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Case Laws
Showing 101 to 120 of 472 Records
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1998 (9) TMI 597 - CEGAT, MUMBAI
Appeal to Commissioner (Appeals) - Limitation ... ... ... ... ..... eyond the period of six months prescribed in Sec. 35 of the Act. However, the appellant had asked in the memorandum of appeal for a hearing in person and thus has not been granted. On this point, therefore, the order of the Commissioner (Appeals) is set aside. 3. emsp Appeal allowed. Impugned order set aside. Commissioner shall dispose of the appeal before him according to law.
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1998 (9) TMI 596 - CEGAT, KOLKATA
Penalty - Smuggling ... ... ... ... ..... corroboration is required. Retraction after a period of 2 months is without any weightage. Statement has been written in his own hands and reveals a lot of facts. Acquittal by the criminal Court is not relevant in as much as the two proceedings are parallel. Ld. SDR also referred to a number of decisions. 6. emsp I have considered the submissions made by both the sides and have also gone through the impugned orders. I find that the gold in question was not recovered from the possession of the appellant. He has been named by the person from whose possession the gold was recovered. The initial statement given by the appellant has been retracted immediately after his release from the jail. There is no independent evidence against the appellant showing his involvement in dealing with the goods seized from another person. In the circumstances I extend the benefit of doubt to the appellant and allow the appeal by setting aside the penalty upon him, imposed vide the impugned Order.
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1998 (9) TMI 595 - CEGAT, NEW DELHI
Demand - Clandestine removal ... ... ... ... ..... the impugned order to show that the packing slips related to June-July, the period under dispute. The appellants have further contended that the appellants have submitted a detailed break-up of clearances as per packing slips vis-a-vis the details of Daily Production as recorded under RG-I Register which, showed that there was only minor difference between packing slips entries and RG-I entries even for the period May, 1987. 7. emsp Since the main documentary evidence relied on by the Department for the alleged clandestine removal are packing slips and these packing slips are said to be relatable only for the period May, 1987 and not for the subsequent period, we are inclined to give the benefit of doubt to the appellants as the Department rsquo s allegation of clandestine removal for this period remain unsubstantiated by any corroborative evidence other than the statement given by Shri Ashok Kumar. 8. emsp In the result, we allow the appeal and set aside the impugned order.
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1998 (9) TMI 594 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... llenge was by the Collector of Central Excise. The Tribunal decision was upheld and appeal was dismissed holding that paper based insulators are classifiable under Heading 85.46. It is noteworthy in the present context that it is this decision of the Tribunal in Metro Wood Engineering Works that has been followed by Member (Judicial) in his order. His finding derives support by the Supreme Court decision cited above. I, accordingly, agree with the submissions of the learned counsel that the issue is no longer res integra in view of the Supreme Court judgments referred to above. I, accordingly, agree with the view expressed by Member (Judicial) recommending dismissal of the department rsquo s appeal. The papers may now be placed before the concerned Bench for passing the order in accordance with the majority view. New Delhi Dated 27-8-98 Sd/- (K. Sankararaman) Member (T) In view of the majority opinion, the appeal is dismissed. Dated 11 Sept., 98 Sd/- (A.C.C. Unni) Member (J)
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1998 (9) TMI 591 - HIGH COURT OF BOMBAY
Registered office of companies ... ... ... ... ..... contingent and prospective liabilities of the company have also not been set out in the petition. 5. It may be noted that even otherwise on behalf of the company, the defence taken was that the loan advanced was to be repaid after the company made profits. I need not go into that issue in the light of what I have set out earlier. 6. There is, therefore, no merit in this petition on both the counts and the company petition is, accordingly, dismissed. However, in the circumstances of the case, there shall be no order as to costs. The counsel for the petitioner seeks a direction that the company should be restrained from disposing of this asset. No interim relief was granted earlier. After having come to the conclusion that the petition is not maintainable, the question of granting any relief does not arise as it is always open to the petitioner if so advised to take out appropriate legal proceedings as mere dismissal of this petition will not stand in the way of the petitioner.
