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Case Laws
Showing 21 to 40 of 187 Records
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1988 (6) TMI 311 - ANDHRA PRADESH HIGH COURT
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... ... ..... ch allowed the same holding that there is no bar fora wife and husband to register separately as dealers-one as a manufacturer and the other as a trader-under the Sales Tax Act and, therefore, held that the merger of the turnovers of the wife and husband was illegal and accordingly set aside the order of the Deputy Commissioner and restored the order of the Commercial Tax Officer. Hence this revision by the State. We have gone through the order under revision and also heard the learned counsel appearing for both sides. No doubt husband and wife are members of a Hindu undivided family under the Hindu law. But the Sales Tax Act permits each of them registering separately as dealers. There is also no provision, like the one under section 64 of the Income-tax Act, 1961, to club the turnovers of wife and husband for purposes of assessment. In the circumstances, we find no merit in this revision and it is accordingly dismissed. No costs. Advocate s fee Rs. 150. Petition dismissed.
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1988 (6) TMI 310 - ANDHRA PRADESH HIGH COURT
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... ... ..... y order of this Court remanding the matter becomes superfluous and meaningless. We cannot, therefore, allow the petitioners to raise a new contention. It is true that the contention raised now also one of limitation. But the basis upon which it is raised is altogether new and as stated above, allowing it to be raised at this stage would make both the order of remand of this Court in T.R.C. No. 42 of 1982 and batch as also the judgment of the Tribunal meaningless and superfluous. So far as the question agitated before the Tribunal is concerned, we are satisfied, on a perusal of the record and the orders, that the Tribunal was right in holding, on the facts and circumstances of the case, that the six year period of limitation applies and not the four year period. It is indeed essentially a factual finding. Accordingly, the tax revision cases fail and are accordingly dismissed, but in the circumstances, without costs. Advocate s fee Rs. 1,000 (consolidated). Petition dismissed.
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1988 (6) TMI 309 - ANDHRA PRADESH HIGH COURT
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... ... ..... . Venkatarama Reddy and perused the records. We are not satisfied that any interference is called for in this matter under section 22 of the Act. Both the appellate authorities were of the opinion that a further investigation is necessary to determine whether the assessee is liable to be taxed on the transactions in question. The Tribunal correctly observed that whether the goods in question fall under entry 5 of the Third Schedule or entry 10 of the Second Schedule, they are taxable at the point of last purchase in the State, but were rightly of the opinion that all the facts have to be gone into with a view to find out as to who the last purchaser is. We are unable to say that the Tribunal have decided a question of law erroneously or have failed to decide any question of law within the meaning of section 22. No interference is, therefore, called for in this revision case. The tax revision case is accordingly dismissed. No costs. Advocate s fee Rs. 150. Petition dismissed.
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1988 (6) TMI 308 - ANDHRA PRADESH HIGH COURT
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... ... ..... component of a tractor. A person purchasing a tractor may or may not purchase a trailer. A tractor does not necessarily include a trailer. Therefore, it is not possible to hold that even before 17th January, 1978, the trailers and their parts and accessories fell within entry 50 of the First Schedule. If they did not fall within entry 50 of the First Schedule, they naturally fell under entry 2(xiv) of the Third Schedule. This is the opinion expressed by the Tribunal and we agree with it. The third goods concerned herein are animal drawn vehicle wheels, axles and trolley. Having regard to the nature of goods concerned herein which is set out in para 2 of the order of the Tribunal, we agree with the Tribunal that they fall within the ambit of entry 2(xiv) of the Third Schedule and are not taxable as general goods as contended by the department. For the above reasons, the tax revision case fails and is accordingly dismissed. No costs. Advocate s fee Rs. 150. Petition dismissed.
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1988 (6) TMI 307 - ANDHRA PRADESH HIGH COURT
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... ... ..... y to an order levying penalty as it applies to reassessment order. Indeed, this is the decision of this Court in State of Andhra Pradesh v. Sri Ganesh Bhavan Hotel 1983 53 STC 169 which, in turn, refers to, and follows the decision in M. Sayanna and Garikapati Narasimhulu v. State, a decision dated 18th August, 1969 in W.P. No. 338 of 1965 reported as an Appendix in 1974 33 STC 144 (AP) . The said decision directly dealt with sub-section (4) and held that penalty proceedings are not independent proceedings, and though the proceedings for penalty are distinct from reassessment proceedings, they cannot be treated as wholly independent assessment proceedings. It was observed that levy of penalty is ancillary to the power to levy the tax. In view of the aforesaid decisions, we agree with the Tribunal that the order of penalty is barred by sub-section (4-A) of section 14. Tax Revision Case, accordingly, fails and is dismissed. No costs. Advocate s fee Rs. 150. Petition dismissed.
