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Case Laws
Showing 121 to 140 of 676 Records
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2007 (7) TMI 599 - ALLAHABAD HIGH COURT
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... ... ..... tuation that the products manufactured by the appellant are, in commercial parlance, different and distinct goods from the cast iron. . . . . Applying the ratio laid down in the case of Bengal Iron Corporation 1993 90 STC 47 (SC) 1993 UPTC 1312, the L.T. open clamps A-type cannot be held to be iron and steel and therefore, the Tribunal erred in applying the lower rate of tax applicable to iron and steel. In the present case, the assessing officer had rightly applied the rate of unclassified items and not treating it to be iron and steel. It may also be noticed that the dealer had not raised this issue before the assessing officer, as is apparent from the perusal of the assessment order under section 21 of the Act. In view of the discussion made above, the revision succeeds and is allowed. The order of the Tribunal dated August 8, 1994 is set aside and that of the assessing officer is maintained. In the facts and circumstances of the case, there shall be no order as to costs.
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2007 (7) TMI 598 - ALLAHABAD HIGH COURT
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... ... ..... tuation that the products manufactured by the appellant are, in commercial parlance, different and distinct goods from the cast iron. . . . . Applying the ratio laid down in the case of Bengal Iron Corporation 1993 90 STC 47 (SC) 1993 UPTC 1312, the L.T. open clamps A-type cannot be held to be iron and steel and therefore, the Tribunal erred in applying the lower rate of tax applicable to iron and steel. In the present case, the assessing officer had rightly applied the rate of unclassified items and not treating it to be iron and steel. It may also be noticed that the dealer had not raised this issue before the assessing officer, as is apparent from the perusal of the assessment order under section 21 of the Act. In view of the discussion made above, the revision succeeds and is allowed. The order of the Tribunal dated August 8, 1994 is set aside and that of the assessing officer is maintained. In the facts and circumstances of the case, there shall be no order as to costs.
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2007 (7) TMI 597 - CESTAT BANGALORE
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... ... ..... vities carried out by the appellants under section 65(100)(ii), i.e, to book, advertise or canvass for cargo for or on behalf of a shipping line . The promotion or marketing of service provided by the client in category (ii) of business auxiliary services under section 65(19) of the Finance Act has to be read along with category (i) and (iii) of the definition of business auxiliary services . It cannot be broad enough to bring in a specified activity which has been delineated under steamer agent under the definition of steamer agent under section 65(100) which specifically covers in its item 2. i.e., to book, advertise or canvass for cargo for or on behalf of a shipping line . In view of this category already mentioned under steamer agent, the plea of the appellant that they are not covered under the business auxiliary services is required to be upheld. There is no merit in the impugned order and the same is set aside by allowing the appeal with consequential relief, if any.
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2007 (7) TMI 596 - GAUHATI HIGH COURT
Whether optical fibre, cable and accessories are leviable under the Assam Entry Tax Act, 2001?
Whether the word "include" appearing in the definition clause of an enactment, shall always be interpreted to have been used for expanding the definition of a given term or can the use of the word "include" be illustrative, clarificatory or exhaustive?
Held that:- None of the authorities, cited by Mr. Dubey, lays down that the word "include" or "including", occurring in a definition clause will always reflect the legislative intent to expand the meaning of the term sought to be defined. Hence, it is not necessary that always and invariably, the word "include" or "including", which appears in a statute, would be aimed at expanding the meaning of the term, sought to be defined, by using the word "include" or "including".
Where the word "include" or "including" brings within the sweep of a term such word or words, which carry very wide meaning or which do not ordinarily fall within the term, which is sought to be defined, then, the term, which is sought to be defined, must be construed as comprehending not only such things as they signify according to their nature and import, but also those things, which the interpretation clause declares that they shall include. However, when the word "include" or "including" is used in interpretation clauses, for the purpose of including within the definition of a term a particular item, which would, otherwise also, fall within such a term, such use of the word "include" or such inclusive definition of a given term would imply exhaustiveness and limitation. When this test is applied to the facts of the present case, it becomes transparent that by using the word "including" in entry 4, the Legislature intended to illustrate as to what items the expression "sound transmitting equipment" would convey.
