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Showing 321 to 340 of 1191 Records
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2011 (3) TMI 1519
Whether on the face of several sale invoices due by the assessee, which were recovered from the possession of M/s. Prasad Properties and Investments Pvt. Ltd., and their group of companies, is there not legal burden on the assessee to show that despite those sale invoices, yet no sale at all took place by producing legally accepted material?
Would the final report filed by the CBI against the purchasercompany and their group that those invoices have been utilised for raising loans from the bank and thereby defrauding the bank, would amount to a legal material to be made use of by the assessee to escape the provisions of sales tax law to contend that those invoices do not reflect any sale transactions ?
Held that:- It is no doubt true that the assessment order speaks about the conduct of the assessee in not filing the objection before the assessing authority. Whatever be the conduct adopted by the assessee before assessment, in the appeal filed by the Revenue, the assessee had established its case on the loan transaction as well as on other turnover pertaining to lease. The Appellate Assistant Commissioner and the Tribunal considered the materials produced by the assessee. On satisfaction of the explanation offered by the assessee, the Tribunal remanded the matter for de novo consideration. Going by the reasoning of the Tribunal, we do not find any merits in the revision to set aside the order passed by the Tribunal. In these circumstances, we find no ground to accept the plea of the Revenue and accordingly, the tax case revision is dismissed.
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2011 (3) TMI 1518
Issues:
Determining the nature of a composite contract for construction work and the inclusion of electrical works in the contract value.
Analysis:
The case involved two revisions against a Tribunal order for the assessment years 2001-02 and 2002-03 regarding a works contract awarded by IIT, Kanpur. The petitioner was contracted for the construction of various buildings, including electrical works. The applicant applied for compounding under the U.P. Trade Tax Act, with civil work compounding accepted but electrical works value excluded. Appeals were filed, leading to the Tribunal setting aside the Joint Commissioner's order and restoring the assessing authority's decision.
The key contention was whether the contract was a composite indivisible one for civil works, including electrical works, or if the electrical works should be excluded from the contract value. The petitioner argued that the contracts were composite in nature, with the electrical works forming part of the main contracts. The counsel for the applicant highlighted the composite nature of the contracts and the inclusion of electrical works in the overall contract value.
Upon review, the judge found that the contracts clearly outlined the scope of work and provided a consolidated price for the entire work, with electrical works mentioned separately for convenience. The judge emphasized that since the contracts were civil in nature and included electrical works, the value of electrical works should not be excluded from the composite value. The Tribunal was deemed to have erred in excluding the electrical works' value from the overall contract value.
As a result, the Tribunal's order was deemed unsustainable, and the authorities were directed to issue a fresh order under section 7D of the Act, incorporating the value of electrical works in the civil contract. Consequently, both revisions were allowed based on the above observations.
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2011 (3) TMI 1517
Issues involved: Two appeals by M/s Onkar International Pvt. Ltd. against demand of duty, interest, and penalty, and two appeals by Shri Jayant Malhotra and Shri A.K. Gupta against penalty under Section 114A of the Customs Act, 1962.
M/s Onkar International Pvt. Ltd. appeals: The company imported cars under the EPCG Scheme but allegedly misused them by not using them for the intended purpose. It was claimed that export obligations were fraudulently fulfilled using foreign exchange earned from air ticketing services, and one car was sold in violation of EPCG Scheme conditions. The appellants argued that they fulfilled export obligations and obtained Export Obligation Discharged Certificate (EODC) from DGFT, thus complying with the law. The Tribunal found that the appellants fulfilled their obligations under the EPCG license, as confirmed by the DGFT, and set aside the order, citing a similar precedent.
Shri Jayant Malhotra and Shri A.K. Gupta appeals: The individuals appealed against the imposition of penalties under Section 114A of the Customs Act, 1962. The Tribunal found in favor of the appellants, stating that they had fulfilled their export obligations and obtained the necessary certificates from the DGFT, following the provisions of the law. The decision was based on a similar case precedent, and all four appeals were allowed with consequential relief.
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2011 (3) TMI 1516
Whether the two commodities CVT and UPS were rightly held by the appellate authorities below as taxable at four per cent as "accessories of computers or whether they would be taxable at 10 per cent in the general residuary entry of the relevant notification dated March 27, 1995, applicable for these two assessment years?
