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1990 (8) TMI 378
... ... ... ... ..... ll under serial No. 55-A of the First Schedule. Accordingly, we are of the view that the Tribunal was right in holding "we are unable to agree with the appellants that the dissimilarity as emphasised by the learned counsel in the case of excavators would take it outside the purview of the entry, since the excavator is provided only with a crawler mechanism and there is no movement with the goods. So far as we could see the functions of loader and the excavator are almost similar. We find that the term 'machinery' occurring in the entry indicates a composite unit of which the mechanically propelled vehicle is an integral part. In view of all these factors, the excavator has to go only within the purview of entry 55-A of the First Schedule". 9.. In the result, the tax case fails and it is dismissed. Consequently, the writ petition also fails and is dismissed. There will be no order as to costs in the tax case as well as the writ petition. Petitions dismissed.
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1990 (8) TMI 377
... ... ... ... ..... No. 80. If agarbathi itself could not be brought within that entry, the sandalwood oil collected and carried through bottles or cans in the manner referred to in the original petitions will not be taken in by the term perfume as given in entry No. 80 of the First Schedule. 31.. We have scrutinised the file made available to us as constituting the thought-process before the decision of the Government. No intellectual treatment of the topic is visible from its pages. The file would remind one of the references made to a speech much to be heard but nothing worth listening to. There is nothing worth listening to , in the Government file. 32.. The discussion attempted above leads us to the inescapable conclusion that the view taken by the Government in its order passed, is totally unsustainable. We accordingly quash those orders, and declare them to be invalid and inoperative. The writ petitions are disposed of as above. There will be no order as to costs. Writ petitions allowed.
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1990 (8) TMI 376
... ... ... ... ..... fact that the petitioner could answer the impugned notices and proceed further. But, here we find a case where the impugned notices suffer infirmities, which go to the root of the matter, and to which infirmities, this Court, when its attention has been drawn, cannot shut its eyes and decline to exercise the powers intended to remedy such situations. 14.. In the said circumstances, we are obliged to interfere in writ appeal. Accordingly, these writ appeals are allowed the orders of the learned single Judge are set aside and the writ petitions, out of which these writ appeals arise, will stand allowed, as prayed for. No costs. The oral leave asked for to appeal to the Supreme Court of India is declined by us, since we have only applied the well laid down principles of the Supreme Court of India on the two questions argued before us and in our view, we have not departed from the principles countenanced by the pronouncements of the Supreme Court of India. Writ appeals allowed.
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1990 (8) TMI 375
... ... ... ... ..... on 5A(1) of the Textiles Committee Act, 1963, can neither be treated as sales tax collected nor can it be treated as part of the sale price, as it is separate impost made under the Act, and hence it can never form part of the sales turnover. Consequently the said cess is not liable to sales tax under the Tamil Nadu General Sales Tax Act, 1959. 22.. Even though there are number of other decisions, cited, we do not think it necessary to cite all other decisions. We are satisfied on facts that the conclusion is inescapable, namely, that administrative charges collected by the appellants/assessees do not form part of the taxable turnover. Presumably, realising the position, the Revenue has accepted the view taken by the Tamil Nadu Sales Tax Appellate Tribunal (Additional Bench), Madurai, in M.T.A. Nos. 252 and 253 of 1979 in its common order dated July 17, 1980. 23.. In the result, the tax cases (appeals) are allowed. However, there will be no order as to costs. Appeals allowed.
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1990 (8) TMI 374
... ... ... ... ..... r as part of the consideration for the sale of the goods and it would, therefore, form part of sale price. In our opinion the aforesaid decision of the Supreme Court clearly applies to the instant case and following the same we hold that the petitioner was not entitled to claim any deduction on account of expenditure incurred by it in carrying the goods to the place of delivery and loading, unloading, etc. The total amount received by the petitioner from the PWD on account of supply of bricks will be the sale price for the purpose of taxation without any deduction therefrom on account of expenditure incurred on carriage, etc. The taxing authorities were justified in refusing the claim of the petitioner on this count. In view of both the points raised by the petitioner having been decided against it, these writ petitions do not have any merit and the same are dismissed. In view of the facts and circumstances of the case, we make no order as to costs. Writ petitions dismissed.
