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2000 (2) TMI 819
... ... ... ... ..... otice/demand dated July 27, 1989 as in annexure VI to the writ petition and, as such, no interference of it is called for from the end of this Court. Considering the nature of the case, liberty is granted to the petitioner-Corporation to approach the appropriate authority, i.e., the Government for remitting the whole or any portion of the penalty imposed upon the petitioner-Corporation under the impugned notice/demand as required under section 6 of the Act of 1984 by filing a representation within a period of one month from today and the authority concerned shall examine and consider the matter once again if the petitioner-Corporation file the same, as it is under the wisdom and domain of the competent authority. For the reasons, observations and discussions made above, this writ petition is partly allowed to the extent indicated above but no order as to costs. The earlier ad interim order dated September 28, 1999 passed by this Court stands vacated. Petition partly allowed.
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2000 (2) TMI 818
... ... ... ... ..... ch reads as follows The matter has been remanded back to the Appellate Assistant Commissioner for fresh disposal. We, therefore, do not pass any order. Let the Appellate Assistant Commissioner dispose of the case in accordance with law. On a bare reading of the order passed by the apex Court, it is clear that the apex Court did not pass any order as there was an order for remand to the Appellate Assistant Commissioner, who was directed to dispose of the case in accordance with law. 11.. So far as the question whether manufacturing process is involved or not, in view of the categoric conclusions of the apex Court that raw hides and skins and dressed hides and skins are different commercial commodities, any detailed examination of the process of manufacturing would be really of academic nature. Therefore, we do not entertain these revision applications and accordingly they are dismissed. Order on C.M.P. No. 4130 of 1999 in T.R.C. No. 176 of 1999 dismissed. Petitions dismissed.
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2000 (2) TMI 817
... ... ... ... ..... rinciple laid down by the Supreme Court in the said case there is no question of two sales coming within the scope of section 5(1) of the 1956 Act and it is only an export sale, i.e., a sale between an exporter and the foreign buyer that will come under the definition of sale in course of export, and all other sales even if inter-connected or integrated with export cannot be treated as sales in course of export. 23.. In the result, we are of the opinion that the applicantcompany is not entitled to the benefit of tax exemption in respect of impugned sales on the ground of its being a sale in course of import. 24.. Hence, the sale of the M.S. pipes to NTPC is liable to be taxed. Therefore, there is no reason to hold that either the assessing officer or the appellate authority or the Board erred in their respective findings in that regard. The application is, therefore, dismissed without any order as to costs. D. BHATTACHARYYA (Technical Member).-I agree. Application dismissed.
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2000 (2) TMI 816
... ... ... ... ..... produced in this case by the applicant are nothing but hearsay and no reliance can be placed on them. According to Halsbury s Laws of England, 4th edition, Vol. 17, para 223, page 158, a newspaper report is not generally admissible as evidence of the facts recorded in it. 10.. Mr. Sumit Kumar Chakraborty, learned advocate for the applicant contended that it is not a fit case where penalty should have been imposed at the rate of 25 per cent of value of the goods. He did not elaborate on this point. His contention was probably that since the applicant acted upon the newspaper reports, penalty, if any, ought not to have been imposed at that rate. But the applicant took an untenable plea which was not even factually established. Therefore, we find no reason to interfere with the quantum of penalty imposed. 11.. In the result, the application is dismissed. No order for cost. J. GUPTA (Judicial Member).-I agree. D. BHATTACHARYYA (Technical Member).-I agree. Application dismissed.
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2000 (2) TMI 815
... ... ... ... ..... ar 199394 and their numbers have been disclosed. It is not disputed that in the assessment year under consideration 5 forms XXXI and 10 formsC were obtained by the dealer. If the forms were not utilised and returned to the department subsequently, the burden of proving this fact was upon the dealer. The report of assessing authority dated January 21, 2000 does not help the dealer. Since there is nothing on record to show that 5 forms XXXI were returned on April 29, 1993 and 3 forms XXXI were returned on April 3, 1998 were the same which were issued to the dealer in the assessment year under consideration. Therefore, the contention of Sri Manglik that the forms were not utilised and returned to the department cannot be accepted. Therefore, the second contention of Sri Manglik has no merit. 6.. Consequently, the revision is partly allowed. The taxable turnover fixed by the Tribunal is reduced by Rs. 2,40,079. Tax liability shall be reduced accordingly. Petition partly allowed.