It further logically follows that under entry 4, "sound transmitting equipment" would include only telephones, mobile phones, pagers and components and parts thereof and no other item, such as, optical fibres, cables and accessories. Situated thus, it is clear, I do hold, that no entry tax, in terms of entry 4 of the Act of 2001 can be imposed on the entry of goods, such as, optical fibres, cables and accessories. W.P. succeed
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2007 (7) TMI 595 - WEST BENGAL TAXATION TRIBUNAL
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... ... ..... nciples enunciated by the honourable apex court and the High Courts as referred above, the petitioners are entitled to ITC on their purchase of furnace oil which cannot but be said to be consumable stores occurring in section 22 of the VAT Act and rules 21 and 22 VAT Rules, 2005 and the learned State Representative was to defend the claim treating furnace oil as only a fuel and none of them drew our attention on the subsequent passing of Act 18 of 2006 expressly excluding furnace oil from ITC with retrospective effect from August 1, 2006 which indirectly proves that before August 1, 2006 ITC was available for furnace oil. Taking all these into account the application stand substantiated and the impugned orders dated November 18, 2005 passed by respondent No. 1 and order dated February 28, 2006 passed by respondent No. 2 stand set aside. The case is accordingly disposed of but in the facts and circumstances without any cost DEB KUMAR CHAKRABORTY (Technical Member). - I agree.
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2007 (7) TMI 594 - CESTAT BANGALORE
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... ... ..... nd from the records that the appellants were carrying on the activity of procuring orders from their clients for the principal. They were acting as an agent only. They were not carrying on the activity of clearing and forwarding of the goods, although there was a mention about it in the agreement with their principal as noted in para 11 of the impugned order. The plea of the appellant is that they received only commission for procuring or booking orders for their customers and did not carry out the activity of clearing and forwarding agent . This plea is required to be accepted in terms of the cited judgements (1)Oral. Of Larson and Toubro Ltd. v. CCE 2006 4 VST 72 (CESTAT-New Delhi) 2006 TIOL 814 (Delhi) and CCE, Allahabad v. Chandan Chemicals 2007 8 VST 786 (CESTAT-New Delhi) 2007 80 RLT 916 and large number of other judgments filed by the learned counsel. In view of this position, the impugned order is not legal and proper and the same is set aside by allowing the appeal.
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2007 (7) TMI 593 - ALLAHABAD HIGH COURT
Whether the Trade Tax Tribunal, Bench-I, Ghaziabad, was justified in allowing the appeal, filed by the Trade Tax Department, and remanding the matter back to the assessing authority despite the fact that it is the last court for finding of fact?
Whether the Trade Tax Tribunal, Bench-I, Ghaziabad, was justified in remanding back the matter to the assessing authority although the whole material and record were placed before it?
Whether the Trade Tax Tribunal, Bench-I, Ghaziabad, erred in law in remanding back the matter to the assessing authority on the ground of opportunity to the Trade Tax Department despite the fact that on the said ground the matter can only be remanded to the first appellate authority?
Held that:- Once the Deputy Commissioner (Appeal) had decided the matter ex parte against the dealer, it would be to the satisfaction of the Deputy Commissioner (Appeal) to record firstly as to whether any further enquiry is necessary or not. Further the Tribunal had observed with regard to the verification and further enquiry without going into the material available on record and without giving any specific instance or reference to the documents which need to be verified. The observation appears to be casual. Order of remand should not be passed in a casual or cursory manner.
Thus the order of the Tribunal dated March 15, 2007 and the Deputy Commissioner (Appeal) dated July 4, 2001 are set aside. The Deputy Commissioner (Appeal) is directed to decide the matter afresh after affording opportunity to the department and the dealer. Further it would be open to the Deputy Commissioner (Appeal) to examine as to whether any further enquiry or verification of record is necessary or not. If it is found that such verification or any further enquiry is necessary, it would be open to it to either remand the matter to the assessing officer or to call for any further report of the assessing officer on any particular issue.
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2007 (7) TMI 592 - PUNJAB AND HARYANA HIGH COURT
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... ... ..... n application of the petitioner vide order dated December 22, 2003 (P-9). We are further of the view that the respondent-State has misused the process of law by moving rectification application only before the successor presiding officer rather than doing the same before the same officer for the reason best known to it. It is well established that bench hunting is completely prohibited and no one can choose the judge for decision of his case. Therefore, we do not appreciate the conduct of the respondent-department in resorting to filing of rectification application in such manner. For the reasons aforementioned, the writ petition succeeds. The order dated February 25, 2003 (P-8) allowing the rectification application of the respondent-State as well as the order dated December 22, 2003 (P-9) dismissing the rectification application of the petitioner are hereby set aside. We restore the order dated August 30, 2000 (P-7). The writ petition stands disposed of in the above terms.