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1990 (8) TMI 373
... ... ... ... ..... e. Therefore, on facts of this case, the ruling of the Supreme Court in Video Electronics Pvt. Ltd. 1990 77 STC 82 AIR 1990 SC 820, is distinguishable. We, therefore, reject the contentions advanced on behalf of the State and hold that the notification impugned is violative of article 14 and certainly not in public interest. 16.. Mr. Dattu, the learned Government Pleader, pointed out that 1977 notification had since been superseded by 1984 notification which extended the benefit to all and therefore, striking down 1977 notification would be academic. It may appear to be so. But it is our duty to point out the defects in the impugned notification so that in future when power is exercised by the State it is in conformity with the judicial decision as such power is exercised recurringly as section 8(5) of the Act is operative. In the result, writ petition is allowed. The impugned notification is quashed. Rule issued is made absolute. No order as to costs. Writ petition allowed.
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1990 (8) TMI 372
... ... ... ... ..... say what is its functional character. It was contended that the assessee had sold the fuel pumps to various motor part dealers and, therefore, applying the functional test, the fuel pumps in question should be regarded as spare parts of motor vehicles. We are unable to accept this contention. It is an admitted case that the parts which are sold by the assessee, namely, the fuel pumps, are used for being fitted on to the diesel engines and the functional character of the fuel pump is that it is used as an integral part of the diesel engine. Diesel engine is a machinery by itself and a fuel pump may be regarded as a spare part of the diesel engine but it is not possible for us to accept that it has to be regarded as a spare part of the motor vehicle. 22.. For the aforesaid reasons, we answer the question of law referred to us, by the Sales Tax Tribunal, in the negative and against the Revenue. The parties will, however, bear their own costs. Reference answered in the negative.
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1990 (8) TMI 371
... ... ... ... ..... or solidified and is, therefore, neither liquefied nor solidified carbon dioxide. Assuming that it can be termed carbon dioxide it cannot be called compressed carbon dioxide as understood in the market among those who deal in compressed carbon dioxide. If the Revenue wants to tax a particular goods known as such then the onus is on the Revenue, in that they have failed. In the view we have taken that there is no change in the identity of the commodity purchased by the petitioners and sold by them subsequently, we hold that the Revenue cannot subject the second sales of carbon dioxide by the petitioners to tax by bringing the same under entry 106 of the First Schedule to the Act. Though the learned counsel for the petitioners, as noticed earlier, advanced various contentions, in the view we have taken above, it is unnecessary for us to deal with all the contentions. In the result, the tax revision case is allowed. There will, however, be no order as to costs. Petition allowed.
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1990 (8) TMI 370
... ... ... ... ..... igh Court held that there was no merger of the original order and hence limitation would start from the date of original order and not the appellate order. The said decision does not directly deal with the controversy before us. Moreover it has not considered the ratio of Tel Utpadak Kendra 1981 48 STC 248 (SC). 15. Our attention was drawn to the order passed in Second Appeal No. 542 of 1975 against the same assessee while assessing the liability under the Act. In that decision the Tribunal has specifically passed an order confirming the decision of the first appellate authority. It is contended that absence of such a concluding line in the second appeal with which we are concerned indicates that that part of the order which was in favour of the assessee in the first appellate order was not confirmed. We are unable to see how that aspect makes any difference. 16.. To conclude, the question is answered in the negative. No order as to costs. Reference answered in the negative.
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1990 (8) TMI 369
... ... ... ... ..... s special service to it but derived by it as part of the general public. (Emphasis supplied). In another paragraph, the court further observed A fee is, therefore, a charge for the special service rendered to a class of citizens by Government or governmental agencies and is generally based on the expenses incurred in rendering the services. 24.. In the light of the above discussion and on application of wellestablished legal principles, I am of the opinion that the impugned order is unsustainable. 25.. For the reasons stated above, these writ petitions are allowed and the impugned order bearing No. CI 17 SPD 83 dated August 25, 1983, is quashed. Enhanced tender form fee paid by petitioners on the basis of the impugned order, if any, shall be refunded to the petitioners. In the circumstances of these cases, there will be no order as to costs. 26.. The learned Government Advocate is permitted to file his memo of appearance within three weeks from today. Writ petitions allowed.
