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Case Laws
Showing 21 to 40 of 211 Records
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1985 (10) TMI 267
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... ... ..... assessment order dated September 16, 1966, passed in respect of the assessment years 1961-62, 1962-63 and 1963-64, were filed. This reference, which is deemed to be an application for revision under section 15 of the Act, as substituted by the Amendment Act, is, therefore, allowed and the order dated August 11, 1975, passed by the Division Bench of the Board in the special appeal under section 14(4A) of the Act, is set aside. In the circumstances of the case, we leave the parties to bear their own costs. Before parting with the case, we make it clear that nothing said hereinabove will affect adversely the right or remedy of G.C. Malpani, available to him against the order dated November 7, 1974, by which his revision No. 5/73 was dismissed or any other remedy which may otherwise be available to him under any Act or law against the recovery proceedings for the realisation of the demand raised in pursuance of the assessment order dated September 16, 1966. Application allowed.
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1985 (10) TMI 266
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... ... ..... t be treated to be a declared commodity under section 14(iv)(xi). I have carefully perused the aforesaid entry, and the contention raised on behalf of the department appears to be correct. Before holding that the commodity manufactured by the assessee is covered by section 14(iv)(xi), it is necessary to enquire into the question and to arrive at a conclusion that the iron and steel pipe and pipe fittings are the same or not. Since the Tribunal has not done so, it should be directed to record a finding on that question after hearing the parties. In the result, the revision succeeds and is allowed in part. The order of the Tribunal to that extent is quashed and the matter is sent back to it for the limited purpose of recording a finding whether iron and steel pipe and pipe fittings are the same commodity or not. There will be no order as to costs. Let a copy of this order be sent to the Tribunal concerned as contemplated under section 11(8) of the Act. Petition partly allowed.
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1985 (10) TMI 265
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... ... ..... r of Sales Tax, Indore) wherein it has been pointed out that a return cannot be said to be false within the meaning of section 43 unless there is an element of deliberateness in it, and where the assessee does not include a particular item in the taxable turnover under a bona fide belief that he is not liable so to include it, it would not be right to condemn the return as a false return inviting imposition of penalty. 5.. Thus the test indicated by the Supreme Court for justifying imposition of penalty under section 43 of the Act is correctly applied by the Tribunal in the present case and the conclusion reached by it is clearly justified. 6.. Consequently the reference is answered against the Commissioner of Sales Tax and in favour of the dealer by holding that the Tribunal was justified in its view that no case for imposition of penalty under section 43 of the Act was made out in the present case. There shall be no order as to costs. Reference answered in the affirmative.
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1985 (10) TMI 264
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... ... ..... he meaning of the word manufacture as defined in section 2(k) of the Act and none of these cases is of any assistance to the learned counsel for the nonpetitioner (assessee) in support of his view of that the process of extracting includes excavation and activities of digging out gypsum from the earth. For the reasons aforesaid, we are of the opinion that the Division Bench of the Board was not right in holding that the work of excavating gypsum from earth includes manufacturing process within the meaning of section 2(k) of the Act. We, therefore, allow this revision (references treated as revision) and set aside the order dated 7th August, 1979, of the Division Bench of the Board and restore the orders dated 22nd March, 1968, of the Commercial Taxes Officer, Special Circle, Jodhpur, 21st March, 1970, of the Deputy Commissioner (Appeals), Commercial Taxes, Bikaner, 15th October, 1974, of the single Member of the Board of Revenue. We leave the parties to bear their own costs.
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1985 (10) TMI 263
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... ... ..... (Commissioner of Sales Tax v. Dawar Bros. 1986 61 STC 35), this reference is answered in favour of the department and against the dealer as under Prior to 1st September, 1967, wet storage batteries sold separately by the dealer were also taxable in accordance with entry No. 1 and not entry No. 30 of Part II of Second Schedule to the M.P. General Sales Tax Act, 1958. There will be no order as to costs. Miscellaneous Civil Case No. 321 of 1982 COMMISSIONER OF SALES TAX v. DAWAR BROS. For the reasons given in the judgment delivered today in Miscellaneous Civil Case No. 319 of 1982 (Commissioner of Sales Tax v. Dawar Bros. 1986 61 STC 35), this reference is answered in favour of the department and against the dealer as under Prior to 1st September, 1967, wet storage batteries sold separately by the dealer were also taxable in accordance with entry No. 1 and not entry No. 30 of Part II of Second Schedule to the M.P. General Sales Tax Act, 1958. There will be no order as to costs.
