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Showing 121 to 140 of 679 Records
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2007 (2) TMI 606 - MADRAS HIGH COURT
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... ... ..... the light of what is stated above, this court is of the view that the petitioner ought to have pursued its appellate remedy instead of filing the original petition before the Tribunal, which is now numbered as this writ petition. However, as the petitioner in this case has been bona fidely agitating the matter before the Tribunal from 2003 and on abolition of the Tribunal before this court since 2005, this court is of the view that in order to sub-serve the ends of justice, one more opportunity has to be given to the petitioner to pursue the appellate remedy. Accordingly, the petitioner is permitted to file an appeal before the appellate authority, if so advised and two weeks 39 time is granted for filing such an appeal against the orders of assessment, from the date of receipt of a copy of this order. The appellate authority shall entertain the appeal, if filed within the time given by this court in this order. The writ petition is disposed of in the above terms. No costs.
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2007 (2) TMI 605 - WEST BENGAL TAXATION TRIBUNAL
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... ... ..... ty remains with the petitioner. Considering the facts and circumstances of the case and upon hearing the rival contentions, we are of the view that handkerchiefs are no doubt made out of the textile fabrics but they are not textile fabrics simpliciter. The item is described by a different name and has a particular kind of use. Hence, handkerchief does not fall within the purview of entry against serial No. 37A of the VAT Act and does not enjoy exemption from tax as per that entry. We, therefore, do not find any reason to interfere with the order dated March 15, 2006 of the Commissioner of Commercial Taxes. Considering the period (April 1, 2005 - January 31, 2006) or which this item would suffer taxation at the highest rate as a residuary entry under the VAT Act liberty is given to the petitioner to approach the Government for appropriate consideration, if it so likes. The petition, thus, stands disposed of accordingly. No order as to costs. PRADIPTA RAY (Chairman) - I agree.
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2007 (2) TMI 604 - ALLAHABAD HIGH COURT
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... ... ..... ne. Every cosmetic has some or other medicinal value and that by itself does not convert every cosmetic into a medicine. The assessee has not produced any authority or text book to show that the ingredients of the cream manufactured by them have any medicinal value it is prescribed as medicine and that its use is limited to the cure of the ailments claimed to be cured by it. I do not find that the Tribunal has erred in law in recording finding that Boro Soft cream is not a medicinal preparation. It does not satisfy either of the tests. There is no material on record to show that Boro Soft is purchased and used as an ayurvedic medicine. The certificates given by the Joint Commissioner (Drugs), Foods and Drugs Control Administration are based on the ingredients of the cream as indicated on the wrapper and not on its use. The opinion of the Joint Commissioner of Drugs is not supported by any authoritative text books on ayurvedic medicines. The revision is accordingly dismissed.
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2007 (2) TMI 603 - PATNA HIGH COURT
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... ... ..... he supplementary counter-affidavit filed on behalf of the Revenue give full details of the materials received by the Revenue from the Bank. It contains practically the entire accusations and not merely the gist of accusations against the petitioner. Therefore, the petitioner can no longer contend that it cannot file an effective show cause for want of the gist of accusations against it. The petitioner is accordingly directed to appear before the Assistant Commissioner, Commercial Taxes, Muzaffarpur Circle, Muzaffarpur and to file its show case within one month from today. The Assistant Commissioner, Commercial Taxes will fix a date of hearing and pass a fresh order after giving the petitioner an opportunity to place its case before him. It is expected that a final order will be passed within two months from the date of the petitioner 39 s first appearance before him. In the result, this writ petition is allowed subject to the above directions. SMT. REKHA KUMARI J. - I agree.
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2007 (2) TMI 602 - ALLAHABAD HIGH COURT
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... ... ..... that contract was a composite contract and the supply of plant and machinery was after erection and commissioning, the nature of the contract would be the works contract. Under section 3F of the Act, the works contract was held liable to tax with effect from May 1, 1987 by the notification dated April 27, 1987 and, thus, even if the entire contract is to be treated as a composite works contract, the value of the goods involved in the execution of the works contract is not liable to tax during the year under consideration. It may be mentioned that the assessing authority has patently erred in levying the tax on the entire contract amount at Rs. 89 lacs which could not be taxed by any stretch of imagination. This amount was not the value of the plant and machinery but the value of the entire contract inclusive of designing, etc. In this view of the matter, the order of the Tribunal is upheld. In the result, all the three revisions have no merit and are, accordingly dismissed.
