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2008 (2) TMI 856
The Supreme Court dismissed the appeals as the point in issue was covered by a previous decision in the case of Commissioner of Central Excise & Customs v. Suresh Synthetics. No costs were awarded. (Citation: 2008 (2) TMI 856 - SC)
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2008 (2) TMI 855
Whether the insurance company need not file a separate execution petition against the owner?
Whether deceased being a passenger in the said tractor, was not a third party within the meaning of the provisions of Section 147 of the Motor Vehicles Act?
Whether Ajay Kumar, being the son of one of the owners of the tractor and having no licence to drive the same, the case comes within the purview of the exeption as regards the liability of the insurer as envisaged under sub-section (2) of Section 149 of the Motor Vehicles Act?
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2008 (2) TMI 854
Whether the petitioner, being a third party aggrieved by the order of discharge passed by the Chief Judicial Magistrate in a sensational case under the Prevention of Corruption Act can seek for certified copies of the material records therein?
Held that:- The Rules of High Court Madras Appellate Side, 1965 does not apply to a case where a third party seeks certified copies of the records of the Trial Court which have not come to the High Court in connection with any case pending before this Court.
The Right to Information Act, 2005 created a dent in the so called “privacy” being so far maintained by the authorities concerned. The Courts also will have to be alive to the intendment of the Right to Information Act, 2005 to share vital information to the parties concerned. Any narrower interpretation of the law and imposition of any restriction on the right of the third party to know what is actually going on at the portals of the criminal justice system will not advance the interest of justice. For all these reasons, the Court finds that the documents sought for by the petitioners in C.C. No. 14 of 2004 will have to be granted to him.
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2008 (2) TMI 853
Issues:
The issues involved in this case are the declaration of boundaries indicated in the plans produced, the maintainability of civil suits filed by the petitioners, the authenticity of the joint survey plan, and the preservation of timber during the pending appeals.
Declaration of Boundaries:
The petitioners sought a declaration that the boundaries indicated in the plans produced should be accepted as demarcating the property with the adjacent reserve forest. The forest department contested this, claiming the boundaries were incorrect and that the property was part of a reserve forest.
Maintainability of Civil Suits:
The Munsiff's Court dismissed the suits filed by the petitioners for a declaration of their northern boundary, holding them not maintainable as part of a reserve forest. Appeals against this decision are pending before the District Court.
Authenticity of Joint Survey Plan:
The petitioners argued that a joint survey was conducted, and a plan was prepared to settle the boundary dispute. The respondents disputed the authenticity of the plan, stating it was not finalized and did not bind them to the indicated boundaries.
Preservation of Timber:
The petitioners requested an interlocutory order to preserve timber until the civil court decides the boundary issue. The High Court directed that proceedings in pursuance of the tender for working down timber be deferred for two weeks to allow the petitioners to seek orders from the civil court. The interim order was limited to the disputed 8 acres.
In conclusion, the High Court disposed of the writ petitions, emphasizing that the civil court should adjudicate the factual disputes and pass any necessary interlocutory orders. The District Court was directed to consider any applications for interim orders independently.
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2008 (2) TMI 852
Appointment of sole Arbitrator for adjudication of the disputes seeked for adjudication of the disputes arising out of or in connection with the Trust Deed - Held that:- A person may while making a Will and appointing somebody as Executor of the Will, provide for an arbitration clause that any dispute between the beneficiaries of the Will, will be decided by the Arbitrator. Such a clause would not be binding on the beneficiaries, because they were not party to the Arbitration Agreement although they may be getting benefits out of the Will. A person can dispose of his property by Will but a person cannot create a contract between two other persons by his Will. Similarly, Settlor and Trustees can create a Trust and specify who will be the beneficiaries under the Trust but they cannot create a binding contract between the beneficiaries in respect of settlement of dispute and cannot say that all disputes between the beneficiaries shall be decided by arbitration. The arbitration clause relied upon by the applicant is therefore not binding on the beneficiaries and this application is not maintainable and is hereby dismissed as such.
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2008 (2) TMI 851
Waiver of pre-deposit - Technical testing and analysis services - applicant is engaged in the activity of clinical research/testing and analysis for various pharmaceutical companies - Held that: - We find that the definition of the services for "technical testing and analysis" as existed prior to May 1, 2006, prima facie covers the services undertaken by them and the Explanation is only clarificatory in nature and therefore, the case of the applicant is an arguable one. We, therefore, hold that they have not made a strong case for total waiver of deposit as ordered by the Commissioner - the appellant is directed to deposit a sum of ₹ 32 lakhs within eight weeks from today and to report compliance - application partly allowed.
