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Case Laws
Showing 21 to 40 of 213 Records
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1993 (6) TMI 231
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... ... ..... ed on by the assessee in the instant case. Relying upon a Bench decision of this Court in Deputy Commissioner of Sales Tax v. Debi Prasad Shyam Sunder and Sons 1991 82 STC 305 1991 1 KLT 102 the Tribunal held that an order of cancellation of registration cannot take effect from an early date. This Bench had occasion to review the entire case law and held that if on the date of issue of declaration the dealer so issuing the declaration shall have a valid licence, subsequent cancellation of the registration certificate cannot adversely affect the purchasing dealer. In other words, the cancellation of registration certificate cannot have retrospective effect. 2.. We are of the view that in the light of the Bench decision of this Court in Debi Prasad s case 1991 82 STC 305 1991 1 KLT 102, the decision of the Appellate Tribunal is valid and justified in law. The order of the Appellate Tribunal does not merit interference in revision. The revision is dismissed. Petition dismissed.
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1993 (6) TMI 230
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... ... ..... r words, when search is conducted at a place, other than the disclosed place of business of a dealer or a disclosed warehouse under rule 1(2)(h) of the Rules, the Commissioner or the concerned officer must be fortified by reason to believe that the dealer keeps or is for the time being keeping the accounts, registers and documents and it is this belief which will enable him to enter such undisclosed place of business or warehouse of the dealer. The occasion for search will arise after the Commissioner or the concerned officer enters into the disclosed place of business for the purpose of inspection and not before entry in that premises. Search may or may not lead to seizure. Seizure can take place only when there is reason to suspect , to be recorded in writing, that a dealer is attempting to evade payment of tax. 54.. I think, this will be the interpretation of section 14(4) of the Act by resorting to the duplex approach to legislative intention. Application partly allowed.
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1993 (6) TMI 229
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... ... ..... that the State Legislature enacted section 6C for indirectly imposing a tax, which it was not competent to impose directly. We are unable to agree with this submission, because in our opinion, the State Legislature was quite competent to enact section 6C which imposed tax on purchase of goods, where the purchase may be occasioned by a works contract, but does not take place in the course of execution of a works contract. The submission on this count by Mr. Bose cannot be accepted. 14.. No other point was urged or pressed at the hearing. 15.. In the result, the writ petition is dismissed without any order for costs. Interim orders are vacated. The sum of Rs. 1,00,000 deposited in terms of interim order dated April 24, 1981, passed by the High Court and extended by this Tribunal s order dated May 22, 1989, shall be adjusted against dues of tax from the applicant under section 6C. S.P. DAS GHOSH (Chairman).-I agree. P.C. BANERJI (Technical Member).-I agree. Petition dismissed.
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1993 (6) TMI 228
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... ... ..... of the material before him including the objections filed by the assessee. Neither the assessing authority nor the Deputy Commissioner found as a fact whether these lead batteries were parts of motor vehicle batteries they decided the question by making a distinction between a part and an accessory . In these circumstances, we are of the view that interest of justice requires a fresh finding on this essential question as to whether the lead batteries dealt by the assessee were meant for motor vehicle batteries hence we are constrained to remand the case for a fresh consideration by the Commissioner. We clarify that the assessee has to confine his contention only to this aspect alone and no other contention would be available to him before the Commissioner. In the result, for the reasons stated above, the appeal is allowed the case is remanded to the Commissioner of Commercial Taxes, Bangalore, for a fresh decision in the light of the observations made above. Appeal allowed.
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1993 (6) TMI 227
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... ... ..... e were sold or marketed by the dealer, who is really a baker, cannot be covered by the entry bakery products within the meaning of those words as occurring in the Kerala General Sales Tax Act. This is so especially in the context and collocation of words occurring in the First Schedule to the Kerala General Sales Tax Act. 9.. In this view of the matter, we reverse the conclusion of the Sales Tax Appellate Tribunal, that in common parlance banana chips, tapioca chips, murukku, achappam, pakkavada and mixture sold by the assessee are bakery products coming under entry 9 up to June 30, 1987 and entry 15 from July 1, 1987, of the First Schedule to the Kerala General Sales Tax Act, 1963. 10.. The common order of the Sales Tax Appellate Tribunal in T.A. Nos. 142 and 143 of 1991 is set aside to the above extent. We remit the matter to the Appellate Tribunal for passing appropriate orders, in the light of the above observations. The tax revision cases are allowed. Petitions allowed.
