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Case Laws
Showing 21 to 40 of 190 Records
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1989 (10) TMI 222
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... ... ..... ticles made of glass. In Dawoodbhoy M. Tayabally s case 1975 36 STC 291 (Bom) as is evident from page 293 of the report, voluminous evidence had been led before the Commissioner of Sales Tax as to what is the sense in which the expression glassware was understood by traders in that commodity and by persons manufacturing it. It was on the basis of that evidence that the Court concluded that glass sheets sold by the dealers were not glassware. Since in the present case the dealer has not led any evidence and has brought no material on the record which may help us to determine as to what is understood in the common parlance by the expression glassware or glass lenses , he cannot claim that the lenses for goggles manufactured and sold by him are not included in entry 23 glassware because according to dictionary meaning glass lenses for goggles are glassware. In the result, we answer this question in the affirmative and against the assessee. Reference answered in the affirmative.
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1989 (10) TMI 221
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... ... ..... ssee are liable to be taxed in the State at the last purchase point. The assessee purchased the goods and they send these goods to their non-resident principals. By sending the goods to the non-resident principals, the purchase by the assessee was complete. The purchase price was also paid. Any commission received by the assessee from the principals after the purchases are over, cannot form part of the purchase turnover of the assessee. The Appellate Tribunal has held so. We see no error in the said reasoning and conclusion. 4.. In this view of the matter, the Appellate Tribunal was justified in holding that the commission given by the non-resident principals to the assessee will not form part of the purchase turnover of the assessee. The appellate order passed by the Sales Tax Appellate Tribunal, dated 28th October, 1988, does not suffer from any error of law. 5.. We see no reason to interfere. These four revisions are without merit. They are dismissed. Petitions dismissed.
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1989 (10) TMI 220
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... ... ..... . 1977 39 STC 315, the question which arose for consideration before the Bombay High Court was whether polynite sheets used for making toys should be regarded as plastics or goods made from plastics. It was held that polynite sheets must be regarded as. plastics and not goods made from plastics. We respectfully agree with that decision. In our opinion, therefore, the decision in 1986 63 STC 350 (MP) (Commissioner of Sales Tax v. Bombay Glass House), does not lay down correct law. 8.. For all these reasons, our answer to the question referred by the Board is that on the facts and in the circumstances of the case, glass sheets do not fall under entry No. 26 of Part II of Schedule II of the Act but they fall under entry No. 1 of Part VI of Schedule II of the Act. The reference is accordingly answered in favour of the assessee and against the department. In the circumstances of the case, parties shall bear their own costs of this reference. Reference answered in the affirmative.
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1989 (10) TMI 219
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... ... ..... ed and conferred upon the Appellate Tribunal under the Act. In the result, for the reasons stated above, the writ petitions are allowed and sub-section (3A) as inserted by section 11 of the amending Act 15 of 1988, is struck down as unconstitutional and ultra vires section 22 of the Karnataka Sales Tax Act. Further, the amendment brought about to sub-section (5) of section 22 by section 11(3) of the amending Act 15 of 1988, is also struck down, as a consequence. In the light of this order, the Appellate Tribunal is directed to entertain stay applications that may be filed by the assessees-appellants against the orders passed under section 20 of the Karnataka Sales Tax Act and pass suitable orders as is deemed fit on the facts of each case. It is also further directed that the Appellate Tribunal shall continue to exercise its powers conferred on it under section 22(5) of the Karnataka Sales Tax Act, as it existed before its amendment by Act 15 of 1988. Writ petitions allowed.
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1989 (10) TMI 218
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... ... ..... 9 of the Rules. The sanction to prosecute is granted only against the company. There is no sanction for prosecution against the petitioners Nos. 2 to 4, who were the Managing Directors of the Company. Therefore, in his submission the prosecution should not be permitted to be launched and the department should be restrained from launching prosecution against petitioners Nos. 2 to 4. As to whether the sanction for prosecution against petitioners Nos. 2 to 4 is valid or not is a mixed question of facts and law. Such a question can be raised before the court before which the criminal prosecution is launched. In a petition under articles 226/227 of the Constitution of India, we do not propose to examine this question. 7.. In above view of the matter, there is no substance in the petition. Hence rejected. Notice discharged. Ad interim relief granted earlier stands vacated. The request to continue the ad interim relief for some time is rejected. Rule discharged. Petition dismissed.
