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1999 (4) TMI 600
... ... ... ... ..... epurchase dated 12th May, 1972, In view thereof, I am not inclined to accept the evidence of said Ramu Laxman Shinde, the Police Patil. The evidence of Sopan Shankar Nadhe is also not reliable in as much as it is stated that as far as an agreement of 1966 is concerned, that the thumb impression was that of Sopan and in the same breath he also states that he is not aware whether it was Sopan's thumb impression." No question of law much less any substantial question, was involved in the second appeal requiring interference by the High Court in exercise of its jurisdiction under Section 100 of Code of Civil Procedure. The order of the learned single Judge/impugned in this appeal being against the settled norms and contrary to the mandate to Section 100 CPC, therefore, cannot be sustained. Under the circumstances, the appeal is allowed by setting aside the impugned judgment of the High Court and restoring the judgment of the first appellate court with costs through out.
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1999 (4) TMI 599
... ... ... ... ..... the grounds of detention were framed on 18.11.98 and the order of detention was passed on 23.11.98. No other explanation has been given by the State Government for not passing the detention order earlier. The State Government has not explained why it thought it necessary to wait till the adjudication proceedings before thee customs authorities were over since that was not necessary for exercising the power under the COFEPOSA Act. In absence of any satisfactory explanation as to why the State Government did not exercise the power earlier, it has to be held that delay in passing the order of detention was unreasonable. It will also have to be held that the explanation of the detaining authority as regards immediate need of detaining the detenue was not genuine. The order of detention therefore stands vitiated and is quashed hereby. The Writ Petition is allowed accordingly. The detenu is order to be released immediately, if not required to be kept in prison in some other case.
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1999 (4) TMI 598
... ... ... ... ..... spondents, a reference has been made to the instructions issued by the Department of Telecommunications to the different officers. Normally, instructions cannot provide for the levy of a tax. It was not even suggested that these instructions authorise the levy of sales tax. Consequently, these are of no relevance in the present case. No other point was raised. 12.. In view of the above, the question as posed at the outset is answered in the negative. It is held that the sales tax is not leviable on the supply of labour even under the provisions of section 10-C as enacted by Act No. 7 of 1997. 13.. As a result, the writ petition is allowed. The levy and deduction of sales tax are set aside. The respondents are directed to refund the sales tax already deducted or collected from the petitioner on account of the supply of labour. The impugned orders are quashed to that extent. The petitioner shall be entitled to his costs which are quantified at Rs. 2,000. Writ petition allowed.
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1999 (4) TMI 597
... ... ... ... ..... eing no rational object for such classification appearing from the scheme or the provisions of the notification. 17.. We, therefore, allow this special civil application and direct the respondents to recompute the amount of eligible fixed capital investment and corresponding eligible amount of tax exemption for which the petitioner has obtained exemption in accordance with law afresh and issue necessary certificate within one month from the date of receipt of the writ. 18.. The subsidy scheme contained in the Government Resoultion dated May 6, 1986 uses the same expression in the matter of defining eligible fixed capital investment in respect of industrial undertakings to which benefit of incentive has been extended is identical, it is further directed to recompute the amount of subsidy to which the assessee is considered eligible in terms of the observations made above, and give effect thereto. Rule is made absolute. There shall be no order as to costs. Application allowed.
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1999 (4) TMI 596
... ... ... ... ..... no other evidence relating to other dealers in the same trade was collected to show what was the usual selling rate of B and C grades tendu leaves in the two years. Thus, the only material relied upon by the authorities below was an exemplar of M/s. Asharfi Lal Jaiswal which was not relevant because it was not established that he was dealing in the same quality of goods as the present revisionist. 7.. In this case, the quantity of goods purchased and sold by the dealerrevisionist was not disputed and in my view the rejection of the average selling rate shown by the revisionist was not based on any legal and relevant material. The Tribunal s order upholding the enhancement in the turnover, therefore, cannot be sustained and the declared turnover should have been accepted. 8.. These revision petitions are, therefore, allowed and setting aside the Tribunal s order, the Tribunal is directed to pass fresh orders in the aforesaid appeals, in accordance with law. Petitions allowed.