Held that:- this court is of the opinion that both the appellate authorities below were justified in holding in favour of assessee that sale of CVT and UPS was taxable at the rate of four per cent in the hands of the assessee as "accessories of computers" and could not be taxed at 10 per cent in the residuary entry of the relevant notification. Accordingly, these revision petitions filed by the Revenue are liable to be dismissed
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2011 (3) TMI 1515
Whether the disc sold by the assessee would qualify as electronic item for the purpose of attracting the notifications granting concessional levy?
Held that:- On going through the various entries in the Act, we are satisfied that the disc sold by the assessee does not fit either under entry 9 as contended by the Revenue or under entry 41C as had been contended by the appellant. In the circumstances, when a particular item in question is enumerated, viz., the device does not fit in with the entries of the First Schedule, the entry under which it can be taxed is under section 3(1) of the Act to attract multi-point levy, which was available at the relevant point of time, i.e., during the assessment years in question.
Going by the said aspect, we have no hesitation in setting aside the order of the revisional authority and at the same time, we hold that the item in question is assessable only under multi-point levy and not under entry 9 of the First Schedule or under entry 41C of the Tamil Nadu General Sales Tax Act
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2011 (3) TMI 1514
Whether P.U. resin can, by no stretch of imagination, be held to be synthetic adhesive and, therefore, could not be taxed at 16 per cent under entry No. 91 of the notification dated March 27, 1995?
Held that:- While holding that this question falls within the four corners of section 37 of the Act dealing with the rectification of mistake apparent on the face of the record, this court is inclined to set aside all the three orders passed by the three authorities below and remand the case back to the assessing authority itself.
Accordingly, this revision petition is allowed and the three orders, namely, order dated March 13, 2000 passed by the assessing authority, order dated August 22, 2000 passed by the Deputy Commissioner (Appeals) and order dated August 16, 2004 passed by the learned Tax Board are set aside and the matter is remanded back to the learned assessing authority, who will decide the rectification application on the merits de novo after giving an opportunity of hearing to the assessee and allowing him to adduce relevant evidence in support of his contentions before him.
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2011 (3) TMI 1513
Whether penalty of ₹ 56,790 could not be imposed on the respondent - assessee under section 78(5) of the Rajasthan Sales Tax Act, 1994 on account of declaration in form No. ST-18A as per rule 53 of the Rajasthan Sales Tax Rules, 1995 being found to be incomplete?
Held that:- The assessing authority brushing aside both the contentions of the assessee, viz., (i) there was no requirement in law to furnish ST-18A; and (ii) defect and deficiency in such form ST-18A could be removed and other declaration duly filled-up, was furnished immediately upon opportunity being given since the original form duly and fully filled-up was not sent with the consignment by the supplier, the learned assessing authority, in a rather hasty and mechanical way, imposed the said penalty in question.
The appellate authorities rightly set aside the penalty imposed upon the assessee by their concurrent decisions, viz., the first appellate authority on the appeal preferred by the assessee and the Tax Board in second appeal in the appeal preferred by the Revenue. Therefore, on both these counts, the requirement of law being not there in the first instance, and on the second count even if such requirement is presumed on factual matrix also, this court is satisfied that the penalty in question has rightly been set aside by the appellate forums and same do not require any interference by this court in revisional jurisdiction. Against revenue
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2011 (3) TMI 1512
Issues:
1. Interpretation of relevant provisions of the Tamil Nadu Value Added Tax Act, 2006 regarding the liability to pay tax and compounding fee.
2. Allegation of arbitrary and illegal actions by the second respondent in intercepting goods being transported to Delhi.
3. Request for release of goods subject to adjudication proceedings and furnishing of a bank guarantee.
Analysis:
1. The main contention raised by the petitioner was that the goods imported from Hongkong and cleared by a clearing and forwarding agency were intercepted by the second respondent during transportation to Delhi. The impugned notice levied tax and a compounding fee under the Tamil Nadu Value Added Tax Act, 2006. The petitioner argued the notice was arbitrary and illegal, citing relevant case laws to support the claim.
