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Showing 121 to 140 of 658 Records
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2008 (10) TMI 613 - KERALA HIGH COURT
Whether the Tribunal have not held that the transaction in question is one coming under section 5(2) of the CST Act more so in view of the judgment of the Supreme Court in State of Maharashtra v. Embee Corporation reported in [1997 (8) TMI 443 - SUPREME COURT OF INDIA]?
Whether the Tribunal have not cancelled the levy of penalty imposed under section 29A(4) read with rule 35A(4)(b) of the Kerala General Sales Tax Rules, 1963 after holding that the transaction under question is one coming under section 5(2) of the CST Act and hence exempt?
Held that:- The Appellate Tribunal while concurring with the findings of the first appellate authority has observed that, since ONGC has not come into the picture with the foreign supplier at any time during the course of import, it cannot be a transaction under section 5(2) of the CST Act. The Tribunal has further observed that the petitioner had attempted to manipulate the records to establish that the transactions are well within the scope of section 5(2) of the CST Act. This, in our view, is mere presumption and surmise by the Tribunal and not supported by any material. The transaction matrix shows that the transaction between the parties are inextricably linked with each other with each knowing their part of the transaction. We do not see any attempt of manipulation, since the two customs-duty-paid documents establish that the goods imported are the same goods ordered by BPL as a back-to-back order of ONGC. All the other so-called "mistakes" do not appear to affect the true nature of the transaction being one falling under section 5(2) of the CST Act.
Revision petition filed by the assessee requires to be allowed and accordingly it is allowed and the impugned orders passed by the authorities under the Act and the Appellate Tribunal is set aside.
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2008 (10) TMI 612 - MADRAS HIGH COURT
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... ... ..... ayon or artificial silk fabrics, are defined in the terms of the First Schedule to the Central Excises and Salt Act, 1944. Once the item of goods cotton fabrics corresponds to the scope of the entry in item No. 19 of the First Schedule to the Central Excises and Salt Act, tarpaulins must fall within the substituted entry No. 4 of the Third Schedule to the Tamil Nadu General Sales Tax Act and consequently, tarpaulins are liable to be exempted from tax. Following the same, these revisions petitions are dismissed.
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2008 (10) TMI 611 - PUNJAB AND HARYANA HIGH COURT
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... ... ..... h has been affirmed in judgment of the honourable Supreme Court in State of Punjab v. Perfect synthetics 2008 13 VST 550. The honourable Supreme Court held that words used in rule 29(xii) permitting deduction of purchase value of goods subject to tax, under section 5(1A), covered the goods which may be exempt from tax. Under the scheme of exemption, the said goods were, at par with goods on which tax was paid. Learned counsel for the State does not dispute the applicability of judgment of this court, as affirmed by the honourable Supreme Court. He only submitted that the State proposes to file a review petition against judgment of the honourable Supreme Court. We find that the judgment of honourable Supreme Court was rendered more than seven months ago. Merely on the ground that the State proposes to file review, we cannot ignore the judgment. In view of the above, this petition is allowed. The impugned order is set aside and the order of the assessing authority is restored.
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2008 (10) TMI 610 - MADRAS HIGH COURT
Non sufficient opportunity given to the petitioner to produce all the documents - Held that:- A perusal of the impugned order dated March 26, 2008 would show that the respondent-Department has not adverted to the correct facts and referred to the documents furnished by the petitioner as well as the State buyer, J.K. Paper Mills Limited, Orissa, properly. Further, the subsequent request made by the petitioner for granting personal hearing to them and to their advocate were also not considered by the respondent. Therefore, the order passed by the respondent, without considering these aspects, cannot stand the scrutiny of law and as submitted by the learned Senior Counsel the opportunity of personal hearing has not been given to the petitioner. Hence, the impugned order is liable to be set aside
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2008 (10) TMI 609 - PUNJAB AND HARYANA HIGH COURT
Whether, on the facts and circumstances of the case, the impugned order (A-9) passed by the Tribunal in rectification proceedings on September 6, 2007, was beyond the scope of rectification jurisdiction under section 21A(2) of the PGST Act, 1948 and therefore without jurisdiction, hence liable to be set aside?