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1999 (4) TMI 595
... ... ... ... ..... to levy of sales tax under the Act. 12.. As regards section 45A, the interpretation given by the three departmental authorities is perfectly in accordance with the language of the section, and it should be remembered that under this section, the burden of proving that any person is not liable to the penalty under this section shall be on such person. In view of explanation I to section 45A(1)(g) and in view of the fact that the petitioner was found to have evaded sales tax, it is certainly liable for imposition of penalty under section 45A... No circumstances are made out by the learned counsel for interference exercising extraordinary jurisdiction under articles 226 and 227 of the Constitution of India. The learned single Judge also has taken into consideration all the facts and circumstances urged by the assessee while dismissing the original petitions. We see no grounds to interfere with the impugned judgment. The writ appeals are, therefore, dismissed. Appeals dismissed.
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1999 (4) TMI 594
... ... ... ... ..... September 2, 1986, and the date fixed for payment was September 29, 1986. Thus there was a violation of rule 25. 5.. In the circumstances, the demand notice by which September 29, 1986 was fixed for payment, the appellate order dated October 26, 1990 and the revisional order of the Board dated January 1, 1999 are all quashed. 6.. It has been repeatedly held by this Tribunal in a number of cases that such invalidity in the demand notice does not vitiate the order of assessment. However, the applicant is entitled to be served with a fresh demand notice in form VII according to law and thereafter he will be at liberty to proceed according to law. 7.. Accordingly, the application is allowed and finally disposed of. Respondent No. 3, Commercial Tax Officer, Part Street Charge, is directed to serve a fresh demand notice according to law and particularly according to rule 25 of the West Bengal Sales Tax Rules, 1954 on the applicant. No order is made for costs. Application allowed.
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1999 (4) TMI 593
... ... ... ... ..... ondents 1 to 4 have not taken a stand before us that upon verification the consignees were found to be unreal or fake. That being the position, on such facts it cannot be said that the transportation was in contravention of section 68. Hence, the seizure in respect of those five consignments under section 70(2) was illegal and invalid. 10.. A penalty proceeding is of quasi-judicial nature. On the facts discussed above, no penalty could be imposed on the applicant-company under section 71(1). 11.. In the result, the seizure of the disputed five consignments and the imposition of penalty in respect of the same are quashed. This judgment is confined to those five consignments only. However, respondents 1, 2 and 3 shall be at liberty to proceed afresh in respect of those five consignments according to law. The application is thus finally disposed of. No order is made for cost. J. GUPTA (Judicial Member).-I agree. D. BHATTACHARYYA (Technical Member).-I agree. Application allowed.
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1999 (4) TMI 592
... ... ... ... ..... he assessing officer erred in treating it as the first sale in West Bengal and levying tax on this sale by his assessment order for the fourth quarter ending on March 31, 1995. This order, therefore, cannot be sustained. We are of the opinion that the matter should go back to the appellate authority to modify the assessment order accordingly. The remaining part of the impugned assessment is valid and should remain uninterfered. 7.. Hence, the application is allowed. The appellate order so far it affirmed the assessment order levying tax on sale of 550 M.Ts. of fertilizers is set aside. The matter shall go back on remand to the appellate authority who shall modify the assessment order only to the extent of levy of tax on 550 M.Ts. of fertilizers, in the light of the observations made above. The appellate authority shall pass his order within two months from the date of this order. We make no order as to costs. D. BHATTACHARYYA (Technical Member).-I agree. Application allowed.
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1999 (4) TMI 591
... ... ... ... ..... by respondent No. 3 and the revisional order dated February 4, 1999, passed by respondent No. 2 are quashed. Respondent No. 3 is directed to allow a fresh and reasonable opportunity of being heard to the applicant, who now takes the place of the driver, and dispose of the proceeding for penalty afresh according to law. The bank guarantee furnished as security for rupees four lakhs at the time of release of the goods shall be renewed till final disposal of the proceeding for penalty and abide by the same. Since the applicant is not a registered dealer of West Bengal, we direct that if the bank guarantee is not renewed one month ahead of date of expiry, respondent No. 3 will be at liberty to invoke it and retain the sum of rupees four lakhs as security in cash which will abide by the final disposal of the proceeding for penalty. 8.. The application is thus finally disposed of. No order for cost. D. BHATTACHARYYA (Technical Member).-I agree. Application disposed of accordingly.
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1999 (4) TMI 590
... ... ... ... ..... ument works on principles of electronics, as compared to the fully automatic washing machine, in which electronics only aids towards achieving a sophisticated function of the centrifugal machine, which by rapid rotation spreads, substance of different densities. Therefore, when the machine is electro-mechanical in its intrinsic nature, it cannot be fitted into the residual entry of other consumer electronic aids/ products . The washing machine works on the principle of the centrifugal, which is electro-mechanical in nature, but not electronic, and any amount of sophisticated control of the machine by installing micro computer in the control panel, cannot make the machine electronic in nature, i.e., the machine cannot be said to be operated on the principles of electronics. 8.. In view of what is stated supra, we affirm the view taken by the tax assessing authorities and the Sales Tax Appellate Tribunal. In the result, the tax revision cases are dismissed. Petition dismissed.