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1990 (8) TMI 368
... ... ... ... ..... any arbitrary power on the assessing authority to pick and choose the seller or the purchaser to bring to tax in respect of declared goods at the point of first sale in the State in accordance with sub-section (4) of section 5 of the Act. 11.. A feeble attempt was made by Mr. Shivaram, counsel appearing for Mr. K. Srinivasan, learned counsel for the petitioner, that rule 6 did not provide any guidelines to the assessing authority to arrive at the taxable turnover, total turnover or turnover itself. We do not think there is any substance in that assertion because rule 6 has been operative since the framing of the same, and assessing authorities have not found any difficulty in understanding and working that rule. 12.. We, therefore, reject the argument advanced and the petition in which only a feeble attempt was made challenging the constitutional validity of section 5(4) of the Act to escape liability. 13.. Accordingly we dismiss this writ petition. Writ petition dismissed.
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1990 (8) TMI 367
... ... ... ... ..... fish net is a man-made fabric. That will be so even if in the manufacture of the net, mechanical processes are employed. The tedium of work and the unduly long duration of the finishing time are avoided by such speedy mechanisms. Possibly, the Government intended fishing nets which have been made by the fishermen with their inherited skill and in the traditional way of using their native technology, without the intervention of a weaving mill or mechanised process. 16.. We have considered the entries independently and without reckoning the clarification of the Government under section 59A. If, for reasons best known to them, the Government has waived its rights or otherwise blundered, the court is unconcerned about it. We do not express any opinion on the correctness or otherwise of that order, as no challenge has been made about it before us. In the result, the writ petitions fail and they are accordingly dismissed but without any order as to costs. Writ petitions dismissed.
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1990 (8) TMI 366
... ... ... ... ..... far as the assessee was concerned, he had undoubtedly received the price or value of the goods and the transaction as stated earlier, was sale in the course of inter-State trade. In so far as the product exchange programme is concerned, the Revenue authorities have taken the view that the assessee had nothing to do with it. In our opinion, it hardly makes any difference to the conclusion, that the transaction was sale, for the assessee had obtained payment for the goods despatched earlier, from its agent and it was clearly a case of deferred payment. It was, therefore, not material that the assessee had nothing to do with the product exchange programme in the sense that the assessee was not a party to it. 15.. For the aforesaid reasons, we answer question No. I in favour of the Revenue. 16.. In view of our answer to question No. 1, we do not consider it necessary to answer the other two questions. 17.. We leave the parties to bear their own costs. A. RAGHUVIR, C.J.-I agree.
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1990 (8) TMI 365
... ... ... ... ..... at there was no consumption of the goods purchased in the manufacture of other goods. Relying on the above two decisions of the Madras High Court, counsel for the assessee vehemently contended that the purchase turnover on the items such as bearings, crown, belt, fire-clay, drums, cables, hardware, paint, casting iron scrap, etc., cannot be brought to tax under section 5A(1)(a) of the Kerala General Sales Tax Act. 8.. With great respect to the learned Judges of the Madras High Court, we are of the opinion that in view of the observations contained in the later decisions of the Supreme Court reported in Raghurama Shetty s case 1981 47 STC 369 and Thomas Stephen and Co. Ltd. case 1988 69 STC 320 at 323, the two Madras decisions brought to our notice cannot be said to lay down the correct law on the subject. 9.. The common order of the Sales Tax Appellate Tribunal dated July 25, 1989, is set aside to the above extent. The above tax revision cases are allowed. Petitions allowed.
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1990 (8) TMI 364
... ... ... ... ..... ar was tax-free commodity in serial No. 37 and in notification dated April 23, 1976, under section 5 of the Act which came into force from May 1, 1976, the same day sugar-candy was mentioned in serial No. 78 as taxable at four per cent. Intention of notifying authority is thus clear and the same was not the situation in 1982 51 STC 75 (Orissa) (State of Orissa v. Satyabadi Sahu and Sons) or the decision relied upon in the said decision. Therefore, with effect from May 1, 1976 sugar-candy is taxable and would not be tax-free as sugar. 5.. Question for both the years 1977-78 and 1978-79 is to be answered in the negative against the dealer by stating that the Judicial Member was not justified to hold that sugar-candy is tax-free although it has been specifically made taxable at four per cent from May 1, 1976, by Finance Department Notification No. 20215 dated April 23, 1976. 6.. There shall be no order as to costs. J.M. MAHAPATRA, J.-I agree. Reference answered in the negative.
