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2005 (11) TMI 458
... ... ... ... ..... etrospectively. The power is given to the Government as a subordinate legislative authority to notify the exemption. The notification also does not state that the exemption is retrospective in operation. Therefore, the notification and exemption can only be prospective in operation and cannot be given retrospective effect. We think this appears to be the correct position in law and therefore, we are in full agreement with the observations made by the learned single Judge of the Kerala High Court on this aspect of the matter. In view of the above discussions, we are of the opinion that the Tribunal is justified in rejecting the appeal filed by the assessee for the assessment year 2000-2001 by its order dated February 28, 2005. Therefore, while confirming the findings and the conclusion reached by the Tribunal, we reject the present revision petition filed by the petitioner-company. In the facts and circumstances of the case, there is no order as to costs. Ordered accordingly.
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2005 (11) TMI 457
... ... ... ... ..... he decision of the apex court in E.I.D. Parry (I) Ltd. v. Assistant Commissioner of Commercial Taxes 2000 117 STC 457 2000 2 SCC 321 wherein the court interfered with the facts and imposition of penalty on the ground that the assessee had not acted in defiance of law or that the assessee was dishonest or that it had failed to adhere to discharge their obligation under the Sales Tax Act. Considering the totality of circumstances and examining the legal principles, we are in agreement with the learned single Judge that imposition of penalty cannot be sustained in the facts and circumstances of these cases. We therefore hold that the assessee is not entitled to get concessional rate of tax since motor vehicles were sold not to CSD but to Defence personnel and hence not entitled to claim concessional rate of tax under entry 6 of the Third Schedule to SRO No. 1091/99. We therefore sustain the judgment of the learned single Judge and dismiss both the appeals and the writ petition.
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2005 (11) TMI 456
... ... ... ... ..... case, should be separately considered on merits without being hindered by the monetary limits. 4. Subject to the paragraphs 2 and 3 above the Instruction No. 1979, dated March 27, 2000 as clarified subsequently in Instruction No. 1985, dated June 29, 2000, will continue to govern the decision for filing of departmental appeals. 5. This instruction will come into effect from October 31, 2005. It is high time the State Departments stop approaching the higher courts like ordinary litigants, having lost before two appellate forum created by themselves under the Act, in a mechanical fashion, burdening the Public Exchequer and Public Servants who indulge in such prolific litigation are brought to book fixing their responsibility in this regard. Therefore, with these words of caution, the present revision petition of Revenue is dismissed. A copy of this judgment be sent to the Commissioner, Commercial Taxes Department and Chief Secretary of the Government of Rajasthan immediately.
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2005 (11) TMI 455
... ... ... ... ..... riod in question. In view of the foregoing discussion, reliance placed on the decision reported in 20th Century Finance Corpn. Ltd. v. State of Maharashtra 2000 119 STC 182 (SC) does not advance case of the petitioner and is clearly distinguishable on facts of the present case. In that case, their Lordships of the Supreme Court were considering the legislative competence of State Legislature to tax transaction in the course of inter-State sale. The law laid down is with regard to taxing event qua the situs of sale, which is not the question for determination in the case on hand. Thus, there is no merit in the present frivolous writ petition and same deserves to be dismissed with costs. Office is directed to remit the security amount deposited by the petitioner to the Secretary, Madhya Pradesh State Legal Authority, High Court Bench, Indore, for the proper utilisation of amount in accordance with law. In the result, writ petition fails and is accordingly dismissed with costs.
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2005 (11) TMI 454
... ... ... ... ..... ion? Assessee is a dealer in skimmed milk powder . The assessee claimed that skimmed milk powder must be regarded as milk in dehydrated form and therefore eligible for exemption granted in the notification. The assessing authorities as well as the Tribunal rejected this claim. The learned counsel for the assessee has pointed out that the division Bench of this court in State of Andhra Pradesh v. Indian Dairy Corporation 2001 124 STC 395 1997 25 APSTJ 77, held that skimmed milk powder is nothing but dehydrated form of pasteurised milk and therefore eligible for exemption under G. O. Ms. No. 20, dated January 2, 1980 issued under section 9 of the Andhra Pradesh General Sales Tax Act, 1957. Under the circumstances, the order of the Tribunal and authorities below are reversed and the concerned Assistant Commissioner of Sales Tax is directed to revise the assessment granting the exemption to which the petitioner is entitled. Accordingly the tax revision case is allowed. No costs.