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1999 (4) TMI 589
... ... ... ... ..... ing system. The pump in question is an ordinary electrical pump that lifts a liquid and is mostly used in a desert cooler which is neither a refrigeration nor an air-conditioning equipment. It is a common man s water cooler in which air is passed through water flowing through sieves of woodwool, etc. No refrigeration or air-conditioning system as we understand it in relation to refrigerators, air-conditioners, deep freezers, etc., is involved. Therefore, the water pump that is specifically mentioned in item No. 38 cannot be dragged in item No. 57 and treated as a part of a wholly heterogeneous class of things. I, therefore, hold that the water pumps in question were taxable under item No. 38, referred to above, and have been wrongly taxed under item No. 57. The Tribunal s order is, therefore, set aside and the Tribunal is directed to pass consequential orders on the assessee s appeals, in accordance with this judgment. The revision petitions stand allowed. Petitions allowed.
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1999 (4) TMI 588
... ... ... ... ..... ompany and other similarly situated manufacturing units might have initiated their business activities in the underdeveloped areas of the State of Gujarat so as to enable themselves to take some benefit under different schemes framed by the Government of Gujarat and thereby they might have given valuable aid and assistance to the State in the matter of its development. Such units, which have spent substantial amount and have taken risk of establishing their industries in underdeveloped areas should not be put to difficulties by the State or its officers and the State should see that the schemes framed by it are implemented in its true spirit so that in future whenever such schemes are framed, more and more industrial units take due advantage of the scheme so as to enable the State to develop its underdeveloped areas. 20.. In view of the above referred direction, the petition is finally disposed of as allowed. Rule is made absolute with no order as to costs. Petition allowed.
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1999 (4) TMI 587
... ... ... ... ..... her company, except provided by the statute, i.e., the Companies Act. 4.. Nothing has been pointed out to the effect that the liability of the said third company is the liability of the petitioner s company. The mere fact that the managing director of the petitioner s company is the director of the third company will not make the petitioner-company liable for payment of the amount due towards arrears of tax of the third company. 5.. Thus, in the totality of circumstances, the ground on which the money was withheld cannot be sustained. The respondent-authorities are directed to refund the amount due to the petitioner with interest within two months, in accordance with law. The respondent-authorities are, however at liberty to proceed against any individual or the third company or any other person liable to pay the tax being the liability of the third company, in accordance with law. The writ petition is accordingly disposed of. No costs. Writ petition disposed of accordingly.
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1999 (4) TMI 586
Whether the award is incomplete?
Whether the award is in excess of the jurisdiction ? If so, what is its effect ?
Whether the award is otherwise also invalid and liable to be set aside ?
Whether the award sufferes from legal misconduct on the part of the arbitration ?
Held that:- The dispute before the arbitrators, therefore, clearly related to the interpretation of the terms of the contract. The said contract was being read by the parties differently. The arbitrators were. therefore, clearly called upon to construe or interpret the terms of the contract. The decision thereon, even if it be erroneous, cannot be said to be without jurisdiction. It cannot be said that the award showed that there was an error of jurisdiction even though there may have been an error in the exercise of jurisdiciton by the arbitrators.
present case it is not possible to say that the arbitrator in the present case travelled outside the bounds of the contract. Correspondence exchanged between the parties prior to the making of the reference shows that the arbitrators were called upon to construe the contract in order to determine whether the contractor was entitle to claim revision of rates and if so what should be the revised rates. The construction placed on the contract by the contractor cannot be said to an implausible one. Even if the arbitrators construed the terms of the contract incorrectly it cannot be said that the award was in excess of their jurisdiction. Their jurisdiction clearly was to construe the terms of the contract and their decision thereon is final and binding on the parties. Thus the High Court was right in not setting aside the award relating to the decision of the arbitrators in respect of dispute No. 1,2 and 4 in the present case.
