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2006 (10) TMI 419 - SUPREME COURT
Whether an arbitration award is a "decree" for the purpose of section 9 of the Presidency Towns Insolvency Act, 1909?
Whether an insolvency notice can be issued under section 9(2) of the Presidency Towns Insolvency Act, 1909 on the basis of an arbitration award?
Held that:- No insolvency notice can be issued under Section 9(2) of the Presidency Towns Insolvency Act, 1909 on the basis of an Arbitration Award. That execution proceedings in respect of the award cannot be proceeded with in view of the statutory stay under Section 22 of the SICA Act. As such, no insolvency notice is liable to be issued against the appellant. Insolvency Notice cannot be issued on an Arbitration Award. An arbitration award is neither a decree nor an Order for payment within the meaning of Section 9(2). The expression "decree" in the Court Fees Act, 1870 is liable to be construed with reference to its definition in the CPC and held that there are essential conditions for a "decree".
Thus the Insolvency Notice issued under section 9(2) of the P.T.I. Act 1909 cannot be sustained on the basis of arbitral award which has been passed under the Arbitration & Conciliation Act, 1996. We answer the two questions in favour of the appellant.
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2006 (10) TMI 418 - KERALA HIGH COURT
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... ... ..... The goods concerned in that case, namely, cotton-based tarpaulin, was exempted under entry 11 in the Third Schedule to the KGST Act. While so, the First Schedule to the Act was amended, making cotton-based tarpaulin a taxable item. The apex court was called upon to decide whether even thereafter the exemption under entry 11 of the Third Schedule remained in force for the said goods. The court answered the question in the affirmative. The observations of the apex court in that decision will not, in any way, advance the contentions of the petitioners that the State Legislature lacks power to levy tax once a particular commodity finds a place in the First Schedule to the ADE Act. In the result, the writ petition fails and it is dismissed. W.P. (C) Nos. 36386 of 2005, 90, 332, 4824, 5152, 6676, 8638 and 8818 of 2006 In view of the judgment in W.P. (C) No. 33568 of 2005, these writ petitions are also dismissed. In the circumstances of the case, there will be no order as to costs.
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2006 (10) TMI 417 - ALLAHABAD HIGH COURT
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... ... ..... is to be adjudicated that when the notice under section 21 of the Act was issued and when it was served and when Additional Commissioner has granted the approval under the proviso to section 21(2) of the Act, the question of the limitation in passing the order under section 21 of the Act cannot be adjudicated. The question of limitation has to be adjudicated on the basis of the date of service of the notice under section 21 of the Act. Therefore, the direction given by the Tribunal cannot be said to be unjustified. The Joint Commissioner (Appeals) is directed to decide the plea of the applicant that the order was barred by limitation on consideration of service of the notice and relevant provision in this regard. In case, if the first appellate authority comes to the conclusion that the order passed under section 21 of the Act was within time, the first appellate authority is directed to decide the matter on merit also. With the aforesaid observation, revision is dismissed.
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2006 (10) TMI 416 - GUJARAT HIGH COURT
Gujarat Sales Tax Act, 1969 - Classification of product - Sales of 'tool-bits' and 'jobber drills' (drill panna) - HELD THAT:- It is to be noted that the orders passed by the Deputy Sales Tax Commissioner (Law), Gujarat State, on an application submitted by M/s. BPCO Industries Ltd. for determination of tax payable on "tool-bits" and yet another order passed on a similar application filed u/s 62 of the Act by the learned Deputy Sales Tax Commissioner (Law), Gujarat State have yet not been challenged by the Department before any appellate forum.
Thus, the orders would not only bind the applicant who made the reference but would also bind the State Sales Tax Department which was a party before the Commissioner of Sales Tax. Hence, we must hold that the Tribunal was justified in holding that "tool-bits" would be taxable under entry 3(ix) of Schedule II, Part A of the Act.