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1985 (10) TMI 262
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... ... ..... h liberty to regulate the amounts as may ultimately found due from such bank guarantee and otherwise. 15.. In the light of our above discussion, we quash the impugned order (exhibit F) and direct Government to restore the application made by the petitioner (exhibit C) to its original file and dispose of the same in accordance with law and the observations made in this order with all such expedition as is possible in the circumstances of the case. But till then the petitioner is directed to keep the bank guarantee, if any, furnished by it in pursuance of the interim order of this Court in force. Liberty reserved to modulate the recoveries that may ultimately be found due from such bank guarantee and otherwise in accordance with law. 16.. Writ petition is disposed of in the above terms. But, in the circum- stances of the case, we direct the parties to bear their own costs. 17.. Let this order be communicated to the respondent within ten days from this day. Ordered accordingly.
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1985 (10) TMI 261
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... ... ..... in revision which was confirmed in special appeal that there was no sale of bardana as such when dealer-non-petitioner No. 1 effected sale of salt packed in bardana is a question of fact and nothing has been shown by the learned counsel for the assessing authority that this finding is vitiated by any error of law. In our opinion, this application which has been treated as a revision under section 15 of the Act does not involve any question of law. In view of this, it is not necessary for us to address ourselves regarding the applicability of the last proviso to section 5 of the Act which came into force from 23rd/24th July, 1967, read with section 8(2A) of the C.S.T. Act, though the Board in revision as well as in special appeal has dealt with this aspect of the case. The position, therefore, is that in this case no question of law is involved. The application is, therefore, dismissed. In the facts and circumstances of the case, we leave the parties to bear their own costs.
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1985 (10) TMI 260
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... ... ..... levy of penalty and its quantum, if necessary, in accordance with law. The orders dated 15th February, 1979, of the single Member of the Board and dated 7th July, 1980, of the Division Bench of the Board are set aside. We further direct the Sales Tax Appellate Tribunal, Ajmer, to redetermine the revision and decide the question of levy of penalty and its quantum in the light of the observations made hereinabove and keeping in view the principles enunciated in Commissioner of Income-tax, West Bengal I 1970 76 ITR 696 (SC), Murarilal Ahuja and Sons 1986 61 STC 393 (Raj) D.B. Sales Tax Case No. 31 of 1984 decided on 27th August, 1985 and J.P. Sharma and Sons 1985 151 ITR 333 (Raj) cases relating to the imposition of penalty. The parties will be afforded an opportunity of hearing. The reference which has been treated and heard as revision is accordingly disposed of. In the circumstances of the case, we leave the parties to bear their own costs. Petition disposed of accordingly.
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1985 (10) TMI 259
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... ... ..... t is not disputed that no notices as required under section 13 of the Act were issued to the widow and her sons before the property was brought to sale. Since I have come to the conclusion that the entire proceedings for recovery, which terminated in the auction sale held on 11th October, 1979, are illegal, the said sale has to be set aside. In the result, the writ petition is allowed and the sale conducted by the second respondent in respect of item 2 in the schedule to the proclamation of sale, i.e., CTS No. 3527, Ward No. 1 in Maratha Gally, Hubli, is set aside. The respondents are, however, at liberty to take fresh proceedings for recovery in accordance with law and in the light of the observations made in this order. The auction purchaser is entitled to the return of the money deposited by him and the interest accrued thereon upto the date of withdrawal from the bank. In the result the writ petition is allowed and the rule issued is made absolute. Writ petition allowed.
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1985 (10) TMI 258
Whether sales tax can be levied by a State Legislature on the sale of lottery tickets in the concerned State?
Held that:- The promoter of lottery in the cases involved before us is the State and the grant is in derogation of the rights of the State. The State, in my opinion, can create such a right for the first time, and such transfer of the right by the State as a promoter would amount to a transfer of property and being in consideration of a price can be sale of goods.
