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Case Laws
Showing 61 to 80 of 547 Records
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1997 (12) TMI 610
... ...
... ... ..... t have to be viewed a product as a whole, in the sense of a distinct article of trade, commercially understood by the people in the market, as different from telescope, a distinct article of trade. In this perspective, we are of the view that theodolite , an instrument used for survey purposes, can, by no stretch of imagination, be stated to fall within entry No. 8 of the First Schedule appended to the TNGSTA. 26.. The order of the Joint Commissioner (SMR) of Commercial Taxes, Madras-5, therefore, cannot at all be stated to be sustainable in law. This point is answered accordingly. 27.. In fine, the appeal is allowed. The order of the Joint Commissioner (SMR) of Commercial Taxes, Madras-5 setting aside the order of AAC, restoring the order of the assessing officer, viz., the Commercial Tax Officer, Triplicane-I Assessment Circle, is set aside and the order of AAC is ordered to be restored. There shall, however, be, in the circumstances, no order, as to costs. Appeal allowed.
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1997 (12) TMI 609
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... ... ..... ssary certificate was issued. 14.. For the foregoing reasons I hereby quash annexure P-10 dated June 4, 1997 and annexure P-11 dated September 2, 1997 and remit the matter to respondent No. 1 to hold a fresh enquiry pursuant to the show cause notice issued to the petitioner, if required and asked for, by the petitioner, to give an opportunity of hearing. Needless to say that the department shall also be given similar liberty for elaborating the facts. It is expected of respondent No. 1 to hold the fresh enquiry into the matter within a period of three (3) months hereof from the date of communication of this order. It is clarified that quashment of the aforesaid two orders will not mean revival of petitioner s registration. 15.. Parties agree that they shall appear before respondent No. 1 on December 29, 1997 for further participation in the enquiry. With this observation the petition stands finally disposed of, but with no order as to costs. Petition disposed of accordingly.
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1997 (12) TMI 608
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... ... ..... on the sales effected by it during the period of eligibility. Thus, it will be now too harsh for the respondents to ask for the payment of tax, even, for that period, for which under the grant of necessary certificate, it had carried on its business. Admittedly, the said period has now expired and no extension to the same has been granted. 17.. For this reason also, I find that this is a fit case, in which, the impugned order deserves to be quashed. 18.. In consequence, I hereby quash the order dated February 2, 1996 (annexure P1). On account of this, the necessary consequence is, that the petitioner would be deemed to have enjoyed the necessary exemption from payment of sales tax on the basis of the eligibility certificate, issued by the District Level Committee. 19.. The petition is, thus, allowed. The impugned order (annexure P1) is hereby quashed, as mentioned above. Looking to the facts and circumstances of the case, parties shall bear their own costs. Petition allowed.
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1997 (12) TMI 607
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... ... ..... from learned counsel Mr. Kaji for the assessee. 16.. In the result thereof, the present petition succeeds and the same requires to be allowed. While allowing the petition, we quash and set aside the communication-cum-order annexure A dated October 1, 1992 along with the Schedule showing the particulars regarding the demand of the interest and penalty. Rule is made absolute to the abovesaid extent, with no order as to costs. 17.. At this juncture learned counsel Mr. Kaji places before us a communication dated December 3, 1997 under the signature of the Chief Accountant of the assessee addressed to him, saying that, certain amounts totalling Rs. 3,79,051 have been paid under the interim orders of this Court. These amounts are towards the interest claimed by the respondents. If these amounts are already paid, the same shall be returned to the assessee within six weeks hereof. The communication being presented by learned counsel Mr. Kaji be retained on record. Petition allowed.
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1997 (12) TMI 606
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... ... ..... .. I, accordingly, quash the impugned order (annexure P7) and remand the matter to respondent No. 2 for hearing the matter afresh in the light of the authorities cited by him above, or any other authority, cited by the parties in this regard. Needless to say, the parties shall be given an opportunity of hearing, only, thereafter, he shall pass a reasoned order in this regard. The revisional authority shall consider the revision only on the aforesaid question and shall pass the order in accordance with law. 21.. Since the matter is old, parties are agree that they shall appear before the respondent No. 2 on January 6, 1998. It is expected of respondent No. 2 to dispose of the revision on merits within a period of three months from the said date. 22.. On account of foregoing discussions, the petition stands allowed, as mentioned above, but, with no order as to costs. Security amount, if deposited, be refunded back to the petitioner after its due verification. Petition allowed.