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2007 (7) TMI 591 - ANDHRA PRADESH HIGH COURT
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... ... ..... 2005 is violative and ultra vires of section 3(1)(c) of the Act, we are clear in our mind that this notification has to be construed as illegal as far as HDPE/PP woven fabrics and sacks are concerned. Consequently, the order of assessment dated December 26, 2005, passed by the second respondent on the basis of G.O. Ms. No. 955, dated May 11, 2005 is liable to be quashed. The writ petition is partly allowed and the assessment order dated December 26, 2005 passed by the second respondent is hereby quashed. No costs. The learned counsel for the petitioner, at this stage, submitted that the writ petition could not be disposed of as he intends to amend the writ petition to challenge the A.P. Tax on Entry of Goods into Local Areas Act, 2001 itself, as some other writ petitions are pending. That would be a separate cause of action and the petitioner is at liberty to challenge the Act, if he is so advised, in a separate writ petition. That rule Nisi has been made absolute as above.
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2007 (7) TMI 590 - WEST BENGAL TAXATION TRIBUNAL
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... ... ..... nto consideration that other accompanying documents sufficiently cover those defects and disclose the real state of things. In the present case all the authorities from the Sales Tax Officer up to the Deputy Commissioner have failed to consider the cumulative effect of the documents produced and to scrutinise those carefully with proper application of mind. We have no semblance of doubt regarding the bona fide of the petitioner and that he never intended to evade payment of tax as payable in law. For the reasons aforesaid we set aside the impugned seizure, impugned order of penalty dated January 3, 2007 passed by the Sales Tax Officer, the first revisional order dated March 9, 2007 passed by the Assistant Commissioner, Commercial Taxes, Siliguri Range and the second revisional order dated May 2, 2007 passed by the Deputy Commissioner, Commercial Taxes, Siliguri Range and direct release of the goods, if not already released, immediately. PRADIPTA RAY J. (Chairman). - I agree.
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2007 (7) TMI 589 - RAJASTHAN HIGH COURT
Penalty under section 65 of the Rajasthan Sales Tax Act, 1994 - Held that:- Revision petitions are allowed and the impugned order of the Tax Board dated October 26, 2005 and those passed by the assessing authority in so far as they imposed the penalty under section 65 of the Act upon the petitioner-assessee are set aside and the order of the Deputy Commissioner (Appeals) in favour of the assessee is restored and it is held that no penalty under section 65 of the Act could be imposed upon the petitioner-assessee in the circumstances of case as penalty under section 65 of the Act cannot be imposed on the assessee unless the Revenue establishes that there is deliberateness on the part of the assessee or conscious concealment of taxable turnover with the purpose to avoid or evade the tax and such penalty cannot be imposed merely because the contention of the assessee that particular sale is not taxable is rejected or explanation furnished by him is not found to be acceptable by the Revenue.
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2007 (7) TMI 588 - JHARKHAND HIGH COURT
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... ... ..... of the aforesaid amount from its consumers on the sale of finished products nor has it passed on the burden of the said amount in any manner whatsoever upon anybody whomsoever. A very cryptic and vague counter-affidavit has been filed wherein this specific statement made in para 19 of the writ petition has not been controverted. In that view of the matter and also having regard to the interim orders passed on July 9, 2003 and August 4, 2003 passed in W.P.T. No. 2937 of 2003 coupled with the statement made in para 19 of the writ petition having not been controverted, we have no option but to allow this writ application and direct the respondents to refund the aforesaid amount together with interest. This writ petition is, therefore, allowed and the respondents are directed to forthwith return the amount collected by them from the petitioner together with interest at six per cent per annum. The said amount together with interest shall be refunded within four weeks from today.
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2007 (7) TMI 587 - ANDHRA PRADESH HIGH COURT
Whether the fabricated structures made from iron and steel, which had suffered tax, were to be assessed under section 5F of the Andhra Pradesh General Sales Tax Act, 1957 or they have to be excluded from application of section 5F under the first proviso?
