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1985 (8) TMI 365
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... ... ..... round of limitation is a factor which cannot be last sight of and at the same time the assets of the petitioners are also not as bad as is depicted. 16. After considering all aspects of the matter, we do not think it would be proper to ask the petitioner-company to deposit the entire duty and penalty amounts. It will be quite reasonable to direct that 25% of the disputed duty amount be deposited within six weeks. We, however, find that it is a fit case where we should dispense with the pre-deposit of the penalty amount. 17. In the result, we partly allow this application and direct the petitioner-company to deposit 25% of the duty amount as indicated above. In case the same is done, the deposit of the balance of the duty amount and also the penalty amount shall stand waived. Further, if the said duty is deposited, the recovery of the other amounts shall stand stayed till the disposal of the appeal. 18. The application is disposed of in the above terms.
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1985 (8) TMI 364
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... ... ..... clearance during 1975-76. 33. In sum, therefore, by ignoring the figures of “clearances” during 1973-74, since those figures are not available in Central Excise terms, the appellants would not be prejudiced; nor would the final conclusions of the lower authorities be affected. 34. In the light of the careful and indeed anxious consideration which we have given to the matter, we are of the view that the words “cleared from a factory for the first time” in the three sub-clauses of Clause 2(2) should be interpreted as relating to removals of goods from a factory, whether or not such goods were excisable at a previous point of time. The Assistant Collector was therefore right in holding that the appellants’ case was covered by alternative (c) of Clause 2(2). The Appellate Collector was also right in upholding the Assistant Collector’s order. We accordingly confirm the orders of the Appellate Collector and reject these three appeals.
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1985 (8) TMI 363
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... ... ..... rder on 31-12-1984 and the copy, was given to him in person on 22-2-1985. 8. As has been noticed earlier, an appeal by a party is required to be filed within three months from the date of communication of the order appealed against. In the absence of evidence on the part of the department as to the date of communication of the order to the applicant, the date of receipt of the order by him shall have to be taken as the date on which he was communicated with the order. In that view of the matter the appeal filed within three months from that date is within the prescribed period of limitation. 9. As the appeal was filed within the prescribed period of limitation the question of delay or condoning the delay does not arise. 10. Having regard to the findings on question No. (i), the question No (ii), does not survive for consideration. The appeal is treated as having been filed within the prescribed period of limitation. This application is disposed of accordingly.
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1985 (8) TMI 362
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... ... ..... the appellants used for packing their soap stone powder. At any rate, there is no evidence of any agreement between the appellants and their customers which made the gunny bags returnable to the appellants. There is absolutely no evidence whether any gunny bags were actually returned to the appellants and the cost thereof refunded to the customers. In the circumstances, the Collector was correct in not deducting the packing charges from the value of the soap stone powder cleared. As regards freight, sales tax and octroi, we notice from the appellants reply dated 18-5-1981 to the show cause notice that all these three elements, taken together, amounted to about ₹ 10,000/-. Even if this amount were to be deducted from the total value of clearances as arrived at by the lower authorities, such total value still remains above the ceiling limit of ₹ 30 lakhs. 11. In the result, we find no merit in any of the arguments of the appellants and reject both the appeals.
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1985 (8) TMI 361
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... ... ..... what is clearly said with no room for equity. 25.. M.J.C. Nos. 37 and 38 of 1984 (R) were not pressed at the time of hearing of their respective main petitions by the learned counsel appearing for the petitioners and are accordingly dismissed. 26.. In the result all the writ petitions are allowed in the light of the observations aforesaid with the exception of C.W.J.C. No. 753 of 1984 (R) and C.W.J.C. No. 756 of 1984 (R) which are dismissed with the observation made in paragraph 24 of this judgment. Similarly M.J.C. Nos. 37 and 38 of 1984 (R) are also dismissed for having not been pressed. Penalty imposed in C.W.J.C. No. 155 of 1984 (R) is set aside. Respondents are directed to consider the cases of the petitioners and give effect to the two notifications dated 31st December, 1980, and 16th April, 1982, as interpreted by this judgment, and give relief to the petitioners provided they fulfil the factual requirement of those two notifications. There will be no order for costs.