Whether the impugned order, annexure A-9, is beyond the prescribed period of limitation of two years, given in section 21A(2) of the Act and therefore without jurisdiction and, hence liable to be quashed?
Whether, on the facts and circumstances of the case, the learned Tribunal was bound to adjudicate all the issues raised in original appeal which were not decided by the Tribunal while passing the original order?
Whether the order passed by the Assessing Authority is barred by limitation as prescribed under section 11(3) as amended by notification dated March 3, 1998?
Whether, on the facts and circumstances of the case, the original order of assessment was time-barred even under the unamended ection 11(4) of the PGST Act, as no notice of best judgment assessment was ever given to the assessee before passing any order?
Held that:- In view of the settled legal position, we are of the view that the assessment was not barred by limitation. In Murlidhar Mahabir Parshad [1967 (4) TMI 169 - SUPREME COURT OF INDIA] the honourable Supreme Court held that if notice of assessment had already been given, the assessment was to be treated to be within limitation. In the present case, notice of assessment was prior to the enforcement of amending law. The order of the Tribunal dated July 8, 2005, thus, suffered from error apparent on the face of record, which could be rectified.Accordingly, question No. (i) is decided against the assessee and in favour of the Revenue.
For Question No. (ii) as the order of rectification was passed on September 6, 2007, while original order of the Tribunal was dated July 8, 2005 and thus, order of rectification was beyond limitation. In favour of assessee.
If the order of the Tribunal holding the assessment to be barred by limitation was to be set aside, the Tribunal was bound to adjudicate on all issues in the original appeal. However, in view of our answer to question No. (ii), all the other questions has become academic.
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2008 (10) TMI 608 - KERALA HIGH COURT
Adequate opportunity to substantiate contentions seeked - whether exhibit P4 will show a mis-apprehension of exhibit P2 judgment by the officer?
Held that:- We are only at the stage of show-cause notices issued by the first respondent. In our opinion, the writ court can entertain a petition, if for any reason, the authority who has issued the notice has no competence to issue such notice or the notice issued is contrary to the statutory provisions, etc. These grounds are neither urged nor argued by the writ petitioner.
Accordingly, it is normally desirable to let all statutory authorities develop the necessary factual background upon which decision should be based. And since the decision of the statutory authorities frequently requires expertise, the authorities should be given the first chance to exercise their discretion and further apply their expertise. Apart from this, the statutory authorities are created as a separate entity and are vested with certain powers and duties, the courts ordinarily should not interfere with the action of the statutory authorities until it has completed its own action or else has clearly exceeded its jurisdiction. We hasten to add, the exhaustion doctrine is not inflexible and when the reasons supporting the doctrine are found inapplicable, the doctrine should not be blindly applied.
In view of the above, the learned single judge has not committed any error, whatsoever, which would call for our interference. Accordingly, the writ appeal requires to be rejected and it is rejected, without reference to the respondents.
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2008 (10) TMI 607 - MADRAS HIGH COURT
Proceedings of cancellation of registration certificate challenged - Held that:- In view of the fact that neither the Act nor the subordinate legislation prescribed the consequence of the failure of a registered dealer to apply within the time-limits prescribed, the impugned order passed by the respondent is liable to be set aside. The petitioner is hereby directed to file appropriate application before the concerned authorities within a period of two weeks from the date of receipt of a copy of this order.
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2008 (10) TMI 606 - KERALA HIGH COURT
True scope of Explanation 5 to section 8(f) of the Kerala Value Added Tax Act, 2003 questioned - Held that:- Explanation 5 will be applicable only if the dealer opens a new branch in the current year. The words "open a new branch" cannot permit the respondent to apply the Explanation to a case where a branch was in existence from the year 2005 and to treat the same as opened in the current year for the only reason that compounding is sought for in respect of the said branch in the year 2008-09 for the first time is not contemplated. I would think that such an interpretation would be opposed to the plain meaning of the words embedded in the provision. Neither is the respondent in my view entitled to draw support from circular No. 42/06 for the reasons which I have already indicated. If that be so, exhibits P7 and P9 are plainly unsustainable. Accordingly, I allow the writ petition and quash exhibits P7 and P9. A decision will be taken on exhibit P6 in accordance with law within one month from the date of receipt of a copy of this judgment. Till such decision is taken, the petitioner is permitted to pay the monthly compounded tax at the rate of ₹ 49,42,211.