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2000 (2) TMI 814
... ... ... ... ..... res modification and the same is modified with the following directions 1.. The appellant would not be liable for payment of tax under section 5B in respect of the building which has been constructed before entering into any agreement and sold thereafter. 2.. The appellant would not be liable for payment of tax under section 5B of the Act in respect of the agreement which have been entered into after the construction of the building started. 23.. In case the said agreement have conferred the right to forfeiture of the advance then the appellant could not have been considered to be the contractor and it is only in those cases where the right is only to recover the balance amount of the construction cost, the liability of the appellant to pay tax would be there. 24.. Review application is allowed with the above observations and the matter is remanded to the assessing authority to examine in the light of the observations made above. Review application allowed. See page 3 supra.
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2000 (2) TMI 813
... ... ... ... ..... Shah and Co., Bombay which by itself may be sufficient to sustain the claim of the respondent-assessee. Further, the fact that delivery of goods to M/s. K.K. Shah and Co., Pali has not been proved and the goods have been despatched by the respondent-assessee to different destinations outside the State of Rajasthan under the instructions of the buyer as a part of sale contract also leads to reasonable inference that the impugned sale was a transaction of inter-State trade and commerce. 12.. In this view of the matter, there is no hesitation to come to the conclusion that the turnover in question in the present case with which we are concerned was in respect of sales in the course of interState trade and commerce. The appellate authorities have correctly reached the conclusion by applying the principles of law correctly to the facts of this case. 13.. As a result, there is no merit in these revisions and they are hereby dismissed with no order as to costs. Petitions dismissed.
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2000 (2) TMI 812
... ... ... ... ..... e creases. In the instant case there are no creases and the legislative intent is clear. What was intended in the said notification was to exempt all kinds of niwars irrespective of their properties and the material used in preparing the same. The view taken by the learned Commissioner, Sales Tax was wrong. 11.. In the result, I allow all these three petitions. The impugned order dated April 6, 1991 (vide annexure C in M.P. No. 862 of 1991) as also the notification dated June 7, 1990 (vide annexure P/2 in M.P. No. 28 of 1993 and annexure P/3 in M.P. No. 1647 of 1993) are quashed. Accordingly, the question as extracted above is answered in affirmative, i.e., in favour of the petitioners-assessees and against the Revenue. No order is, however, made as to the costs of these petitions. The amount of security, if any, be refunded to the petitioners. This order be retained in M.P. No. 862 of 1991 and a copy each be kept in M.Ps. Nos. 28 of 1993 and 1647 of 1993. Petitions allowed.
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2000 (2) TMI 811
... ... ... ... ..... iew of the discussions made above, all the four revisions are allowed. Order of the Tribunal is set aside. Second appeals filed by the assessee as well as the department are allowed and the order of the first appellate authority is set aside. The first appellate authority is directed to issue notice to the Secretary, Mandi Samiti granting him three months time from the date of receipt of notice, to search out 9 Rs and R 50s and remaining gate pass and produce the same. No further time shall be granted. In case the 9 Rs and R 50s are produced by the Secretary, Mandi Parishad the same shall be examined by the first appellate authority and findings shall be recorded accordingly. In case no document is produced by the Secretary as aforesaid the first appellate authority shall decide the appeals on material which is already on record. The appeals shall be decided by the first appellate authority within three months after expiry of three months period of notice. Petitions allowed.
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2000 (2) TMI 810
... ... ... ... ..... appearing for respondents. In our view, expenditure tax does not form a part of sale price or a part of turnover of the hotelier. Therefore, amounts of expenditure tax collected by hoteliers for sale or supply of food, drinks, etc., are not exigible to sales tax either under 1941 Act or under 1994 Act. That being the position, the orders passed and actions taken by respondents in respect of the applicants under section 11E(2) of 1941 Act and consequential actions if taken, are all invalid and accordingly those are quashed. 22.. The plea of want of legislative competence and the plea of violation of articles 251 and 254 of the Constitution of India were not pressed. 23.. The applications in RN-51, 52 and 53 of 1999 and also in RN-239, 240, 241 and 242 of 1999 are all allowed and finally disposed of. No order for cost. This judgment will govern all those seven applications. J. GUPTA (Judicial Member).-I agree. D. BHATTACHARYA (Technical Member).-I agree. Applications allowed.