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2008 (2) TMI 850
Whether Section 47A of the Indian Stamp Act as amended by A.P. Act 8 of 1998 which requires a party to deposit 50% deficit stamp duty as a condition precedent for a reference to the Collector under Section 47A is unconstitutional?
Held that:- Constitutional validity of the amended Section 47A of the Stamp Act is upheld - The impugned amendment is an economic measure, whose aim is to plug the loopholes and secure speedy realization of stamp duty, thus the said amendment, being an economic measure, cannot be said to be unconstitutional. Appeal allowed.
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2008 (2) TMI 849
Whether the movement of the vehicle was an incident of sale/purchase or not? - Held that:- Here, in the case on hand as find that the movement of the vehicle was certainly an incident of the sale/purchase and only thereafter it was taken out of the State of Karnataka. Thus, the two conditions which have been made mandatory by the Supreme Court to constitute inter-State sale, having been fulfilled, it would constitute an inter-State sale. It does not lie in the mouth of the petitioner, that even if ultimately the vehicle is taken out of the State of Karnataka, the same would not fall in the category of inter-State sale.
In view of the aforesaid crystal-clear finding recorded by the Tribunal, there was no case made out for interference, much less, in this revision petition. Revision petition is dismissed in limine.
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2008 (2) TMI 848
Issues:
Interpretation of tax rates for sale of marble stones vs. marble tiles under U.P. Trade Tax Act, 1948.
Analysis:
The judgment pertains to revisions filed by a dealer under section 11 of the U.P. Trade Tax Act, 1948 against a common judgment of the Sales Tax Tribunal. The dispute revolves around the classification of the dealer's product as either "marble stones" or "marble tiles" for tax purposes. The Tribunal, after inspecting the product, determined that it was "marble tiles" based on uniform shape, size, and usage without further treatment. The key question raised in the revisions is whether the Tribunal was justified in applying a tax rate of 12% for "marble tiles" instead of 6% for "marble stones."
The judgment cites a previous decision by the court in a similar case, where it was held that "marble tiles" fall under a specific tax entry and are taxable at 12%, not at 6% as contended by the dealer. The court found no reason to disagree with the legal precedent established in the earlier case. Consequently, the revisions were dismissed as they did not raise any new legal questions and were in line with the existing legal interpretation.
In conclusion, the High Court upheld the Tribunal's decision to classify the dealer's product as "marble tiles" and apply a tax rate of 12%. The judgment reinforces the legal position established in a prior case regarding the tax treatment of similar products. The revisions were dismissed based on the existing legal framework, highlighting the importance of consistent interpretation and application of tax laws in such matters.
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2008 (2) TMI 847
Demand raised under the U.P. Trade Tax Act, 1948 and Central Sales Tax Act - Held that:- No evidence having been led by the dealer to explain the difference in stock, the view taken by the authorities below in rejecting the accounts book while determining the liability under the U.P. Trade Tax Act cannot be said to be unjustified. In any case all the three authorities have considered the material on record and have affirmed the rejection of accounts book. Further some relief have been granted by the appellate authority and further more by the Tribunal which is their estimation. This court in revisional jurisdiction is not inclined to make any other estimation. The finding, thus, with regard to rejection of accounts book and estimation of turnover being pure finding of fact does not call for interference in revisional jurisdiction.
The authorities below have not recorded any finding with regard to the ingenuity of the form F. From the perusal of section 6A of the Act, if the burden had been discharged it would be deemed to be stock transfer. Since all the transactions of stock transfer were covered by form F submitted by the dealer and issued by the principal officer of other place after obtaining them from prescribed authority which in this case was the State of Delhi, the claim of the dealer that stock transfer would not have been rejected appears to be correct. Thus, the orders passed by the authorities below with regard to the liability under the Central Sales Tax Act cannot be sustained and are accordingly, set side.
Revision relating to the assessment under the Central Sales Tax Act is allowed whereas the revision relating to assessment under the U.P. Trade Tax Act is dismissed.
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2008 (2) TMI 846
Issues involved:
Assessment correctness challenged, lack of opportunity for personal hearing, violation of principles of natural justice.
