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Case Laws
Showing 101 to 120 of 615 Records
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2004 (9) TMI 613 - MADRAS HIGH COURT
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... ... ..... f the Act. 6.6. In fine, if any amount is collected by a dealer from the customers in excess by way of sales tax or purporting to be by way of tax, to the extent he was not authorised to collect, such amount whether in the name of service charges , handling charges , incidental charges or recoupment of sales tax , is forbidden under section 22(1) of the Act, attracting levy of penalty under section 22(2) of the Act. 6.7. Therefore, finding that it is difficult to follow the ratio laid down in Metal Sales Corporation v. Joint Commercial Tax Officer, Harbour III Assessment Circle 1983 52 STC 392 (Mad.), where the Revenue has not clearly stated and established the excess amount collected by the dealers, and following the decision in Swastik Household and Industrial Products case 1997 106 STC 372 (Mad.), Speed-Away Limited case 1997 106 STC 367 (Mad.) and Steel Sales Organisation case 1993 90 STC 243 (Mad.), these writ petitions are dismissed. No costs. Writ petitions dismissed.
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2004 (9) TMI 612 - PATNA HIGH COURT
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... ... ..... the petitioner was granted certificate for exemption from payment of the sales tax on purchase of raw materials, soon after bifurcation it was forced by respondent No. 3 to pay the sales tax on purchase of the raw materials. Thus, the action of respondent No. 3 is illegal and as such, the petitioner is entitled for the recovery/adjustment of the sales tax collected from it by respondent No. 3. 6.. Thus, the writ petition is allowed directing respondent No. 3 to refund the sales tax collected from the petitioner. Annexure 6/A is statement of tax amount refundable from respondent No. 3. Respondent No. 3 shall be at liberty to verify the same and thereafter he shall refund it within a period of three months from the date of receipt/production of a copy of this order. It is, however, made clear that respondent No. 3 shall also be at liberty to adjust the sales tax collected from the petitioner against future purchase of the raw materials by the petitioner. Writ petition allowed.
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2004 (9) TMI 611 - ORISSA HIGH COURT
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... ... ..... t find any merit in the challenge to the impugned notifications dated July 30, 1999 and February 17, 2000 on the ground of discrimination. 69.. In the result, we are not inclined to quash the impugned notifications dated July 30, 1999 and February 17, 2000 issued by the State Government and we declare the said notifications to be valid in law. All interim orders passed by this Court in these cases are vacated. It will be, however, open for the petitioners to contend before the competent authority of the State Government or the competent authority under the Orissa Sales Tax Act and the Central Sales Tax Act that despite the impugned notifications dated July 30, 1999 and February 17, 2000 which we have held to be valid, the petitioners are still entitled to exemption from tax or deferment of payment of tax, as the case may be. 70.. With the aforesaid observations, the writ petitions are disposed of. No Costs. 71.. M.M. DAS, J. - I agree. Writ petitions disposed of accordingly.
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2004 (9) TMI 610 - KERALA HIGH COURT
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... ... ..... a and section 5(2) of the CST Act, 1956, with respect to which certain observations have been made in this judgment and particularly since no other persons are concerned with the situation obtained in this case I am of the view that the Government must be directed to consider the claim for exemption made by the petitioner in exhibit P4 afresh. The Government as already noted has not assigned any reasons except to say that the rules dot not permit. I accordingly set aside exhibit P5 communication and direct the Government to pass fresh orders on exhibit P4 in accordance with law and in light of the observations made herein above after affording an opportunity of being heard to the petitioner within a period of three months from the date of receipt of a copy of this judgment. It is open to the petitioner to raise all contentions available to them before the Government at the time of personal hearing. Writ petition is disposed of as above. Writ petition disposed of accordingly.
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2004 (9) TMI 609 - KERALA HIGH COURT
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... ... ..... Rs. 10 lakhs in a year and for the subsequent years it does not reach Rs. 10 lakhs, it cannot be said that the petitioner is not entitled to the benefit of the notification. In this view of the matter reading condition (ii) in the manner suggested by the counsel, the petitioner is entitled to get exemption up to a limit of Rs. 10 lakhs within the period of exemption provided in condition No. (iii). 8.. In the light of the above, exhibits P6 and P7 orders cannot stand and I set aside the same accordingly. It is for the assessing authority to pass fresh orders pursuant to exhibits P3 and P4 notices in accordance with law and in the light of the legal position explained in this judgment. This will be done, with notice and opportunity to the petitioner, within a period of three months from the date of receipt of a copy of this judgment. Writ petition is disposed of as above. Order on C.M.P. No. 59852 of 2000 in O.P. No. 34882 of 2000 is closed. Petition disposed of accordingly.
