Advanced Search Options
Case Laws
Showing 81 to 100 of 479 Records
-
1998 (11) TMI 622
... ... ... ... ..... en with the purchaser being a Government department, a subsequent sale to which was not exempt at the time under section 6(2), CST Act. Admittedly, the goods in the case in hand did not enter the territory of the State of Rajasthan. For a sale to be taxable under the CST Act in Rajasthan the movement of goods from Rajasthan to another State must be occasioned by such sale. If the goods never entered Rajasthan they could never be said to have moved from Rajasthan to Punjab and therefore no inter-State sale taxable in Rajasthan under the CST Act took place. This must be the case even if the assessee himself in the first instance, mistakenly represented this to be a subsequent sale covered by section 6(2), CST Act. 8.. As a consequence the application for revision is accepted and all the orders of the authorities below including the order dated October 14, 1976 of the AA in as much as it pertains to the turnover in question are set aside. No order as to costs. Petition allowed.
-
1998 (11) TMI 621
... ... ... ... ..... e charges will not form part of the turnover. Sub-clause (1) of Explanation II excluded from the turnover the cost of freight or delivery. The insurance charges paid for covering the risk of damage during transport is nothing but an expenditure related to the transport of the goods to safeguard against loss/damage during transit. In Modi Industries Ltd. 1999 113 STC 117 (All.) 1998 UPTC 1069 also it has been held that the freight or cost of delivery do not form part of the turnover. In my view, therefore, the Tribunal was not right in holding that the insurance charges realised from the customers before or after payment to the insurance company form part of the turnover. The revision petitions are, therefore, allowed and setting aside the Tribunal s order dated April 4, 1990. It is ordered that the Tribunal will dispose of the aforesaid appeals as required by section 11(8) of the U.P. Sales Tax Act (now U.P. Trade Tax Act) in accordance with this judgment. Petitions allowed.
-
1998 (11) TMI 620
... ... ... ... ..... n in the final bills was also deposited. The revised returns were filed. The case of the department is that since there was a delay in the deposit of the difference amount of tax, interest was leviable. As against this the case of the respondent-Corporation has been that as soon as the difference amount of the sales tax was realised it was deposited. There was no intention to evade or avoid the payment of sales tax. 5.. We have considered the matter carefully. It is not the case before us that the sales tax collected was not deposited in time. When the difference amount was realised in the final bills and the sales tax thereon collected it was soon deposited along with the revised returns filed by the respondent-Corporation. There was no intention on the part of the respondent-Corporation to evade or avoid the payment of sales tax. 6.. We disallow this revision petition and uphold the order of the Tax Board dated August 24, 1992 with no order as to costs. Petition dismissed.
-
1998 (11) TMI 619
... ... ... ... ..... contention that in the past no such charges were levied. It is also not brought to my notice that the circular has been withdrawn. The hotel owners might have not collected the tax for the luxury provided in a hotel in respect of telephone charges in view of the circular. It would be harsh and unreasonable to charge the tax for the previous period. In these circumstances the following order is passed in the light of the judgment in Collector of Central Excise, Patna v. Usha Martin Industries 1998 111 STC 254 (SC). Order I do not find that any case for interference is made out for declaring the provisions of section 2(1) and (5) as ultra vires to the competence of the State Legislature. Petitions are dismissed. However the circular dated February 15, 1983 which is considered to be not in accordance with the provisions of the Act is quashed prospectively from April 1, 1998 onward. Petitioners are not liable for tax on telephone charges till March 31, 1998. Petitions dismissed.
-
1998 (11) TMI 618
... ... ... ... ..... The consequence of an appellate order setting aside or modifying an order of assessment is to nullify the demand for the amount of tax in respect of which relief is granted. The amount ceases to be payable. No doubt the demand revives when the appellate order itself is set aside in further proceedings by way of appeal or revision but in the interregnum, the amount is not payable by virtue of an order passed by a statutory authority........ No penal interest could therefore accrue during this period. (Emphasis added.) 6.. In the case in hand, too, the penalty amount had been set aside by the Deputy Commissioner, Appeals and restored by the Board. Till such restoration the penalty itself was not payable. Therefore, the question of the charging of interest on the penalty amount for the period it remained set aside cannot arise. 7.. The Board has therefore determined the matter correctly and the application for revision is dismissed with no order as to costs. Petition dismissed.