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2008 (10) TMI 605 - MADRAS HIGH COURT
Local sale v/s inter-State sale - Held that:- In the absence of any positive materials evidencing interState sale, the stray sales as found in the assessment order cannot be termed to be a sale in the course of inter-State trade warranting payment of tax under the Central Sales Tax Act. Therefore the assessing authority clearly erred in assessing the transaction as an inter-State sale and as such the said finding is liable to be set aside.
Whether the transaction was a second sale or an inter-State sale was a matter to be decided by the assessing authority and the petitioner has produced the entire documents and on the basis of the said documents only, the assessing authority came to the conclusion that the sale was not a second sale, but a sale in the course of inter-State sale and therefore it cannot be said that the petitioner was liable for penalty. Therefore the levy of penalty is also necessarily to be set aside. W.P. allowed.
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2008 (10) TMI 604 - PUNJAB AND HARYANA HIGH COURT
Haryana Tax on Entry of Goods into Local Areas Act, 2008 - whether is unconstitutional and void?
Held that:- Provisions of section 33 validating the levy under the 2000 Act to retain the amount collected for which no specific services were held to have been rendered will also be hit by article 301 of the Constitution. It has not been disputed that out of a sum of ₹ 1,600 crores already collected, only a sum of ₹ 240 crores was available and the remaining had already been spent. In absence of any estimate of services to be provided or projected to be provided, in accordance with the purposes which may make the levy to be compensatory in character under article 301 of the Constitution, the impugned levy has to be held to be unconstitutional.
We allow this petition and declare the provisions of the Haryana Tax on Entry of Goods into Local Areas Act, 2008 to be unconstitutional and void.
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2008 (10) TMI 603 - MADRAS HIGH COURT
Raw hides and skins - entitlement to exemption - Held that:- The law is that "raw hides and skins" and "dressed hides and skins" are different taxable commodities, notwithstanding the fact that they figure in section 14(iii) under one entry as "hides and skins whether in a raw or dressed state". The mere fact that they figure in one entry cannot be taken advantage of by the assessee.
The 1999 letter shows that the Deputy Commissioners have been requested to instruct the assessing officer not to take coercive action on the demands already raised in cases of purchase of raw hides and skins against specific orders of export until final orders are received from Government for waiver to the period up to November 30, 1997. The present case is one which arose before November 30, 1997 and if the assessing officers have been instructed to comply with these instructions and they have been doing so, they may consider extending the same indulgence to the appellant herein, if they so apply.
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2008 (10) TMI 602 - DELHI HIGH COURT
Whether section 5 of the Limitation Act can be invoked for the condonation of delay in filing revision application under section 47 of the Delhi Sales Tax Act?
Held that:- The provisions of section 5 of the Limitation Act have no application to proceedings under section 47 of the Act. We find absolutely no merit in the submission made on behalf of the petitioner based on rule 36(4) of the Delhi Sales Tax Rules.
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2008 (10) TMI 601 - CENTRAL SALES TAX APPELLATE AUTHORITY
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... ... ..... ncession, only the turnover relating to stock transfers to branches in respect of which price was received from the buyers before the dispatches, is liable to tax under CST Act. We may also mention that the learned counsel for the appellant, in consultation with his client made the concession as noted earlier apparently for the reason that there is some grey area as far as such category of transactions are concerned and therefore he wanted to avoid a debate on the question whether there was willful suppression of material facts. That is what he broadly indicated at the time of arguments. In the light of the foregoing discussion, the appeals are partly allowed and partly dismissed as indicated below Year Turnover allowed Turnover disallowed 1983-84 1,13,83,654 96,58,910 1984-85 46,25,650 58,31,700 1985-86 1,50,73,633 56,65,770 1986-87 1,09,83,397 1,02,96,510 The refund due to the appellant as a sequel to this order shall be given expeditiously and without avoidable delay.