Analysis:
The petitioner, a public limited company, challenged reassessment orders dated June 29, 2006, and demand notices issued by the first and second respondents under section 39(1) of the Act for the period April 2005 to November 2005. The petitioner contended that despite filing detailed objections and requesting a personal hearing, the first respondent did not provide a reasonable opportunity for the same. The petitioner argued that proper inquiry was not conducted in compliance with the relevant provisions of the Karnataka Value Added Tax Act, 2003. The petitioner sought relief from the court, asserting that if given an opportunity, they could have substantiated their case based on a judgment of the Division Bench of the court.
Upon hearing both parties, the court observed that the first respondent passed the reassessment orders without giving the petitioner sufficient opportunity to present their case. The court noted that the petitioner had explicitly requested a personal hearing to substantiate their case in the objections filed on March 17, 2006. The court found that the first respondent did not consider the petitioner's request for a personal hearing and failed to conduct a proper inquiry in strict compliance with the Act and Rules. The court agreed with the petitioner's argument that if given an opportunity, they could have relied on the judgment of the Division Bench of the court and substantiated their case regarding tax liability. Due to the violation of principles of natural justice and non-compliance with mandatory provisions, the court held that the impugned orders of reassessment and demand notices could not be sustained.
Consequently, the court allowed the writ petition in part, setting aside the reassessment orders and demand notices. The matter was remitted back to the first respondent for reconsideration with a direction to afford a reasonable opportunity to the petitioner. The first respondent was instructed to make a decision in light of the judgment passed by the Division Bench of the court and in strict compliance with the Act and Rules within three months from the date of the court's order. The Additional Government Advocate was given three weeks to file a memo of appearance for the respondents.
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2008 (2) TMI 845
Issues involved: Appeal filed beyond prescribed time u/s Tamil Nadu General Sales Tax Act, violation of natural justice in assessment order.
Appeal filed beyond prescribed time: The petitioner's appeal against the assessment order was dismissed as not maintainable since it was filed beyond the time prescribed under the Tamil Nadu General Sales Tax Act, 1959 and beyond the power of the appellate authority to condone the delay. The petitioner sought relief under article 226 of the Constitution of India, citing instances where the High Court had interfered with orders even when an alternate remedy was not availed. The Division Bench had dismissed a similar writ petition on the ground of delay, but in other cases, the court had interfered with the original order of assessment itself. The petitioner's appeal was dismissed due to delay, but the High Court set aside the impugned order, directing the assessing authority to proceed and finalize the assessment after giving a reasonable opportunity to the petitioner.
Violation of natural justice in assessment order: The petitioner contended that the assessment order violated the basic principles of natural justice as no notice was served on the petitioner, depriving them of a reasonable opportunity to be heard. In light of this, the High Court set aside the impugned order and directed the assessing authority to proceed with the assessment after providing a proper opportunity to the petitioner. The court emphasized the importance of adhering to natural justice principles in such proceedings.
Conclusion: The High Court allowed the writ petition, setting aside the assessment order due to the violation of natural justice and lack of opportunity for the petitioner. The assessing authority was directed to finalize the assessment in accordance with the law after providing the petitioner with a fair opportunity. The court disposed of the writ petition with no costs, closing the connected miscellaneous petitions.
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2008 (2) TMI 844
Whether, on the facts and in the circumstances of the case, the Tribunal is legally justified in holding that the purchases of ₹ 6,09,927.15 was made by the applicant on its own account and the movement of goods through outside the State of U.P. was in the course of inter-State sales?
Whether the view of the Tribunals despatching the purchases of foodgrains for ₹ 6,09,927.15 on behalf of the ex-U.P. principals is based on relevant material and is legally justified?
Held that:- The fact that the dealer had maintained register separately and had recorded the expenses in the purchases made on commission basis clearly showed the intention of the dealer that they had been made for other principals. In the stock register and in the other register, the dealer had entered the name of the parties for whom purchases had been made. Forms VIR and the IXR would have been relevant to determine as to whether at the time of purchases they were made either by the dealer for his own account or for other principals but this has not been examined either by the assessing officer or by the Tribunal. Thus find that the Tribunal has also not examined the record in true perspective and has simply disbelieved the version of the dealer without any proper justification.