-
1998 (11) TMI 617
... ... ... ... ..... ditions of the notification. Unless sales tax or Central sales tax is paid, the exemption is not available to the petitioner. 13.. On the question of mens rea, it could be seen that the petitioner is importing iron scraps throughout the year and they have not even bothered to file the return and pay the tax for the whole year. Therefore, in the light of the clear provision of law, the contention of the counsel for the petitioner that there was bona fide dispute, deserves no acceptance. Petitioner has withheld the payment of tax due to the Government for the whole year up to March 19, 1998. Therefore, the failure on the part of the petitioner in not filing the return and not paying the tax is intentional and the finding of the 2nd respondent in this regard cannot be held to be illegal. 14.. For all these reasons, I find no reasons to grant the relief sought for. Hence this original petition is dismissed. C.M.P. No. 39592/98 in O.P. No. 22460/98W dismissed. Petition dismissed.
-
1998 (11) TMI 616
... ... ... ... ..... sis of it being a sick industrial unit. 37.. Therefore, till the date on which benefits were/are made available under the 1989 Schemes to the petitioner s unit as a sick unit the petitioner s unit would be eligible to benefits under the 1987 Schemes on the basis of diversification from the date of its application for such benefits, i.e., July 31, 1987, subject, of course, to the ceilings in terms of money and time as applicable under the 1987 Schemes to cases of diversification. This way the question of availing of benefits both under the 1987 Schemes and the 1989 Schemes simultaneously would not arise. The benefits under the 1987 Schemes and the 1989 Schemes shall not be availed of concurrently but consecutively. This is in fact what the Director of Industries-cum-Member-Secretary, SLSC had also proposed in his agenda note that the SLSC had before it at its meeting of June 6, 1995. 38. The application is allowed in these terms with no order as to costs. Application allowed.
-
1998 (11) TMI 615
... ... ... ... ..... n issuing notice (annexure L) dated November 5, 1988, is obviously barred by time. Since this notice to the assessee dated November 5, 1988 (annexure L) is barred by limitation as prescribed under section 4-A therefore, it has to be quashed, as the petitioner has no other remedy because a remedy of revision under the proviso to section 39(1) is barred. We need not to go into the question of validity of the second proviso to section 39(1) of the Act as we are satisfied in the present case that the order in question is beyond jurisdiction as being barred by time. Therefore, the action of the respondents are without jurisdiction and consequently, the order dated November 5, 1988 (annexure L) is quashed. We have not expressed any opinion with regard to the validity of the second proviso to sub-section (1) of section 39 of the Act, as it is not necessary in the present case to examine the validity of that provision. The petition is allowed. No order as to costs. Petition allowed.
-
1998 (11) TMI 614
... ... ... ... ..... would not be considered to be a hotel. That stage has not been pointed, where the club ceased to have its own existence as a club and is converted into a hotel. The business which a hotel is required to carry on for lodging accommodation, is with the intention and main object as lodging house or accommodation or building where the lodging accommodation is provided by way of carrying on business. The activity of renting the room or charging for food in a club cannot be considered to be its main activity so as to fall within the charging section. 13.. In view of the above interpretation, I feel that the notices which have been issued and the assessment orders framed are liable to be quashed. If it is found by the assessing authority that in a particular case club ceased to carry on the activities of a club and has been converted into a hotel or the main activity is that of the hotel, he would be free to proceed under the Act. Writ petitions are allowed. Writ petitions allowed.
-
1998 (11) TMI 613
... ... ... ... ..... les Tax Act against the orders passed by the Divisional Level Committee and the appellate authority. Where the facts are undisputed, this Court can always, taking into account the subsequent events entertain the prayer and grant the relief and we feel it in such cases as is in the present, the principle would be applicable that the alternative remedy will not be an absolute bar. It depends upon the facts and circumstance of the case. 10.. In the result, the writ petition is allowed and paragraph 5 of the order dated February 6, 1992 granting eligibility certificate to the petitioner, restricting the benefit as granted by para 2 of the order, with effect from October 26, 1989 is quashed. The petitioner would be entitled for the benefit for the whole period with effect from January 28, 1989 to January 27, 1996 as made admissible under section 4-A of the U.P. Trade Tax Act by the order granting eligibility certificate. There would be no order as to costs. Writ petition allowed.