Held that:- Even if it is accepted that the fabricated structures were different products, than iron and steel, even then they were covered by proviso to section 5F in view of the law laid down in the case of Media Communications [1996 (12) TMI 365 - ANDHRA PRADESH HIGH COURT]. That judgment has become final, and therefore, the same is binding on the Deputy Commissioner as well as the Tribunal. To that extent, the judgment of the Tribunal and the order of the Deputy Commissioner is set aside.
Since the earlier authorities and the Tribunal treated the goods to be different than iron and steel, they might not have gone into the question whether the goods were taxed at four per cent or eight per cent. Besides coming to the correct conclusion on this question, some factual aspects of the matter might have also to be considered. Therefore, on this question as to whether the goods had to be taxed at four per cent or eight per cent and whether the goods in reality have been taxed at four per cent or eight per cent, we remit the case back to the Tribunal, who may decide the matter, after hearing the parties.The tax revision case is accordingly allowed in part
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2007 (7) TMI 585 - HIMACHAL PRADESH HIGH COURT
Whether maize is a coarse grain and is exempt from payment of value added tax under item No. 13 of Schedule "B" of the H.P. Value Added Tax Act, 2005 or is liable for payment of tax at four per cent under Part II of Schedule "A" of the said Act?
Held that:- Maize which is admittedly a coarse grain is exempt from tax under item No. 13 of Schedule "B" of the H.P. VAT Act, 2005. The writ petitions are allowed in the aforesaid terms.
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2007 (7) TMI 584 - MADRAS HIGH COURT
Whether statutory powers of Commissioner to file appeal against an order in appeal before the Appellate Tribunal under section 86(2A) of the Finance Act, 1994 can be denied for the reason that Commissioner had once accepted the order in appeal?
Whether acceptance of order-in-appeal by the Commissioner becomes final and binding on the department and whether the Commissioner can re-examine the order and file appeal under section 86(2A) of the Finance Act, 1994 before the CESTAT?
Held that:- Here in this case, it has been found that the Commissioner has accepted the order of Commissioner of Appeals on June 10, 2005.
Thereupon, the matter has not been precipitated further. That shows a quietus has been given to the issue by accepting the order of the Commissioner of Central Excise (Appeals). Thereupon, as found from the reasons stated by the appellant herein in their application for condoning the delay, the matter has been once again reconsidered as per the letter of the Chief Commissioner dated April 17, 2006 on the sole ground that the connected issue is pending before the Supreme Court and in the High Court of Bombay. The time-limit fixed for filing an appeal is in order to give a finality to the proceedings. If an appeal has not been filed within the time-limit stipulated in the appeal provision, a legal right accrues to the other side on the ground that because of non-filing of the appeal, the order passed in favour of other side would have been accepted by the department and reached its finality. Such accrued legal right cannot be simply brushed aside by filing an application after one year to condone the delay on the ground that similar issue is stated to be pending before the Supreme Court. It is also well-settled and established legal principle of law that in fiscal statute, every assessment year or every clearance is a unit by itself and a separate cause of action. For each cause of action, the parties can seek remedy notwithstanding the decisions rendered on an identical set of facts in the earlier years. Hence, we are of the view that an ultimate decision rendered by the CESTAT cannot be complained of by the appellant, though certain argument has been made about the observation contained in the body of the order as unwarranted. We hereby make it clear that the observation made in the body of the order of the CESTAT need not be taken as a finding rendered on the basis of an adjudicated order. Appeal dismissed.
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2007 (7) TMI 583 - PUNJAB AND HARYANA HIGH COURT
Whether penalty under section 51(7) of the Punjab Value Added Tax Act, 2005 was rightly imposed on facts and in the circumstances of the case?
Held that:- No interference of this court would be warranted as no question of law much less a substantial question of law would arise within the meaning of section 68(3) and (4) of the Act. A perusal of the order passed by the Tribunal shows that opportunity of hearing was granted to the appellant and one Shri Inder Dev Verma belonging to appellant had appeared. The penalty under section 51(7) of the Act has been imposed after due procedure. Against assessee.