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2007 (2) TMI 601 - ORISSA HIGH COURT
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... ... ..... ct from November 2, 2000 basing upon which the petitioner industry was getting sales tax exemption. In view of the factual narration and following the legal principles settled in M.R.F. Ltd. 2006 148 STC 225 2006 JT 12 SC 244, as the petitionercompany has made substantial investment and in fact enjoyed tax benefits for certain periods, the impugned action of the opposite parties holding that the petitioner 39 s industrial unit is not entitled to the exemptions in terms of entry 43A of the sales tax exemption notification dated July 26, 1996 of the Finance Department is absolutely arbitrary, unreasonable and violative of article 14 of the Constitution of India. Therefore, we have no hesitation to allow the prayer of the petitioner by quashing annexure 1A and declare that the petitioner-industry is entitled to avail the sales tax exemption in accordance with the IPR, 1996 and we accordingly do so. The writ petition is allowed accordingly. We, however, make no order as to cost.
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2007 (2) TMI 600 - ALLAHABAD HIGH COURT
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... ... ..... in the construction of cold storage and have not been used in the construction of ice factory. As per dealer 39 s own admission the ice factory had never been constructed and manufacturing of ice had not been carried on. Thus, the dealer has used the imported goods for a purpose other than for which it was granted registration and for purposes, which did not involve manufacturing of ice. The dealer has not made out any case of reasonable excuse. The explanation of the dealer that since water was salty, it was not possible to manufacture ice, does not amount to reasonable excuse. In the circumstances, in my opinion, there was violation of clause (d) of section 10 of the Central Act and thus, the dealer is liable for penalty. However, on the facts and circumstances, the Tribunal is directed to levy minimum penalty. In the result, both the revisions are allowed. Order of the Tribunal is set aside and the Tribunal is directed to levy minimum penalty and pass appropriate orders.
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2007 (2) TMI 599 - ALLAHABAD HIGH COURT
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... ... ..... to the goods but by the aforesaid two circulars referred hereinabove such exemption have been treated as general exemption granted to the goods under section 8(2A) of the Central Act and the goods manufactured by such institutions have been treated exempted from tax under the Central Act. The apex court held that the circulars are binding upon the Revenue authorities though they may be contrary to the statute and it is not open to the Revenue authorities to take a different stand. Thus, so long as the circular stands and is not withdrawn Revenue authorities cannot take a different stand contrary to the circular. It is not the case of the Revenue that the circulars have been withdrawn. In this view of the matter, revisions filed by the Revenue have no force and the order of the Tribunal granting exemption of the goods manufactured by the institutions under section 8(2A) of the Central Act is hereby upheld. In the result, all the revisions fail and are accordingly, dismissed.
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2007 (2) TMI 598 - CESTAT BANGALORE
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... ... ..... sel relies on one such order rendered in the case of Rubco Huat Woods P. Ltd. v. Commissioner of Central Excise, Calicut by Final Order No. 1489 of 2006 reported in 2007 6 VST 683 (CESTATB 39 lore) 2006 TIOL 1645 (CESTAT-Bang). He submits that the issue is covered in assessee 39 s favour and prays for allowing the appeal. The learned JDR reiterated the departmental view. On a careful consideration, we notice that the assessee is only paying royalty charges for the receipt of technical know-how. This royalty charges cannot be brought within the ambit of consulting engineer , as they are not rendering any services under this category. The ratio of the cited judgment clearly applies to the facts of this case. It is true that we have disposed of large number of appeals on this issue, which are already noted in the cited final order. Respectfully following the ratio of the cited judgment, the impugned order is set aside and the appeal is allowed with consequential relief, if any.
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2007 (2) TMI 597 - GAUHATI HIGH COURT
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... ... ..... ide. By applying the ratio laid down by the apex court (9 judges) in Mafatlal Industries Ltd. v. Union of India 1998 111 STC 467 1997 5 SCC 536 and the Union of India v. Raj Industries 2000 2 SCC 172, the petitioner has to prove that the burden of taxes paid by him for the said two periods ending, i.e., March 31, 1993 and June 30, 1993 have not been passed to the third party (customers) basing on the principle of unjust enrichment . For such purpose, the assessment authority is directed to decide the limited question, whether any amount of tax paid by the petitioner for the period ending March 31, 1993 and June 30, 1993 had actually passed on to the third party (customers) or not, but if it is found that the burden was already passed on to the third party, then on the principles of unjust enrichment the amount of tax paid by the petitioner shall not be refunded to him. To the extent mentioned above, this writ petition is allowed. Parties are directed to bear their own costs.
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2007 (2) TMI 596 - KARNATAKA HIGH COURT
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... ... ..... ces of the present case. In view of the above discussions, we hold that JCB 3D machine falls within entry 1(i)(a) of Part M of the Second Schedule appended to the KST Act. Accordingly, second question of law raised by the assesseecompany answered in the affirmative, i.e., in favour of the Revenue and against the assessee. The third issue raised by the assessee-company, in our view, is no more debatable in view of the settled position in law on this issue. Discussion of this issue in the facts and circumstances of the case is not really necessary. Suffice it to observe, that it is true that when two views are possible, it is settled position of law, that the entry, which is more beneficial to the taxpayer will have to be adopted. In view of the aforesaid discussions, we hold that JCB 3D is a machinery, which is an earthmover and not a tractor. Accordingly, the revision petition requires to be rejected and accordingly, it is rejected. No order as to costs. Ordered accordingly.
