regard is erroneous or perverse. Whether they would be officers in default or not will have to be considered at the conclusion of the trial and not at the stage at which the trial court was considering that aspect. For the reasons aforesaid, I find no merit in these petitions. A-3 and A-4 have not shown that the exercise of inherent powers of this court under section 482 of the Code is called for. The order directing framing of the charge for the offence alleged against A-3, A-4 and another does not suffer from any error or infirmity. The trial court has referred to the oral evidence of P.W-1 and the documentary evidence. No fault could be found with the method adopted by the trial court in considering the question under sections 245(1) and 246(1) of the Code, The petitions are, therefore, dismissed.
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1987 (6) TMI 352
Winding up - Powers of liquidator ... ... ... ... ..... scribed. Rule 291 prescribes the fees which are required to be credited to the Central Government. Sub-rule (4) prescribes that where the official liquidator realises property for secured creditors, the Central Government is entitled to the fee according to the rates given therein. In the present case, as already mentioned above, the property of the company was auctioned by the court through the District Judge, Sonepat and the auctioneer s fee was duly paid by the District Judge. The other expenses incurred for auctioning the property were also paid out of the auction money. Thus, the official liquidator did not do anything for the applicant or the other secured creditor. Consequently, the official liquidator cannot derive any benefit from the provisions of section 451 of the Companies Act and rule 291 of the Rules. For the aforesaid reasons, I accept the application and direct that the amount of the sale proceeds of the property lying with the court be paid to the applicant.
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1987 (6) TMI 333
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... ... ..... to the said item reading that patent or proprietary medicines means any drug or medicinal preparation ...... The revenue had contended that since the pad contained 0.125 Nitrofurozone the product was of therapeutic value and was hence a drug. The High Court rejected this contention holding that the product was merely a dressing for minor wounds the presence of Nitrofurozone of 0.125 being merely to make the pad sterile. 5. In the present case the product exported was only absorbent cotton wool. Even if it may have been of BPC standard that would only make the cotton fit for surgical dressing. Such cotton wool used as surgical dressing would not be of any therapeutic value. In the circumstances following the judgment of the Bombay High Court we hold that the absorbent cotton wool exported by the appellants was not a drug or drug intermediary and hence not entitled to the drawback claimed. Accordingly, the orders of the lower authorities are upheld and this appeal is dismissed.
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1987 (6) TMI 332
Demand - Time limit ... ... ... ... ..... Excise (Appeals) however, applied six months limitation from the date of service of Memo appeal on the respondents. As this part of his order has not been challenged by the respondent, it would not be proper for us to interfere with the same on appellant rsquo s appeal. (401) 5. As already said, the show cause notice in the case only proposed reclassification-. and there was no demand of duty against the respondents. Therefore, the relief claimed in the present appeal that demand should have been for the longer period, as already set out above cannot be acceded to. We, therefore, dismiss the appeal. EDITOR rsquo S COMMENTS The discretion under Rule 20 of the CEGAT (Procedure) Rules, 1982 is available only for the non-appearance of the Appellant. Since under the said Rule or any other provision an Appeal cannot be dismissed for non-appearance of the Respondent, there was no question of exercising the discretion under Rule 20 in the present case as held in para 2 of this order.
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1987 (6) TMI 329
Demand - Mixed fabrics ... ... ... ... ..... s in the denier of the rayon or other yarn in the making up of fabric and subsequent processing of the woven fabrics. As earlier seen the test result of the Quality Marking Centre had given the percentage of nylon at 13.4 . If 2.5 mentioned as allowance is added to the same the percentage of nylon contents would be over 15 . In that event the duty paid by the appellants would have been proper and no differential could be recovered as suggested in the show cause notice. The argument of Shri Sachar that 2.5 will be on the percentage of nylon, and not an absolute 2.5 to be added to the percentage of nylon contents, is not correct. 6. We, therefore, hold that on the facts and in the circumstances of this case the demand for payment of differential duty could not be sustained and, therefore, the imposition of penalty and confiscation of goods was also not called for. Accordingly this appeal is allowed and the orders of the lower authorities are set aside with consequential relief.
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1987 (6) TMI 328
Classification ... ... ... ... ..... uld not have been placed as tubes and pipes since they are not tubes and pipes but actually are to serve for the manufacture of machined parts or fittings, and annular machine components. Assessment as bars and rods in the form in which the tariff item stood at the time would be ruled out. Nor are we able to agree that they should be assessed as tubes. At the hearing, Mr. Lakshmi Kumuran told the court with approbation that the products were being assessed under Heading 7409.00 of the harmonised Central Excise Tariff. This justifies our conclusions. Heading 7409.00 covers shells and blanks for pipes and tubes hollow sections of copper. These goods are now assessed not as bars, but as hollow sections which we mentioned in our order of 5-8-1986. They are not assessable as copper bars/rods even in today rsquo s tariff. There is no choice but item 68 we think this assessment is correct, and, therefore, this refund claim is not acceptable. 12. This appeal is accordingly dismissed.