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2005 (11) TMI 453
... ... ... ... ..... not before this court at all. In the circumstance, while it is not necessary for this court to entertain these writ petitions for the purpose of pronouncing the validity or otherwise of the endorsement, it is always open to the petitioners to urge all such contentions that they want to urge before this court in these petitions, even before the Tribunal and pursue the matter in the hierarchy of appellate/revisional authorities under the provisions of the Act itself. It is equally open to the petitioners to seek additional benefits from the Government by approaching the respondents in such capacity to enable them to issue further notification. While such liberty is reserved to the petitioners to pursue their remedies elsewhere, these writ petitions are declined as one not warranting either interference or any expression of opinion at this stage by this court. In the result, these writ petitions are dismissed, as one not warranting interference in exercise of writ jurisdiction.
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2005 (11) TMI 452
... ... ... ... ..... e decision in Hindalco Industries 2004 135 STC 281 (SC) 2003 5 SCC 194, it is made clear that a court would be entitled to interfere in a case where the authority has acted without jurisdiction. The ratio available in these two judgments also augment the view that the assessees in the instant cases are not entitled to any relief from this court under article 226. They have no option but to approach the appellate authority constituted under the Act of 1956. In view of above discussion, the writ petitions are disposed of with direction to the petitioners to avail the alternative remedy, i.e., to approach the appellate forum constituted under the Act of 1956 within a period of three weeks from today. The appellate authority shall, in the event the assessees so approach and submit application, condone the delay for having chosen a wrong forum to vindicate their grievance. Till expiry of three weeks, the taxing authority shall not take any coercive measure for recovery. No costs.
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2005 (11) TMI 451
... ... ... ... ..... d it is therefore that while rectified spirit suffers tax at a higher rate, ethyl alcohol may suffer tax at a lower rate. Different products will have different rates of taxes, which does not amount to any discrimination and this principle of levying tax at different rates on different products in taxation matters is well settled for being examined at any greater length. It is for this reason the second contention urged on behalf of the petitioners to declare that the levy of tax at two different rates is discriminatory and therefore one levy of tax at only one rate is permissible or that it should be so interpreted as to levy tax at the rate lower on both the products on the premise that the chemical combination is the same, is rejected. As both the contentions urged on behalf of the petitioners fail, it is not necessary for this court to consider the further arguments advanced on behalf of the petitioners. In the result, these writ petitions are dismissed. Rule discharged.
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2005 (11) TMI 450
... ... ... ... ..... U.P. v. Vanaspati Trading Company 1979 44 STC 491 1979 STI All 136. From the above it is apparent that the Tribunal was of the view that if these goods were taken to be for resale and not for the purposes of utilisation as containers and packing materials, even then the second proviso would not be attracted inasmuch as the snuff sold by the assessee was sold in a packed condition and the overall price charged for the snuff which was sold would have, implicit in it the price of the containers as well. Therefore, it could yet be considered to be a sale of the containers also meaning thereby that the condition of resale would also not have been violated. It has, however, been held in the alternative and on the assumption that the said items were earmarked for resale. We have already found that they were not so earmarked. Therefore, this issue does not at all arise and question No. 2 does not need any answer. In this view of the matter, the reference stands answered accordingly.
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2005 (11) TMI 449
... ... ... ... ..... der, dated October 27, 2005 holding that use of the light diesel oil in the course of manufacture tantamounts to deemed sale of oil, therefore the petitioner is liable to pay penalty. This is not one of the grounds alleged against the petitioner in the show cause notice, but, admittedly, the petitioner was also not put on notice of this aspect of the matter. The conclusion drawn by the authority is at variance with the show cause notice issued requiring the petitioner to submit its explanation. It amounts to passing of order without putting the petitioner on notice. The petitioner is entitled to succeed on this short ground, viz., the order being in violation of the principles of natural justice. The impugned order is accordingly set aside. The writ petition is accordingly allowed. No order as to costs. However, this order shall not preclude the respondent herein to put the petitioner on proper notice and pass appropriate orders after providing an opportunity of being heard.
