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Case Laws
Showing 61 to 80 of 259 Records
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1992 (8) TMI 250
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... ... ..... dispute that the part of the turnover relates to sale of pickles in packets. In such circumstances, we are of the view, that the pickles sold under packets cannot be brought into the net of taxation. Therefore, we are of the view, that the order of the Tribunal so far as it relates to the levy of tax, in respect of sale of pickles in packets, is set aside and in other respects the order of the Tribunal is affirmed. To arrive at the correct turnover of pickles sold in packets, the matter is remitted to the assessing officer for reassessment in the light of the order made herein. We make it clear that the above decision is made as it covers under entry 103 of the First Schedule as on October 10, 1979. 5.. In the result, the tax case (revision) is partly allowed and is partly dismissed as indicated above. The matter is remitted to the assessing officer for proper reassessment in accordance with law, in the light of the observations made above. No costs. Petition partly allowed.
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1992 (8) TMI 249
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... ... ..... d not stand in the way of his getting exemption for sales of ceiling fans, when the industry is required to do assembly work only. Of course, the industry is required to be registered as a manufacturer of components to get tax holiday in respect of sales of such components. 11.. In view of the reasons given above, it is held that the ground for rejection of the eligibility certificate is not valid and this cannot be a bar to allowing tax exemption to the applicant. 12.. In the result, the order of the Additional Commissioner dated November 28, 1991 and the order of the Assistant Commissioner dated June 30, 1986 are set aside with the direction on the Assistant Commissioner concerned to renew eligibility certificate of the applicant, if otherwise found eligible, within three months. Interim orders dated March 4, 1992 are vacated. 13.. The application succeeds and is allowed on contest. There will be no order for costs. L.N. RAY (Judicial Member).-I agree. Application allowed.
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1992 (8) TMI 248
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... ... ..... the appellants that the procedure followed by the Government of Tamil Nadu, Commercial Tax Department, in finalising the assessment with regard to the levy of sales tax on raffle tickets, results in exemption of Tamil Nadu raffle tickets from the payment of sales tax while at the same time, the sales of the other State lottery tickets suffer tax and therefore, the vice of discrimination pointed out by the Supreme Court still persists, in the method of assessment adopted by the respondents and on that ground they are not liable to pay sales tax on raffle tickets of other States. 16.. The orders of the learned single Judge dismissing the writ petitions are correct and we do not find any infirmity in the orders of the learned single Judge warranting interference at our hands in these writ appeals. There is no merit in these writ appeals and they are liable to be dismissed and accordingly, they are dismissed with costs. Counsel s fee Rs. 2,000 (one set). Writ appeals dismissed.
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1992 (8) TMI 247
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... ... ..... re was no intention to pay separately. This conclusion of the Tribunal does not appeal to us. Merely because there was consolidated payment it cannot lead to an irresistible conclusion that the parties had not agreed to any bifurcation. Materials placed before us do not reflect that the cost of transportation charges alone was separately charged. That being the position, we are of the view that no question of law arises out of the order of the Tribunal. The Tribunal was, therefore, justified in its conclusion that the dealer was not entitled to deduction under section 5(2)(A)(a)(iii) and that the entire amount received by the dealer from the railway authorities was to be taxed. We have considered the facts of the case keeping out of consideration the aforesaid erroneous conclusion of the Tribunal. The references are accordingly answered in affirmative in favour of the Revenue and against the dealer. No costs. D.M. PATNAIK, J.-I agree. Reference answered in favour of Revenue.
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1992 (8) TMI 246
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... ... ..... the number of consignments and this average amount should be treated to be the equalised freight. If, however, there is a great discrepancy between such actual average freight and the equalised freight which the assessee is charging then the assessee is not entitled to claim deduction for more than the actual average freight. In my opinion the actual average freight is liable to be deleted from the turnover of the assessee. To work out this actual average freight the matter needs to be remanded to the Tribunal to consider this aspect. Hence while upholding the finding in other issues, I set aside the addition of the rent of the bottles from the turnover, and I remand the matter for a fresh decision regarding the freight in the light of the observation made above. The impugned order to this extent is set aside. The Tribunal will decide the case on this point within three months of production of certified copy of this order. Revision is partly allowed. Petition partly allowed.