In our opinion, the Tribunal was not unjustified in holding that "jobber-drills" would be worth-nothing unless it is used as part of the machinery. When speed drills or jobber's drills are used with the help of the machinery, then they would become part of the said machinery. It is also to be noted that without the said "jobber-drills" neither the machine would be complete nor the driller would be worth any use in absence of its use in the machinery.
Entry 36 of the Government notification dated June 20, 1970 issued u/s 49(2) says that sales of spare parts and accessories (excluding ball bearing) of machinery which is covered by sub-entry (1) of entry No. 16 in Part A of Schedule II would enjoy exemption to the extent to which the amount of sales tax exceeds (3 paise in rupee) and whole of the general sales tax. If "jobber-drill" is taken to be a spare part of the machinery or as an accessory of the machinery, then entry No. 36 which relates to exemption to a particular item would come into play to assist the case in cause of the present assessee.
In our opinion, the Tribunal was absolutely justified in deciding the questions in favour of the assessee. The reference is answered in affirmative, in favour of the assessee and against the Revenue. It accordingly stands disposed of.
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2006 (10) TMI 415 - ALLAHABAD HIGH COURT
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... ... ..... ysical exercise and sport goods and outdoor game are classified together, it does not mean that article and equipment for general and physical exercise are sport goods or goods for outdoor games. The argument of the learned counsel for the applicant goes against the applicant. Entry of the tariff item No. 9506 shows, article and equipment for general and physical exercise. Sport goods and outdoor games as separate items and not one item. For the reasons stated above, I am of the view that Fit Kit Exerciser is not a goods for game or exports and is not covered under the entry Goods for indoor or outdoor games or sports... of Notification No. ST-2-1097/ XI-2(3)-88-U.P, Act-XV/48-Order-91, dated July 29, 1991 and Notification No. TT-2-3403/XI-9(116)/94-U.P. Act-15/48-Order-94, dated October 1, 1994 and being not classified elsewhere, liable to tax as unclassified goods for the period involved in the present revision. In the result, revision fails and is, accordingly, dismissed.
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2006 (10) TMI 414 - KERALA HIGH COURT
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... ... ..... f time, we should decide the issue on merit, because the petitioner 39 s claim based on community certificate issued and cancelled by the District Collector now stands referred to KIRTADS for their decision. As and when KIRTADS decides the question, the issue has to be considered afresh which we feel the assessing officer should do. Therefore we set aside the order of the Tribunal and that of the authorities below pertaining to the question of exemption and direct the officer to consider exemption in the light of the above observations and based on certificate to be issued by KIRTADS. If the officer feels any clarification is required at the Government level, or from the Department of Industries or Department of Commercial Taxes, it is up to him to take clarification. In any case no adverse order shall be issued against the petitioner unless a proposal is communicated giving the basis of the same and the party heard in the matter. Tax revision cases are disposed of as above.
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2006 (10) TMI 413 - KERALA HIGH COURT
Levy of Service tax - Kerala General Sales Tax Act, 1963 (KGST Act) - Supply of intra ocular lens - cataract operation involves replacement of natural lens with an artificial lens - HELD THAT:- Even though an implanted lens also is a lens and is used for the purpose of gaining or improving vision, the same, in our opinion is not covered by entry 136 which provides for spectacles, glasses, goggles, lenses, etc., which are externally used. In other words, whatever is implanted in the body irrespective of its purpose, is a medical implant specifically covered by entry 145 of the First Schedule to the Act. This certainly takes in lens used in cataract surgery. Same is the position in regard to metal rods implanted to substitute or strengthen bones, stent implanted in blood vessels, etc. In other words, all materials implanted in human body come within the description of "medical implants ".
Therefore, we are of the view that the lenses sold by the petitioner through surgical implants in cataract surgery attract tax under entry 145 of the First Schedule to the KGST Act as medical implant, and not under entry 136 of the First Schedule covering spectacles, goggles, lenses, etc.