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2008 (10) TMI 600 - SUPREME COURT
Whether the legal requirements have been complied with by the respondent herein so as to enable him to maintain the complaint petition or not?
Held that:- It may be true that the High Court has not elaborately dealt with this aspect of the matter, but the same would not mean that we should remit the matter back to the High Court for consideration of the matter afresh as we have gone into the question raised by the parties ourselves. Appeal dismissed.
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2008 (10) TMI 599 - SUPREME COURT
Denial of promotion - "Good" mentioned in C.R. instead of "Very Good" - Non Communication of adverse entries - Held that:- The entry of 'good' should have been communicated to him as he was having “very good” in the previous year. In those circumstances, in our opinion, non-communication of entries in the ACR of a public servant whether he is in civil, judicial, police or any other service (other than the armed forces), it has civil consequences because it may affect his chances for promotion or get other benefits. Hence, such non-communication would be arbitrary and as such violative of Article 14 of the Constitution. - However, appellant is not entitled to any pay or allowances for the period for which he had not worked in the Higher Administrative Grade Group-A, but his retrospective promotion from 28.08.2000 shall be considered for the benefit of re-fixation of his pension and other retrial benefits as per rules - Decided partly in favour of appellant.
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2008 (10) TMI 598 - SUPREME COURT
Whether there exists any relationship of creditor and debtor between the parties? - Held that:- All the three Courts below have arrived at a concurrent finding that the complainant has been able to prove his case of grant of a loan. Admittedly the burden of proof shifted to the appellant. Again a finding of fact was arrived at that the appellant had failed to discharge his burden.
No case has been made out for our interference with the impugned judgment. The appeal is dismissed.
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2008 (10) TMI 597 - GUJARAT HIGH COURT
Whether in the facts and circumstances of the case the respondent is entitled to refund of ₹ 10,83,216/- as ordered by the Commissioner (Appeals) and upheld by the Tribunal?
Whether in the facts and circumstances of the case, the Commissioner (Appeals) and Tribunal are justified in holding that there was no unjust enrichment even though the respondent removed/cleared the goods without indicating the element of Excise Duty in their sales invoice, contrary to Section 12A of the Central Excise Act, 1944?
Held that:- Reliance on provisions of Section 12A of the Central Excise Act, 1944, cannot carry the case of appellant any further. The said Section requires that every person who is liable to pay duty of excise on any goods shall, at the time of clearance of the goods, prominently indicate in all the documents relating to assessment, sales invoice, etc., the amount of such duty which will form part of the price at which the goods are to be sold. On a plain reading, the phrase “at the time of clearance of the goods” cannot be read to mean removal of goods from the depot to their further destination, but can only mean removal of goods from the manufacturing unit in the first instance. In the facts of the present case, the record reveals, and there is no dispute as to the said fact, that at the time of clearance of the goods, the invoice in question carried the details of excise duty component separately qua the price of the goods manufactured.
In the circumstances, on none of the grounds pleaded can any legal infirmity be found in the impugned order of the Tribunal. Accordingly, in absence of any substantial question of law, the appeal is dismissed.
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2008 (10) TMI 596 - GUJARAT HIGH COURT
CENVAT credit - capital goods - job-work - Held that: - It is not the case of appellant-Revenue that even M/s. Pidilite Industries Limited had claimed credit for the same capital goods which were supplied by M/s. Pidilite Industries Limited to respondent-assessee - it is apparent that credit is available to a manufacturer or producer of final product, which means excisable goods manufactured or produced and such credit is for the duty paid on any inputs or capital goods received in the factory after the prescribed date. Admittedly, the capital goods in question were received in the factory of the respondent-assessee and were used for the purposes of manufacturing final product which is an excisable item - appeal dismissed - decided against appellant.