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1992 (8) TMI 245
Refund - Limitation - Refund-Relevant date-Provisional assessment made ... ... ... ... ..... 65 A11 and Kay Foam Ltd. v. Union of India. 1988 (34) E.L.T. 449 Bom . 30. For the reasons aforesaid, this appeal fails and is dismissed. 31. It is stated that the refund has not yet been made in terms of the order under appeal. We, therefore, direct the Asstt. Commissioner to refund the sum of Rs. 5,97,343.98 within one month from the date of communication of this order with interest at the rate of 12 per cent from 14th December, 1987 till the date of payment. If the collection made by the appellant was unauthorised, the appellants having retained and enjoyed the benefit of such money for so long, are bound to compensate for the use and retention of such money and accordingly the respondent is entitled to interest and such interest should be paid at the rate of 12 per cent per annum, although the Revenue authorities recover interest at the rate of 24 per cent per annum for delayed payment of tax and duties. 32. There will be no order as to costs. 33. K.M.Yusuf,J. .-I agree.
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1992 (8) TMI 244
Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in holding that notice served on April 10, 1962, under section 34 of the Indian Income-tax Act, 1922, after the coming into force of the Income-tax Act, 1961, and the proceedings commenced in pursuance of the said notices and the orders passed therein were invalid and bad in law
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1992 (8) TMI 243
Imposition of "theatre tax" by the Nagar Mahapalika, Lucknow challenged by the cinema owners/lessees in these petitions under article 32 of the Constitution of India.
Held that:- Appeal dismissed. The theatre tax is levied as a tax on amusement and entertainment. The amusement in a building is affected by all those factors which are taken into consideration while fixing the annual rental value of the building. Higher rental value in relation to a cinema house shows that it has better accommodation, better situation and better facilities for amusement and entertainment. The higher annual value is indicative of a better quality cinema house as compared to a cinema house which has a lesser annual rental value. We are, therefore, of the view that there is nothing unreasonable or improper in classifying the cinema houses on the basis of annual rental value. The learned counsel for the petitioners has not raised any other point before us.
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1992 (8) TMI 241
Whether the purchases made by commission agents in U.P. on behalf of the principals outside the State, where the goods so purchased were despatched to such principals, were inter-State purchases not exigible to tax under the U.P. Sales Tax Act, 1948?
Held that:- Appeal dismissed. An out-State principal may first instruct his commission agent within the State of U.P. to purchase the goods on his behalf and to await his further instructions. Depending upon the market conditions and other circumstances, the ex-State principal may instruct his agent in the State either to sell the goods within the State or to despatch the goods beyond the State. If such were the case, Sri Sehgal would have been right in saying that the State of U.P. was competent to tax the purchase by the respondent-dealer. But that is not the case here on the facts found by the appropriate authorities.
The case of the authorities was that the respondent- dealer represented to the authorities by issuing form III-C-I that the purchases effected by him are intra-State purchases liable to be taxed under the State enactment and thereby prevented the authorities from taxing the transactions under the Central Sales Tax Act; he must, therefore, make good that tax amount. Assuming that what the authorities say is true, even so the respondent-dealer cannot be proceeded against under section 3-B for the reason that the said section applies to a situation where the tax "leviable under this Act", i.e., State Act, is evaded. It does not apply where the tax payable under the Central enactment is evaded. This appeal has to be dismissed on this short ground alone, and is accordingly dismissed.
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1992 (8) TMI 233
Company when deemed unable to pay its debts ... ... ... ... ..... t be said that the respondent-company is unable to pay the debt. We find no ground to interfere with the order of the learned company judge. However, it will meet the ends of justice if the respondent-company is directed to furnish security of immovable property in the sum of Rs. 1,23,638.08 to the satisfaction of the Registrar General of this court within three months so that in the event of appellant s succeeding in establishing his claim in the civil court he can recover the amount due to him through the sale proceeds of the property. The appellant has already been relegated to his ordinary remedy of civil suit for the recovery of the amount claimed in the petition under sections 433, 434 and 439 of the Act. However, it is made clear that the appellant will be entitled to claim the benefit of section 14 of the Limitation Act for the period during which the petition was pending in this court. For the reasons aforesaid, the appeal is dismissed, but with no order as to costs.
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1992 (8) TMI 225
Whether the Act is incompatible with the repealed Act i.e. Foreign Exchange Regulation Act, 1947?
