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2002 (10) TMI 760
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... ... ..... the other words with which it keeps company. The process of mere cleaning, grading and sorting doesnt require any specialised or skilful process as that of curing . 21.. In view of the above discussion, we are of the view that there is absolutely no material so as to interfere with the concurrent finding of fact that the activity of curing of agricultural produce cardamom cannot be considered as mere drying, but it could be considered as not only drying, but also preserving the aroma and flavour and also giving shining . In such circumstances, the saving clause of mere cleaning, grading, sorting and drying in Explanation (1) to section 2(r) of the TNGST Act would not come to the rescue of the petitioner so as to conclude that the fresh green cardamom , which has been subjected to the process of curing , is saved under Explanation (1) to section 2(r) of the TNGST Act. Hence, the writ petition is dismissed. However, there shall be no order as to costs. Writ petition dismissed.
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2002 (10) TMI 759
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... ... ..... fied in interfering with it. Lord Goddard, C.J., in Stepney Borough Council v. Joffe (1949) 1 All ER 256 stated It is constantly said (although I am not sure that it is always sufficiently remembered) that the function of a court of appeal is to exercise its powers where it is satisfied that the judgment below is wrong, not merely because it is not satisfied that the judgment was right. Our apex Court in Gujarat Steel Tubes Ltd. v. Gujarat Steel Tubes Mazdoor Sabha AIR 1980 SC 1896 has held And an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine. This Court has reiterated this principle in Neelakanta Kartha v. Registrar, Kerala Agrl. University 1978 KLT 408, Mayadevi v. Rajan 1985 KLT 376 and Kerala Trading Corporation v. State of Kerala 1991 80 STC 477 (Ker.) 1989 (1) KLT 353. 11.. For all the above reasons, the writ appeal fails and the same is accordingly dismissed. Appeal dismissed.
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2002 (10) TMI 758
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... ... ..... though in the context of a claim for exemption as being second sales. In that case the division Bench held that soda will squarely fall under entry 87 of the First Schedule to the Act. Item 87 which was considered in the said decision is the same as we have extracted above. Again this court had considered the question as to whether mineral water will fall within the expression beverages in T.R.C. No. 459 of 2001 and this Court by judgment dated December 21, 2001 held that mineral water will not fall under beverages . In view of the above we are unable to accept the contention of the respondent that the soda dealt with by the assessee is taxable only under entry 40 of the First Schedule to the Act taxable at 6 per cent. Reported in 2004 138 STC 377 (Ker) (Casino Hotel v. State of Kerala) In view of the above, we reverse the order of the Tribunal and allow the revision. Petition allowed. Corrected as per order CMP No. 1944 of 2003 in T.R.C. No. 99 of 1999 dated March 27, 2003.
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2002 (10) TMI 757
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... ... ..... ct to the limitation provided for assessing the escaped turnover under section 19 of the Act by the assessing authority. 12.. In view of the principles laid down by the Supreme Court and by this Court discussed herein above, I am of the view that there is no merit in the said contentions taken by the petitioner. I accordingly dismiss this original petition. It is for the petitioner to file objections to exhibit P5 notice and for the second respondent to pass orders in accordance with law after considering the said objections. The petitioner will file its objections to exhibit P5 within a period of one month from today. In view of the fact that this is a matter of 1995 in respect of the assessment year 1989-90 I direct the second respondent to take a decision in the matter as directed above within a period of two months thereafter. Order on C.M.P. No. 9084 of 1995 in O.P. No. 5084 of 1995. Disposed of vide order dated October 18, 2002 in O.P. 5084 of 1995. Petition dismissed.
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2002 (10) TMI 756
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... ... ..... of account, sales tax records and bank accounts of AIC and also other relevant records and documents as applied for by the petitioner-company in writing. He shall allow the petitioner to inspect those records and documents, give copy of all or any of those if applied for and then after due hearing render his finding touching only on this point, namely, if there has been at all any payment made by the petitioner to the AIC for purchase of plant and machinery or, in other words, if the transaction in question is merely a paper transaction. Shashi Bhusan Lodha may also be examined, if he is found fit only to arrive at a just and proper decision. Respondent No. 1 is further directed to render his decision concerning the eligibility certificate within a period of three months from this date. 14.. With this directions the present application is finally disposed of. No order is made as to costs. 15.. D. BHATTACHARYYA (Technical Member).-I agree. Application disposed of accordingly.