-
1998 (11) TMI 612
... ... ... ... ..... he transit pass that the goods of 25 biltis was cloth and exempt from tax. This is essentially a finding of fact and there is nothing to show that when the goods were checked at the Transport Nagar check-post they were different from the goods mentioned in the biltis. Form XXXIV in which the transit pass was issued does not require mention whether the goods are taxable or not. Patently the goods were coming from outside the State and were to be transported out of the State. A mere clerical error in the transit pass would not make out a case for levy of penalty particularly because it was the duty of the officer at the entry check-post also to see that the entry in the transit pass tally with the goods mentioned in the biltis. Further, as is evident, from the facts the dealer was only transporting goods through the State and section 15-A(1)(o) could not in the circumstances of the case be invoked. The revision petition has no force and is hereby dismissed. Petition dismissed.
-
1998 (11) TMI 611
Confiscation - Absolute confiscation ... ... ... ... ..... ed to the export of foreign currency, which makes the same a prohibited item, which comes within the mischief of Section 125 of the Customs Act, 1962, as held by the Honourable High Court of Calcutta in the case relied upon by the learned JDR. But the said Section gives a discretion as to giving an option to the accused, to pay in lieu of confiscation such fine, as may be thought fit. Thus keeping in view the overall facts and circumstances of the case as also the Tribunal rsquo s decision dated 4-11-1994, I allow the appellant to redeem the US 6,000.00 in question on payment of a redemption fine of Rs. 1.50 lakh) (Rupees one hundred and fifty lakh) (sic) only and this option should be exercised by him within a period of four months from the date of this Order. The amount so returned shall be subject to the Circulars and law in force, as on the relevant date. The penalty of Rs. 10,000.00 imposed on the appellant is, however, confirmed. Appeal is partly allowed in above terms.
-
1998 (11) TMI 610
Appeal to the Commissioner (Appeals) - Limitation - Adjudication - Limitation ... ... ... ... ..... et aside on the ground of long delay but may be on the ground of violation of Principles of Natural Justice occasioned by long delay. As such the order cannot be quashed on the ground of long delay. I further observe that the appellants have also contended that the impugned order ldquo has been passed in an ex parte manner which causes and deserves the impugned order to be quashed and/or set aside as the Principles of Natural Justice has been thoroughly violated by the impugned order rdquo and have urged to remand the case in the alternative. I agree with the aforesaid plea of the appellant and hold that the impugned order is not sustainable accordingly. 4. emsp In the light of the discussions above, I set aside the impugned order confirming the demand and allow the appeal by referring back the case to the Asstt. Commissioner for deciding it afresh in accordance with law after giving reasonable opportunity for hearing to the appellants and after considering their submissions.
-
1998 (11) TMI 609
Demand - Clandestine removal - Evidence ... ... ... ... ..... in smuggling or clandestine removal cases, it was not necessary to prove the prosecution case with mathematical precision. 6. emsp On a perusal of the impugned order and after considering the submissions made on behalf of the appellants, we are of the view that though the material relied upon by the Department do give rise to suspicion about the appellants rsquo conduct, we are of the view that the material relied on by the Collector like the entries in the Note Book of the driver and the octroi receipts do not establish sufficient nexus to establish the charge of clandestine removal against the appellants. In the above view of the matter, we are inclined to give the appellants the benefit of doubt. As had been stated by the Apex Court in State of Punjab v. Bhajan Singh (AIR 1975 S.C. 258) suspicion however strong, cannot be a substitute for proof. 7. emsp These Appeals are accordingly allowed after setting aside the impugned order with consequential relief to the appellants.
-
1998 (11) TMI 608
Modvat/Cenvat - Waste arising during processing of inputs - Invisible loss ... ... ... ... ..... d. This situation has been covered in the cited instruction of the Board. The Collector was wrong in dismissing it as merely a departmental circular. In the judgment in the case of Ranadey Micronutrients - 1996 (87) E.L.T. 19 (S.C.) the Supreme Court has held that the instruction issued by the Board was binding all the departmental officers. These instructions permitted the invisible loss also i.e on burning. 4. emsp At this stage, I have taken cognizance of Shri Suman rsquo s claim that the input being of high purity there was not possiblility of burning loss. This issue has not been discussed in the lower orders at all. The Commissioner has reported that there was a loss on either stage. In the absence of the exact process to which the inputs were subjected, it is not possible to rule on Shri Suman rsquo s submissions. 5. emsp On consideration of the facts and the instructions of the Board, the impugned order is set aside and the appeal is allowed with consequential relief.