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2000 (2) TMI 809
... ... ... ... ..... therefore, the eligibility certificate can be withdrawn only on the grounds mentioned therein and on no other grounds. The authorities cannot add any other ground to the said sub-rule. We are, therefore, satisfied that the eligibility certificate granted to the petitioner could not be withdrawn only on the ground of non-production of the change of land use permission by the Town and Country Planning Department. 6.. For the reasons recorded above, the writ petition is allowed and the impugned action of the Lower Level Screening Committee withdrawing the eligibility certificate in its meeting held on June 19, 1997, as affirmed by the Higher Level Screening Committee, quashed. We, however, make it clear that if any of the grounds mentioned in sub-rule (8) of rule 28A of the Rules is available to the respondents, it will be open to them to proceed against the petitioner in accordance with law. The petitioner will have its costs, which are assessed at Rs. 1,000. Petition allowed.
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2000 (2) TMI 808
... ... ... ... ..... for or in relation to such export. The agreement or order has reference to those goods which are actually exported out of the country. The words in relation to such export extend the scope of the exemption to the extent that even if there is no agreement or order but they are in relation to such export, the exemption can still be claimed. This would cover not only the packing material, but all other such sale which are made to the exporter for which by implication it could be considered that there was an agreement or order in respect thereof. 38.. According to our considered view, so long as there is sale of both the items to constitute them as a complete item, the benefit cannot be denied. 39.. In these circumstances, the Tribunal was not justified in coming to the conclusion that the bus bodies supplied by the petitioner to the exporter are not eligible for the benefit of section 5(3) of the Central Sales Tax Act. 40.. Petitions are accordingly allowed. Petitions allowed.
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2000 (2) TMI 807
Whether there was non-compliance with the conditions stipulated in Section 50 enough to vitiate the search as a whole?
Held that:- In this case non-recording of the vital information collected by the police at the first instance can be counted as a circumstance in favour of the appellant. Next is that even the information which PW 2 recollected from memory is capable of helping the accused because it indicates that the real culprits would have utilized the services of an auto-rickshaw driver to transport the gunny bags and it is not necessary that the auto-rickshaw driver should have been told in advance that the gunny bags contained such offensive substance. The possibility is just the other way around that the said culprits would not have disclosed that information to the auto-rickshaw driver unless it is shown that he had entered into a criminal conspiracy with the other main culprits to transport the contraband. Prosecution did not adduce any evidence to show any such connivance between the appellants and the real culprits. There is nothing even to suggest that those culprits and the appellant were close to each other, or even known to each other earlier. Yet another circumstance discernible from the evidence in this case is that the police had actually arrayed two other persons as the real culprits and made all endeavour to arrest them, but they absconded themselves and escaped from the reach of the police.
From the above circumstances we hold that the accused had discharged the burden of proof in such a manner as to rebut the presumption envisaged in Section 35 of the Act. He is, therefore, not liable to be convicted for the offences pitted against him. Appeal allowed.
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2000 (2) TMI 806
... ... ... ... ..... as firewood. Inasmuch as there is clear evidence that casuarina was purchased only for the purpose of use in the paper industry, we are unable to strain the exemption notification and make it applicable to the assessee. In this view of the matter, we confirm the findings of the lower authorities and hold that the casuarina purchased in the instant cases, were not firewood, but for a different purpose, namely, for use in the paper industry. Consequently, the exemption notification cannot be applied to the petitioner. In this view of the matter, the tax revision cases are dismissed and inasmuch as the penalty was restricted to 50 per cent of the tax due, we confirm the same. 11.. In fine, the tax revision cases are dismissed. 12.. And this Tribunal doth further order that this order on being produced be punctually observed and carried into execution by all concerned. 13.. Issued under my hand and the seal of this Tribunal on the 16th day of February, 2000. Petition dismissed.
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2000 (2) TMI 805
... ... ... ... ..... olumn others the bottle deposit account is included no documentary evidence was produced to show that such an amount was shown in the balance sheet and that this amount was refunded subsequently to the customers. In such circumstances, we find the order of the Appellate Tribunal in upholding the levy of tax on bottle deposit is quite in order. In fact, the petitioner acquired liquor from outside the State and therefore the transactions in bottles are first sales liable to tax and in such circumstances, the levy of tax at 10 per cent on bottle deposit not refunded to the customers but utilised in the trading activities of the petitioner is quite in order. There is no case to interfere and accordingly the tax revision cases are dismissed. And this Tribunal doth further order that order on being produced be punctually be observed and carried into execution by all concerned. Issued under my hand and the seal of this Tribunal on the 17th day of February, 2000. Petition dismissed.