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1999 (4) TMI 585
... ... ... ... ..... hereby set aside. I hold that it is not established that the turnover, referred to above, represented inter-State sales and it was, therefore, not taxable as inter-State sales under the Central Sales Tax Act. 10.. It was also contended that the Delhi Administration had issued form D in respect of these purchases which indicated that these were interState transactions. In my view this is immaterial. Form D only declares that the purchases have been made on behalf of Government. There is no declaration that they were the result of inter-State sales or purchases. Therefore, the declarations issued by the Delhi Administration cannot conclude the issue against the assessee. 11.. The revision petitions are, therefore, allowed and it is held that the disputed turnover is not liable to Central sales tax as inter-State sales. 12.. An authenticated copy of the judgment be transmitted to the Trade Tax Tribunal for passing consequential orders, in accordance with law. Petitions allowed.
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1999 (4) TMI 584
... ... ... ... ..... ural justice operate as implied mandatory processual requirement, non-observance whereof invalidates the action. In the celebrated case of Cooper v. Wandsworth Board of Works 1863 143 ER 414, the principle was illuminatingly stated as follows Even God did not pass a sentence upon Adam, before he was called upon to make his defence. Adam says God, where art thou has thou not eaten of the three whereof I commanded thee that thou should not eat . 9.. Therefore, appellate order (annexure 1) enhancing assessment cannot stand, and is therefore, set aside. The matter is remitted back to the ACST who shall grant an opportunity to the petitioner to show cause against enhancement, if any, proposed to be done. Thereafter, matter shall be dealt with and disposed of in accordance with law. We make it clear that we have not expressed any opinion on merits. The writ application is allowed to the extent indicated above. No costs. P.K. MISHRA, J.-I agree. Application disposed of accordingly.
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1999 (4) TMI 583
... ... ... ... ..... Act with effect from May 4, 1998 as well as entry 67 of Part D of the First Schedule of the Act read with item 16 of Part A of the Third Schedule to the Act in so far as it restricts the exemption to the goods produced or manufactured within India are quite valid and they are not illegal or unconstitutional. Inasmuch as proceedings in TNGST 0920484/97-98 dated December 15, 1998 is only pre-assessment notice which proposes to tax the artificial fur at 11 per cent in the absence of specific information, the petitioner is given four weeks time from to-day to file his objections, if any, as to the rate of tax applicable by giving clear information as required in the notice. Subject to these observations, the original petitions are dismissed. And this Tribunal doth further order that this order on being produced be punctually observed and carried into execution by all concerned. Issued under my hand and the seal of this Tribunal on the 6th day of April, 1999. Petitions dismissed.
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1999 (4) TMI 582
... ... ... ... ..... ssioner s circular, we find that the contents of the circular are repeated verbatim and therefore, it cannot be said that the invalidated circular had no impact on the decision-making. We may also mention that in Writ Petition Nos. 3686 of 1999, 3702 of 1999, a passing observation has been made by the assessing authority that the relevant documents evidencing the export order, etc., have not been filed. However, the main thrust is on the interpretation of section 5(3)/15(ca), in the light of the Commissioner s circular. In the show cause notice, lack of satisfactory proof or non-production of documents has not been mentioned as a ground for disallowing the exemption. Hence, these two writ petitions also stand on the same footing. 17.. The Writ Petitions Nos. 20409 of 1998, 22590 of 1998, 19269 of 1998, 19677 of 1998, 26545 of 1998, 20417 of 1998 and 22465 of 1998 are dismissed subject to the observations made in the judgment. No costs. Writ petitions disposed of accordingly.
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1999 (4) TMI 581
Penal consequences of Section 138 - Held that:- Section 138 of the Act gets attracted only when the cheque is dishonoured. In view of the aforesaid discussion we are of the opinion that even though Section 138 is a penal statute, it is the duty of the Court to interpret it consistent with the legislative intent and purpose so as to suppress the mischief and advance the remedy. As stated above, Section 138 of the Act has created a contractual breach as an offence and the legislative purpose is to promote efficacy of banking and of ensuring that in commercial or contractual transactions cheques are not dishonoured and credibility in transacting business through cheques is maintained. The above interpretation would be in accordance with the principle of interpretation quoted above brush away the cobweb varnish, and show the transactions in their true light (Wilmot C. J.) or (by Maxwell) to carry out effectively the breach of the statute, it must be so construed as to defeat all attempts to do, or avoid doing, to an indirect or circuitous manner that it has prohibited. Hence, when the cheque is returned by a bank with an endorsement account closed, it would amount to returning the cheque unpaid because the amount of money standing to the credit of that account is insufficient to honour the cheque as envisaged in Section 138 of the Act. Appeal dismissed.
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