2. The respondents contended that the petitioner, a dealer in Delhi, was liable to pay the tax and compounding fee as the goods were allegedly being off-loaded in a local godown for local sales, violating the Act. The petitioner's actions were deemed to be an offense under specific sections of the Act. The petitioner requested the release of goods pending adjudication proceedings, offering to provide a bank guarantee.
3. In response to the arguments, the court directed the second respondent to release the goods upon the petitioner furnishing a bank guarantee to the satisfaction of the respondent. The adjudication proceedings were to be conducted promptly, with the petitioner instructed to cooperate fully. The writ petition was granted in favor of the petitioner, with no costs awarded, and the connected miscellaneous petition was closed.
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2011 (3) TMI 1511
Whether interpretation of Clause 4 of the termination agreement which was by itself a disputed matter and requires to be adjudicated upon, could be left to be determined by the Arbitrator?
Held that:- Appeal allowed. No reason why the present petition cannot be allowed and all disputes including the dispute regarding interpretation and effect of Clause 4 of the termination agreement referred for adjudication by arbitration as the Respondent has consented to the appointment of arbitrator & the Respondent has consented to raising all the issues including the existence of the arbitral dispute before the said arbitrator.
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2011 (3) TMI 1510
Whether the seizure made under section 44(3) of the AGST Act doesn’t fulfil the requirement of section 44(3) of the AGST Act?
Held that:- In this case, the seizure order merely reproduces the language of subsection (3) of section 44 of the AGST Act, but does not record any objective reason for ordering the seizure. The necessity of recording reason is impor tant as in that event, another authority can scrutinize as to whether the reasons are based on objective consideration. But in the present case reasons are conspicuous by their absence and supplementary reason(s) sought to be projected by the learned counsel for the Revenue, can’t satisfy the legal requirement of recording reason(s), prior to making of the seizure.
Thus it is held that the seizure made under section 44(3) of the AGST Act doesn’t fulfil the requirement of section 44(3) of the AGST Act and accordingly the impugned action can’t be sustained and the same are quashed. The consequential assessment made on the basis of the said seizure is also interfered with. Appeal allowed.
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2011 (3) TMI 1509
Striking down of Haryana Act No. 10 of 1981 levying sales tax on "dryer felts" retrospectively from April 26, 1971 to September 6, 1978 seeked
Held that:- The observations made in the context of tobacco that even if tobacco is an article of luxury, a tax on its supply is within the exclusive competence of the State but subject to the constitutional curbs prescribed under article 286 read with sections 14 and 15 of the Central Sales Tax Act, 1956, and most importantly the ADE Act of 1957 under which no sales tax can be levied on tobacco at all if the State was to take the benefits under that Act are fully applicable to the case of textiles which is one of the item mentioned in the ADE Act, 1957.
This petition is allowed and the impugned levy is held to be unconstitutional.
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2011 (3) TMI 1508
Order passed by respondent No. 2 dated August 23, 1996, whereby the penalty has been reduced to ₹ 50,000 though according to the petitioner he had not committed any irregularity under the provisions of the Act and the Rules and the authority could not have charged the interest at the rate of 24 per cent per annum challenged
Held that:- The petitioner had committed irregularity in starting the connection of dish antenna and had also evaded the payment of tax. The revisional authority has after considering the entire gamut and the evidence on record of the case held that the petitioner is liable to pay the fine of ₹ 50,000 instead of ₹ 1,44,675 which in our considered view is a maximum amount of penalty inflicted on the petitioner by the revisional authority for dodging/evading tax liability. We are, therefore, in complete agreement with the order passed by the revisional authority
The petition lacks merit and is dismissed accordingly
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2011 (3) TMI 1507
Issues:
Challenge to the tax imposition at 12% on "pet preform" instead of 4%.
Analysis:
The judgment revolves around a challenge to the tax imposition at 12% on "pet preform" by the Joint Commissioner of Sales Tax, Siliguri Charge, Siliguri, instead of the regular 4% tax rate. The petitioners, M/s. JNRT Commercial (P.) Ltd., argued that "pet preform" is essentially a container used for packing liquids and falls under the category specified in Schedule C of Part III to the VAT Act, 2003, which mandates a tax rate of 4%. The petitioners contended that the "pet preform" retains its character as a container even though it is expanded into larger shapes by buyers, and hence, should be taxed at 4%. They emphasized that the basic material for manufacturing "pet preform" is plastic granules, which are taxed at 4%, making the final product also liable for a 4% tax rate. The petitioners relied on legal precedents to support their argument that materials used for packing goods for sale continue to be treated as containers for tax purposes.