It is seen that petitioner was well aware of petitioner's liability under the KGST Act and, therefore, took registration and paid tax on turnover which they considered taxable. Therefore, this issue does not merit consideration by us. Apart from this, we do not think in revisional proceedings, this court enjoys the power to grant relief of the nature prayed for by the petitioner.
The sales tax revision cases are disposed of as above.
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2006 (10) TMI 412 - KERALA HIGH COURT
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... ... ..... les used to make currys, salads, etc. It is obvious from the entry that all items referred to therein fall in the category of vegetables. There can be no dispute that thulasi leaf is an ayurvedic herb and it 39 s other general use is in temples in connection with pooja. It is not used as a vegetable and is probably unfit for human consumption as a food commodity, whatever be the medicinal properties it has. It is also not a vegetable as understood in common parlance. In fact, there are several vegetable leaves used for cooking, like, spinach, palak, cabbage, etc. Thulasi leaves do not belong to the category of vegetable leaves and no one can get thulasi leaves in a vegetable shop. Therefore, going by the popular meaning and the meaning of leaves which entry 59 of the Third Schedule is capable of as stated above, we are of the view that the petitioner is not entitled to exemption on thulasi leaves. The sales tax revision is, therefore, devoid of any merit and it is dismissed.
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2006 (10) TMI 411 - KERALA HIGH COURT
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... ... ..... sis and estimate unaccounted quantity of liquor sold by the assessee. Even though the issue raised is on estimation of turnover which is apparently a factual issue, we are constrained to interfere with the order of the Tribunal because the Tribunal had no material to reject or even to doubt the correctness of the data gathered and relied on by the lower authorities in estimating the turnover. Inspite of specific guidelines issued by this court while remanding the case in the first round of revision, the Tribunal misdirected itself by adding kist to market price to estimate a separate market price for the respondent which in our view is a perverse finding as there can be no separate market prices for same product for different dealers. Therefore, we hold that order of the Tribunal even after remand by this court is arbitrary and unsustainable. We therefore allow the revision case by cancelling the order of the Tribunal and restoring the order of the first appellate authority.
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2006 (10) TMI 410 - MADRAS HIGH COURT
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... ... ..... STC 473. Such an exercise has not been made in this case. Hence, I am of the view that the matter requires reconsideration by the assessing authorities, taking into consideration the relevant provisions of the Act prevalent at the relevant point of time and record a finding as to whether the claim of exemption made by the petitioner that the goods were consigned to the agent of the petitioner in Maharashtra is correct or not or in the alternate record a finding as to whether the sale of the goods has occasioned the movement of the goods from the State of Tamil Nadu to the State of Maharashtra so as to attract the provisions of inter-State sale or not. In the result, the impugned order is set aside and the matter is remitted back to the assessing authority to consider the issue again on the basis of the materials already made available before the assessing officer and pass appropriate orders in accordance with law and also in accordance with hat is indicated above. No costs.
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2006 (10) TMI 409 - KERALA HIGH COURT
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... ... ..... ities falling under the Fifth Schedule also. However, during the relevant years the tax payable in respect of a commodity under the Fifth Schedule when sold by a dealer to a registered dealer, whether it be for resale or for consumption or use, is only at the rate provided under column (4) which in this case is six per cent for 1994-95 and 10 per cent for 1995-96, Later by an amendment of 1997 even sale to a registered dealer other than for resale was brought to tax under column (8). Therefore, in respondentassessee 39 s case even though timber purchased is used in manufacture and were not sold, liability under section 5A should be limited to the tax payable under column (4) of the Fifth Schedule. We, therefore, allow the revision cases by reversing the order of the Tribunal but with direction to the officer to refix the liability at the rate applicable during the relevant years under column (4) of the Fifth Schedule to the Kerala General Sales Tax Act, 1963 as stated above.