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1988 (6) TMI 306 - KARNATAKA HIGH COURT
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... ... ..... evidence or material. (Emphasis applied) Therefore, the observations of this Court in W.A. No. 56 of 1978 (Commissioner of Commercial Taxes v. S.Y. Modagekar and Sons) in view of the pronouncement of the Supreme Court in Dr. Partap Singh v. Director of Enforcement, Foreign Exchange Regulation Act AIR 1985 SC 989 on the basis of Pooran Mal s case AIR 1974 SC 348 are no longer good law. Therefore, following the decision of this Court in W.A. No. 513 of 1980 (Commercial Tax Officer v. Habib and Sons) we have to direct that the respondents will have to return the documents and books seized. Of course there shall be no order for the return of extracts and notes as claimed by the appellant in W.A. No. 104 of 1988. Therefore we allow the appeals as indicated above. Consequently, writ petitions stand allowed in the manner indicated above. However, the learned Government Advocate seeks four weeks time from today for return of the documents. Time granted accordingly. Appeals allowed.
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1988 (6) TMI 305 - ANDHRA PRADESH HIGH COURT
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... ... ..... not be understood in the manner contended for by the department. This clause does not have the effect of postponing the transfer of title in the goods to the buyer till after the expiry of seven days from the date of their arrival at the destination point. All this clause says is that within 7 days of the arrival at the destination point, the buyer can inform the assessee of any defect in the goods and that after the expiry of the said period he cannot do so. We agree with the Tribunal that this clause cannot make any difference to the position obtaining under the other clauses, which provide that title to the goods passes, the moment the goods are put on rail. As stated above, the freight charges were payable by the purchaser though by way of accommodation and understanding, the assessee paid them first and recovered and recouped the same from the purchaser later. The tax revision case accordingly fails and is dismissed. No costs. Advocate s fee Rs. 150. Petition dismissed.
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1988 (6) TMI 304 - ANDHRA PRADESH HIGH COURT
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... ... ..... found to be wilful . Clause (b) deals with a case where such failure is found to be not wilful . The proviso which evidently can govern only clause (b) but not clause (a) says that where the failure is not wilful and it is also found that the failure occurred due to a bona fide mistake, no penalty shall be levied. The proviso cannot govern clause (a) because wilful failure to disclose and bona fide mistake cannot co-exist. Be that as it may, we are satisfied that unless the failure to disclose is found to be wilful, clause (a) is not attracted. In this case, the deletion of major items of additions and also the observations of the Tribunal in the course of its judgment justified its finding that there was no wilful failure on the part of the dealer to disclose a part of his turnover. Once the said finding is said to be unexceptionable, the levy of penalty was rightly removed. The T.R.C. accordingly fails and is dismissed. No costs. Advocate s fee Rs. 150. Petition dismissed.
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1988 (6) TMI 303 - KARNATAKA HIGH COURT
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... ... ..... (AP). That was a case where the assessee had submitted his return voluntarily beyond three years from the end of the year. The High Court held, that there is no legal bar to complete the assessment and it was competent for the taxing authority to excuse the delay in exercise of its discretion and make the assessment on the basis of it. (iii) Bata India Limited v. State of Haryana 1983 54 STC 226 (P and H). None of the above decisions help the petitioners case and they are not relevant. On an examination of the scheme of the Act and the Rules, the arguments of the petitioners in all these cases, have to be rejected as having no substance in them. I further hold that the new rule 26(10) as amended by the Karnataka Sales Tax (Amendment) Rules, 1986, is applicable to all pending assessments, they are more procedural in nature and do not create or divest any right of the dealer. The writ petitions are, therefore, dismissed with costs of Rs. 200, one set. Writ Petitions dismissed.
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1988 (6) TMI 302 - ANDHRA PRADESH HIGH COURT
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... ... ..... enses were not included in the bill of sale or that they were not charged by the seller or that they were directly or independently paid to third parties, as the case may be. On the factual situation, therefore, we cannot allow the petitioner s counsel to raise this new plea since there is no basis for raising the said plea on facts. On the basis the matter has been proceeded with until now, we must hold that the Tribunal was right in rejecting the petitioner s contention on the ground that the petitioner, not having maintained accounts properly showing the pre-sale and post-sale expenses, cannot sustain his objection. Indeed, there is nothing to show whether the goods were sold in gunnies or packages, nor is there any material to show that the brokerage was paid directly by the petitioner to the broker. The contentions now urged cannot therefore be entertained. The tax revision case accordingly fails and it is dismissed. No costs. Advocate s fee Rs. 150. Petition dismissed.