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1998 (9) TMI 589 - HIGH COURT OF CALCUTTA
Oppression and Mismanagement, Winding up – Penalty for falsification of books ... ... ... ... ..... tion. It lays down that an application under section 406 read with rule 11( a), sub-rules (18) and (19) must be followed for filing an application under Schedule XI could only be made in the course of proceedings under section 397 or 398 of the Companies Act. Such an application was filed after the proceedings were concluded but in appeal liberty was given to apply which was held to mean that liberty to apply for direction for the purpose of clearly working out the order passed. In Official Liquidator, R.C. Abrol and Co. Pvt. Ltd. v. R.C. Abrol 1977 47 Comp Cas 537 a learned single judge of the Delhi High Court clearly held that the company court having no power to take cognizance except in a case falling under section 454 of the Companies Act, no such criminal proceedings can be initiated in the company court. For the reasons aforementioned the impugned judgment cannot be upheld. The appeal is, therefore, allowed but there will be no order as to costs. D.B. Dutta J.-I agree.
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1998 (9) TMI 588 - HIGH COURT OF BOMBAY
Winding up - Suit stayed on winding-up order ... ... ... ... ..... rayer has to be rejected. Counsel for the company prays that he may be given two months more time to deposit the amount. Considering that the period of four months has already expired on 28-8-1998, and the bona fides shown by the company in expressing its willingness to pay the amount, the time of two months as prayed for is granted. In other words, in order dated 28-4-1998, the period of four months is extended by a further period of two months only. Needless to say if the company makes a payment, the criminal court will consider this fact while disposing of the complaint. Hence, the following order ORDER (i)Company Application No. 446 of 1998 in Company Petition No. 457 of 1997 is dismissed. (ii)Company Application (Lodg.) No. 621 of 1998 in Company Petition No. 220 of 1997 prayer (a) is allowed inasmuch as additional time of two months is given from the expiry of the period from order dated April 28, 1998. Prayer (b) rejected. There shall, however, be no order as to costs.
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1998 (9) TMI 581 - SUPREME COURT
Whether appellants are liable to pay sales tax under the Andhra Pradesh General Sales Tax Act, 1957 on the supplies of food and drink to their members?
Held that:- No determination by the fact-finding authorities of the relationship between the appellants and their members in the matter of supply by the former to the latter of food and drink and such like; that is to say, was the club acting as the agent of the members or did the property in the food and drink pass from the club to the members.
Thus think it appropriate, therefore, that the matters should go back to the assessing authorities who will determine, on facts in regard to each appellant. What was the said relationship and, with that finding in mind, decide, whether or not the appellants are liable to sales tax in this behalf under the provisions of the Andhra Pradesh General Sales Tax Act, 1957.
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1998 (9) TMI 576 - CEGAT, NEW DELHI
Stock verification shortage and excesses - Setting-off - Demand - Modvat/Cenvat ... ... ... ... ..... f this Tribunal in the Case of M/s. TELCO (supra) and hold that Modvat credit is available on Spot Welding Electrodes. 24. emsp A question was also raised before us by the Appellants that the demand was hit by limitation. We note that the shortage was detected at the time of physical verification. There cannot be any explanation for the shortage having occurred before the date of detection and in these circumstances, we hold that limitation aspect will not be applicable to the facts and circumstances of the present case. 25. emsp On the question of imposition of penalty, we note that penalty of Rs. 67,53,262/- has been imposed. On careful consideration of the submissions made before us and in view of our findings on various issues, we find that the penalty is out of proportion. In the circumstances, we reduce the penalty to Rs. 5.00 Lakh (Rupees Five Lakh only). 26. emsp But for the above modifications, the impugned Order is upheld and the Appeals are disposed of accordingly.