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2006 (10) TMI 408 - ANDHRA PRADESH HIGH COURT
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... ... ..... eads as follows 15. Provisional assessment of tax. - (1) The tax payable under this Act for each year may be provisionally assessed in advance during the year in monthly or other prescribed instalments on the basis of esti- mated or actual turnover of the dealer and for that purpose a dealer may be required to submit a return or periodical return of estimated or actual turnover and pay the tax on the basis of such return or periodical returns, in such manner as may be prescribed (2) . . . From the language of the said section, it is clear that such power is given by the Legislature to assess the tax in advance during the year but not for making provisional assessment two years after completion of the year. In our opinion the present impugned order is not only beyond the authority of the law vested with the author of the order, but sheer abuse of power vested with its author. Consequently, the impugned order is set aside and the writ petition is allowed. No order as to costs.
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2006 (10) TMI 407 - KERALA HIGH COURT
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... ... ..... by law but cannot attract the liability for payment of penal interest under sub-section (3) of section 23 of the Act on the parity of reasoning that if a return of turnover would have been filed on the due date then the tax as per return would have become due and payable on that date. While interpreting the provisions of the Kerala General Sales Tax Act under section 23(3) in P.K. Damodaran v. State of Kerala 2004 138 STC 442 2004 12 KTR 133, a Division Bench of this court also followed the same principle even though the learned counsel for the Revenue invited attention to sub-section (3A). The above sub-section was introduced only on April 1, 1998. Here the filing of revised return and payment of tax on self-assessment was before 1994 and we are not looking into the application of section 23(3A) in this proceeding. Following the findings of the honourable Supreme Court, we set aside the impugned order and confirm the view of the Deputy Commissioner. This appeal is allowed.
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2006 (10) TMI 406 - ALLAHABAD HIGH COURT
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... ... ..... ry, which should be exercised judiciously and not arbitrarily. This court further held that action for the cancellation of the eligibility certificate under section 4A(3) of the Act should be taken promptly. Though no limitation is provided under section 4A(3) of the Act, but in the absence of fraud on the part of the dealer, action under section 4A(3) of the Act should be taken in a reasonable time. In the present case the ground taken for cancellation of eligibility certificate that the applicant had sold the coal is not sufficient, in view of the above principles of law laid down by this court and facts and circumstances of the case. Thus, the orders of the Tribunal and the Commissioner of Trade Tax under section 4A(3) of the Act are not sustainable and are liable to be set aside. In the result, revision is allowed. Order of the Tribunal dated August 22, 1998 and the order of the Commissioner of Trade Tax dated January 8, 1997 under section 4A(3) of the Act are set aside.
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2006 (10) TMI 405 - KERALA HIGH COURT
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... ... ..... r under section 7(1)(a) by issuing form 22. In these circumstances, we are unable to accept the contention of appellant that the short-payment of tax at compounded rate is not on account of non-inclusion of turnover in the return, but on account of mistake committed by the assessing officer. The assessment for 2000-2001 was not completed when compounding application was filed for 2001-2002. Therefore, the assessing officer had no opportunity to verify the accounts to find out the tax payable based on the same and he has only considered appellant 39 s liability with reference to return filed which did not cover purchase turnover of old gold under section 5A. Therefore, the short levy and payment of tax is only on account of non-payment of tax in terms of section 7(1)(a) which again was determined based on return filed in the preceding year. In the circumstances, we uphold the impugned order of the Commissioner of Commercial Taxes and dismiss the appeal filed by the appellant.
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2006 (10) TMI 404 - PUNJAB AND HARYANA HIGH COURT
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... ... ..... ional authority, i.e., the Deputy Excise and Taxation Commissioner (I), Faridabad (East) to examine this question by allowing the assessee to lead evidence. One of the additional issue raised in S.T.C. No. 4 of 1996 is the effect of retrospective cancellation of certificate of registration of the purchasing dealers after the original assessment was framed. Relying on a judgment of this court in Devinder Kumar Kewal Kumar v. State 1972 30 STC 352, it is contended that the crucial date for the purpose of assessee is the date of transaction and not subsequent retrospective action of cancellation of registration certificate. Still further, subsequent fact, which is not part of record at the time of assessment cannot be taken into consideration. Since the matter is being remitted back to the DETC for fresh consideration, even this aspect of the matter shall also be considered at the time of passing of the order. The questions are answered accordingly. The petition is disposed of.