Right to participate in the draw under a lottery ticket remains a valuable right till the draw takes place and it is for this reason that licensed agents or wholesalers or dealers of such tickets are enabled to effect sales thereof till the draw actually takes place and therefore lottery tickets, not as physical articles but as slips of paper or memoranda evidencing the right to participate in the draw can be regarded as dealer's merchandise and therefore goods which are capable of being bought or sold in the market. With these observations, I respectfully agree with the conclusion reached by my learned brother and concur with the order proposed by him.
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1985 (10) TMI 250
Audit - Appointment remuneration of auditors, Powers and duties of auditor ... ... ... ... ..... certainment of damages really does not arise, but even if I would have held that the defendants were negligent, still the amount of damages would have been merely token or minimum. Accordingly, my findings on issues Nos. 3 and 6 are in the negative. Issue No. 2 Mr. Setalvad did not dispute the accuracy of the figures set out in paragraph 11 of the plaint, and, therefore, the answer to this issue is in the affirmative. Issue No. 7 This issue does not survive in view of my findings on other issues. Before parting with the case, I must place on record my appreciation of the excellent assistance received from counsel on both the sides and the fair manner in which the respective views were presented. But for the able assistance rendered by both counsel and their assistants, it would not have been possible to conclude the hearing of this suit in 19 days. Accordingly, the suit is dismissed with costs. Two advocates certified in accordance with rule 606(3) of the Original Side Rules.
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1985 (10) TMI 249
Offences against the act to be cognizable only on complaints by registrar, etc. ... ... ... ... ..... petitioners herein establishing the fact that the petitioners herein were in any way acting in managerial capacity or actively assisted in bringing the transaction alleged into being or any resolution that could be said to have been passed by the board of directors so as to implicate these petitioners as well. Petitioners Nos. 2 to 4, 6 and 7 are not at all concerned as it has been controverted that these six petitioners resigned long prior to the date of the transaction. In any view of the matter, on the basis of analysis made earlier, none of the petitioners could be said to be criminally liable in respect of the transaction alleged herein. In the circumstances, therefore, no criminal liability could be fixed on the petitioners. Hence, the proceedings initiated in C.C. No. 58 of 1985 on the file of the court of the Munsif Magistrate, Chevella, in respect of accused Nos. 1, 3 to 8, who are the petitioners Nos. 1 to 7 herein, are quashed and Crl. M.P. is accordingly allowed.
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1985 (10) TMI 236
manufacture of fluorescent lamps ... ... ... ... ..... ogen used as fuel as could be seen from para 6 (reproduced below) of the order of the Tribunal dated 21.1.85 (Annexure A). ldquo It is noted that hydrogen is also used for the melting of quartz by a burner and when lead in wires are fixed in the quartz. Here it is used along with oxygen. Such use as fuel cannot be treated as use as raw material for purposes of the notification No. 201/79 as in such an instance it serves as a source of heat energy and nothing more. rdquo 3. emsp We have heard both sides. We are satisfied that a question of law though in a different form does arise from our order, we accordingly refer under section 35G of the Central Excises and Salt Act the following question of law to the Hon rsquo ble High Court of Judicature, Ernakulam, Kerala. ldquo Whether in the facts and circumstances of the case, hydrogen used along with oxygen as a fuel to melt the ends of quartz burners is a raw material within the meaning of Notification No. 201 dated 4.6.79. rdquo
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1985 (10) TMI 235
Show Cause-cum-demand notice without specifically invoking the period of 5 years ... ... ... ... ..... under the Rules. There has thus been suppression as correctly found by the Collector. 15. emsp Reference on behalf of the appellant that the order refers only to contravention of the provisions of the Act and hence only contravention of the provisions with intent to evade payment of duty should be the operative part of Section 11A is without substance. The show cause notice clearly sets out that there have been clearances without payment of duty and there has been a contravention of various Rules. One of these Rules is Rule 173Q which, amongst other things, refers to contravention of Rules with intent to evade payment of duty but the rest of the Rules sought in the show cause notice namely Rules 9(1), 52A and 226 and Rules wherein the intent to evade payment of duty is not a necessary ingredient to invite penal consequences for violation. In the result we find that the order of the Collector is maintainable on facts and is correct in law. The appeal is accordingly dismissed.