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2007 (7) TMI 582 - PUNJAB AND HARYANA HIGH COURT
Imposing tax and inflicting penalty - Held that:- No substantive question of law would arise for our determination for the reason that all the questions are pure questions of fact. It has been categorically found by the first appellate authority as well as by the Tribunal that a novel devise was invented by the appellant to avail tax benefits as he went to data entry operators window at ICC, Madhopur along with three bill Nos. 158 to 160 and tried to get ST XXXVI form generated.
There is ample evidence on record to show that the appellant made an unsuccessful attempt at ICC, Madhopur to generate ST XXXVI form when he wen to data entry operators window along with bill Nos. 158 to 160 in respect of which claim has been made for granting concession in tax at two per cent. The appellant was not able to show to the authorities at ICC, Madhopur that those three bills were in respect of trucks loaded with goods. There is ample evidence on record to show that no goods vehicles could be connected to the bill Nos. 158 to 160 in respect of which claim for concession of tax has been made. The findings are based on evidence. We cannot while adjudicating a question of law examine the adequacy of evidence and by re-appreciating evidence reach a conclusion different than the one recorded by the Tribunal. Similar would be the position with regard to other two questions. Therefore, we find that the appeal is wholly misconceived and does not warrant admission. Appeal dismissed.
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2007 (7) TMI 581 - PUNJAB AND HARYANA HIGH COURT
Right to payment of interest on refund - Held that:- In the present case, once the Tribunal has directed payment of refund, vide order dated April 25, 2006, the only requirement on the part of the assessee-petitioner was to move an appropriate application before the Assessing Authority for the refund of the amount. Two applications were filed by the assessee-petitioner on May 15, 2006 (P2 and P3). The period of 90 days as provided by rule 35(1)(b) of the Rules came to an end on August 15, 2006. However, it is conceded position that the payment has been made in respect of the assessment year 2000-01, amounting to ₹ 46,58,324 on June 29, 2007 and in respect of the assessment year 2001-02, amounting to ₹ 49,08,600 on May 30, 2007. Therefore, there is apparent delay in making the payment of refund and the assessee-petitioner is entitled to interest at the rate of 12 per cent per annum for the first month of delay and at the rate of 18 per cent per annum for the following months.
Writ petition is allowed. The Excise and Taxation Officer-cum-Assessing Authority, Sonepat-respondent No. 2 is directed to pay interest to the assessee-petitioner for the delayed payment of refund. The interest shall be calculated at the rate of 12 per cent per annum in respect of delay for the first month of delay and at the rate of 18 per cent per annum in respect of delay caused for the subsequent months.
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2007 (7) TMI 580 - MADRAS HIGH COURT
Validity of the provisions contained in the Tamil Nadu Entertainments Tax (Third Amendment) Act (15 of 2003) challenged - Held that:- The burden of taxation is ultimately passed on to the moviegoers and the producers or distributors or exhibitors are merely collecting agents. From the point of view of a moviegoer, it makes no difference to him, whether a film good, bad or indifferent, is made originally in Tamil or such a film made in any other language is subsequently dubbed in Tamil. It is very difficult to fathom as to why a moviegoer, who is very interested in watching a film should be subjected to pay higher rate of entertainment tax merely because the film which he wants to view was originally produced in some other language and was subsequently dubbed in Tamil. From the view point of such a person, obviously the provisions of the (Third Amendment) Act are discriminatory.
Thus unable to uphold the validity of the provisions contained in the amending Act 15 of 2003. Accordingly, all the writ petitions are allowed
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2007 (7) TMI 579 - CESTAT NEW DELHI
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... ... ..... hapter VI. If a narrow view is taken, the assessee may be left without any remedy to bring the appeal before the CSTAA merely because the assessment order passed by the primary authority was tested in revision. It would be reasonable and proper to adopt the view that the aggrieved dealer 39 s right of appeal under the pre-amended section 20(1) of the CST Act was available against the original assessment order passed by primary authority as well as the order passed in revision by the Commissioner under section 62(1) of the MPCT Act. We, therefore, hold that the original appeal filed under the preamended provisions was maintainable but it stood transferred to the Madhya Pradesh Tribunal in view of the amended section 25(2) of the CST Act. This authority accordingly transmitted the appeal papers vide its order dated March 2, 2006. We find no valid ground to disturb that order. In the result, the application is dismissed but subject to the observations made in paragraph 9 supra.
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