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1985 (8) TMI 360
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... ... ..... ten years and more particularly in view of the fact that the new provisions contained in section 11B of the Act are materially different from the repealed provisions of that section, in our view, it would not be proper to take a different interpretation of the provisions of section 11B, as it then existed, more than six years after its repeal and substitution by new provisions. Therefore, we hold that under the repealed provisions of section 11B of the Act interest could be charged from the dealer only in respect of completed months, if there was a default in payment of tax and the fraction of a month for a period less than a month should be ignored for purposes of calculation of interest for the period of default in payment of tax. In this view of the matter the applications for reference, which have been deemed as revision petitions under the amended provisions of section 15(1) of the Act, are dismissed but the parties are left to bear their own costs. Petitions dismissed.
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1985 (8) TMI 359
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... ... ..... serve that by the amending Act No. 9 of 1976, which replaced Ordinance No. 1 of 1976 and came into force with effect from January 2, 1976, the provisions of section 16(1)(n) were amended and contravention of the provisions of the Act as well as the provisions of the Rules have been made subject-matter of imposition of penalty under section 16(1)(n). Thus, we are of the view that before January 2, 1976 penalty could not be imposed on the dealer for contravention of the provisions of the Rules. In this view of the matter, the penalty imposed under section 16(1)(n) of the Act was rightly set aside by the appellate authority and the Board of Revenue was justified in upholding the order passed by the appellate authority. Both the reference applications, being treated as revision petitions under section 15(1) of the Rajasthan Sales Tax Act, as amended, are hereby dismissed as no question of law appears to arise out of the orders passed by the Board of Revenue. Petitions dismissed.
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1985 (8) TMI 358
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... ... ..... ent under section 19, if the assessing authority has no power to make best judgment assessment, all that the assessee need do to escape reassessment is to refuse to file a return or refuse to produce his account books. If the contention taken on behalf of the assessee is correct, the assessee can escape his liability to be reassessed by adopting an obstructive attitude. It is difficult to conceive that such could be the position in law. 9.. As a result of the above discussion the aforesaid common question of law has to be answered in favour of the department and against the assessee in all these four references. Our answer to the question is, therefore, as under The Tribunal was not justified in holding while making the reassessment under section 19(1) of the Act, that the turnover must be confined only to the established escaped turnover and that resort to best judgment assessment could not be made. The parties shall bear their own costs. Reference answered in the negative.
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1985 (8) TMI 357
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... ... ..... in the case of Assam Roller Flour Mills v. Commercial Taxes Officer, Special Circle I, Jaipur 1975 RRD 255, took the view that if the purchase of wheat was tax-paid, then the sales tax was not leviable on the sale of maida or suji. In these circumstances, it cannot be held that the assessee had deliberately furnished inaccurate particulars or there was any intentional misrepresentation on the part of the assessee in not showing the sales of atta, maida and suji in the taxable turnover while the said sales were shown in the tax-paid turnover of the assessee. We are unable to hold that there was any wilful or deliberate intention on the part of the assessee to conceal the facts or to evade the payment of tax. We, therefore, agree with the view taken by the Board of Revenue in its order dated February 16, 1979. There is no force in this revision petition and the same is dismissed. The parties are left to bear their own costs of the proceedings in this Court. Petition dismissed.
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1985 (8) TMI 356
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... ... ..... e application earlier filed, but so far as the present application under section 15(2) of the Act is concerned, the same cannot be held to be maintainable, because such an application could only be filed after the Board of Revenue had passed an order on their petition under section 15(1) of the Act within the prescribed period of 180 days. If the Board of Revenue did not pass any order within the statutory period, then the Board of Revenue had no jurisdiction to pass an order, after the expiry of the period of 180 days of the receipt of the application under section 15(1) of the Act. Thus the order passed by the Board of Revenue on April 16, 1979, was without jurisdiction and no application for referring the matter under section 15(2) of the Act could be maintained with reference to such an order passed by the Board of Revenue. We, therefore, hold that the present application under section 15(2) of the Act is not maintainable and the same is dismissed. Application dismissed.