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2006 (10) TMI 403 - RAJASTHAN HIGH COURT
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... ... ..... brought to my notice that the amendment has been made in the above referred Notification No. F. 4 (67) FD/Gr. IV/76-25, dated September 8, 1976. In support thereof, counsel for the respondent submits that even if Notification No. F. 4(67) FD/Gr. IV/76-24, dated September 8, 1976 stood rescinded, it will not make any effect with respect to the controversy which was considered by this court. I find substance in the submission made by the counsel for the respondent and in the judgment of the Tax Board Notification No. F. 4 (67) FD/Gr. IV/76-25, dated September 8, 1976 has been taken note of and case of the present assessee is also covered under the said notification. In my considered opinion, the present matters are covered by the judgment in Nav Bharat Rice and General Mills v. Commercial Taxes Officer 2000 120 STC 593 (Raj) and the factual statement made by the counsel for the Revenue does not hold good. Consequently, both the revision petitions fail and are hereby dismissed.
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2006 (10) TMI 402 - CESTAT AHMEDABAD
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... ... ..... nder on demand from the department for compliance of the local audit report. Under section 80 of the Finance Act, 1994, no penalty shall be imposed on the assessee for any failure referred to in sections 76, 77 or 78 of the Act, if the assessee proves that there was reasonable cause for the said period. The imposition of penalty was dropped in the light of the said provision which has nothing to do with the invocation of the extended period. Therefore, the applicant has not made out a case for total waiver of pre-deposit for hearing the appeal. Having regard to the facts and circumstances of the case, we, therefore, direct that there shall be interim stay of the impugned order on the applicant 39 s depositing 50 per cent of the remaining amount of service tax payable under the impugned order, within eight weeks from today, failing which the appeal will stand dismissed. Post the matter for compliance report on December 14, 2006. The application stands disposed of accordingly.
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2006 (10) TMI 401 - CESTAT AHMEDABAD
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... ... ..... tax to the Department. It is also claimed by the authorised representative for the applicant that as soon as ONGC makes the payment towards service tax component of the bills given to them, they will pay the same to the department. After careful consideration, we feel that no prima facie case has been made out for total waiver of the pre-deposit. As against the demand of Rs. 40,07,733 confirmed, the appellant has paid a sum of Rs. 6 lakhs (rupees six lacs only) prior to issue of the show cause notice. As per the order of the Commissioner (Appeals) penalties of Rs. 45,07,733 also stand confirmed. It is ordered that a further sum of Rs. 10 lacs (rupees ten lakhs only) shall be deposited within eight weeks from today failing which the appeal will stand dismissed. On the amount being so deposited, the balance amount and the penalty shall stand waived till the disposal of the appeal. Compliance to be reported on December 21, 2006. This application stands disposed of accordingly.
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2006 (10) TMI 400 - CESTAT CHENNAI
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... ... ..... to file return is cast on the appellants only under section 71A. The class of persons who come under section 71A is not brought under the net of section 73. The above being the position show cause notices issued to the appellants invoking section 73 are not maintainable. 9.. We, therefore, come to the conclusion that the show cause notices issued to the appellants are not sustainable both under the provisions of section 73 as it stood on the date of issue of show cause notice and also under the provisions as amended by Finance Act, 2003. In the result, we set aside the order impugned and allow the appeals . The above decision of the Tribunal has been affirmed by the apex court as reported in Commissioner of Central Excise, Meerut-II v. L.H. Sugar Factories Ltd. 2006 4 VST 91 2005 187 ELT 5. In view of the judgment of the apex court the impugned order has been passed according to law. Accordingly, the impugned order is upheld and the appeal filed by the Revenue is dismissed.
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