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2007 (2) TMI 595 - CESTAT BANGALORE
Refund of Service tax paid in excess - Banking and Financial Services - Unjust enrichment - Order Of lower authority is erroneous - HELD THAT:- The appellants initially paid service tax on the assumption that they are liable to pay the same. However, on discovery of the error, they refunded the service tax collected from their clients by way of issuance of credit notes and also cheques, then they filed refund claims with the competent authority. They produced the Chartered Accountant's certificate also. The issue is quite simple. As the appellants have returned the amount collected by way of service tax to their clients, it is evident that they only had borne the burden of service tax. When they applied for the refund of the amount to the department, they are rightly entitled for the same. But in the impugned order, the Commissioner has relied on the decision of the Tribunal rendered in the case of S. Kumar's [2003 (2) TMI 85 - CEGAT, NEW DELHI] to deny the refund.
As rightly pointed out by the learned Advocate in matters of service tax it is very easy to identify the service provider and the client and also to decide as to who has borne the tax incidence. Issue of credit note to the clients is also a form of payment, as held by the apex court in the case of Mohd. Ekram Khan & Sons [2004 (7) TMI 341 - SUPREME COURT].
Hence, the order of the Assistant Commissioner in sanctioning the refund is legal and proper. In other words, when the service provider has returned the service tax collected either by way of cheques or credit note, there cannot be any question of unjust enrichment. Therefore, the appeal is allowed.
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2007 (2) TMI 594 - ALLAHABAD HIGH COURT
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... ... ..... s been made out. It is clear from the record that at the time of the grant of exemption by the Divisional Level Committee the fact was available on record that the pouch sealing machine was purchased by the applicant-unit from M/s. Gorakhpur Grah Udyog Kendra, Gorakhpur, who had acquired the same for their factory. Further, this fact was available on record when the first notice under section 4A(3) of the Act was issued but no such ground was taken and the present proceeding has been initiated after 5-6 years from the expiry of the period of exemption. Initiation of the proceeding after the expiry of such a long period is highly belated and improper. Thus, on the facts and circumstances of the case, in my opinion. Commissioner of Trade Tax should have not exercised its discretionary power under section 4A(3) of the Act. In the result, revision is allowed. Order of the Tribunal and the order of the Commissioner of Trade Tax passed under section 4A(3) of the Act are set aside.
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2007 (2) TMI 593 - MADRAS HIGH COURT
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... ... ..... ourt also considered a similar issue in the case of Union of India v. Chemfab Alkalis Limited 2003 129 STC 427 in which case incidentally I spoke for the Bench holding in favour of the assessee. When the issue is admittedly covered, it is open to the petitioner to place the judgments referred to supra before the assessing officer and claim the benefit of the judgments. Accordingly, the petitioner is permitted to approach the assessing officer with the judgments referred to supra within two weeks from the date of receipt of a copy of this order. If the petitioner does so within the time granted by this court, the assessing officer shall consider the judgments and find out whether the judgments cover the issue on hand on the facts and if that be so, grant the benefit to which the petitioner is entitled to. Till such exercise is made by the assessing officer, recovery proceedings are directed to be kept in abeyance. The writ petition is disposed of in the above terms. No costs.
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2007 (2) TMI 592 - DELHI HIGH COURT
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... ... ..... he State since refunds or adjustments are easy to effectuate. The reverse position, in fact, offends the Dunlop 1985 154 ITR 172 (SC) dictum. What remains to be cogitated upon is the existence of a prima facie case, and in this regard, it seems to us that the assailed order must be devoid of jurisdiction or be so palpably incorrect as to demand and dictate interference. It must be perverse, which means that the vital question brooks no two opinions. Perversity cannot cohabit with dialectic debate. If the merits of a case call for careful consideration, as it does in the matter in hand, a prima facie case cannot exist. Keeping these factors in mind, as also the absence of any requirement for consideration of financial hardship, we find no reason to interfere in the operation of the impugned orders. The writ petition is accordingly dismissed but we refrain from imposing costs. C.M. 11118 of 2006 Interim Orders dated September 8, 2006 are recalled. The application is dismissed.