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2004 (9) TMI 608 - ANDHRA PRADESH HIGH COURT
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... ... ..... n given by the respondent, as no counter is filed. Therefore, there is strong apprehension that in order to give an impression that the impugned order was passed within the period of limitation, the order bears the dated May 17, 1996, whereas it has been passed much after that. In this connection, the learned counsel for the appellants has placed reliance on a judgment of the honourable Supreme Court in State of Andhra Pradesh v. M. Ramakishtaiah and Co. 1994 93 STC 406, wherein under similar circumstances, the Supreme Court held that in the absence of any explanation, whatsoever, for the delayed service on the petitioner, of the order, the court should presume that the order was not made on the date it was purported to have been made. 4.. Following the same judgment, we allow these special appeals, set aside the order passed in revisions. No order as to costs. Since we are disposing of the matters on this short question, other questions raised, remain open. Appeals allowed.
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2004 (9) TMI 607 - KERALA HIGH COURT
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... ... ..... B. Therefore this contention is also found against the petitioners. 4.. The next contention raised by the petitioners is against subsection (2) of section 45B for detention of vehicle for 30 days in addition to penalty in case of repeated offence. The provision itself shows the legislative intention is to prevent evasion of tax and unless deterrent punishment is provided, the objective cannot be achieved. In every statute higher penalty is provided for repeated offence and I do not think the provision for higher penalty for repeated offence of transporting goods without documents can be termed as arbitrary or illegal. In the circumstances original petitions and writ petition are devoid of any merit and they are dismissed. Petitioners are given three weeks time from now to challenge penalty order on merits in appeal or revision before statutory authority if not already done. Order on C.M.P. Nos. 29045 and 28989 of 2001 in O.P. No. 18045 of 2001 dismissed. Petitions dismissed.
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2004 (9) TMI 606 - SUPREME COURT
Whether High Court was correct to set aside the order of conviction and sentence passed by Additional Sessions in Sessions trial No. 29 of 1990 convicting the respondent-herein, Babu Chakraborthy, under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and sentencing him for rigorous imprisonment for 10 years and pay a fine of Rs. l lakh in default of which one more year of imprisonment is to be undergone?
Held that:- The impugned judgment directing the State Government to pay Rs. l lakh as compensation to the accused caused a great prejudice to the State. There was no ground for coming to such conclusion. In this regard, the High Court also has omitted to take note of the fact that the action taken under the Act in good faith is protected under Section 69 of the Act. The judgment of the High Court passing strictures against the professionals/ officials amounts to condemning the affected parties without being heard.
In paragraph supra, we have already discussed about the non-compliance of the mandatory provisions of the Act by the appellants 2-3. Under such circumstances, we are of the opinion that the judgment of the High Court cannot be characterized as perverse judgment warranting interference in appeal by this Court. Hence, we are of the opinion that no compensation can be awarded to the accused in the facts and circumstances of this case. We, therefore, allow the appeal in part and set aside that part of the impugned judgment ordering compensation to the accused and also the direction to launch prosecution against PW 2 and PW 4 (2nd appellant) under Section 58 of the NDPS Act. Appeal pertly allowed.
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2004 (9) TMI 605 - SUPREME COURT
Revision petition allowed by High Court and the order of discharge made by the trial court set aside - Held that:- In our opinion the High Court was correct in coming to the conclusion once the plea of the accused is recorded under Section 252 of the Code the procedure contemplated under Chapter XX has to be followed which is to take the trial to its logical conclusion. As observed by us in Adalat Prasad's case [2004 (8) TMI 647 - SUPREME COURT] the only remedy available to an aggrieved accused to challenge an order in an interlocutory stage is the extraordinary remedy under Section 482 of the Code and not by way of an application to recall the summons or to seek discharge which is not contemplated in the trial of a summons case. Appeal dismissed.
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2004 (9) TMI 604 - ANDHRA PRADESH HIGH COURT
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... ... ..... icular assessment or to dispose of a particular case in a particular manner or (b) so as to interfere with the discretion of the Commissioner of Central Excise (Appeals) in the exercise of his appellate functions. 8. If the circular is read along with clause (a) to proviso to Section 37B, it becomes abundantly clear that if circular is applied, the matters have to be decided in accordance with the directions given in the circular. 9. For these reasons, we feel that the circular is illegal, contrary to the proviso to Section 37B(a) of the Act and is accordingly quashed. Writ Petition is allowed. By allowing the writ petition, we have not expressed any opinion about the notification and applicability of it in a particular case or cases shall have to be determined by the appropriate authorities. No costs. That Rule Nisi has been made absolute as above. Witness the Hon ble Sri Devinder Gupta, the Chief Justice on this Wednesday, the first day of September, Two thousand and four.