As the matter is almost 20 years old, it would be in the interest of neither the dealer nor State to remand the matter back for reconsideration and pass fresh order based upon the relevant material on record. It is quite possible even the material may not be available with the authorities and thus it would be difficult to make necessary verification. Thus, the best finding which is recorded by the appellate authority is being accepted. The revision is accordingly allowed. The impugned order passed by the Tribunal is set aside and that of the appellate authority is maintained. Consequential order as may be necessary may be passed by the Tribunal in accordance with law
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2008 (2) TMI 843
Penalty levied under section 45A of the Kerala General Sales Tax Act, 1963 for evasion of tax by the petitioners for the assessment years 1993-94 to 1996-97 - Held that:- Total turnover of business of all the petitioners carried on in the name of the society could be clubbed to determine whether there is tax liability and based on this, penalty also could be levied under section 45A of the KGST Act. Separate amounts are dealt with in the penalty order only for the purpose of recovery of penalty from each of the petitioners in proportion to business carried on by them in the name of the society. In this view of the matter, it is held that penalty under section 45A read with section 19C of the KGST Act was rightly levied on all the petitioners for each of the years irrespective of whether the turnover arrived at in the case of individuals for any year is less than the non-taxable limit. The original petitions are, therefore, devoid of any merit and are dismissed.
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2008 (2) TMI 842
Issues Involved:
1. Disallowance of Stock Transfer Claims
2. Determination of Inter-State Sales
3. Acceptance of F Forms
4. Penalty Imposition
Detailed Analysis:
1. Disallowance of Stock Transfer Claims:
The appellant, a manufacturer of ready-made garments, claimed exemptions on stock transfers to its head office in Kolkata and branch office in Bangalore. However, the assessing officer disallowed a significant portion of these claims, determining that the transfers were actually inter-State sales to specific customers in other states. This conclusion was based on documents seized during an inspection, which indicated that goods were dispatched on a door delivery basis and specific instructions were given for delivery to named dealers.
2. Determination of Inter-State Sales:
The primary legal issue was whether the stock transfers were genuine or if they were inter-State sales. According to Section 3(a) of the CST Act, a sale is considered inter-State if it occasions the movement of goods from one state to another. The Tribunal found an "inextricable link between each transfer and supply which was earmarked for a specified buyer," thereby confirming the assessing officer's conclusion. The Tribunal's decision was based on seized correspondence that showed goods were earmarked for specific customers and moved to fulfill prior orders, thus classifying them as inter-State sales.
3. Acceptance of F Forms:
The appellant filed F forms under Section 6A of the CST Act to prove stock transfers. However, the assessing authority did not accept these forms, concluding that the transfers were inter-State sales. The appellant argued that their head office and branch office paid sales tax in West Bengal and Karnataka, respectively, on the same goods, treating them as local or inter-State sales in those states. The Tribunal upheld the assessing officer's decision, noting that the F forms were not accepted due to the finding that the transfers were inter-State sales.
4. Penalty Imposition:
A penalty of Rs. 61,80,914 was levied under Section 9(2) of the CST Act read with Section 12(3)(b) of the TNGST Act. The Tribunal restored the penalty, following the judgment of the Madras High Court in a similar case. However, the appellate authority later set aside the penalty, finding that the assessing officer did not apply his mind to the relevant aspects and merely relied on the enforcement wing's letter. The Tribunal's approach to penalty imposition was deemed erroneous, and the penalty was ultimately set aside.
Conclusion:
The appeal was partly allowed, providing substantial relief to the appellant concerning the quantum of turnover attributable to inter-State sales. The Tribunal's finding that there was an inextricable link between the movement of goods and prior orders was upheld. However, the stock transfers for the months of October to December 1995 were excluded from taxable turnover due to a lack of incriminating material. The penalty imposed was also set aside, as it was not in accordance with the provisions of the TNGST Act. The appellant was directed to file an application for the refund of sales tax collected by the states of West Bengal and Karnataka on the same goods.
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2008 (2) TMI 841
Whether, in the facts and circumstances of the case, an order of penalty under section 51 of the Punjab Value Added Tax Act, 2005 could be passed when it is an admitted position that no tax was leviable on import of rice from outside the State?
Whether, in the facts and circumstances of the case, when documents, on scrutiny, have been found proper and genuine, an order of penalty under section 51 of the Punjab Value Added Tax Act, 2005, could be passed?
Whether any order of penalty can be passed on the presumption that there was an attempt to evade tax?
Held that:- In view of the stated facts and the finding of fact given by the Tribunal that the assessee-appellant has attempted to evade the tax by manipulating and by pre-planning a scheme or device to evade the tax and thereafter setting in motion the said scheme (feeding of information at ICC, Banur after the vehicles were detained at ICC, Balongi) and thus, attempted to evade the tax under the Act.