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2002 (10) TMI 755
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... ... ..... follows We have heard learned counsel for the parties. We find no reason to interfere with the order of the High Court. The civil appeal is dismissed. 7.. Since the honourable Supreme Court has not independently considered the matter, it cannot be said that all the propositions stated in the division Bench decision has been accepted. Hence, it must be taken that the honourable Supreme Court has only agreed with the conclusion arrived at by the division Bench in Lovely Thomass case 1999 113 STC 505 (Ker.) 8.. In this case, as already noted, the accounts of the assessee were rejected solely on the basis of the stock variation found at the time of inspection. The estimate was also made on that basis. The assessee had obtained substantial relief on the quantum from the first appellate authority. In the above circumstances, we do not find any reason to interfere with the order of the Tribunal. The tax revision case is accordingly dismissed. Petition dismissed. See 2003 131 STC 8.
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2002 (10) TMI 754
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... ... ..... les tax include these transactions in the dealers turnover. Such inclusion, however, for the purposes aforesaid would not affect the non-liability of these transactions to levy or imposition of sales tax by virtue of the provisions of article 286 of the Constitution and the corresponding provision enacted in the Act, as above. 16.. In view of the fact that the medicines sold by the dealers, which are already taxed at the first stage are liable to be excluded/ exempted from further taxation, it does not mean that the dealers are not required to get themselves registered even. The obligation for registration is distinct from the obligation to pay tax and as such we find no force in the submissions of the petitioners that the members of the petitioners association are not liable to be registered and the registration made in respect of the two firms are liable to be cancelled. Both the writ petitions have got no merit and they are accordingly dismissed. Writ petitions dismissed.
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2002 (10) TMI 753
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... ... ..... ble to the petitioners under the old Act but under the Act of 1993, the said exemptions were not provided. The reasons for not providing the exemptions have also been stated above and hence, we find no basis to hold that the impugned notification violates the spirit of article 14 of the Constitution. 11.. There is no dispute at the Bar that the Legislature has power and jurisdiction to levy tax or grant exemption. The exemptions also can be multiples. However, when the exemption which was available under the repealed Act, does not find place in the new Act, the provisions of the new Act does not become ultra vires on that count. The State has power to decide whether any exemption is to be granted or not and in the present case, we find that the respondent-State of Assam took a policy decision not to grant exemption/set-off to the dealers. 12.. In view of the above, we find no merit in these writ petitions and the writ petitions are accordingly dismissed. Petitions dismissed.
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2002 (10) TMI 752
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... ... ..... e, therefore, there is no warrant at all for not requiring the base production volume and base sales volume to be specified in the eligibility certificate in cases where waiver had been sought. The State would suffer loss of revenue in the absence of such specification in cases of deferral as also in cases of waiver. That is the reason why the recommendation made to the Government by its Commissioner was to adopt what had been done in the case of Ashok Leyland as a general principle for all expansion cases . Paragraph 3(v) of G.O. Ms. No. 119 was meant to and does apply to all expansion cases, whether the concession availed is by way of deferral or by way of waiver. 21.. Though we also find considerable force in the other submissions made on behalf of the State, having regard to our finding regarding the scope and applicability of G.O. Ms. No. 119 it is now not necessary to consider those other submissions. The writ petitions fail and are dismissed. Writ petitions dismissed.
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2002 (10) TMI 751
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... ... ..... hydrogen, argon, argon nitrogen mixture, both the appellate authorities held that they are gases which are supplied to industries and therefore they are industrial gas falling under entry 59 of the First Schedule to the Act. We are in agreement with the view taken by the Tribunal. We uphold the finding of the Tribunal in that regard. So far as nitrous oxide is concerned we are of the view that the matter must go back to the Tribunal for considering the question whether nitrous oxide will fall under any of the other entries in the First Schedule to the Act. We therefore set aside the order of the Tribunal in respect of nitrous oxide and remit the matter to the Tribunal for consideration whether this item will fall under any of the specific entries in the First Schedule to the Act including medicine . The Tribunal will decide this question afresh with notice and opportunity to the respondent-assessee. These tax revision cases are allowed to the above extent. Petitions allowed.