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1997 (12) TMI 605
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... ... ..... culator and vice versa. Now a reading of entry No. 38(v) would show that it specifically deals with electronic systems, instruments, apparatus, appliances including electronic cash registering, etc. So electronic instrument which takes in its fold electronic calculator is specifically dealt with in clause (v) of entry No. 38. Indeed clause (v) specifically deals with electronic systems and electronic goods. Therefore, in our view, the Tribunal was right in coming to the conclusion that electronic calculators are taxable under entry No. 38(v). 8.. In view of the above, we are of the clear opinion that the electronic cash register sold by the assessee would be covered by entry 97(b) of Schedule C, Part II to the Bombay Sales Tax Act, 1959 and not under entry 90 thereof. 9.. Both the questions referred to us are, therefore, answered in the negative and in favour of the assessee. Reference is disposed of accordingly with no order as to costs. References answered in the negative.
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1997 (12) TMI 604
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... ... ..... ection reports gathered on two occasions. The excess stock noticed in foreign liquor except one item was very nominal. It is also noticed by the Tribunal that the assessee had purchased the liquor from Kerala Beverages Corporation and suffered tax at the point of first sale. In the aforesaid circumstances the Tribunal has reduced the addition at 1 frac12 per cent of suppression detected in foreign liquor. As far as the addition made by the assessing authority in so far as the cooked food is concerned the Tribunal has reduced the addition to 5 per cent as against 10 per cent. What is before us is an order passed by the highest fact-finding authority on appreciation of evidence. We will not be justified therefore in interfering with the conclusion arrived at by the Tribunal. It is difficult for us to characterise the impugned order as a perverse order or an order vitiated by illegalities. There is no merit in this revision case. It is accordingly dismissed. Petition dismissed.
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1997 (12) TMI 603
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... ... ..... t of the whole process of manufacture employed by the appellant. The appellant has satisfied the condition that the goods sold would be produced by the eligible unit. In view of the above finding on the question of fact available in the case, we do not find any justifiable material to disagree with the conclusion arrived at by the Tribunal. 6.. The Government Pleader however brought to our notice the decision of this Court in Vimala Printers, Kollam v. State of Kerala 1994 2 KTR 188 (Ker). What the above Division Bench decision said is that the assessing authority has got power to examine the question whether the goods were really produced by the assessee. We have no quarrel with the above proposition. There is no dispute in this case with regard to the genuineness of the certificate. 7.. In view of the discussion hereinabove, the contentions advanced by the counsel are liable to be rejected. It is accordingly rejected. The tax revision case is dismissed. Petition dismissed.
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1997 (12) TMI 602
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... ... ..... dated February 20, 1992 in respect of the year 1988-89 was concerned, it could not have been assailed on the ground that it was in respect of a time-barred assessment. The learned counsel for the petitioner after verifying this particular notice in respect of year 1988-89, submitted that the petitioner does not press for its challenge against that assessment notice. So far the notices dated February 20, 1992 for the assessment periods 1982-83 to 1987-88 are concerned, for the reasons that we have given hereinabove, they cannot be sustained since assessment for those periods had been time-barred and there was no valid stay of those proceedings. We therefore, set aside the two stay orders at annexure A collectively along with the impugned notices dated February 20, 1992 for the assessment periods 1982-83 to 1987-88. Rule is made absolute accordingly. Needless to say that it will be open for the respondent-authority to take such action as may be permissible to it under the law.
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1997 (12) TMI 601
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... ... ..... shall not be understood to have approved or condoned the action of the writ petitioners in suppressing the turnovers and not paying the tax due to the State, if that allegation be true. At this stage, we can only observe that there is a prima facie basis for concluding that a part of the turnover was suppressed. It is perfectly open to the respondents to take steps for assessment by issuing notice and calling for accounts. If the petitioners fail to respond to the notice by failing to appear on the date fixed by the concerned assessing officer, it is open to the assessing officer to make ex parte assessments and raise the demands. It is also open to the respondents to initiate proceedings for levy of penalties if the circumstances of the case justify. Wherever the demands are raised, the petitioners will pay tax demanded subject to right of appeal available to them. With these directions/observations, the writ petitions are disposed of. Writ petition disposed of accordingly.