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1988 (6) TMI 301 - ANDHRA PRADESH HIGH COURT
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... ... ..... ased in Haryana State, were not exempt from tax. His effort is to show that only in 1980 did the petitioner come to know of the said fact when he was asked to furnish C forms by the Ballabgarh factory. We are unable to see how the said inference follows. As we have observed hereinbefore, the petitioner did not submit an explanation when a show cause notice was issued to him under section 7-A(2). He never stated all these facts before the appropriate authority. The said failure cannot be rectified, nor the lacuna filled up by producing documents at the stage of revision. The fact that the dealer furnished C forms in 1980 does not necessarily show that in 1978, when he furnished the list of purchases, he was not aware that the sales effected by him of A.C. sheets, purchased outside the State, were not exempt from tax. For the above reasons, the tax revision case fails and is, accordingly, dismissed. In the circumstances, there shall be no order as to costs. Petition dismissed.
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1988 (6) TMI 300 - HIGH COURT OF KARNATAKA
Winding up - Avoidance of transfer, etc., after commencement of, Advertisement of petition ... ... ... ... ..... t is open to this court to consider the same after notice to all the parties concerned Mr. Vijayashankar relied on the decision rendered by Justice M.P. Chandrakantaraj Urs in 1982 1 Kar LJ 414. The learned judge was concerned in that decision with sections 466 and 518 of the Act and not with the inherent powers of this court under rules 6 and 9 and, therefore, that decision does not support the stand of the official liquidator. For these reasons, this application is allowed and the order of winding up is recalled. Post the company petition for further orders. ------------------------- Benjamin Cardozo's The Nature of the Judicial Process, Yale University Press (1921). †Theoretical Basis of Inherent Powers Doctrine. Text material prepared by Jim R. Carrigan -Publication of National College of The State Judiciary, USA See page 824 supra. †See page 832 supra (1) See Duport Steels Ltd. v. Sirs 1980 ICR 161; 1980 1 All ER 529, 551 (HL). Here printed in italics.
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1988 (6) TMI 291 - CEGAT, NEW DELHI
Vincol - Synthetic Resins Glue ... ... ... ... ..... ation No. 201/79-C.E. 6. emsp We have carefully considered the pleas advanced on both sides. On a careful consideration of the authorities cited by the opposite Counsels, we observe that the authority relied upon by the learned Consultant for the respondent, namely, 1984 (17) E.L.T. 460 is a much more direct authority than that relied upon by the learned JDR. We agree with the learned Consultant for the respondent that the product under consideration in the said case of Nevichem Synthetic Industries is similar to the one under consideration in this case. Following the decision of the Tribunal in the said case of Nevichem Synthetic Industries, Bombay, we hold that the instant product lsquo Vincol rsquo would also be classified under Tariff Item 68 as it then stood. 7. emsp In view of the above findings on merit of the case we do not consider it necessary to go into the other pleas taken by the respondent. Accordingly the appeal is dismissed and the impugned order is confirmed.
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1988 (6) TMI 283 - CEGAT, NEW DELHI
Sugar - Excess production rebate ... ... ... ... ..... tly clear that in the case of Notification 146/74 if there was no production at all in any sugar year then only it was to be ignored. In other words, if there was no production during the relevant corresponding period but there was some production in the other periods of the sugar year, that sugar year could not be taken out of calculation for the purpose of arriving at the average production in the case of Notification 146/74. This position, however, does not remain valid in respect of subsequent notifications namely 133/82 and 135/83 where if there was nil production in the relevant period of a sugar year, that period itself had to be excluded for the purpose of arriving at the average production. This has been clearly brought out in the Tribunal rsquo s decision in the case of Niphad SSK. We do not have any reason to disagree with the findings of the Tribunal in that case. Respectfully following the ratio of the said decision of the Tribunal, we reject the present appeals.
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1988 (6) TMI 276 - CEGAT, NEW DELHI
Abandoned goods ... ... ... ... ..... rote to the Deputy Collector relating that they would like to surrender the goods to Customs. This shows that they abandoned the goods on 30-8-1985. Under Section 23(2) of the Customs Act, 1962, no duty is payable on the goods abandoned. In the circumstances, the appellants are entitled to the refund of duty paid on the photo albums abandoned to the Customs. 4. It is stated in the Assistant Collector rsquo s letter dated 16-5-1986 that ldquo as per Deputy Collector rsquo s order dated 2-9-1986, the case was adjudicated hellip hellip rdquo . The date 2-9-1986 seems to be erroneous as the Assistant Collector rsquo s letter is dated 16-5-1986. Shri Sogani has said that the case was adjudicated by the Deputy Collector on 2-9-1985. This date has not been controverted by the learned SDR. Even otherwise, the importer is not liable to pay duty on the goods unless the same is cleared. 5. I, therefore, set aside the impugned order and allow the appeal with consequential refund of duty.