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2004 (9) TMI 603 - DELHI HIGH COURT
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... ... ..... the defendant does not deny that its campaign points out the deleterious effect of Lal Dant Manjan powder. The balance of convenience is also in the favor of the plaintiff as the effect of the advertisement aired cannot be repaired readily and easily. The averred right of the defendant to inform the purchasing public of the ill effects of the Lal Dant Manjan powder based on its commissioned study cannot tilt the balance of convenience in the favor of the defendant particularly when the plaintiff also seeks to rely upon studies commissioned by it to back up the merits of its product. Consequently, the non grant of an interim injunction would cause irreparable injury to the plaintiff not compensable in damages. 22. Consequently, the plaintiff is entitled to an injunction and accordingly the defendants are restrained from telecasting the TV commercial Colgate Tooth Powder as depicted in Annexure A to the plaint. 23. The interim relief application stands disposed of accordingly.
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2004 (9) TMI 602 - SUPREME COURT
Application of Section 50 of the NDPS Act - Held that:- Appeal allowed. No infraction of the requirements of Section 50 of NDPS as when a bag was being carried on the accused’s shoulder, Section 50 has no application.
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2004 (9) TMI 601 - MADRAS HIGH COURT
Held, allowing the writ petition, that the fact that the goods were imported by the petitioner and the goods have been warehoused and yet to be cleared under section 68 of the Customs Act, 1962 for home consumption at the time of passing the detention order is not disputed. Hence, the reason given that even if the goods are warehoused, that would amount to entry into local area is nothing but illegal, arbitrary and total non-application of mind to the relevant provisions. Also the claim that mere storing in the warehouse would create liability under the Tamil Nadu General Sales Tax Act, 1959 is without any statutory backing as in order to attract levy of tax under the Tamil Nadu General Sales Tax Act, 1959 there must exist a saleable event.
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2004 (9) TMI 600 - SETTLEMENT COMMISSION, CUSTOMS AND CENTRAL EXCISE,
Settlement of case - Immunity from interest, penalty and prosecution ... ... ... ... ..... ts, the Bench refrains from passing any order from this request. (iv) Shri Ishwarchand B. Tatar is required to pay a penalty of Rs. 61,480/- under Section 112(a) of the Customs Act, 1962. Immunity is granted from penalty in excess of the said amount of Rs. 61,480/-. (v) The prayer of Shri Ishwarchand B. Tatar for immunity from prosecution under Customs Act, 1962 is granted and request for immunity from prosecution under any other allied acts is not considered by the Bench for the reasons stated in the case of M/s. Megdoot Exports Pvt. Ltd. 16. emsp The above immunities are granted under Section 127H(1) of the Customs Act, 1962. They are liable to be withdrawn, if at any time it comes to the notice of the Commission that any particulars, material for the settlement have been withheld or any fraudulent means had been employed in obtaining the settlement. Attention of the applicant is also drawn to sub-Sections (2) and (3) of Section 127H of the Customs Act, 1962 in this regard.
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2004 (9) TMI 599 - ITAT AHMEDABAD
Penalty - For concealment of income ... ... ... ... ..... he assessee. The assessee rsquo s other plea about ownership of property being of HUF also cannot be lost sight of in penalty proceedings as they are distinct and separate from assessment proceedings. Existence of the litigation about title makes the things in question possible of views more so when the two sons of the assessee have sold part of the land. Under these circumstances, penalising the assessee for concealment when the ownership is in question under civil proceedings is unjustified. We are of the view that the assessee has supplied primary details, was under bona fide belief about the exempt nature of property in question under Wealth-tax Act since last 20 years, the dispute about title. Under these circumstances the imposition, of penalty under section 18(1)(c ) is unjustified. Our view is fortified by the above observations of the Gujarat High Court in assessee rsquo s own case. In view of the above, penalties are deleted. 6. Assessee rsquo s appeals are allowed.