On the other hand, the respondent argued that since "pet preform" is not a finished article like plastic boxes, containers, or bottles, it should be taxed at 12.5% instead of 4%. The respondent highlighted that "pet preform" undergoes a transformation process to become a container and is primarily used for packing plastic goods. Drawing parallels with a legal case involving tin sheets and tin plates, the respondent contended that the process of molding "pet preform" into containers justifies the higher tax rate. However, the Tribunal rejected this argument, emphasizing that the molding process is essential to adapt "pet preform" for actual use as a container and does not change its classification as a plastic packing material.
In its decision, the Tribunal sided with the petitioners, setting aside the order imposing a 12% tax rate on "pet preform" and ruled that it should be taxed at 4%. The Tribunal concluded that "pet preform" falls under the category specified in Schedule C of Part III to the VAT Act, 2003, warranting a 4% tax rate. The judgment highlighted that the molding process of "pet preform" into containers does not alter its fundamental nature as a packing material, justifying the lower tax rate. The judgment provided a detailed analysis of the legal arguments presented by both parties and referenced relevant legal precedents to support its decision, ultimately upholding the petitioners' claim and rejecting the imposition of a higher tax rate.
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2011 (3) TMI 1506
the contract, in the case at hand, is for rendering services and not for transfer of right to use equipment?
Held that:- The contract agreement, in the present case, obliges the contractor to render the services of “welllogging, perforating and other wireline services” by using its own equipments and thereby no transfer of right to use equipments can be said to have taken place in the present case. Situated thus, it becomes clear, and we do hold, that the petitioner is not liable to pay tax, under the TST Act, 1976, in respect of the consideration received for the execution of contract, in question; hence, the action of the revenue authority, in raising the demand for deduction of sales tax at source treating the contract, in question, as transfer of the rights to use goods is wholly without jurisdiction and liable to be set aside and quashed, which we hereby accordingly do. Appeal allowed.
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2011 (3) TMI 1505
Whether the definition of "dealer" as given in section 2(b) of the TST Act, 1976, is unconstitutional?
whether the definition of "sale", as appearing in section 2(g) of the TST Act, 1976, does not include thereunder a "deemed sale" within the meaning of section 3A of the TST Act, 1976?
Whether that part of the contract, which amounts to transfer of property in goods, involved in the execution of the works contract, is taxable under the relevant statute?
Whether definition of sale, as contained in section 2(b) of the TST Act, 1976, is intra vires?
Held that:- The definition of "dealer", as given in section 2(b) of the TST Act, 1976, is not unconstitutional.
Section 3A cannot be said to be bad in law, because of the fact that rate of tax has not been specified in column 3 of the Schedule to the TST Act, 1976, in respect of transfer of property in goods involved in the execution of works contract inasmuch as separate entries, in the Schedule, fixing rates of tax, in respect of various goods involved in the execution of works contract, is not, as a matter of law, necessary or imperative and cannot be said to be invalid, because it does not specifically allow deductions in respect of labour and other charges, which have been held allowable in Gannon Dunkerley’s case [1992 (11) TMI 254 - SUPREME COURT OF INDIA].
No tax can be assessed and recovered in respect of sale arising out of a works contract, by taking recourse to section 3A inasmuch as tax is leviable on turnover, but the manner of computation of turnover has not been provided for in the TST Act, 1976, in respect of works contract making thereby assessment and computation of tax inapplicable in respect of works contract.
The State does not have power to impose tax on deemed sales in respect of sales, which take place in the course of inter-State trade or commerce or if the transactions constitutes a sale outside the State or if it is a sale in the course of import of goods into, or export of the goods out of, the Territory of India. The State Legislature is, however, not prevented from imposing tax on the goods, which are declared to be of special importance in terms of section 14 of the Central Sales Tax Act, 1956, and the State’s limitation, in this regard, is only with regard to the rate of tax inasmuch as rate of tax cannot exceed four per cent, inasmuch as section 15 of the Central Sales Tax Act, 1956, imposes restrictions on the State as regards rate of tax and not in respect of goods, which are declared to be of special importance by Central Government by section 14 thereof.