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1997 (12) TMI 600
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... ... ..... when especially the assessing officer had stated in the prior portion of the assessment order that the reported turnover of the assessee-company tallies with the books of accounts, except a small variation of Rs. 3, which is due to rounding off the figures, there cannot be any suppression of sales turnover. 7.. In this view of the matter, the imposition of penalty upon the assesseecompany is not at all justifiable in law. The Tribunal did not at all assign this sort of a reasoning, while setting aside the penalty, as had been imposed upon the assessee-company by the assessing officer and laterly confirmed by the Deputy Commissioner (C.T.), Madras North Division. Whatever it is, the decision of the Tribunal as relatable to the setting aside of the penalty imposed upon the assesseecompany cannot at all be interfered with, on the facts and in the circumstances of the case. This point is answered accordingly. 8.. In fine, the revision is dismissed with costs. Petition dismissed.
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1997 (12) TMI 599
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... ... ..... ) of the Constitution it is necessary to reserve liberty to the petitioners to opt for regular assessment under section 5-B of the Act notwithstanding the fact that they had opted for composition under section 17(6) of the Act, if the petitioners, within 12 weeks from today, make an application to the concerned assessing authority that they may be assessed as provided under section 5-B of the Act, and further direct the assessing authorities to proceed to assess the petitioners and all others, who are not before the Court, as provided under section 5-B of the Act. This direction is binding on the State and its assessing, revising or appellate authorities wherever an application is made seeking assessment under section 5-B of the Act and they are directed to pass appropriate orders suitably modifying the assessments. 14.. Therefore, rule issued in each of these petitions is discharged and the petitions are dismissed. However, no order is made as to costs. Petitions dismissed.
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1997 (12) TMI 598
Whether a dispute lies within the scope of the arbitration agreement?
Held that:- By reason of Section 9(b), the 1961 Act does not apply to any award made on an arbitration agreement governed by the law of India. The 1961 Act, therefore, does not apply to the arbitration agreement between the appellant and the first respondent. The 1940 Act, applies to it and, by reason of Section 14(2) thereof, the courts in India are entitled to receive the award made by the second respondent. We must add in the interests of completeness that is not the case of the appellant that the High Court at Bombay lacked the territorial jurisdiction to do so. In the result, the appeal must fail, and it is dismissed with costs.
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1997 (12) TMI 597
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... ... ..... and legislative intent to keep intact the powers of the Settlement Commission to reduce and waive interest even after other income-tax authorities were deprived of such powers as per the long-term fiscal policy and substitution of sections 139(8), 215, 216, 217 and 273 by sections 234A, 234B and 234C, is clear from the reintroduction of the word ldquo interest rdquo in section 245D(6) with effect from June 1, 1987. The learned Chairman in his note above has brought out, inter alia, the circumstances under which the amendment of section 245D(6) reintroducing the word ldquo interest rdquo and the enactment of sections 234A, 234B and 234C got delinked and appeared on the statute book at different times. This note could have formed part of the main order to add weight to the findings recorded in para 48 (page 43) supra. I am in agreement with the answers recorded in paragraphs 48 to 52 (pages 43 and 44) of the foregoing order, to the five questions posed before the Special Bench.
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1997 (12) TMI 596
Demand - Limitation ... ... ... ... ..... he allegation is that the scrutiny and verification of Form IV Register and RG-I Register showed non-accountal of a certain quantity of AMT. We therefore hold that in the aforesaid circumstances no charge of suppression of facts warranting the extended period of limitation can be sustained. 12. emsp We find that the adjudicating officer has dismissed the appellant rsquo s claim relating to wastage of a certain amount of ATM. No doubt, it was for the appellants to record the actual amount of wastage in the relevant column of Form IV Register. If they have not recorded the wastage in column 9 of the said Register, the appellants cannot be heard to say that the actual percentage of waste was something different from what had been shown in the relevant column of Form IV Register. 13. emsp Since we have found that the impugned order cannot be sustained on the ground of limitation the same is set aside and the appeal allowed with consequential benefits to the appellants as per law.