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2005 (11) TMI 448
Classification of goods - Mosquito mats/coils or refills - whether the goods manufactured and marketed by the petitioners as mosquito mats/coils or refills would fall under entry titled "pesticides and insecticides" in the notifications issued u/s 3-A of the U.P. Trade Tax Act, 1948 ("the Act") - HELD THAT:- We find from the pleadings that articles/goods sold by the petitioners, though used as household articles, are nevertheless household "insecticide" which fact is also mentioned on their products. The chemical composition used in manufacturing the goods in question (though widely known and popularly understood as mosquito repellent) is allethrin which is an "insecticide". The petitioners are using chemicals for manufacturing the finished goods which have been treated as "insecticides" and under the provisions of the Insecticides Act, 1968 a certificate has been issued by Government of India, Ministry of Agriculture which leaves no scope of doubt that allethrin which is used in the product sold by the petitioners is "insecticide". Insecticides Rules, 1971 provides for the manner of labeling. Labelling/packing of the products of the petitioner is as per the aforequoted rule 19(4) of the Rules.
D-Trans "allethrin" and "pallethrin" are used in manufacturing the goods which have been described as household "insecticides " on their products as per the statutory requirement under the Insecticides Act. In the absence of any specific entry relating to mosquito repellent/mosquito destroyer and at the same time there being an entry mentioning "insecticides", it can reasonably be said that an ordinary person will ordinarily understand the product of the petitioners falling under category of the "insecticides".
These facts coupled with the principles enunciated in the decisions referred to above leave us in no doubt that the products sold by the petitioners are basically in the categories of "insecticides" particularly in the absence of any indication in the notification in question.
We are, however, unable to persuade ourselves to hold that merely because the petitioners have at various stages contended that the product is described or commonly traded as "mosquito repellent" it should not fall in the category of "insecticides". We would have accepted such a contention if there was separate or specific exclusion entry of "mosquito repellant" in the existing entry of "pesticide and insecticide". In that case there would have been no difficulty but in the absence of specific mention as indicated above, the product in question falls under the entry "insecticides". The percentage of "allethrin" used in the product, is of no consequence at all, since it is admittedly an "insecticide".
Thus, we consider it appropriate to decide the issue and matter finally at this stage and reject the objection raised by the learned counsel for the respondents, that the petitioners seeks to challenge, at this stage, show cause notice issued u/s 21(2) of the Act.
All the above Writ Petitions are allowed.
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2005 (11) TMI 447
... ... ... ... ..... ion can be assumed or presumed in terms of the G.O., as there is no such reference at all. Under the above circumstances, the stand taken by the department as accepted by the Tribunal that the unit has to achieve the local level of sales in order to get the benefit of deferral is clearly illegal and unsustainable as no such restriction is contemplated under G.O. Ms. No. 108. We, therefore, set aside the impugned orders of the Tribunal as well as the assessments and direct the assessing authorities to compute the benefit of deferral in sales tax taking into account the base turnover as best production in terms of the quantity of the goods produced or expected to be produced in terms of para 7 of the G.O. In the result, the tax revision cases filed by the petitioners-assessees and the writ petitions are accordingly allowed to the extent indicated. The tax revision cases filed by the department are accordingly dismissed. No costs. That rule nisi has been made absolute as above.
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2005 (11) TMI 446
... ... ... ... ..... rial unit itself and it may be required to undertake such part of manufacturing process with the help of other industrial units but, the fact remains that such goods after completion of such manufacturing process when they are sold by the industrial unit are only the goods manufactured by them and sold by them, on which the question of exemption or taxability can arise. The industrial unit cannot be denied, in the considered opinion of this Court, the benefit of incentive under this Scheme even if the part of manufacturing process is required to be undertaken for aforesaid or other reasons outside the premises of the industrial unit itself and therefore, the learned appellate authorities below cannot be said to have committed any error in law in setting aside the assessment order and holding that the benefit of incentive cannot be denied to the industrial unit for this reason. Consequently, I do not find any force in this revision petition. The same is accordingly dismissed.