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1989 (10) TMI 217
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... ... ..... (SC) 1988 Supp SCC 73. It is not necessary for me to consider the submissions made by learned counsel for the parties, in detail. Suffice to say that since it was the intention of the State Government to encourage the industries in Rajasthan and that is why these Schemes were brought forward. Even in 1989 another Scheme has been put forward where the Government has specifically provided that the application could be entertained even after this period of limitation. Keeping in mind, the observations of the Supreme Court in Fertilizer Corporation of India Ltd. s case 1988 68 STC 158 (SC) 1988 Supp SCC 73, I think it proper to allow this writ petition. In the result, this writ petition is allowed in part and the non-petitioners are directed to consider the application of the petitioner for grant of the eligibility certificate or the deferment certificate under the sales tax incentive schemes, on merits. The parties are left to bear their own costs. Writ petition partly allowed.
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1989 (10) TMI 216
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... ... ..... ns of the dealers would not change the character of the goods sold. The Sales Tax Tribunal has also taken the same view. So, it is a finding of fact that in common parlance leather board or leather sheets manufactured by the petitioner are not understood as dressed hides and skins. We, thus, do not agree with the learned counsel for the petitioner that in common parlance leather board or leather sheets manufactured by the petitioner are treated as dressed skins and hides. We are of the considered view that the leather board or leather sheets manufactured by the petitioner are not dressed hides and skins. In this view of the matter we answer question No. 1 in the affirmative and in favour of the department. In view of the fact that our answer to question No. 1 is in the affirmative, it is not necessary to answer question No. 2. In this view of the matter, C.W.P. Nos. 3218 and 3439 of 1985 fail and are dismissed with no order as to costs. Reference answered in the affirmative.
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1989 (10) TMI 215
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... ... ..... ey do not in any manner hinder or restrict the discretion vested in the authorities under the Act. Directions have been issued only to re-examine the cases. No directions have been issued to pass particular orders, thus, encroaching upon the jurisdiction or influencing the minds of the authorities. We partly allow these writ petitions and hold that the dealers exempted from payment of tax under section 13 still remain dealers liable to pay tax under the Act. However, since a finding has been recorded that the transactions of sales to such dealers were not genuine and were only paper transactions, the petitioners are afforded an opportunity to file appeals as provided under the Act within a period of one month. The respondents shall not raise the question of limitation. In the cases in which the writ petitioners have challenged notices/letters, they shall be at liberty to raise all the defences available to them before the Assessing Authorities. Writ petitions partly allowed.
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1989 (10) TMI 214
Right of the States to levy vend fee or duties in respect of industrial alcohol under different legislations in different States
Held that:- So far as the present case is concerned the State in exercise of powers under entry 8 of List II and by appropriate law regulate and that regulation could be to prevent the conversion of alcoholic liquors for industrial use into one for human consumption and for purpose of regulation, the regulatory fees only could be justified. In fact, the regulation should be the main purpose, the fee or earning out of it has to be incidental and that is why the learned counsel appearing for the State attempted to use this terminology by saying that the purpose is regulation, the earnings are incidental but frankly conceded that in fact the earnings are substantial. In fact in some of the excise laws in the States they have even used terminology relying on the doctrine of privilege and parting with privilege but it is not necessary for us to go into those questions in greater detail as we are not here concerned with the trade in alcoholic liquors meant for human consumption and, therefore, in view of clear demarcation of authority under various items in the three Lists, entry 8 of List II could not be invoked to justify the levies which have been imposed by the States in respect of alcoholic liquors which are not meant for human consumption.
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1989 (10) TMI 208
Winding up - Unpaid dividends and undistributed liquidation account ... ... ... ... ..... Companies Liquidation Account as it was neither entitled under section 555 to be paid the undistributed assets of the contributories nor was the company entitled to the same under the sanctioned scheme. The court further held that on the date when the scheme was sanctioned, the amount was not in the hands or under the control of the official liquidator and therefore, on the sanctioning of the scheme, he could not have handed over the amount to the company. The amount lying in the name of the contributory in the Companies Liquidation Account is his money, though the relationship of a creditor and debtor is not created between the contributory and the Central Government holding the money in the Companies Liquidation Account. I am, therefore, of the opinion that the application filed by the present applicants cannot be allowed as they have no right to the refund of the amount under the provisions of the Act. In the result, the application is dismissed with no order as to costs.
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1989 (10) TMI 198
Classification ... ... ... ... ..... 1985 till it was rescinded on 1-3-1987 by Notification No. 88/87. If block boards are of the same or similar genre as flush doors, then, the more appropriate classification would appear to be under Heading No. 44.10 which specifies flush doors as a separate category and other articles of wood not elsewhere specified, to a residual sub-heading 4410.90. 14. The definitions in the Indian Standards Glossary go to support the appellants rsquo contention. The Department has not adduced any evidence to show that block board is known in the trade as laminated wood similar to plywood and veneered panels. The onus to show that this is so is on the Department and this onus has not been discharged. 15. In the state of the evidence available, we have to hold that block board does not fall within Heading No. 44.08, sub-heading 4408.90. The more appropriate classification would be under Heading 44.10, sub-heading 4410.90. In this view of the matter, the appeals succeed and are also allowed.