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1997 (12) TMI 595
Valuation - Res judicata - ... ... ... ... ..... ct assessable-value. As per Para 1 of the above said judgment it is seen that the factory gate means the deemed factory gate of the appellants wherein the goods in question were processed and sold by them to PIL. As per the last sentence in Para 2 of the order it is seen that the price at which they are selling the same to PIL is the assessable value and not the profit earned by PIL because this would be the manufacturing profits. In the above circumstances and in view of our discussions above, it is clear that the transactions between the appellants and M/s. PIL are on principal to principal basis. In fact in the order in appeal dated 22-6-92, the CCE (A) has elaborately discussed every clauses in the present agreement at greater length and we have also analysed the clauses to come to the above conclusion. In the circumstances, the impugned order of the CCE (A) is not legal and proper and we set aside the same and allow the appeal of the appellants with consequential relief.
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1997 (12) TMI 594
Valuation - Extended period - Suppression ... ... ... ... ..... Grade (90 - 94 ) per 100 Kgs. as Rs. 25,662. It also mentions that sale is to be effected at Bombay by their agents for which the price is not determinable at the factory gate. There is also declaration indicating that the basis on which value is claimed in Col. IV the normal price at which the goods are sold at factory gate. There is also declaration that the price as filed in Part VI as other parts are not applicable. There is also declaration that they will pay differential duty on the basis of excess price charged by their consignment agent. It is, therefore, clear that full disclosure was made and the two price lists showing different prices were available with the Department. In view of this, the charge of suppression cannot be sustained. 8. emsp We, therefore, hold that demand beyond the period of normal duration, i.e., 6 months is time-barred. Since provision to Section 11A is not sustainable, penalty also cannot be imposed. 9. emsp Appeal disposed of in these terms.
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1997 (12) TMI 593
Modvat/Cenvat - Exempted goods ... ... ... ... ..... e two cases are distinguishable and, therefore the judgment of the Andhra Pradesh High Court does not help the department. rdquo As such I do not consider that the matter is required to be placed before the Larger Bench inasmuch as different members in the cases referred supra have already taken a view, which view, though not technically speaking, represents the majority view of the members of the Tribunal. 22. emsp In view of my above discussions I hold that the appellants were having an option to avail the exemption notification or the benefit of Modvat scheme. The view expressed by ld. Member (Judicial) is concurred with. The papers are placed before the original Bench to pass the appropriate orders as per the majority view. Sd/- (Archana Wadhwa) Member (Judicial) MAJORITY ORDER In the light of the majority view, the impugned orders are set aside and the appeals are allowed. Sd/- (V.K. Agrawal) Member (Technical) Sd/- (Jyoti Balasundaram) Member (Judicial) Dated 28-7-1998
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1997 (12) TMI 592
Refund - Unjust enrichment - Captive consumption ... ... ... ... ..... nd of the amount involved subject to being execution of a bank guarantee to the extent of 50 and a bond for the remaining amount. He says that pending the judgment of the Supreme Court in the matter the Collector rsquo s order should be set aside. 3. emsp We are not impressed by this argument. As the representative of the respondent points out the Supreme Court, in its decision in Mafatlal Industries Ltd. v. Union of India - 1997 (89) E.L.T. 247 has said (in para 98) that the situation in the case of captive consumption is not dealt with, and the question is left open. This order was passed after the interim order was passed by the same court. In any event, since the operation of the Bombay High Court rsquo s order has not been stayed by the Supreme Court since that court has left the issue open, the prevailing decision is that which has been followed by the Collector (Appeals) this order therefore cannot be found fault with. 4. emsp We decline to interfere. Appeal dismissed.
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1997 (12) TMI 587
Winding up - Circumstances in which a company may be wound up ... ... ... ... ..... s, the cause of action for fulfilment of the terms of the contract would not make the contract illegal or voidable. Therefore, on that count also the present application could not be allowed. 9. It must also be mentioned that original Company Petition stands disposed of on 12-8-1997 and this application is filed by the original petitioner of 17-11-1997. Now between these two dates, i.e. 12-8-1997 and 17-11-1997, the respondent must have entered into numerous transac- tions with other persons, namely, the persons who could not be aware of these proceedings would be put to difficulty and harassment. If the present application is allowed and the original Company Petition is revived that will definitely cause prejudice to these persons for no fault of their. Therefore, in view of this aspect of the matter also the present application could not be allowed. Thus, I hold that the present application is not tenable in law. I reject the same. No order as to costs. SCL q APRIL 20, 1999
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