Whether it manifested any contrary intentions to the repealed Act?
Held that:- Appeal dismissed. Article 20(1) of the Constitution of India provides that no person shall be convicted of any offence except for violation of the law in force at the time of commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of commission of the offence. The repealed Act prescribed three times the value as penalty and, under the Act, section 50 provides five times penalty. So what would be imposable as penalty is three times. The penalty imposed as reduced by the Appellate Tribunal is not even three times as contemplated under section 23 of the repealed Act. Therefore, though the Act evinced a contrary intention of imposition of higher penalty than the one prescribed under the Act 7 of 1947, on the facts in this case, the penalty imposed is perfectly valid and legal.
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1992 (8) TMI 224
Oppression and mismanagement – Power of Tribunal on application under sections 397 and 398 ... ... ... ... ..... he petitioners as per this order, failing which the petitioners shall proceed to deposit the value of the shares of the contesting respondents at the same rate, within six weeks from the date of the expiry of the first six weeks time granted herein to the contesting respondents however, the question of any interest on the amount to be paid by the petitioners to the said respondents would not arise as these respondents have been running the company all these years the other conditions stated in the order of the learned company judge shall continue to operate subject to these modifications. In the event of the contesting respondents in the company petition failing to pay to the petitioners as per this order and the petitioners proceed to purchase the shares of those respondents, the parties are at liberty to move the company court for appropriate orders regarding the profits earned by the company during the period of this litigation. Appeal partly allowed. No order as to costs.
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1992 (8) TMI 223
Meetings and Proceedings – Extra Ordinary General Meeting, Removal of director ... ... ... ... ..... flows from the lack of confidence in the board of directors. This lack of confidence is the foundation of resolution No. 1. Both the resolutions are aimed at the board of directors. Resolution No. 2 is an extension of resolution No. 1. I cannot see them as independent transactions capable of standing apart from each other. They are part of the same transaction. Their basis is the lack of confidence in the board of directors. They are aimed at the board of directors. They are part of the same transaction. Resolution No. 1 is invalid in every part of it. It takes with it resolution No. 2 also. Both are, therefore, invalid. For the reasons stated in the foregoing paragraphs, I hold that the meeting was validly requisitioned. However, the resolutions passed at the meeting held on May 26, 1992, are illegal and invalid. Subject to this, the application is allowed and the judge s summons is made absolute. Respondents Nos. 1 to 8 shall pay costs of this application to the applicant.
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1992 (8) TMI 205
Employees' State Insurance Act, 1948 - Meaning and scope of the term 'Shop' - Applicability on The appellant Company, carrying on the business of clearing and forwarding at the port of Cochin - Held that: - The appellant is carrying on stevedoring, clearing and forwarding operations. Clearing the documents, even it be in the custom house, is the carrier's job. It cannot be gainsaid that the appellant is rendering service to cater the needs of exporters and importers and others who want to carry the goods further. Therefore, it is a shop carrying on a systematic economic or a commercial activity. This would be enough to bring the appellant without specifically enumerating the specific activities carried on by the appellant. Merely because shop has been enumerated along with other similar establishment we do not think any further specific enumeration is necessary to cover the appellant. – Decided against the applicant.
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1992 (8) TMI 204
Limestone different from `lime’ ... ... ... ... ..... e and is rejected. We, however, consider that in the facts and circumstances of the case, the imposition of penalty of Rs. 3 lakhs was on the high side and reduce it to Rs. 1 lakh (Rupees one lakh). 17. emsp Before we part, it is necessary to refer to a ground taken in the Memorandum of Appeal that the date indicated on the impugned order is 1/18/09/91 and the order was passed even before hearing the appellants on 19th September. We observe that in the cross objections filed by the respondent-Collector, it has been stated that the order was passed by the Collector on 15-10-1991 and the confusion has been caused by a typographical error of the date in the impugned order. This point was not pressed during the hearing and we accordingly conclude that the appellants have no longer any dispute on this question. We need not, therefore, go into this ground. 18. The Cross objections filed by the respondent-Collector are also disposed of in terms of this order as indicated in para-16.