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2005 (11) TMI 445
... ... ... ... ..... o fulfilment of certain conditions, it does not mean that such goods will fall outside the definition of exempted goods . It is only subject to those conditions when fulfilled then the question of exemption would arise and only then, they will be said to be exempted goods. But, once such goods squarely come within the four corners of that notification. Thus, there is no doubt that turnover relating to those goods will be turnover of exempted goods and therefore, will fall within the ambit and scope of section 13(2)(i) of the Act. Therefore, the learned Tax Board has rightly reached to the conclusion that the turnover relating to sale of stainless steel flats, ingots and billets exempted under the said notification will also be entitled to exemption or exclusion under section 13(2)(i) of the Act. Consequently, I do not find any reason to interfere with or upset the said conclusion of the Tax Board. There is no force in the present revision. The same is accordingly, dismissed.
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2005 (11) TMI 444
... ... ... ... ..... by the Deputy Commissioner (Appeals) and such setting aside of penalty was upheld by the Tax Board also. From the perusal of the impugned orders, it does not appear that the assessing authority made any effort to establish the collusion of the selling dealer in production of the false or fake C forms before him. In the absence of any enquiry having been held, the two appellate authorities were justified in setting aside the penalty under section 65 of the Rajasthan Sales Tax Act upon the selling dealer. This being essentially a finding of fact as to whether the selling dealer was responsible in production of such fake or bogus C forms or not, no question of law as such arises in the matter. In view of the concurrent findings of both the appellate authorities, no interference is required by this court in revisional jurisdiction under section 86 of the Rajasthan Sales Tax Act. Consequently, there is no force in the present revision petition. The same is accordingly dismissed.
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2005 (11) TMI 443
... ... ... ... ..... upon the promise. No such foundation has been laid in the petition, much less evidence or materials furnished. Plea of promissory estoppel therefore would not stand. Exhibit P9, we have noticed, is a notice issued under section 45A of the KGST Act calling upon the petitioner to file objection to the proposal for levy of penalty. The legal basis on which the notice was issued has already been considered by us and answered. Learned single Judge has however vacated the proposal to levy penalty under exhibit P9 notice and directed the officer to compete of assessment pending from 1997-98 onwards and the right to impose penalty has been kept open, after completing the assessment proceedings. No appeal has been preferred by the State against that direction and hence we find it unnecessary to express any final opinion on that direction. We therefore find no reason to interfere with the judgment of the learned single Judge and the appeal is dismissed for the above mentioned reasons.
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2005 (11) TMI 442
... ... ... ... ..... the revising authority to look into and examine the order passed under section 21 of the Act. The order of the Tribunal in this respect is erroneous. On the facts and circumstances of the case, I am of the view that the matter requires reconsideration by the Deputy Commissioner (Executive). The Deputy Commissioner (Executive) may provide opportunity to the opposite party to explain the various objections raised in the notice. If the Deputy Commissioner (Executive) will be satisfied with the explanation, he may drop the proceeding and if any enquiry in the matter is required, he may ask the assessing authority to make an enquiry and pass the order afresh and if no enquiry is required, he may pass order as he may deem fit in accordance with law. In the result, the revision is allowed. The order of the Tribunal dated June 20, 1998 is set aside and the matter is remanded back to the Deputy Commissioner (Executive) to pass fresh orders in the light of the observations made above.
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2005 (11) TMI 441
... ... ... ... ..... e assessing authority to establish taxable sales in the hands of the assessee before a tax can be imposed. Such burden having not been discharged by the assessing authority, the appellate authorities were right in holding that merely on the basis of such check-post entries, the movement of goods could not be taxed as inter-State sales in the hands of assessee. Even, if the assessee failed to produce the books of account, the assessing authority could gather material from other sources to prove such taxable inter-State sales like enquiry from purchasing dealers of destination station, etc., but nothing of this sort was done by the assessing authority. I do not see any error in these appellate orders and since the assessing authority failed to bring any material on record to establish the taxable inter-State sales in the hands of the respondent-assessee, the same could not be taxed. Therefore, I do not find any force in the revision petition. The same is accordingly dismissed.