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2004 (9) TMI 598 - CESTAT, NEW DELHI
Adjudication - Show cause notice - Jurisdiction to issue ... ... ... ... ..... was held that the circular issued by the CBEC are binding on the departmental authorities and they cannot take a contrary stand. 4. emsp I have carefully considered the submissions made by both the sides. 5. emsp I find that in this case the allegation in the show cause notice is that the respondents have clandestinely removed the goods without payment of central excise duty and without accounting for in their statutory records. Thus, it clearly shows that they have removed the goods clandestinely with intent to evade the payment of duty and suppressed the material facts on the record. Therefore, the show cause notice was required to be issued by the Addl. Commissioner at the relevant time but it was issued by the Dy. Commissioner. 6. emsp Therefore, the order of the Commissioner (Appeals) holding the show cause notice as null and void is correct in law and the appeal of the Revenue is dismissed. Ordered accordingly. (Order dictated and pronounced in open Court on 21-9-2004)
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2004 (9) TMI 597 - CESTAT, NEW DELHI
Cenvat/Modvat - Duty paying documents ... ... ... ... ..... evidence. No copy of the FIR regarding the accident was even lodged by the appellant. Moreover, even if it is assumed for sake of argument that the driver died in the accident, the appellants could seek permission from the department for taking credit on the original copy of the invoice but they could not avail the credit on the extra copy. The learned counsel referred to the ratio of law laid in the case of Dhaula Giree Polyolefins (Pvt.) Ltd. v. CCE, Calcutta-II - 2002 (147) E.L.T. 843 (Tribunal) 2002 (53) RLT 600 wherein the credits was allowed on the photo copy of the invoice certified by the supplier, but the same is not applicable to the present case as in that case the original and duplicate copies were lost in transit by the driver. But in the case in hand, there is no such proof on the record. Therefore, I do not find any illegality in the impugned order and the same is upheld. 4. emsp The appeal of the appellants is dismissed. (Pronounced and dictated in open court)
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2004 (9) TMI 596 - ITAT MUMBAI
Income escaping assessment ... ... ... ... ..... of all material facts necessary for the assessment for that assessment year. But the answer to that question necessarily depends upon as to what are the facts, which are considered relevant and material for the purpose of assessment, and it is only then that it can be seen as to whether the assessee has disclosed and placed all of them truly and lsquo fully rsquo before the Assessing Officer. This exercise has not been carried out by the ld. CIT(A). His order is therefore vacated and the matter is restored to his file for a fresh decision. He will first identify as to what were the relevant or material facts for making the assessment and it is only then that he will identify as to whether the assessee had disclosed all of them lsquo fully rsquo and truly before the Assessing Officer. Reasonable opportunity of hearing shall be given to both the parties, namely, the Assessing Officer and the assessee. 11. In view of the foregoing, the appeal filed by the Department is allowed.
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2004 (9) TMI 595 - ITAT MUMBAI
Penalty - Not to be imposed in certain cases ... ... ... ... ..... f the previous year, and because of this change, there were problem in finalizing the book of accounts. The authorities below have also not challenged assessee rsquo s contention that advices of the senior lawyers had to be obtained to address some issues in this transfer of management. It needs no authority to appreciate the fact that change in management is not a routine issue and it may require further examinations of certain aspects which may delay the finalization of accounts and audit. In any case, even the submissions of accounts for a part of year is claimed to have been delayed by the previous management and there is no material to reject this explanation. Keeping all these factors in mind, we are of the considered view that the explanation of the assessee constituted reasonable cause for delay in compliance with tax audit requirements. The levy of penalty under section 271B, therefore, cannot be sustained. We cancel the same. 6. In the result, the appeal is allowed.
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2004 (9) TMI 594 - CESTAT, NEW DELHI
Refund - Approved classification list ... ... ... ... ..... hat refund is not maintainable. The Hon rsquo ble Supreme Court in the case of C.C.E, Kanpur v. Flock (India) Pvt. Ltd. - 2000 (120) E.L.T. 285 (S.C.) 2000 (40) RLT 131 (S.C.) where the assessee has not challenged the approval of the classification list, the correctness of the classification cannot be challenged in the refund application. Further, we find that on merits the contention of the appellant is that they were clearing the goods at the same price and even during the period, they were paying higher duty. We find that the Hon rsquo ble Supreme Court in the case of C.C.E., Mumbai v. Allied Photographics India Ltd.- 2004 (166) E.L.T. 3 (S.C.) held that uniformity in the price before and after assessment does not lead to inevitable conclusion that incidence of duty has not been passed on to the buyer as such uniformity may be due to various factors. The appellants had not produced any other evidence in support of their claim. The appeal is dismissed. (Pronounced in Court)
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