The definition of sale, as contained in section 2(b) of the TST Act, 1976, is intra vires inasmuch as tax is imposed only on a sale, which takes place within the State of Tripura.
Section 3AA of the TST Act, 1976 and rule 3A(1) of the TST Rules are bad in law inasmuch as section 3AA and rule 3A(1) permit deduction, at source, at a flat rate.
Thus the respondents are hereby directed to refund the amounts deducted, at source, as sales tax from the bills of the petitioner, with interest, at the rate of six per cent per annum from the date(s) of the deduction(s) made until payment thereof to the petitioner.
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2011 (3) TMI 1504
Issues:
1. Validity of proceedings under section 32(2) of the Tamil Nadu General Sales Tax Act, 1959 during the pendency of an appeal.
2. Interpretation of section 32(2)(b) of the Act regarding the jurisdiction of the Deputy Commissioner.
3. Invocation of special powers under section 32 of the Act based on prejudicial assessment orders.
4. Compliance with section 36(3) of the Tamil Nadu General Sales Tax Act, 1959 in disposing of an appeal.
Analysis:
1. The main contention in this case was whether the first respondent could pass proceedings under section 32(2) of the Tamil Nadu General Sales Tax Act, 1959 while an appeal was pending before the Tamil Nadu State Appellate Tribunal. The petitioner argued that such actions were against the provisions of the Act, citing a Supreme Court decision and a previous court ruling to support their stance. The court found that the impugned proceedings were not valid during the appeal process, setting aside the actions of the first respondent.
2. The interpretation of section 32(2)(b) of the Act was crucial in determining the jurisdiction of the Deputy Commissioner to pass orders. Referring to the wording of the section, the court emphasized that once an order has been made the subject of an appeal, the Deputy Commissioner cannot interfere, even if only part of the order is under appeal. The court upheld the Tribunal's decision that the Deputy Commissioner had acted without jurisdiction in such cases.
3. The issue of invoking special powers under section 32 of the Act based on prejudicial assessment orders was raised. The petitioner argued that the first respondent could not use these powers if the earlier assessment order was prejudicial to the Revenue. The court agreed with the petitioner's submission and held that such invocation was not permissible in the circumstances presented.
4. Compliance with section 36(3) of the Tamil Nadu General Sales Tax Act, 1959 in disposing of an appeal was discussed. The court highlighted the requirement for the Appellate Tribunal to provide the appellant with a reasonable opportunity to be heard and to record reasons in writing. The absence of a counter-affidavit from the respondents was noted, and the court found it appropriate to set aside the impugned proceedings of the first respondent based on the submissions made and the decisions cited. As a result, the writ petition was allowed, with no costs imposed, and the connected miscellaneous petition was closed.
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2011 (3) TMI 1503
Whether penalty can be imposed on a "transporter", who facilitates and/or abets evasion of tax by a "dealer" and because of whose such default, evasion of tax takes place?
Whether tax, which is, otherwise, chargeable on, and recoverable from, a "dealer", can be charged on, and/or recovered from, a "transporter"?
Whether realization of tax from a "transporter" under section 13A of the Tripura Sales Tax Act, 1976, and section 77 of the Tripura Value Added Tax Act, 2004, is constitutionally valid?
Whether the provisions contained in section 13A of the Tripura Sales Tax Act, 1976, and section 77 of the Tripura Value Added Tax Act, 2004, imposing penalty to the extent of 150 per cent of the "tax involved" is constitutionally valid?
Whether the subsequent insertion of section 13A in the Tripura Sales Tax Act, 1976, vide the 8th Amendment, can be sustained?
Held that:- Penalty can be imposed on a transporter, who facilitates and/or abetes evasion of tax and because of whose default, evasion of tax takes place.
Tax can be imposed on transporters by treating a transporter as a dealer by creating legal fiction so as to treat, in the prescribed circumstances, a transporter, as a dealer, and/or by raising a legal presumption that the taxable goods, handled by a transporter, have been delivered to a dealer without any valid permit or by raising a legal presumption that the transporter has concealed the actual particulars of the goods transported by him and the goods have been sold, within the State, by the dealer without making payment of tax for such sale.