In view of the above, no substantial question of law arises for the determination by this court in the present appeal and thus, the same is dismissed.
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2008 (2) TMI 840
Penalty under section 10A of the Central Sales Tax Act, 1956 imposed - Held that:- Without calling upon the dealer-petitioner to explain its stand on the question of commission of offence under clause (d) of section 10 of the CST Act, imposition of penalty under section 10A, holding the dealer-petitioner guilty of an offence under clause (d) of section 10 is not sustainable.
This court finds that the STO and the revisional authority in their order have laboured hard to establish that the petitioner was guilty of an offence under clause (d) of section 10 of the CST Act. Since the show cause notice itself suffers from the basic infirmity as pointed out above, the orders of the STO and revisional authority cannot cure the same. If the Revenue authorities are so advised, they may initiate fresh proceeding by issuing proper show cause notice indicating the allegation of offence under clause (d) of section 10 of the CST Act to the petitioner, if any, in accordance with law. It is made clear that if such a proceeding shall be initiated, the Revenue authorities shall afford reasonable opportunity of being heard to the petitioner as contemplated in section 10A of the CST Act. W.P. allowed.
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2008 (2) TMI 839
Whether in the facts and in the circumstances of the case, the learned Tribunal is justified to treat the sale of Silair air-bubble film as sale of 'packing material' and therefore taxable at the first stage of sale under section 5(1A) of the Punjab General Sales Tax Act, 1948?
Whether in the facts and in the circumstances of the case, the learned Tribunal is justified to uphold the imposition of penalty under section 10(6) and levy of interest under section 11D of the PGST Act, 1948, when there was no default under section 10(4) of the Act ibid?
Whether the imposition of penalty as upheld by the Tribunal can be justified when there was no mens rea on the part of the appellantdealer?
Held that:- A perusal of the order of the Tribunal would show that the Tribunal has given a finding of fact to the effect that the assessee was dealing in Silair air-bubble film which is a packing material. For arriving at this conclusion, the Tribunal has relied upon the fact that the said item has been classified under chapter 39.23 as packing material under the Central Excise Tariff Act, 1985 and even the said classification under the Central Excise Tariff Act, 1985 has been upheld by the Tribunal in the case of Collector of Central Excise, Bombay v. Tender Care International [1998 (9) TMI 163 - CEGAT, NEW DELHI] and the said classification has never been challenged by the appellant.
Thus, it is evidently clear that the material sold by the dealer was treated as packing material from the very beginning beyond the reasonable doubt and at no stage he has challenged the said classification which he himself had chosen to indicate in his trading account. We find no ground to interfere in the said finding of fact given by the Tribunal. Appeal dismissed.
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2008 (2) TMI 838
Cancellation of its eligibility and exemption certificate under the Rules of 1991 - Held that:- It is very much clear that at the time of filing of C.W.P. No. 18390 of 2005 it was to the knowledge of the petitioner that the eligibility certificate granted by the Industries Department has been cancelled and in spite of this fact to his knowledge the petitioner has failed to challenge the said order and therefore, the present writ petition filed by the petitioner on the same cause of action is not maintainable.
In view of the above stated facts, we find no merit in the writ petition and do not feel inclined to interfere in the orders annexures P19 and P20 passed by the authorities.
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2008 (2) TMI 837
Whether the learned Tribunal having regard to the definition of "sale" in section 2(30) of the 1994 Act read with clause (29A) of article 366 sub-clauses (e) and (f) of the Constitution of India had decided correctly that the members' club like the first respondent herein comes within the purview of the aforesaid definition in view of the mutuality and reciprocity amongst the members in the club?
Held that:- Upon careful reading of the Constitutional amendment as well as the provision of the definition of "sale" under the 1994 Act it is clear that supply of food, drinks and beverage has to be made upon payment of consideration either in cash or otherwise to make the same exigible to tax. To clarify it one must supply the beverage in consideration of paying the value thereof by the members. In clause (f) it is made clear that if such supply of aforesaid things is effected either on immediate payment of cash or deferred payment or valuable consideration (emphasis(1) supplied) which may be of various nature only then the tax can be levied.
Mr. Bajoria has rightly contended that going by the language in the definition of "sale" in the Act as well as the amended provision of the Constitution the concept of mutuality is not obliterated. In the clauses (e) and (f) had there been specific mention of supply irrespective of payment, the provision of the said Act would have been applicable and the mutuality concept could be said to have been obliterated. Application dismissed.
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