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1987 (6) TMI 325
Computation of capital investment ... ... ... ... ..... e, capacity, power etc. 5. However that may be, since the law requires that it is the face value by which the Collector should go, he should set about determining that face value of the investment of the plant and machinery that is the only value that will determine the eligibility of the assessees in the proviso regarding investment The order of the Collector is, therefore, set aside and he shall rehear the matter and shall decide the case strictly in accordance with the requirements of the provisions of the notification. 6. We are unhappy that the case has to return once again to the Collector to be determine anew. But a very vital part of the provisions of the law has been excluded from the reckoning during the adjudication appealed before us. We see no alternative to a remand. 7. The Collector shall critically reassess the claim of the assessees and shall pronounce a judgement in which all the factors relevant to the subject under the law shall be explained and accounted.
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1987 (6) TMI 324
Classification ... ... ... ... ..... classification. The appellants have further pleaded that under Notification No. 321/77-C.E., dated 21-11-1977, goods falling under TI 51-A(iii) CET are exempt from the whole of the excise duty leviable thereon if they are captively consumed within the factory of production. We have already seen that the show cause notice proceeded on the basis that 13 of the 49 Nos. manufactured had been captively consumed. Therefore so far as these 13 items are concerned there would have been no question of duty liability in view of the said notification. Though the appellants pleaded that their entire production of these goods was for their special needs and the entire production was therefore being captively consumed, there is no finding on this question by the lower authorities. 7. Accordingly this appeal is allowed and the orders of the lower authorities are set aside, the matter being remitted to the Assistant Collector for quantification of duty, if any payable, under TI 51-A(iii) CET.
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1987 (6) TMI 319
Refund claim - Limitation ... ... ... ... ..... hough according to the amended Rule 11 of the Central Excise Rules the refund claim was to be filed before the Assistant Collector or Central Excise and during the relevant period there was no practice in Kanpur Collectorate for receiving the refund claims in the Range Office. If the Range Superintendent did not take any action on the refund application, the position could be different but in the present case the Range Superintendent took action on the application and asked the appellants to furnish the Treasury Challans to enable him to finalise the refund claim and forwarded the same to the Assistant Collector. In view of this, in the interest of justice to the appellants, we direct that this refund application may be treated to have been received by the Superintendent on behalf of the Assistant Collector of Central Excise and the refund be granted to the appellants, if otherwise admissible. We, therefore, set aside the impugned order and allow the appeal in the above term.
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1987 (6) TMI 318
Component parts and Spare parts ... ... ... ... ..... dquo component rdquo and should have really mentioned ldquo parts rdquo . We are inclined to agree with the submission of Shri Shah, JDR, that the same parts when initially used in the assembly or manufacture of the machine would be called ldquo component parts rdquo whereas the same parts imported for subsequent replacement of its part of initial assembly has to be considered as a ldquo spare parts rdquo . The Law of Lexicon (T.P. Mukherjee) cited by the appellants does not help the present situation as the question considered therein is not similar in nature. 6. ensp In this view, we hold that the goods now imported by the appellants are admittedly for replacement and not for initial assembly and have to be considered as ldquo spare parts rdquo and not ldquo component parts rdquo . We, therefore, do not accept the arguments of the appellants though they advanced the arguments after much study and were of great interest in examining this point. 7. ensp We dismiss the appeal.
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1987 (6) TMI 317
Valuation - Factory gate sale price ... ... ... ... ..... alue for damaged goods cleared by the appellants. The lower authorities have allowed the minimum discount of 25 . Before the Appellate Collector, the appellants claimed that they had allowed 40 to 50 discount for the damaged goods. In the appeal before us, it is contended that there was reduction of up to 75 in some cases. The appellants explained that the nature and extent of damage on different pieces of their products was not uniform and hence the price reduction for the damaged goods could not be uniform. They had allowed varying discount/reduction depending upon the nature and extent of the damage in each case and they prayed that the discount/reduction so actually allowed from case to case may be accepted after necessary verification by the authorities. The learned representative of the department had no comments to make. We find the appellants rsquo request quite fair and reasonable, and allow it. 7. ensp The two appeals are allowed by way of remand in the above terms.
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