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2005 (11) TMI 440
Validity of Notification No.10/2004-CE (NT) - Prospective or retrospective amendment - Applicability of provisions of Rule 19 of the Central Excise Rules, 2002 - Seeking ex-parte ad-interim relief - HELD THAT:- On a plain reading of both the Rules i.e. Rules 18 and 19 it is apparent that the said Rules operate in separate fields. Rule 18 of the Rules comes into play only in relation to the final products or the inputs which are not only liable to duty but on which duty has been paid. The said Rule viz. Rule 18 of the Rules, cannot be invoked in case of either final products or inputs on which no duty is paid even though the goods are liable to duty. The insistence of the respondent authorities, in the circumstances, that in a case where an exporter exercises option under sub-rule (2) of Rule 19 of the Rules in relation to inputs, which may be duty free, or which are removed without payment of duty on execution of bond, when used for the purposes of manufacture or processing of final products which are exported, the exporter must export the goods only under Rule 19(1) of the Rules is not borne out by the provisions of the Rules.
It is not disputed that the original notification issued by CBEC under sub-rule (3) of Rule 19 of the Rules on 26th June, 2001 and made effective from 1st July, 2001 has been operating without any difficulty and nothing has been brought on record to show why the impugned amendment became necessary. At the cost of repetition it requires to be stated that nothing has been brought on record nor has the learned counsel been in a position to point out as to how and in what circumstances an exporter can claim double benefit.
The power to issue notification under Rule 18 of the Rules is available with the Central Government while power under Rule 19(3) of the Rules is available with the CBEC. The Board is a creature of the statute and cannot go beyond the powers granted under the statute. If the Central Government has, in its wisdom, provided for granting rebate upon fulfillment of certain conditions and subject to certain procedural safeguards, CBEC cannot be permitted to render the Notification issued by the Central Government redundant by issuing a notification in exercise of powers under Rule 19 of the Rules. Nor can CBEC exercise such powers so as to render Rule 18 otiose. Hence, for this reason also, the impugned Notification cannot be upheld.
Thus, impugned Notification being Notification No.10/2004-CE(NT) dated 3rd June, 2004 is bad in law for the aforestated reasons, namely, it is not in consonance with the principal provisions, namely, Rules 18 and 19 of the Rules, and it is, even otherwise, Revenue neutral. The CBEC cannot exercise power under Rule 19 of the Rules to negate a notification issued by the Central Government under Rule 18 of the Rules. The same is, therefore, declared to be bad in law and is quashed and set aside. As a consequence the impugned show cause notices (Annexure-C Collectively) are also quashed and set aside.
The petition is allowed, accordingly, to the aforesaid extent.
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2005 (11) TMI 439
Arbitration petition filed before this Court under Section 11(6) of the Arbitration and Conciliation Act, 1996 for appointment of the Arbitrator
Held that:- In the present case, as per the Agency Agreement dated 14.4.2000, Clause 6.2 categorically states that if any dispute arises between the parties then the same shall be submitted to Arbitration Court under the Chamber of Commerce and Trade of the Russian Federation. Therefore there is a specific clause mentioned in the Agency Agreement as to which court will have jurisdiction to try and dispose of the matter.
In view of the specific provision specifying the jurisdiction of the Court to decide the matter, this Court cannot assume the jurisdiction. Whenever there is a specific clause conferring jurisdiction on particular Court to decide the matter then it automatically ousts the jurisdiction of other Court. In this agreement, the jurisdiction has been conferred on the Chamber of Commerce and Trade of the Russian Federation as the authority before whom the dispute shall be resolved. In view of the specific arbitration clause conferring power on the Chamber of Commerce and Trade of the Russian Federation, it is that authority which alone will arbitrate the matter and the finding of that arbitral tribunal shall be final and obligatory for both the parties.
This Court has no jurisdiction and the Chamber of Commerce and Trade of Russian Federation alone has jurisdiction to act as an arbitrator and resolve the dispute. Hence this application is rejected.
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