The provisions of section 13A of the TST Act, 1976, and section 77 of the TVAT Act, 2004, are, so far as the same permit imposition of tax on transporters, are ultra vires entry 54 of List II of the Seventh Schedule to the Constitution of India.
The provisions of section 13A of the TST Act, 1976, and section 77 of the TVAT Act, 2004, are, in so far as the same relate to levy of penalty to the extent of 150 per cent of the tax involved, intra vires entry 54 of List II of the Seventh Schedule to the Constitution of India.
The provisions of the TST Act, 1976, and section 77 of the Act of the TVAT Act, 2004, do not have the effect of rendering the decision of the Supreme Court in Tripura Goods Transport Association v. Commissioner of Taxes [1998 (12) TMI 500 - SUPREME COURT OF INDIA] ineffective and the said provisions have not been enacted to override the decision in Tripura Goods Transport Association [abaove].
6. The orders of assessment as well as the notices of demand, which stand impugned in this set of writ petitions, are, in the light of the conclusions reached above, set aside and the same are remanded to the respondents/authorities concerned with direction to examine the question of imposition of penalty for default, if any, of the petitioners in the light of the position of law as indicated above and if the petitioners and/or any of them are found to have violated the legal obligations cast by the statutes concerned, necessary penalty, in accordance with law, may be imposed, in accordance with law, on that transporter(s), who may have violated the law.
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2011 (3) TMI 1502
Whether under the provisions contained in section 7A of the Act, interest was payable at the rate of two per cent per month or per year?
Held that:- The respondent No. 1 in the impugned order dated May 9, 1995 has computed the interest at the rate of two per cent per month on the amount of tax remaining unpaid, which is in consonance with the provisions of section 7A of the Act. In the circumstances, no infirmity can be found in the impugned order passed by respondent No. 1 as well as in the impugned order passed by respondent No. 2 confirming the order passed by respondent No. 1. Appeal dismissed.
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2011 (3) TMI 1501
Whether the Tribunal is right in concluding that sale of water plant machinery, i.e. reverse osmosis plant by the petitioner do not fall under section 3(5) of the Tamil Nadu General Sales Tax Act, when the petitioner satisfied both the conditions as prescribed under the section?
Whether the Tribunal is correct in rejecting the claim of concessional levy when the petitioner has filed declaration forms as per the provisions of section 3(5) of the Act?
Held that:- Section 3(5) of the Act is a beneficial provision. It provides for concession for tax purposes to encourage industrial activity. It should be liberally construed. It is well-settled principle that a provision which is a taxing statute, granting concessional and incentives for promoting growth and development, should be construed liberally. Therefore, we are of the view that plant and machinery is used for the purpose of treating water for the bleaching and dyeing in the textile factory. Therefore, it cannot be said it is not used for the purpose of manufacture. The assessee has satisfied all the conditions enumerated and section 3(5) of the Act and hence, they are entitled to the concessional rate of tax under section 3(5) of the Act. In these circumstances, the order passed by the Tribunal is not in accordance with law and we set aside the order of the authorities below and answer the questions in favour of the petitioner/assessee and against the Revenue. Consequently, the revision is allowed.
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2011 (3) TMI 1500
Whether the Tribunal is right in allowing the refund to the party when the party had already passed on the incidence of such duty amount (refund amount) and when there is a proviso in sub-section (2)(e) of Section 11B of Central Excise Act, 1944 that the refund shall be credited to the Consumer Welfare Fund if the duty of excise paid by the manufacturer had passed on the incidence of such duty to any other person?
Whether the Tribunal is correct in connecting the sundry receivables (losses) shown in the balance sheet to the passing of duty element?
Held that:- No justification in the contention of the appellant herein that on account of unjust enrichment at the hands of the State, refund could not be granted. Thus following the decision of the Apex Court reported in Mafatlal Industries Ltd. v. Union of India [1996 (12) TMI 50 - SUPREME COURT OF INDIA] that the concept of unjust enrichment is not applicable as far as State Undertakings are concerned and to the State, apart from the finding of the Tribunal that the assessee had not passed on the liability to its consumers, we reject the prayer of the appellant herein and confirm the order of the Tribunal. Appeal dismissed.
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