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1992 (8) TMI 203
Stay/Dispensation of pre-deposit ... ... ... ... ..... the fabrication of structures is a manufacturing activity and whether the activity of erection has taken place at site or not is a highly disputable point to be gone into at the time of final hearing based on detailed evidence to be brought by both sides. In view of the financial stakes involved and in view of the highly complicated nature of the question involved, we cannot say either way whether there is prima facie case either in favour of the department or in favour of the assessee. We are of the view having regard to the overall evidence on record and the facts on record that the balance of convenience would lie in favour of the applicants in not getting any pre-deposit made at this stage. In view of the importance of the question involved we would, however direct the matters to be taken up for out of turn hearing and decided quickly. Therefore, while allowing the stay petitions unconditionally, we direct that the matters be listed for out of turn hearing on 27-11-1992.
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1992 (8) TMI 202
Manufacture ... ... ... ... ..... pondents, submitted that the said Order Nos. 976 to 978/1987-D was relied upon by the Tribunal in its subsequent Order No. 254 of 1989-C dated 6-6-1989 passed in Appeal No. 3450 of 1988-C Collector of Central Excise, Bombay-I v. Hindustan Tyres (P) Ltd., Bombay. In this backdrop, he submitted that the present appeals be rejected. 3. We have considered the submissions. The issue involved in all these appeals, as aforesaid, is whether re-rubberisation of old and used rubberised M.S. Rims amounts to manufacture within the meaning of Section 2(f) of the Act. The Tribunal in its aforesaid orders has held that it does not amount to manufacture. In all his impugned orders, the Collector (Appeals) has held that the said process does not amount to manufacture within the meaning of Section 2(f). Thus, following the ratio of the said orders passed by this Tribunal, we uphold all the impugned orders and dismiss all the present appeals with consequential relief to the respondents, if any.
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1992 (8) TMI 201
Appeal - Appealable order ... ... ... ... ..... ection 122. He has, however, not been able to point out as to under what provisions of the Act, this type of communication could be passed. The detention certificate is being issued if and when the Department, in adjudication, finds that the goods were unnecessarily detained. Such an order may be a consequence of the adjudication proceedings but could not be said to be the one passed in the adjudication proceedings themselves. The same is to be taken as an administrative action to benefit the person whose goods have been unlawfully detained. The communication therefore cannot fall within Section 122 of the Act and hence cannot be said to be an order passed by the Collector as an adjudicating authority. 7. This being the position, the appeal filed against the said communication is not sustainable before the Tribunal. The Tribunal does not have any jurisdiction to entertain such appeal against such communication. The appeal is therefore, not tenable and is accordingly rejected.
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1992 (8) TMI 200
Classification ... ... ... ... ..... c Act, 1940 and supply them in bulk to parties who either pack them in smaller retail packings for sale to hospitals or subject it to further processing in order to manufacture different preparations such as ointments and lotions for treatment of skin ailments or for the care of the skin. Under these circumstances we hold that the appellants rsquo products viz. lsquo Calamine IP and Calamine BP rsquo having more than one constituent and supplied in bulk packing of 50 kgs. have to be treated as lsquo Medicaments rsquo falling under Heading 30.03. Further on account of the fact that Zinc Oxide or Zinc Carbonate the major constituents of lsquo Calamine IP and Calamine BP rsquo are used in the treatment of skin disorders, in our view the disputed lsquo Calamine IP and BP rsquo in bulk packings of 50 Kgs. will be appropriately classifiable under sub-heading 3003.30. 7. In view of the above discussion the impugned order is set aside and the appeal is disposed of in the above terms.
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1992 (8) TMI 199
Exemption - Assessee having two units ... ... ... ... ..... exemption that the Chittor Cement Works do not have a separate railway siding, the existence of separate railway siding is not very material in ascertaining whether the new unit is independent of the old unit so far as it relates to its ability to independently manufacture cement from raw-material received in its own plant by its own machinery, because the exemption is to such cement manufactured in a factory, and, it cannot also be asserted that a railway siding is a necessary adjunct to a factory, given the other means of transport available. In the present case, the respondents have led sufficient evidence before the lower authorities to show that Chittor Cement Works is equipped to manufacture cement without any dependence on the old unit Birla Cement Works and has been recognised as a factory under Factories Act and by the local bodies. In the result, there is no reason to interfere with the order passed by the Collector (Appeals) and the appeal is, therefore, rejected.
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