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1998 (9) TMI 571 - HIGH COURT OF MADRAS
Detention order ... ... ... ... ..... od. 14. With regard to the contention of the learned Senior Counsel that there is inordinate delay in disposing of the representations, we have carefully gone through the counter-affidavits filed by the respondents. Day to day events, starting from the day of receipt of representation to the date of communication of the order, were duly mentioned in the Counter-affidavit. Intervening holidays were mentioned. We are fully satisfied with the explanations offered by the respondent and we hold that it cannot be said that the representations have been disposed of with undue delay. A reference can be made to the decision in Mani v. The District Magistrate and District Collector, Thiruveannamalai H.C.P.No. 308 of 1998 dated 10-9-1998 . The argument of the learned Senior Counsel on this aspect also fails. 15. For the reasons stated above, we see no ground to interfere with the order of detention, impugned herein. Accordingly, the H.C.P. is dismissed. H.C.M.P. 13 of 1997 is dismissed.
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1998 (9) TMI 565 - CEGAT, NEW DELHI
Natural justice - Remand - Penalty ... ... ... ... ..... liability. 4. emsp We therefore, set aside the impugned order on the ground of contravention of the principles of natural justice and remand the case of M/s. Crescent Computers (E/A No. 2296/98-A) to the jurisdictional Commissioner of Central Excise for de novo adjudication after supply of copies of relied upon documents and after extending a reasonable opportunity to the appellants of being heard in person and adducing such evidence as deemed necessary for its defence. 5. emsp So far as the second appellant is concerned, his contention that neither was there any proposal in the show cause notice to impose penalty upon him nor was the show cause notice served upon him, is accepted, having regard to the fact that the show cause notice on record only shows M/s. Crescent Computers as the noticee and also noting that the department has not been able to controvert this submission. Accordingly, we set aside the penalty imposed upon the second appellant and allow E/A No. 2326/98-A.
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1998 (9) TMI 564 - CEGAT, MUMBAI
Import policy - Advance licence - Confiscation ... ... ... ... ..... hri J.C. Patel, the ld. Advocate argued that the metallic fittings would remain as metallic fittings even when they are mounted on a synthetic material and as such the charge levelled by the Customs was without basis. This plea certainly has merit but then I find from the original order that the classification of the impugned goods was changed from sub-heading 8309.90 to sub-heading 3926.90. In other words, the assessees themselves accepted that the goods were plastic articles and not metal articles. Therefore, they cannot plead that the goods were not liable to confiscation under Section 111(l) and (m) of the Customs Act. 4. emsp Even with this technical lacuna, I find that the Commissioner (Appeals) was correct in giving substantial relief to the assessees as regards the fine and penalty. In my opinion, the Commissioner (Appeals) could have remitted the entire amount of fine. I do so and remit the fine of Rs. 35,000/-. The orders as well as the quantum of penalty is upheld.
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1998 (9) TMI 552 - SUPREME COURT
Whether the High Court was corect to conclude that Tribunal had been right in granting exemption to the respondent on the turnover of bakery products amounting to Rs. 1,94,076, which was less than Rs. 2 lakhs?
Held that:- Appeal allowed. The High Court was in error. The notification as originally issued gave an exemption in respect of the tax payable by a dealer on the sales of, inter alia, bakery products. The amendment restricted the operation of that exemption to a dealer whose total turnover in a year did not exceed Rs. 2 lakhs. The emphasis was on the total turnover of the dealer and that would include not only the dealers' turnover in bakery products but also such turnover in other articles as the dealer might have. Such total turnover of the respondent being over Rs. 2 lakhs, it was not entitled to the exemption.
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1998 (9) TMI 546 - SUPREME COURT
Tax payable by a dealer under section 5 of the Act on television sets and components manufactured in Karnataka - Held that:- These writ petitions are allowed and the respondent-State is directed not to collect the amounts of sales tax that have become payable only by reason of the order quashing the notifications under section 8-A of the Karnataka Sales Tax Act, 1957 issued on June 20, 1986 and March 28, 1987 fixing reduced rates of sales tax payable by dealers in television sets and components manufactured in Karnataka.