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1988 (6) TMI 275 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... cles together and prevents relative movement between them. This is precisely the function which the mill bolts under consideration perform i.e. of firing the lining plates. 5. In view of the foregoing, therefore, there is no doubt that the goods under consideration would merit classification under Tariff Item 52. 6. As regards the plea of time-bar, we observe that it is a matter of record that the respondent company did not declare the manufacture of these mill bolts in their workshop, nor did they take out any Central Excise Licence nor did they file any classification of price list. It was during the course of visit by the Inspector of Customs and Central Excise that manufacturing and utilisation of these mill bolts in their own factory was detected by the department. In the circumstances, the larger time limit of 5 years for demand of duty would clearly be available to the department. 7. Hence, the appeal of the department is allowed while setting aside the impugned order.
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1988 (6) TMI 274 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... em for the analysis of carbon in iron and steel. The goods bear catalogued part numbers and it appears to us from the evidence placed before us that they are not mere articles of glass but are parts of glass analysers. Glass analysers fall under Heading No. 90.25 of the Schedule and their electrical counterparts fall under Heading No. 90.28(4). Parts or accessories suitable for use solely or principally with articles, instruments or apparatus falling under Heading No. 90.28 are classifiable under Heading No. 90.29(1) and liable to customs duty at the same rate as applicable to the main article of which their parts or accessories. We are of the opinion that, in the present case, having regard to the evidence placed before us, the more appropriate classification is, as claimed by the appellants, under Heading No. 90.29(1) read with Heading Nos. 90.28(4) and 90.25. 6. In the result, we set aside the impugned order and allow the appeal with consequential relief to the appellants.
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1988 (6) TMI 269 - CEGAT, BOMBAY
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... ... ..... of the case, the Addl. Collector, having rightly held that the non-registration was a technical lapse, ought not to have ordered confiscation and imposed fine in lieu of confiscation. The Addl. Collector seems to think that whenever there is a breach whether trivial or inconsequential there should be confiscation and fine. The law, however, does not require the Addl. Collector to order confiscation for a trivial and inconsequential breach. 8. emsp On consideration of all the aspects, I hold that non-registration of the contract, in the circumstances of the case, was wholly unintentional and having regard to the fact that the contract with the foreign supplier was entered into more than 15 days earlier to the date of Public Notice, even compliance with the Public Notice was difficult and I, therefore, while allowing the appeal and setting aside the order of the Addl. Collector, direct that the appellants be granted consequential relief by way of refund of fine amount, if paid.
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1988 (6) TMI 268 - CEGAT, NEW DELHI
Fabrics - Manufacture ... ... ... ... ..... peals). 2. ensp By his application dated 2-2-1988, Shri G.S. Bhangoo, Advocate for the respondents requested that the appeal might be decided on merit in their absence on the basis of facts on records. We have, therefore, heard Shri L.C. Chakraborty, learned J.D.R. for the appellant on merit of the case. Tariff Item 22(1) (b) of the Central Excise Tariff covers ldquo man-made fabrics, subjected to the process of bleaching, dyeing, printing, shrink-proofing, tentering, heat-setting, crease resistant processing or any other process or any two or more of these processes rdquo . According to this Tariff description, man-made fabrics subjected to one process of dyeing are also excisable. It is not necessary that there should be two or more processes. The respondents were engaged in the process of dyeing. Their processed fabrics were excisable under T.I. 22(1)(b). The decision of the Collector (Appeals) is erroneous. We, therefore, set aside the impugned order and allow the appeal.
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1988 (6) TMI 263 - CEGAT, NEW DELHI
Set-off of duty ... ... ... ... ..... and they are capable of being verified even now, the appellants should not be denied the benefit of credit for a procedural lapse so long as it is beyond doubt that the notification has been substantially complied with. Accordingly, we set aside the impugned order and remand the matter to the Assistant Collector for verification of duty paying documents relating to the disputed consignments of slag. If the verification reveals that the appellants had originally taken the credit correctly, the same shall be restored to them and they shall not be denied the benefit of that credit. The appeal is allowed byway of remand in these terms. 4. The cross-objection filed by the department does not seek any further relief. It is in the nature of comments on the appellant rsquo s appeal and the only prayer made in the cross-objection is to reject the appeal filed by the Appellants. Since we have already passed orders on the appeal filed by the appellants, the cross-objection is dismissed.
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