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2000 (2) TMI 804
... ... ... ... ..... the power can be exercised. There is nothing in the section which debars the Government from exercising the power even after a dealer has succeeded on a question relating to the rate of tax before an appellate authority. Power under section 59A is so wide and unbridled that it can be exercised at any time and the decision so rendered is made final. Section enables the passing of an executive order which has the effect of subverting the scheme of a quasi-judicial and judicial resolution of the lis between the State and the dealer. That being the position, revenue was not authorised to levy tax on the basis of clarification by notification issued by the State under section 59A of the Act. As has been rightly observed by the Tribunal, in the absence of any specific entry, tarpaulin was covered by entry 7 of the Third Schedule. We find nothing illicit to the conclusions of the Tribunal to warrant interference. Revision applications are accordingly dismissed. Petitions dismissed.
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2000 (2) TMI 803
... ... ... ... ..... port Association v. Inspector of Commercial Taxes) and that was published in the Sales Tax Advices of June, 1996. The date of knowledge or date of discovery of mistake of law under which the payments were made, is the date of publication of the judgment. The present application was filed on January 21, 2000. Therefore, the present application is clearly barred by limitation. The second judgment of the Tribunal Road Transport Association v. Inspector of Commercial Taxes, Dalkhola Check Post 1998 108 STC 355 (WBTT) related to the provisions of 1994 Act. Therefore, the second judgment has no relevance to the cases of the applicants in RN-308 of 1999 as well as RN-20 of 2000. 14.. Accordingly, we hold that the applications in RN-308 of 1999 and RN-20 of 2000 containing claims for refund are barred by limitation. The applications are, therefore, dismissed, No order for cost. J. GUPTA (Judicial Member).-I agree. D. BHATTACHARYYA (Technical Member).-I agree. Applications dismissed.
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2000 (2) TMI 802
... ... ... ... ..... ubstance for the reason that the impugned notices are clearly without jurisdiction and it is settled legal position that where the order impugned is completely without jurisdiction, this Court can interfere with the same and is not precluded from exercising its power under articles 226/227 of the Constitution merely on the ground of existence of alternative remedy. 17.. Having considered the submissions made on both sides, we are of the view that the impugned notices calling upon the petitioner for assessment in utter disregard of the eligibility certificate is clearly without jurisdiction and, therefore, the subsequent order of assessment on the basis of the aforesaid notice also cannot sustain and deserves to be quashed. 18.. In the result, the writ petition succeeds and is allowed. The impugned notice dated December 10, 1985 and the impugned orders of assessment dated December 26, 1985 are hereby quashed. However, there will be no order as to costs. Writ petition allowed.
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2000 (2) TMI 801
... ... ... ... ..... ment order dated April 16, 1988 was not foundation for initiation of action by the revenue authorities and for levying tax. In the notices issued for reopening, it is stated in clear terms that on further scrutiny, the mistake committed in granting exemption was noticed and, therefore, action was taken. In the orders of assessment also, there is no reference to Government order dated April 16, 1988. The first appellate authority, while referring to the same, has not indicated that same was the foundation for action under section 19 of the Act. That plea of the assessee has no substance. 8.. Factually, Tribunal held that soda maker is not an article made of plastic to be covered by item 156 of the First Schedule. It has been indicated that there is metallic gas cylinder in it and it can never be termed as plastic product as only the outer cover is made of plastic. We concur with the conclusion. Revision applications are without any merit and are dismissed. Petition dismissed.
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2000 (2) TMI 800
... ... ... ... ..... Act, 1954. It cannot be doubted that activity which is carried on by any manufacturer is that of obtaining a particular goods as a principal manufacturing item. However in the process of manufacture of that article he obtains many things as a by-product which are incidentally obtained or can be termed as a adjunct of his manufacturing activity. Nonetheless such product is the result of process of producing goods and cannot be categorised differently unless otherwise intention appears to be in the statute. 3.. In my opinion no such different interpretation can be devised for the purpose of Incentive Scheme on the expression goods manufactured by the dealer to exclude by-products from such category, unless any express provision is made to that effect. 4.. As a result this revision is allowed. The order of the Rajasthan Tax Tribunal under challenge is set aside and the order passed by the learned Deputy Commissioner (Appeals) is restored. No order as to costs. Petition allowed.
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