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2007 (2) TMI 591 - MADRAS HIGH COURT
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... ... ..... der impugned has observed, as But they have furnished the details for Rs. and they have claimed that the bills were made only for bank purpose, but not included in the turnover . . . . The assessing officer has not taken minimum care to see that the blank provided in the order, as highlighted above, is filled up. An order of assessment, which has civil consequence, cannot be issued in a callous manner, as in this case. Hence, the order, which is ex facie overreaching the order of the appellate authority has to be set aside and the matter has to be remitted back to the assessing officer to frame assessment by following the directions issued by the appellate authority by its order dated July 17, 2001. Accordingly, the impugned order is set aside and the matter is remitted back to the assessing officer to pass fresh order of assessment by following the directions issued by the appellate authority by his order dated July 17, 2001. The writ petition is ordered as above. No costs.
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2007 (2) TMI 590 - MADRAS HIGH COURT
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... ... ..... it is not economically viable for the revival of the company and by its order dated January 23, 1996 recommended for winding up. That order has been carried on by way of an appeal before the AAIFR, but have an order of confirmation only. Even writ petition filed against the order of AAIFR before this court was dismissed. Hence, the recommendation of the BIFR has been converted into a company petition in C.P. No. 152 of 2002 under section 433(e) and (f) of the Companies Act, 1956. Under those circumstances, the impugned demand is not maintainable. Mr. S. Mohan, learned counsel for the petitioner, very strenuously contended that when the company petition is pending before this court, it is not open for the respondent to issue a notice . However, when a question is posed by this court what is the stage in which the company petition is pending, learned counsel for the petitioner is not in a position to say about the stage of the case, but abruptly stated that he did not know the
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2007 (2) TMI 589 - MADRAS HIGH COURT
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... ... ..... Division Bench judgment of the latter case, I am of the view that the writ petitions cannot be maintained, particularly, when this court has come to the conclusion that as the reliance with which the petitioner heavily made on, i.e., State of Orissa v. Titaghur Paper Mills Co. Ltd. 1985 60 STC 213 (SC) is not a comparable decision to the facts of the present case, the writ petitions are dismissed with liberty to file appeal. However, there is no order as to costs. In order to render complete justice, as the original petitions were entertained by the Special Tribunal in the year 2004 and on abolition they were transferred to this court and converted to writ petitions, two weeks time is granted from the date of receipt of copy of this order to file appeal, if the petitioner is so advised. The original orders, if any, filed by the petitioner are directed to be returned on written request and on the petitioner submitting the same with xerox copies duly certified as true copies.
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2007 (2) TMI 588 - MADRAS HIGH COURT
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... ... ..... decisions as stated above and with reference to the factual position of the case on hand, as narrated above, I am of the view that the levy of penalty in this case is uncalled for and unwarranted, as the turnover has been duly regarded and reported as a total turnover, but tax has not been paid along with the return in form A-1. One more additional factor in this case in favour of the petitioner was that the Supreme Court granted stay of collection of tax on the said turnover till it affirmed the decision of this court in P. S. Apparels v. Deputy Commercial Tax Officer reported in 1994 94 STC 139 (Mad) dated April 4, 1994 in Vikas Sales Corporation v. Commissioner of Commercial Taxes 1996 102 STC 106 (SC) on May 1, 1996. In this case, the tax relating to REP turnover was paid in December, 1994. Hence the order of the Tribunal restoring the order of the assessing officer imposing penalty is hereby set aside by allowing the writ petition. However there is no order as to costs.
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2007 (2) TMI 587 - PUNJAB AND HARYANA HIGH COURT
Petition for issuance of direction - release the payment deposited - manufacture of yarn - Rejection of refund application - Assessment order set aside - HELD THAT:- We find that the respondents have no right to retain the amount in the absence of any finding that the refund would adversely affect the recovery as per the provisions of section 12(6) of the 1948 Act. The reliance of the respondents on the order (R1), passed u/s 12(6) of the 1948 Act is wholly misplaced because the aforementioned order lacks complete application of mind and the primary requirements of section 12(6) of the 1948 Act remains unsatisfied.
A perusal of section 12(6), shows that power to withhold refund could be exercised in cases where appeal or further proceedings under the 1948 Act are pending and the Assessing Authority is of the opinion that the refund is likely to adversely affect the recovery then refund may be withheld and the case be referred to the Commissioner whose order is to be considered final. The order withholding refund is blissfully silent as to how the refund would adversely affect the recovery.
The order is absolutely laconic. There is not even a whisper of the material on the basis of which satisfaction has been recorded by the Commissioner. Accordingly the same cannot be sustained in the eyes of law nor can the same be relied upon for the purpose of defeating the claim of the petitioner. Thus, the writ petition is allowed. The order is set aside and a direction is issued to the respondents to refund the amount along with statutory interest expeditiously but not later than two weeks from the date a certified copy of this order is supplied to them.
The writ petition is disposed of in above terms.
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