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1993 (6) TMI 226
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... ... ..... he petitioner was the last purchaser of the bone, the petitioner is certainly liable to pay the purchase tax under the Third Schedule. Thereafter, when the petitioner sells the commodity referred as a bone meal prepared out of the aforesaid bone, the said turnover also is liable to tax under the Second Schedule because the petitioner will be the first seller of bone meal . The learned counsel for the petitioner submitted that such a distinction should not be made and that when tax is levied in respect of turnover of one of the commodities, the other commodities should not be burdened with the tax. We are not aware of any principle which would support the proposition advanced by the learned counsel for the petitioner. Since the Legislature has thought it fit to make the distinction between bone meal and bone , the same shall have to be given effect to while implementing the provisions of the Act. Consequently, this revision petition is dismissed. No costs. Petition dismissed.
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1993 (6) TMI 225
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... ... ..... te of all omissions and suppressions, the taxable turnover was finally fixed, for the year 1989-90, at Rs. 86,42,970 as against Rs. 54,35,472.50 returned by the assessee. We are of the view that considering the huge suppressions in both the purchases of old gold ornaments land sale of new gold ornaments and other defects adverted to by the statutory authorities, the estimate of taxable turnover at 31/2 times the average running stock value is fair and reasonable. The fixation and the determination of the taxable turnover on the basis of the average running stock is one of the recognised methods. The Appellate Tribunal has given cogent and clear reasons and materials in paras 5 and 6 of its order to sustain 31/2 times the average running stock value to be the basis for working out the taxable turnover. We do not find any error of law in the order of the Appellate Tribunal dated November 12, 1991. 5.. The tax revision case is without merit. It is dismissed. Petition dismissed.
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1993 (6) TMI 224
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... ... ..... tions the certificates of registration of the purchasing dealers were cancelled with retrospective effect. Admittedly, the purchasing dealers had a valid registration certificate on the dates when the declarations were issued. Relying upon the Bench decision of this Court in Deputy Commissioner of Sales Tax v. Debi Prasad 1991 82 STC 305 and the later Bench decision of this Court reported in Deputy Commissioner of Sales Tax v. Gopal Trading Company 1992 84 STC 294, the Appellate Tribunal held that since the purchasing dealers had a valid registration certificate at the time of the transactions in dispute, the assessee is entitled to exemption. 3.. We see no error in the said reasoning and conclusion of the Appellate Tribunal. The common order passed by the Sales Tax Appellate Tribunal dated February 28, 1992 for the four years in question does not disclose any error of law. We see no merit in this batch of revisions. The tax revision cases are dismissed. Petitions dismissed.
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1993 (6) TMI 223
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... ... ..... the 1st respondent that the petitioner was not possessed of all the relevant and necessary documents. If there is no attempt to evade the tax, no penalty can be imposed under section 29A. A reading of section 29A as a whole would clearly indicate that it is enough if a person satisfies the authorities at the enquiry under sub-section (4) that there was no attempted evasion of tax. The fact that the officer can release the goods on furnishing security also indicates the same. As there is no finding by the 1st respondent that there was any attempt to evade the tax, the orders of penalty passed under section 29A are without jurisdiction and are liable to be quashed. 11.. In the result, I allow this original petition and quash exhibits P1(a), P1(b), P1(c) and P1(d) and P5 and P6. I further direct the 1st respondent to refund the security deposit made by the petitioner making a total of Rs. 5,280 as expeditiously as possible. There will be no order as to costs. Petition allowed.
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1993 (6) TMI 222
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... ... ..... late authority is being interfered with. It is not sufficient if the Appellate Tribunal at its ipso dixit states that it disagrees with the decision of the first appellate authority. This Bench had occasion to state the duty of the Appellate Tribunal in cases of reversing the decision of the lower authority and laid down the guidelines on the matter, in Commissioner of Income-tax v. Nirmal Liquors 1991 190 ITR 636 (Ker). 9.. We are of the view that the common order passed by the Appellate Tribunal, dated June 18, 1991, is infirm. It is not in accordance with law. It deserves to be set aside. 10.. We set aside the common order passed by the Appellate Tribunal, dated June 18, 1991, in T.A. Nos. 529 and 671 of 1988 and remit the matter to the Appellate Tribunal for a proper consideration of the appeals in accordance with law and in the light of the observations contained hereinabove. 11. The tax revision cases are allowed. There shall be no order as to costs. Petitions allowed.