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1989 (10) TMI 189
Tiles - PVC Tiles ... ... ... ... ..... ts to import the goods. In the copy of DO No. SEEPZ-Corrsp/83-DE dated 6-8-1983 written by Shri R.K. Verma of the Department of Electronics, Govt. of India to the Assistant Collector of Custome (SEEPZ), a copy of which has been filed before us, it is stated that electronics is a highly sophisticated industry and it requires dust-free atmosphere for better reliability and performance. He, however, did not confirm whether the PVC solid vinyl floor tiles would maintain dust-free atmosphere. In the absence of any definition in the notification for fixture and in view of the respondents rsquo claim that the recording of Video Cassettes required dust-free atmosphere, which has not been rebutted by furnishing material, the notification should be interpreted in favour of the assessee. Accordingly, we do not find sufficient justification to set aside impugned order-in-appeal. 5. emsp In the circumstances, we uphold the impugned order of the Collector (Appeals) and dismiss this appeal.
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1989 (10) TMI 180
Whether the Corporation was liable to refund that part of the amount of octroi duty paid by the petitioners on the quantity of the Horlicks powder imported into the city of Bangalore on the petitioners’ informing the Corporation that they had despatched that part of the same from time to time by filling the same in bottles to places outside the city of Bangalore even though petitioners had not followed the procedure prescribed in Rules 24 and 25 of Bye-law No. 45 framed by the Corporation and even though they had not even informed of such despatches as and when these were made?
Held that:- Amounts have been realised as octroi on the entry of the goods on which octroi was not leviable because these were not for use or consumption within the municipal limits. Mere, physical entry into the city limits would not attract the levy of octroi unless goods were brought in for use or consumption or sale. In this case, putting the powder from the drums to the bottles for the purpose of exporting or taking these out of the city is neither use nor consumption of the Horlicks powder attracting the levy of octroi. Such amounts, therefore, cannot be retained by the respondent-Corporation. There is no dispute as to the quantum in view of the fact that the amount has now been found to be certified to be credited pursuant to the direction of the learned single Judge of the High Court. We see no ground as to why amount should not be refunded. Realisation of tax or money without the authority of law is bad under Article 265 of the Constitution. Octroi cannot be levied or collected in respect of goods which are not used or consumed or sold within the municipal limits. So these amounts become collection without the authority of law. The respondent is a statutory authority in the present case. It has no right to retain the amount, so far and so much. These are refundable within the period of limitation. There is no question of limitation. There is no dispute as to the amount. There is no scope of any possible dispute on the plea of undue enrichment of the petitioners. We are, therefore, of the opinion that the Division Bench was in error in the view it took. Where there is no question of undue enrichment, in respect of money collected or retained, refund, to which a citizen is entitled, must be made in a situation like this. Appeal allowed & amounts should be refunded.
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1989 (10) TMI 179
Redemption fine refundable on re-export ... ... ... ... ..... he importer/appellant is also set aside. 5. Appellant rsquo s plea for ordering refund of Rs. 1,58,106/- on account of demurrage paid should also be considered favourably and sympathetically by the Customs authorities in view of the peculiar facts and circumstances of this case as narrated above. The Tribunal, however, does not have the authority to order refund of demurrage. 6. Appellant rsquo s plea for awarding interest at the rate of 18 per annum on all amounts paid by him is not accepted in view of the fact that there is no provision for it in the Customs Act. The Tribunal being a creature of the Act cannot go beyond the provisions of the Act. Hence this plea is also not tenable and is rejected. 7. Regarding refund of to and fro freight of Rs. 14026/-, no relief can be given at this stage. The appellant was also given an option. It was for him not to exercise the option and come up for staying the operation of the impugned order. 8. Appeal disposed of in the above terms.
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1989 (10) TMI 178
Adjudication - Ex parte order ... ... ... ... ..... lant, and since there was sufficient cause for his non-appearance, the ex parte order in my view is liable to be set aside. 10. I, therefore, allow the miscellaneous application C/Misc/212/89-A in C/ROM/7/89-A in C/A. No. C/130/88-A and direct the ROM to be posted for hearing on merits. 10A. Order per V. Rajamanickam, Member (T). -I agree with the view held by Sister S.V. Maruthi, Judicial Member. The Miscellaneous Application is only for setting aside the ex parte order and allowing the appellant an opportunity of being heard without prejudice to the decision to be taken on merits, in complying with the principles of natural justice, the Miscellaneous Application has to be allowed for the purpose of hearing the appellant on the R.O.M. Application on merits. 11. In view of the majority decision, the Misc. application No. C/Misc/212/89-A is allowed and the Tribunal rsquo s Misc. Order No. 40/89-A dated 28-4-1989 is recalled. The ROM application be listed for hearing on merits.