-
1998 (11) TMI 607
Refund - Unjust enrichment ... ... ... ... ..... in 1996 (83) E.L.T. 114 (T) 1996 (13) RLT 258 (CEGAT - SRB), it was held that where maximum retail price of drugs is fixed by the Drug Controller statutorily, variation in duty element will not result in undue enrichment of the appellant at the cost of the customers. In the instant case also duty element is not relevant since the final sale price has been fixed by the Yarn Committee. Therefore, irrespective of the fact, whether the duty is paid or not paid, the retail price admittedly continued to remain the same and the question of the appellant passing on the incidence of duty to their buyers and subsequently enriching them at the cost of buyers, if refund is allowed, does not arise. 4.3 emsp In view of the above discussion and in view of all these decisions, I hold that the doctrine of unjust enrichment is not applicable to the facts of the instant case in view of the amended provisions of Section 11B. As such, I allow the appeal with consequential relief to the appellant.
-
1998 (11) TMI 606
Refund - Limitation - Protest ... ... ... ... ..... uty had been paid as per the approved classification list. 2. emsp We find, on hearing Shri Vivek Kohli, Advocate and Shri Satnam Singh, SDR that for the subsequent period namely 28-7-87 to 30-9-88, the appellants had filed an appeal bearing No. E/2722/92-C, which was disposed of by the Tribunal by final order No. 305/98-C, dated 21-4-98 rejecting the appeal of the assessee and upholding the order of the lower appellate authority. There is no difference between the case already decided and the present one and hence, following the ratio of the earlier order, we uphold the present impugned order and reject the appeal.
-
1998 (11) TMI 605
SSI Exemption - Value of clearances - Clubbing of ... ... ... ... ..... M/s. Electricity Pole Mfg. cannot sustain. Accordingly, we hold that the appellants will be eligible for being treated separately for purposes of computing clearances in terms of Notification No. 1/93. Since we hold that the clearances of all the factories of the appellants cannot be clubbed together, the question of allowing or not allowing Modvat credit on the basis of Photostat copies of gate passes on the inputs received by them does not require separate consideration. 6. emsp Since the main issue in the appeal filed by the appellants also relates to the interpretation of explanation VIII to paragraph 7(ii) of Notification No. 1/93, in view of our findings above no further issue will survive for consideration on merits in the main appeal. 7. emsp In the result, we allow the stay application as well as the main appeal filed by the appellants M/s. Electricity Pole Manufacturing. 8. emsp Both the Stay Application as well as the main Appeal are disposed of in the above terms.
-
1998 (11) TMI 603
Classification ... ... ... ... ..... ich are typical of novelty yarn which means character of Chapter 50 - 55. Not in respect of goods coming under Chapter 56. The observations of the Asst. Collector at page 21 that the yarn in question was manufactured exactly in the same manner as other ordinary spun yarn based on the counts. This has not been challenged in the Revisionary Order. Even if the Collector (Appeals) was to refer the order nothing prevented him if he cites any evidences or call for evidence in the Appeal before them and reflecting same in the order. Even if we go through the show notice the said type of evidence are not disclosed. We are, therefore, of the view that the impugned order passed by the Collector does not have any substance. We, therefore, allow the appeal and reject the impugned order passed by the Collector of Central Excise (Appeals) and restore the order passed by the Assistant Collector in Order-in-Original No. 5/88 dated 24-12-1988. 7. emsp Appeal allowed with consequential relief.
-
1998 (11) TMI 600
Winding-up - Circumstances in which a company may be wound-up ... ... ... ... ..... this fact is admitted, there would be substantial compliance of the provisions of section 434. The notice served under sections 433 and 434 had clearly given all the facts. The period of 21 days was also specified in the notice and it was specifically averred that in default a petition for winding-up would be filed. It is also not disputed in the reply that the registered office of the respondent-company is at the address, on which the notice was sent. 9. Keeping in view the aforesaid facts, I am of the opinion that a valid notice under section 433/434 had been served upon the respondent-company and the present petition is not liable to be rejected for that reason. 10. For the reasons aforestated, I order admission of this petition. Notice be published in accordance with the law in The Tribune, Jan Satta, and the Gazette of Punjab, giving 14 days clear time prior to the next date of hearing, that this petition for winding-up. 11. List this matter for direction on 16-12-1998.
........
|