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1985 (10) TMI 234
manufacture of Ferro Alloys ... ... ... ... ..... he Tribunal noted that ldquo production of ferro alloys from ores is essentially a process of reduction. This needs large quantities of carbon in one form or the other and loco is carbon, commonly known as brown coal. The object of reducing ore cannot be achieved except by the use of brown coal etc., and we consider that it is essentially a raw material in the manufacture of the final product. rdquo Based on this view, the Tribunal allowed the appeal with consequential relief to the respondents. 4. emsp We have heard both sides to the Reference Application. We agree that a question of law in the amended form as stated below arises from the order of the Tribunal. We accordingly, refer the following question under Section 35G of the Central Excises and Salt Act, 1944 to the Honourable High Court of Judicature, Andhra Pradesh ldquo Whether Lignite (LECO) is a material in the manufacture of Ferro Alloys entitled to proforma credit under Rule 56A of the Central Excise Rules, 1944.
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1985 (10) TMI 233
Excess Production Rebate ... ... ... ... ..... the word that occur and not by the objective. The question therefore does not merit reference. Regarding Question No. 6 - In interpreting the provisions of a statute taking recourse to the words and phrases occurring in another part of the statute is a commonly accepted method. This principle being no longer res Integra this question is not referable. Regarding Question No. 7 - What we have observed in regard to Question 1 will apply to this question also. Hence it is not referable. We would therefore club Questions 2, 3 and 5 and 8 together and refer the following question to the Hon rsquo ble High Court of Judicature in terms of Section 35G of the Act - ldquo Whether in the facts and circumstances of the case, the Tribunal was right in interpreting the term lsquo remained closed rsquo occurring in the notification No. 283/82-CE as not applicable to the present case when there were in fact clearances during a period, an activity relating to manufacture in the factory rdquo .
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1985 (10) TMI 232
Stay of Tribunal’s Order ... ... ... ... ..... ved is deferred during the pendency of the reference application as the sum involved is Rs. 3,600/-. None of these reasons would justify the grant of stay pending consideration of a reference application particularly when the sum involved is Rs. 3,600/- and as the Collector points out the firm involved is sufficiently big as not to be hurt if the refund of Rs. 3,600/-is not made. This argument will cut both ways. Accordingly, the application is rejected.
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1985 (10) TMI 231
Appellate Authority ... ... ... ... ..... rder of the Additional Collector we do not thin it proper to issue any stay order at our level. Suffice if you observe that that part of the order of the Additional Collector by which he cancelled the goldsmith certificate is wholly without the jurisdiction. The power of cancellation or suspension of a licence or certificate is conferred on the Administrator or a person duly authorised by the Administrator under Sub-Sec. (5) of Sec. 4 of the Act. The Collector (Appeals) may consider this aspect while considering the request of the appellant for stay of that part of the order of the Additional Collector. 30. emsp The order of the Additional Collector is dated 3.7.84. More than a year had elapsed. If the appeal did not involve a question of jurisdiction, probably the Collector (Appeals) would have disposed of the appeal by this time. We, therefore, direct that the Collector (Appeals) shall dispose of the appeal within a period of 2 months from the date of receipt of this order.
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1985 (10) TMI 230
Short landing - Penalty not excessive, if value of the short landed goods is equal to penalty
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1985 (10) TMI 223
Customs valuation ... ... ... ... ..... of the evidence and materials found ldquo what the petitioner did could not fall within the legal concept of attempt to export rdquo . In the present case, it is not the case of the appellants that the goods under seizure were not attempted to be exported and there was no such plea at any time. 14. emsp Therefore, on careful consideration of all the materials available on record, I am inclined to hold that the charge found against the appellants under the impugned order is legally sustainable. In the facts and circumstances of the case, neither the quantum of fine in lieu of confiscation nor the penalty can be said to be harsh or excessive. The fine and penalty imposed on the appellants are therefore confirmed. In the result appeal No. 88/85 in respect of M/s. United Veneers (P) Ltd. is dismissed. 15. emsp So far as appeals 97/85 and 98/85 filed by K.S. Simon and John Philipose are concerned, since no penalty or fine is imposed on them, they are dismissed as not maintainable.
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