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2002 (10) TMI 750
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... ... ..... tration has any difficulty they can approach to the State authorities and find out the workable method. It is expected of the railway authorities to co-operate with the State Government in the matter of detection of evasion of sales tax. 8.. As far as question of validity of section 78 is concerned, it is no more res integra. The apex Court has upheld the validity of such provisions in State of Rajasthan v. D.P. Metals reported in 2001 124 STC 611. Thereafter, the sub-clauses of section 78 have also been upheld by the division Bench of this Court in the case of Lalji Mulji Transport Company v. State of Rajasthan reported in 2002 127 STC 365. Even otherwise, we fail to understand how the Union of India can challenge the validity of a States Act. 9.. In view of the aforesaid, we find no merit in this writ petition and the same is dismissed. The interim order of this Court dated May 3, 1989 is made absolute. Petitioners shall comply with the said directions. Petition dismissed.
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2002 (10) TMI 749
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... ... ..... g been mentioned in the enumeration in the list of pulses mentioned in clause (vi-a) of section 14 and more specifically not being covered by the entry lentil on which the assessees relied, clearly are not declared goods. 17.. Learned Senior Counsel for the assessees submitted that even if the peas and peas dhal are not to be regarded as declared goods, nevertheless, having regard to the conduct of the State which had accepted the decision rendered by the Coimbatore Bench of the Sales Tax Appellate Tribunal in the year 1984 which had held that peas and peas dhal are declared goods, the assessments for the period prior to 1992 when another Bench took a different view, should not be allowed to be reopened. 18.. It will be open to the petitioners to apply to the Government for appropriate relief for the period prior to 1992 during which years the State had accepted the Tribunals view that peas and peas dhal are declared goods. 19.The petitions are dismissed. Petition dismissed.
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2002 (10) TMI 748
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... ... ..... of the said provision has been saved. 8.. In the instant case, the explanation inserted by notification dated November 20, 1991 has been deleted vide notification dated March 27, 1995 without any specific saving clause. Thus, when the assessing authority passed the reassessment order dated February 28, 1998 the Explanation inserted vide notification dated November 20, 1991 was not in existence being rubbed off or in other words in view of notification dated March 27, 1995 it became non est. Thus, the entire proceedings of re-assessment which includes the notice dated October 15, 1997 and the order of reassessment dated February 28, 1998 are wholly without jurisdiction without authority of law. 9.. Consequently, all the three special appeals are allowed. The order of the learned single Judge dated September 12, 2000 is quashed and set aside. The order of reassessment dated February 28, 1998 (annexure 7) is quashed and set aside in each of the writ petitions. Appeals allowed.
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2002 (10) TMI 747
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... ... ..... t Schedule to the KGST Act since the petitioner had remitted tax at the rate of 5 per cent on the sales of coconut oil and cake. The petitioner had also remitted the tax due on the taxable turnover. The liability to pay balance tax arose because of the order of forfeiting the excess collection. When the petitioner had remitted the tax due in respect of the taxable turnover, the fact that he had omitted to show the purchase turnover of copra in the taxable turnover is only a technical or a venial defect and no penalty is exigible . 5.. After going through the records and the decisions, we are satisfied that it is not a case where liability can be imposed on the assessee. In that view of the matter, we set aside the judgment of the learned single Judge and quash exhibits P3 and P4. If any penalty has been collected, the same should be returned to the assessee. Writ appeal is disposed of as above. Order on CMP No. 3148 of 2002 in W.A. No. 1253 of 2002 dismissed. Appeal allowed.
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2002 (10) TMI 746
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... ... ..... he coal ash was the left over residue after burning coal was a product of the unit for the purpose of exemption. It was held as follows The coal-ash that is produced as a result of the burning of coal as fuel is a product of the appellant-industry though it might not be the principal product for which the industry was established. Even so, being a product of the industry, it is entitled to the exemption given by the said order. 13.. These two cases fully support the case of the petitioners. Accordingly, we hold that bran is also a finished goods and is entitled to exemption like other wheat products, namely, atta, maida, and suji. The contrary view taken by the authority is against law. Accordingly, the impugned orders withdrawing exemptions granted to the petitioners earlier, as contained in annexure-8 to C.W.J.C. No. 10205 of 2002 and annexure-7 to C.W.J.C. No. 10589 of 2002 are quashed. 14.. In the result, both the writ applications are allowed. Writ applications allowed.