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2008 (10) TMI 595 - GUJARAT HIGH COURT
Whether in the facts and circumstances of the case, the Tribunal is justified in holding that the principles of unjust enrichment will not apply to the cases of finalization of provisional assessment prior to the amendment to section 18 of the Customs Act, 1962 prescribed in the provisions of Section 27(2) of the Customs Act, 1962?
Whether in the facts and circumstances of the case, the Tribunal is justified in allowing the refund claim on the ground that the finalization was done prior to amendment of Section 18 of the Customs Act, 1962 effective from 13-7-2006 and, therefore, the doctrine of unjust enrichment would not be applicable?
Whether in the facts and circumstances of the case, the Tribunal is justified in allowing the appeal by way of remand despite the admitted position that the respondent had not placed any evidence on record to prove that they had not passed the duty incidence on their customers?
Held that:- In the light of the principles of law enunciated in COMMISSIONER OF CUSTOMS Versus HINDALCO INDUSTRIES LTD. [2008 (9) TMI 372 - HIGH COURT OF GUJARAT AT AHMEDABAD] which squarely applies to the issues raised and questions proposed in the present appeal, the appeal deserves to be dismissed. It is, accordingly dismissed.
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2008 (10) TMI 594 - MADRAS HIGH COURT
Derivatives contracts are challenged as illegal and void - Held that:- Transactions in derivatives, fall within the category of "business activity undertaken by the Bank" as they are covered by Section 6(1) of the Banking Regulation Act, 1949. Therefore no difficulty in coming to the conclusion that if the transaction in question gives rise to a claim by the Bank, of any liability, on the part of the plaintiff, the defendant-Bank may certainly be able to invoke the provisions of Act 51 of 1993.
Therefore derivatives transactions ceased to be purely speculative deals, long time ago. The pricing of the deals, follows a scientific pattern on the basis of Financial Mathematics. Just as Actuaries scientifically determine the value of insurance risks and the premium payable, Financial Mathematicians (or Portfolio Managers) evaluate the price of these derivatives. Hence they cannot be termed as wagers.
The Master circulars A.D.(M.A.Series) 21 and 26 dated 23-12-1994, extracted in paragraph-97 above, expressly permit customers to hedge their receivables and payables against a third currency instead of Indian rupee, subject only to 2 conditions namely (1) that such third currency should be a permitted currency and (2) that it should be actively traded in the market. Swiss Franc satisfies both conditions. Therefore the first ground of attack is unsustainable. Asit is the admitted case of the plaintiff (para 4 of the plaint) that they had export orders to the tune of ₹ 111 crores for the period upto 31-12-2007 and that they had foreign currency loans to the tune of USD 30 million. It is only by showing their foreign currency receivables and payables that the plaintiff entered into the ISDA Master Agreement. Therefore, they cannot now contend that this particular deal alone had no underlying exposure. The Board of Directors of the company cannot feign ignorance of the declaration and risk disclosure statement made by Mr.P.K.Viswanathan, while confirming the deal OPT 727. In such circumstances, the plaintiff cannot be heard to contend that the Bank failed to ensure the existence of a risk management policy, after having allowed Mr.P.K.Viswanathan to sign the declaration and risk disclosure statement. It was the fate of the US Dollar, which has brought the plaintiff to the cliff. Therefore the plaintiff which had the benefit of a push, up the ladder in 9 out of 10 deals, cannot duck when it comes to a pull, down the ladder in the remaining 1 deal. Every business venture provides a roller-coaster ride at some point of time or the other and the validity of contracts cannot be judged on the basis of the success or failure of the venture.
Therefore the plaintiff is not entitled to any injunction restraining the bank from enforcing the contract OPT 727. The suit is maintainable, the application to revoke the leave A.No.1926 of 2008 and the application to reject the plaint A.No.1927 of 2008 are dismissed. The jurisdiction clause contained in the ISDA Master Agreement does not confer exclusive jurisdiction upon the courts in Mumbai, by the use of the words "only" or "alone".
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