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1993 (6) TMI 221
Medicament - Patent or proprietary medicaments ... ... ... ... ..... e therapeutic or prophylactic properties, rdquo was not relevant. This Tribunal noted the Gujarat High Court decisions in the case of Shah and Co. v. State of Gujarat - (1971) 28 STC 5, holding nycil medicated powder is not a toilet preparation but a medicament and concluded that classification under erstwhile CET under Item 14E and classification under sub-heading 3003.19 CETA, 1985 is in order. It is seen that in the present appeal before us also the product PARAMINOL is similar in nature with Malatite cream considered by the Tribunal in the Nicholas Laboratories case (supra) and similar arguments had been made before us for the claim that it is a medicinal preparation, which is, therefore, acceptable. In the result, following the ratio of the Tribunal in the case of Collector of Central Excise v. Nicholas Laboratories (supra), it is held that the product in question herein PARAMINOL is classifiable under sub-heading 3003.19 of CETA, 1985. The appeal is accordingly allowed.
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1993 (6) TMI 219
Excisability ... ... ... ... ..... the case of CCE v. Universal Cables Ltd. reported in 1987 (31) E.L.T. 828 (Tribunal) had held as under - ldquo Dross and skimmings of aluminium are merely the scum thrown out in the process of manufacture of aluminium sheets and therefore it cannot be said that dross and skimmings on transformation result in a new and different article. Hence they are not excisable goods liable to duty under Item 68 of the Central Excise Tariff. Amendment to item 27 of the Central Excise Tariff would not change the position rdquo . 3. emsp During the course of arguments it was enquired from Shri S.K. Sharma that whether any stay had been granted by the Hon rsquo ble Supreme Court, he fairly stated that there is no stay granted and nothing has been heard so far. We do not find any reason to deviate from the earlier orders of the Tribunal. In view of the above discussion, we respectfully follow the earlier decisions of the Tribunal and reject the appeal. In the result, the appeal is dismissed.
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1993 (6) TMI 212
Winding up – Suits stayed on winding-up order, Exclusion of certain time in computing periods of limitation
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1993 (6) TMI 211
Winding up - Company when deemed unable to pay its debts ... ... ... ... ..... edings in the present petition. I do not propose to go into the question of insolvency of a company once I have come to the conclusion that the company is unable to pay its debts. On behalf of the petitioner, reliance has been placed on orders in some other petitions for winding up and certain observations in some other judgment in which the company was a party. I do not think that it is necessary to refer to them specifically. I am convinced that, on the facts and circumstances of this case, there is no defence to the company and that the company is unable to pay, is ex facie clear. The order for winding up must, therefore, go as a matter of course. Petition accordingly admitted. No advertisement for a period of six weeks. If within these six weeks the company deposits the amount due, the petition to be placed for appropriate directions. Otherwise advertisement to follow. Company application is rejected. Order pronounced. Give notice of this order to counsel for the parties.
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1993 (6) TMI 200
Winding up – Power of court to assess damages against delinquent, directors, etc. ... ... ... ... ..... findings of the learned judge with regard to this aspect of the matter. However, with regard to the merits of the claim, we hold that the appellant-director is liable to pay with regard to the first item relating to Rs. 11,000 with interest at 6 per annum the amount advanced to Devi Chand and Co. With regard to the items Nos. 2 to 6, we hold that the appellant-director is not liable to pay the same. In the result, the appeal is partly allowed and the judgment and decree of the learned single judge is modified accordingly. Upon the facts and circumstances of the case, there shall be no order as to costs. Learned counsel, appearing for the official liquidator, has brought to our notice that in the judgment there is no direction as to the payment of his fees. On a consideration of the facts and circumstances of this case, we are inclined to order a fee to be paid to counsel appearing for the official liquidator at the rate payable to a senior counsel for the Central Government.