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1985 (8) TMI 355
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... ... ..... t jurisdiction, deserves to be set aside. At this point of time, Mr. Rajendra Mehta submitted that he does not press the two reference applications under section 15(2) of the Act, which have been treated as revision petitions. Sales Tax References Nos. 13 and 14 of 1980, which have been treated and heard as revisions under section 15 of the Act, as substituted by the Amendment Act, are allowed and the best judgment assessment made by the A.C.T.O. (Anti-Evasion), Bikaner, are set aside. It follows therefore, that the orders of the Deputy Commissioner (Appeals) dated June 12, 1974 and the order of the Board, dated February 27, 1978 cannot be sustained and they are also set aside. The reference applications registered as D.B. Sales Tax Cases Nos. 34 and 35 of 1980 are dismissed as not pressed. In the circumstances of the case, we leave the parties to bear their own costs. Sales Tax References Nos. 13 and 14 of 1980 allowed. D.B. Sales Tax Cases Nos. 34 and 35 of 1980 dismissed.
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1985 (8) TMI 354
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... ... ..... at so far the assessment of tax has not been finalised inasmuch as the returns filed by the petitioner have not been adjudicated upon. The Assessing Authority is well entitled to disallow the deductions claimed by the petitioner in accordance with law, but till that is done, the petitioner is only under an obligation to pay the tax in accordance with its return. As a result of the adjudication of that return on merits the taxing authority may allow or disallow the claim of the petitioner and thereby create any further liability for the payment of tax. In the absence of any such adjudication the Assessing Authority obviously cannot demand any amount of tax over and above the one which is due from the petitioner in accordance with the return filed on its behalf. For the reasons recorded above, the impugned notice (annexure P. 4) is quashed and the case is sent back to the Assessing Authority for disposal in accordance with law and the observations made above. Petition allowed.
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1985 (8) TMI 353
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... ... ..... ions of section 16(1)(n) of the Act and so the penalty was thus leviable. Our finding on the question of law formulated by us hereinabove is in the affirmative and non-compliance of rule 42(1) or (2) as the case may be entails imposition of penalty under section 16(1)(n) of the Act. The result is that this application, which has been treated and heard as a revision under section 15 of the Act as substituted by the Amendment Act, is allowed and orders, exhibit 2 dated February 16, 1979 of the Deputy Commissioner (Appeals) Jodhpur, exhibit 3 dated January 28, 1982 of the Board passed in revision and exhibit 4 dated July 2, 1982 passed in special appeal are set aside and the assessment-cum-penalty order, exhibit 1 dated October 1, 1976 of the Commercial Taxes Officer, Pali imposing penalty of Rs. 500 on non-petitioner No. 1 is restored. As nobody has appeared on behalf of the dealer-non-petitioner No. 1, there will be no order as to costs of these proceedings. Petition allowed.
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1985 (8) TMI 352
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... ... ..... forms under section 8(4) of the said Act. Therefore, the State Government could lawfully frame or adopt a rule by laying down prerequisites for issue of declaration forms. Therefore, rule 27AA(2)(c) of the Bengal Sales Tax Rules has been lawfully made applicable by rule 4(2) of the Central Sales Tax (West Bengal) Rules. Absence of authority to prescribe such Rules in section 8(4) of the Central Sales Tax Act is not fatal. Therefore, we conclude that the Commercial Tax Officer had jurisdiction to direct that unless the dealer, i.e., the writ petitioner, submitted returns under the Central Sales Tax Act, no declaration form referred to in section 8(4) of the said Act would be issued. Accordingly, the writ petition filed by the respondent, M/s. Bengal Potteries Ltd., ought to fail in its entirety. We accordingly allow this appeal, set aside the judgment and order of the trial court and dismiss the writ petition. There will be no order as to costs. SHAMSUDDIN AHMED, J.-I agree.
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1985 (8) TMI 351
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... ... ..... g the impurities found therein. There, according to the Supreme Court, even though it is a very bad groundnut oil still it is a groundnut oil. There, the expression which came up for consideration is groundnut oil since the article found was groundnut oil with considerable impurities, it was taken that it continues to be a groundnut oil. The word which comes up for consideration is a lubricating oil and an oil which cannot be used for lubrication purposes can never be brought under that term even though the oil was originally a lubricating oil but at the time it was dealt with by the assessee it is used as a lubricating oil. Since entry No. 47 refers to lubricating oil and not any oil, the petitioner cannot invoke entry No. 47, when the oil purchased by him cannot at all be used as a lubricating oil. In this view of the matter, we are in entire agreement with the view taken by the Tribunal in this case. The tax case is therefore dismissed. There will be no order as to costs.