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2002 (10) TMI 745
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... ... ..... ounding, he has to pay a fixed rate of tax at the rate of 3 per cent irrespective of the regular rate of tax as provided in the Schedule to the Act. He can also have the benefit of not maintaining any other books except the minimum books as stated in section 7-E of the Act itself. This hustle-free method of assessment, which is only optional cannot be compared with the regular charging sections. That is the precise reason for which compounding is allowed and the dealers are also seeking for the compounding of tax. On the very reading of the provisions, we are of the view that the submission made by the learned counsel for the petitioner cannot at all be accepted and the clarification given by the Commissioner is absolutely correct in terms of the provisions. Hence we are declined to entertain the writ petition. 4.. The writ petition is dismissed. Consequently, connected writ miscellaneous petition is also dismissed. However, there is no order as to costs. Petition dismissed.
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2002 (10) TMI 744
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... ... ..... llate authority. Appeal was filed before the Tribunal. The Tribunal also dismissed the same. It is against that the present revisions are filed. 3.. We heard learned counsel for the petitioner and learned counsel for the respondent. 4.. After hearing both sides, we are satisfied that the petitioner is entitled to the relief during the relevant time, which includes persons like the petitioner to get the benefit, if a declaration is produced from the purchaser. There was no condition that the person, who sells, knows that the goods sold will be used. That condition was incorporated subsequently. As already stated, the only condition was that the declaration should be obtained from the purchaser. This is available in this case. Hence, we modify the judgment of the Tribunal and direct the assessing authority to make the assessment as per the above directions. T.R.Cs. are disposed of as above. Order on C.M.P. No. 2707 of 2002 in T.R.C. No. 167 of 2002 dismissed. Petition allowed.
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2002 (10) TMI 743
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... ... ..... is exigible to tax under section 5(1)(iii) of the Act because that was a direct transfer of goods, i.e., the assessee is lending video cassettes for consideration and, therefore, the division Bench rightly held that the transaction is exigible to tax under section 5(1)(iii) of the Act. As already noted, in the instant case there is no question of transfer of right to use. It is only for the detention beyond the stipulated period a rent is provided, that cannot be treated as turnover received for transfer of the right to use the cylinders. For all these reasons, we are of the view that the amount by way of rent received for the delayed return of the cylinder is not liable to be assessed under section 5(1)(iii) of the Act. We accordingly set aside the orders of the two appellate authorities on this issue and direct the assessing authority to revise the assessment order by deleting the said amount from the assessment. Both the revisions are allowed as above. Petitions allowed.
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2002 (10) TMI 742
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... ... ..... . In view of the above, I hold that the respondents were not justified in denying the exemption to the petitioners on the ground that they were manufacturing ethanol/ethyl alcohol from molasses. Such manufacturers do not fall in entry 10 of the negative lists of 1992 and 1994. Accordingly, the impugned order dated August 7, 1996 of the High Level Screening Committee as also the order dated October 9, 1997 passed by the appellate authority are set aside. The matter shall now go back to the High Level Screening Committee for fresh determination of the claim of the petitioners in the light of the observations made above. In case the petitioner is found entitled to exemption, the demands created vide orders dated December 9, 1996 (annexures P-7 and P-8) shall also be modified giving consequential relief. 43.. Resultantly, both the writ petitions stand allowed. However, in view of the facts and circumstances of the case, there shall be no order as to costs. Writ petitions allowed.
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2002 (10) TMI 741
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... ... ..... quence because it is PW-1 who has conducted the seizure. With regard to the alleged non-compliance of Section 57 of the NDPS Act, the High Court has rightly noted that PW-3 has stated that the arrest of the accused was revealed to his immediate superior officer, namely, the Deputy Director. It was also contended by the learned senior counsel that the ground on which the appellant was arrested was not communicated to him. We find no merit in this because the arrest memo clearly indicates the offence stated to have been committed by the appellant under the NDPS Act. Further, the record also shows that copy of the arrest memo Exh. P-20 was received by the appellant. In the instant case, no search or seizure was conducted on the person of the accused and, therefore, the provisions of Section 50 of the NDPS Act were not attracted. The High Court was, therefore, right in coming to the conclusion which it did. We do not find any merit in this appeal which is, accordingly, dismissed.
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