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1990 (8) TMI 363
... ... ... ... ..... proper consideration of all the facts and circumstances of the case. Therefore, we are not inclined to interfere with the same in exercise of our writ jurisdiction. So far as the other two questions are concerned, we have perused the decision of this Court in Pioneer Enterprise 1991 80 STC 125, which has since been delivered. It has been held in that decision that supplies of bricks made in pursuance of the contracts in question amounted to sale exigible to sales tax under the Act. It has also been held that the supplier was not entitled to claim any deduction on account of any expenditure incurred in carrying the goods to the place of delivery, loading, unloading, etc., and the total amount received on account of supply of bricks was the sale price for the purpose of taxation. Following the aforesaid decision we decide both the points involved in this case also against the petitioner. The writ petition is accordingly dismissed. No order as to costs. Writ petition dismissed.
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1990 (8) TMI 362
... ... ... ... ..... ing the words other than powdered or condensed milk with retrospective effect. According to the applicants the amendment was violative of articles 14 and 19(l)(f) and 19(l)(g) of the Constitution of India while according to the respondents, the amendment was merely declaratory and clarificatory in nature. Although considerable arguments were advanced on this point, we think, in view of our findings on the main issue, this question loses much of its importance. However, in view of our other findings, the amendment must be held to be merely clarificatory and, therefore, valid even with its retrospective operation. 37.. In view of our findings above, all the three applications fail and are dismissed on contest. The bank guarantee furnished by Milk Food Ltd. in terms of interim order will be encashed and adjusted against demand for tax. 38.. There will be no order as to costs. P.C. BANERJEE (Technical Member).-I agree. L.N. RAY (Judicial Member).-I agree. Applications dismissed.
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1990 (8) TMI 361
... ... ... ... ..... en to the assessing authority to start fresh proceedings and effect the final assessment order. No further direction was necessary from the Appellate Tribunal in the said matter. This is the effect in law, as could be seen from the decision in Guduthur Bros. v. Income-tax Officer 1960 40 ITR 298 (SC) at page 300 and Superintendent (Tech. I), Central Excise v. Pratap Rai AIR 1978 SC 1244 at page 1245, para 5. The position in law is clear. Even without a direction of the Appellate Tribunal or an order of remit by the Appellate Tribunal, it was open to the assessing authority to start afresh the assessment proceedings and pass final orders. We make this position clear and hold that in pursuance to the order passed by the Appellate Tribunal dated 23rd March, 1983, in T.A. No. 812 of 1977, it is open to the Revenue to start the assessment proceedings afresh and pass a fresh assessment order for the relevant assessment year. 3.. The above tax revision case is disposed of as above.
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1990 (8) TMI 360
... ... ... ... ..... the tax by the respondents is in accordance with section 33-C of the Act. Therefore, the writ petitions have no substance. However, in view of the fact that the proceedings have taken such a long time and huge amount of Rs. 30,75,300.50 was paid pursuant to the assessment orders which were set aside by the Sales Tax Appellate Tribunal and refund of the same, which the assessee is entitled, is withheld by invoking the provisions of section 33-C of the Act, we are of the opinion that the respondents should be directed to complete the assessments of the petitioner for the years 1982-83 and 1983-84 within a period of three months from the date of receipt of this order, failing which the respondents shall refund the amount of tax collected pursuant to the assessment orders in a sum of Rs. 30,75,300.50 with interest as provided under the Act. Subject to the above directions, the writ petitions are dismissed. No costs. Advocate s fee Rs. 250 in each case. Writ petitions dismissed.
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1990 (8) TMI 359
... ... ... ... ..... 0 per square metre, the total consideration for doing rubber lining for delivery casting with plug C.I., only Rs. 65 in value represents the rubber component and adhesive, and the entire remaining consideration represents work to be done. From the abovesaid affidavit on behalf of the assessee it is further seen that the rubber, rubber chemicals, solvent adhesives, etc., are used only incidental to the work and the final rubber lining of the equipment is a permanent improvement to the equipment of the customer. The Tribunal also has found that the entire lining of customers equipment represents job work, that the purchase order is for a consolidated sum for work as well as materials incidentally used therein and that the basic nature of the contract is for executing a work and not specifically for transfer of property in goods. 19.. In the result, these tax revision cases are dismissed. In the circumstances of the case, there will be no order as to costs. Petitions dismissed.
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