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1985 (8) TMI 350
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... ... ..... uished and, therefore, there is no disputed tax. It is implied in the relief claimed by the assessee itself that the assessment order continued to be there so long the right of appeal continues. Therefore, I agree with the view of the Tribunal that ad valorem court-fee should have been paid by the assessee at the rate of 7 frac12 per cent of the disputed tax. Coming to the second contention, I agree with the assessee that the Tribunal should have given suitable opportunity requiring it to pay the court-fee and the appeals should not have been rejected straightway branding them as defective. In the result, both the revisions are dismissed. The Tribunal, however, will give opportunity to the assessee to make the deficiency in the court-fee good and if the court-fee is paid then the appeals will be decided on merits. If the court-fee is not paid as per direction then only both the appeals will be rejected for want of payment of court-fees. The parties will bear their own costs.
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1985 (8) TMI 349
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... ... ..... redetermine the question of penalty in view of the judgment rendered by them and in the light of the principles enunciated therein. We are also inclined to adopt the same course. We, therefore, allow this application, which has been treated as a revision and set aside the order dated 27th August, 1980, of the Board and direct the Sales Tax Appellate Tribunal, Ajmer, constituted under section 2-A of the Act as inserted by section 2 of the Amendment Act to redetermine the revision and decide the question of levy of penalty and its quantum, if necessary, in accordance with law, keeping in view the observations made hereinabove and also the principles enunciated in Anwar Ali s case 1970 76 ITR 696 (SC), Anantharam Veerasinghaiah and Co. s case 1980 123 ITR 457 (SC) and J.P. Sharma and Sons 1985 151 ITR 333 relating to the imposition of penalty. The parties will be afforded an opportunity of hearing. In the circumstances of the case, we leave the parties to bear their own costs.
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1985 (8) TMI 348
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... ... ..... en in the aforesaid three decisions of the Allahabad High Court and adopt them for resolving the question before us. We are of the opinion that the view taken by the Board in its order dated 16th October, 1984, on the basis of the notification dated 19th May, 1972, that gowar churi or korma is not exempt from payment of tax is erroneous in law. For the reasons mentioned in the Commercial Taxes Officer s case (D.B. Civil Sales Tax Case No. 60 of 1980 decided on 30th July, 1985) 1986 61 STC 83 we are of the opinion that gowar churi or korma is not included in gowar when gowar has been excluded from cattle feeds which are exempt from payment of sales tax. For the reasons mentioned above, we allow this revision and set aside the order dated 16th October, 1984, passed by the Board and hold that gowar churi or korma is exempt from payment of tax in respect of the year under consideration under entry 9 of the Schedule to the Act. There will be no order as to costs of this revision.
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1985 (8) TMI 347
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... ... ..... mpugned order to their detriment. In the light of the above, I am satisfied that the impugned order deserves to be set aside and I order accordingly. In normal course I would have sent the cases back to the Assessing Authority, Hissar, for redetermining the whole matter but I find that since allegations of mala fides have been levelled against the officer who passed the order, annexure P. 6, and the petitioners also allege some victimisation, I feel it would be proper if a senior officer of the department deals with the matter afresh. It is needless for me to point out here that the petitioners would be entitled to argue on all the points which they have taken up in their reply to the notice or in the writ petition. I thus remand these cases to the Excise and Taxation Commissioner (Appellate Authority), Rohtak, who would go into the matter again in accordance with law. The parties through their counsel are directed to appear before him on 9th September, 1985. Cases remanded.
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1985 (8) TMI 346
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... ... ..... ender himself liable to pay penalty in accordance with section 5C(2) of the Act. When the department itself contends that it is not raw material, one fails to understand as to how the provisions of section 5C(2) can be attracted. The two contentions raised by the learned counsel for the C.T.O. are, therefore, devoid of force. It is held that no penalty was leviable under section 5C(2) of the Act on the dealer-assessee. The view taken by the Deputy Commissioner (Appeals), Commercial Taxes, Jodhpur, the learned single Member of the Board in revision and the Division Bench of the Board in special appeal in their orders dated 17th July, 1975 6th February, 1980, and 18th June, 1982, respectively is correct. The result is that the application under section 15(2)(b) of the Act, as substituted by the Amendment Act, has no merit and it is, accordingly, dismissed. In the circumstances of the case, we leave the parties to bear their own costs of this application. Application dismissed.
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