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1993 (6) TMI 192
Zip tapes - Adjudication ... ... ... ... ..... he attachment of any scoops or teeth. What emerges after the attachment of the scoops or stitching into the tape of the teeth is the zipper chain which is finally used for making finished zippers by using other parts i.e. sliders, bottom stop, etc. Prima facie, therefore, we hold that the tapes imported is zip tape and, therefore, benefit of the notification in question is not available to the respondents. We, therefore, allow the prayer of the appellant Collector and grant stay of the operation of the order of the learned lower appellate authority till the disposal of the appeal. 6. Before parting with the case we would like to mention that as it is what has been imported is zipper tape which appears to be a narrow fabric falling under Tariff Heading 58.06. This aspect has not been considered by the lower authorities and can be gone into at the time of final hearing of the matter. The appeal being a Special Bench appeal the appeal papers are transmitted to CEGAT, New Delhi.
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1993 (6) TMI 183
Valuation Valuation ... ... ... ... ..... t in this case is that the demand of duty has been raised without approving the price list which had been duly filed before the said authority. It has, therefore, been urged that the proceedings in respect of this demand are premature, incorrect and unsustainable. Since it is contended by the appellant that the objections raised in respect of the price contracted with M/s. Parkash Colour and Chemicals Ltd. were duly met by the appellant with proper correspondence, we are of the view that this matter is fit for remand inasmuch as the original authority while confirming this amount of demand of Rs. 4,913.30 has not dealt with the pleas of the appellant. Accordingly, so far as this demand of Rs. 4,913.30 is concerned, the matter is remanded to the original authority for de novo adjudication to take into account the replies submitted by the appellant on this issue in response to the Assistant Collector rsquo s letter dated 21-1-1991. 5. Appeals are disposed of in the above terms.
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1993 (6) TMI 182
Classification of goods ... ... ... ... ..... g the scope of the term micronutrients which had been held as fertilisers under the old tariff for a long time, mdash in view of the various decisions cited on behalf of appellants. Hence, the burden of changing the classification under the new tariff was on the department. The Apex Court decision in the case of Padmini Products v. Collector of Central Excise - 1989 (43) E.L.T. 195 (SC) laying down that mere non-declaration is not sufficient to invoke the longer period but some more positive act is required would apply fully to the facts of the present case. Hence, there is no warrant to invoke longer period beyond six months from the date of show cause notice or to impose any penalty on the appellants. The penalty imposed by the Order-in-Original is, therefore, set aside and so is the demand beyond the period of six months from the date of show cause notice. The Order-in-Original is modified to the above extent and appeals are partially allowed to the extent indicated above.
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1993 (6) TMI 181
Modvat credit - Declaration for inputs ... ... ... ... ..... credit of duty paid on such commercial plywood amounting to Rs. 23945/-. The appellants rsquo claim that commercial plywood could also be construed to be Laminates under Tariff Heading No. 4408.90 was, however, rejected by both the Asstt. Collector as well as the Collector (Appeals). The present appeal is against the Order in Appeal No. PCJ/25/BRD/93, dated 5-3-1993. 3. emsp On a perusal of the declaration filed by the appellant, it is found that the appellant has not only declared Laminates against Heading No. 4408.90 but also Plywood under Heading No. 4408.30. Though the Heading number against Plywood relates to decorative plywood, the description plywood rsquo can be construed to be covering both decorative as well as commercial plywood. This was the view taken in the same set of circumstances and facts in the aforesaid order passed by this Bench (Order No. 874-875-WRB, dated 28-5-1993). In view of this, I allow the appeal and direct the authorities to restore the credit.
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1993 (6) TMI 180
Remand of order passed without application of mind ... ... ... ... ..... 8 of the Customs Act. The order is not clear as to whether any such proposals have been made in the show cause notice. Even the finding portion is cryptic. We, therefore, deem it proper to set aside the order on the short ground. It was pleaded by the ld. advocate that if it is remanded, the case may be heard and disposed of by another officer of the equal rank, since this officer has already made up his mind as reflected in the impugned order. We accept this prayer and pass the following order. We set aside the impugned order but remand the case back for adjudication by an officer of the equivalent rank (other than Shri S.N. Thapa who passed the impugned order). The officer designated for adjudication may give an opportunity of personal hearing to the appellant, since they are interested in producing the evidences with regard to the licit clearance of the goods and after personal hearing, he may pass orders in accordance with law. 4. Appeal is disposed of in the above terms.
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