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1998 (9) TMI 539 - SUPREME COURT
Whether the freight charges collected separately by the revision petitioner from the wholeseller for the purpose of transportation of the goods from the factory site to the door of the buyer could be included in the sales turnover of the revision petitioner for the purpose of computation of the sales tax?
Whether the octroi charges collected and paid by the revision petitioner on the value of the goods imported into the buyer’s place can be charged to sales tax in the hands of the revision petitioner?
Held that:- Appeal dismissed. We are entirely in agreement with the view taken by the High Court on the question of freight. The facts, as set down in the order of the Tribunal, did not warrant its conclusion that the agreement between the respondent and its wholesalers was a sham in so far as it related to the option regarding transportation of the respondent’s products.
The only question of law that was raised in the special leave petition relates to freight. There is no question of law that relates to octroi and, therefore, the leave that has been granted must be held to be limited to the aspect of freight.
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1998 (9) TMI 532 - SUPREME COURT
Deemed sale - Held that:- Appeal dismissed. Where there is a transfer of a right to use goods for consideration, the requirement of the provision of the said Act is satisfied and there is deemed to be a sale. In the instant case, the assessees owned shuttering. They transferred the shuttering for consideration to builders and building contractors for use in the construction of buildings. There can, therefore, be no doubt that the requirements of a deemed sale within the meaning of the abovementioned provision of the said Act are satisfied.
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1998 (9) TMI 531 - SUPREME COURT
Whether the Board of Revenue was justified in holding that the husk of soyabean was liable to be taxed as the same was not covered by Notification No. 1073-537-V-ST dated 7th April, 1967, as extended from time to time and consequently it was not exempt from payment of turnover tax?
Held that:- Appeal dismissed. There being no entry in the Schedule specifically relating to husk, it could, at best, have been taxed under a residuary entry. There is no justification for the argument that the husk of soyabeans falls outside the scope of the said notification because soyabeans have been specifically listed in the Schedule to the Act under the category of oil-seeds. What is relevant for our purposes is to see whether the husk of soyabeans is the husk of a grain or a cereal or a pulse. The final fact finding authority, the Board of Revenue, has held that soyabeans are pulses. The husk of soyabeans, therefore, is the husk of pulses and the notification squarely applies.
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1998 (9) TMI 529 - SC ORDER
Whether the Board of Revenue was justified in holding that soyabean is covered under the terms and is included in entry No.1 of Part V of Schedule II to the Act and is liable to tax at the rate of 3 per cent specially when it is covered under clause (iv) of entry No. (vi) of section 14 of the Central Sales Tax Act?
Held that:- Appeal allowed. Soyabeans are oil-seeds and are specifically covered by entry 4, Part IV of Schedule II to the M.P. General Sales Tax Act and must be taxed accordingly. The answer to question is, therefore, answered in the negative and in favour of the Revenue.
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1998 (9) TMI 514 - SUPREME COURT
Whether, at the time of the sale or purchase, the goods had entered or crossed the territorial waters?
Held that:- Appeal allowed. The aforesaid sales being covered by the provisions of the latter part of section 5(2) read with section 2(ab) of the Central Sales Tax Act, they are sales in the course of import and not liable to sales tax. It is now not necessary to consider the argument that, in any event, the provisions of the earlier part of section 5(2) apply.
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1998 (9) TMI 513 - SUPREME COURT
Whether the word “tax” in section 4-AA includes “turnover tax” levied under section 4-AAA of the West Bengal Sales Tax Act, 1954?
Held that:- Appeal dismissed. From a perusal of the notification No. 1809-F.T.-Ist April, 1976, it is evident that the expression used here is, the Governor is pleased to direct that “no tax” shall be payable by a dealer under the said Act which obviously refers to the tax under section 4 but not to “turnover tax” imposed under section 4-AAA. In this view of the matter it is held that a small-scale industrial unit was not entitled to exemption from payment of turnover tax during the period of the validity of the eligibility certificate by virtue of notification issued under section 4-AA of the Act.
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