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1989 (10) TMI 177
MODVAT Credit ... ... ... ... ..... it does not change the legal position and it continues to be waste and not manufactured product. If that is so then provisions of Rule 57D of the Central Excise Rules would come into play and respondents would be entitled to claim modvat credit on the inputs or rather on part of those which go in the manufacture of these cut tubes and tyres also. 5. So we do not find any impropriety or illegality in the impugned orders and we pass the following final orders - E/1012/89 In this appeal impugned order is confirmed and appeal is dismissed with consequential relief to the respondents, if any. The respondents have filed cross objection No. E/Cross/20/88-C but the only prayer therein is that the appeal be dismissed and the impugned order be confirmed. So the cross objections also do not survive and no order is required to be passed thereupon. Appeal No. E/3167/88-C This appeal is also dismissed and the impugned order is confirmed with consequential relief to the respondents, if any.
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1989 (10) TMI 176
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... ... ..... le value on facts and circumstances by following the ratio of the decisions cited above. As the facts and issues are similar in these two appeals, we uphold the same view by treating that CMO is neither a related person nor a favoured buyer and discount claimed by the respondent is just and reasonable. As the respondents succeed on these two issues, it is unnecessary to go into the question of time barring aspect under Section 11A of the Act. 6. Appeal No. E/121/86-A is only concerned with the consequential relief of refund claimed by the respondents which was allowed by the Collector of Appeals in pursuance to his impugned order in the above appeal No. E/2113/85-A and in view of our upholding the impugned order in favour of the respondents, the respondents are entitled to get consequential relief in Appeal No. E/121/86-A. 7. In the result, for the foregoing conclusions, we uphold both the impugned orders and accordingly, two appeals filed by the Revenue are hereby dismissed.
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1989 (10) TMI 175
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... ... ..... xport was incidental to the export of undamaged bags for which the defective bags were used as liners. The appellants also submitted that the Unit has maintained a waste register wherein all waste generated has been recorded. 9. From the show cause notice and Annexure thereto and the impugned order, it is clear that the department has proceeded on the basis that the goods are waste. The question of excisability of waste has been settled in a plethora of decisions wherein it has been held that unless ldquo waste rdquo is specifically provided for in the Tariff it is not excisable. This is the view of the Delhi High Court in the decision reported in 1987 (29) E.L.T. 502 and that of the Tribunal in 1987 (31) E.L.T. 748 among other decisions. 10. We have held that goods involved in the dispute being ldquo waste material rdquo not provided for in the tariff, they are not excisable goods and therefore, we set aside the order of the Collector of Central Excise and allow the appeals.
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1989 (10) TMI 174
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... ... ..... e lenient side and that it was influenced by the fact that the goods were confiscated and if it is held that the goods in question are to be returned to the appellant Shyam Lata Sharma, it will have the effect that the appellants will be getting away with a lighter amount of penalty. But we cannot help it as the department has not made out any case for enhancement of penalty by way of filing cross objection in these appeals. Point No. 3 is decided accordingly. 39. Hence, the appeal filed by Smt. Shyam Lata Sharma (Appeal No. C-435/85- Cal.) is partly allowed by holding that the seized goods be returned to her and in case if they are sold by the department, its seizure value of Rs. 2,87,341.00 be paid to the appellant within three months from the date of receipt of this order. Her appeal, and the appeals filed by appellants Narayan Sharma in Appeal No. CD(Cal)453/85, and M.M. Shastri in Appeal No. CD(Cal)434/85, with reference to the imposition of penalty are hereby dismissed.
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1989 (10) TMI 173
Modvat Credit - Recovery of credit wrongly availed of ... ... ... ... ..... to this Court, they will be at liberty to file reply to the show cause notices. If reply is filed on or before March 22, 1990 the same shall be treated as having been filed within time and shall be decided on merits without raising the plea of limitation. In cases where reply is filed to the show cause notice and the decision thereon is not rendered by the Assistant Collector, it will be open to the Assistant Collector to proceed further with the same in accordance with law and pass order on merits. 23. emsp It will be open to all the petitioners to apply before the appropriate departmental authority for stay of the recovery of the amount in question. If and when such application is filed, the same shall be decided on merits in accordance with law. However, in facts of the case, it is directed that the ad interim relief granted earlier shall continue till March 22, 1990. 24. Subject to the aforesaid observations and directions, all the petitions are rejected. Rule discharged.
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