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1991 (2) TMI 389
... ... ... ... ..... two cases. (Here emphasis is supplied by us). Hence we declare that for the purposes of the Central Act raw hides and skins and dressed hides and skins are same goods, even though the latter is the result of the processes undergone by the former to enable their preservation and utilisation. The provisions of the State Act should yield to the Central Act on the questions involved herein on this there can be no two opinion. Therefore, it is unnecessary to go into the validity of the provisions of the State Act impugned in these petitions. To what extent the petitioners are entitled to relief is a matter for the assessing authority to consider, in the light of this decision. The assessing authorities are to proceed with afresh and pass appropriate orders in the light of this decision. In the result, for the reasons stated above these petitions are allowed and the penalty orders impugned herein are also set aside. Rule made absolute. No order as to costs. Writ petitions allowed.
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1991 (2) TMI 388
... ... ... ... ..... Where no other material was available on the record then, as held by the Financial Commissioner in two of the revisions decided by him, namely, Revision Nos. 558 and 559 of 1972 dated December 21, 1972 and Revision No. 594 of 1972 dated January 11, 1973, one should regard that there was a normal increase of 15 per cent in the business. The question as to how much should be the increase of the business is a question of fact and this 15 per cent increase has been upheld by the Tribunal. The fact that the revision of the order of the Assistant Commissioner was called for cannot, in our opinion, be disputed on the facts of the present case. We have no doubt in coming to the conclusion that the action of the Deputy Commissioner was fully justified and, in fact, he may have only erred towards leniency. For the above reasons the aforesaid question is answered in the affirmative and against the dealer. The respondents will be entitled to costs. Reference answered in the affirmative.
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1991 (2) TMI 387
... ... ... ... ..... ler had sought to adopt was, rightly, not accepted by the department and in determining whether the particulars of the sales have been concealed or inaccurate particulars of the sales furnished, on the facts in the present case, it is the first return which had to be seen and not the revised return. Had the revised returns been as a result of honest and bona fide omission or error the position may have been different but we make no observation in relation thereto. If, as in the present case, there was no omission or error in filing of the original return and inaccurate particulars were deliberately given then we have no hesitation in coming to the conclusion that the provisions of section 22A were attracted. The conclusion of the Sales Tax Department in this behalf was fully justified. For the aforesaid reasons the question of law is answered in favour of the respondents and against the dealer. The respondents will be entitled to costs. Reference answered in the affirmative.
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1991 (2) TMI 386
... ... ... ... ..... under the Andhra Pradesh General Sales Tax Act, 1957. That decision, we are told, became final and the Revenue did not challenge the same. Following the earlier decision, the Tribunal allowed the appeal, against which the present tax revision case has been filed. We are in complete agreement with the conclusion reached by the Tribunal that the commodity thermocole , is exigible to tax as general goods under the Andhra Pradesh General Sales Tax Act. We find no merits to admit this tax revision case. It is accordingly dismissed. Petition dismissed.
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1991 (2) TMI 385
... ... ... ... ..... rd that the intimation Which the dealer had sent to the department was regarding the closure of the business and did not by implication indicate the factum of dissolution . Merely because the business had closed cannot lead one to the conclusion that the firm has been dissolved. The Financial Commissioner, in our opinion, had no evidence before him on which he could have come to the conclusion that there has been a dissolution of the firm. No dissolution deed has been referred to and the reference to the aforesaid letter dated 24th of December, 1969, is misconceived. That letter referred to the closure of the business and not to the dissolution of the firm. In our opinion, therefore, question No. 5 has to be answered in favour of the department and against the dealer. In view of our answer to question No. 5 in favour of the department it is not necessary for us to answer the other questions which have been referred to. Ordered accordingly. There will be no order as to costs.
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1991 (2) TMI 384
... ... ... ... ..... specified that the payment had to be made within 31 days of the service of the notice then the date for payment stood determined with the service of the notice of the demand. It was merely an arithmetical calculation as to what would be the last date for payment. In any case the assessments which are made are final unless and until they are varied by the appellate or revisional authorities. Once orders are passed in appeal or revision and no further steps are taken for setting aside of those orders then the notice of demand which are issued cannot be challenged on merits. In the present case the notice of demand was sought to be challenged, as we have already observed, only on the ground that the last date for making the payment had not been specified. The sales tax authorities were justified in deciding against the dealer and for the aforesaid reason the question referred is answered in the affirmative and against the dealer. No costs. Reference answered in the affirmative.
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1991 (2) TMI 383
... ... ... ... ..... for the petitioner has shown how certain generators manufactured are described as generators and why certain diesel machines which also produce electrical energy are described as diesel generating sets. We are not in this case, however, pronouncing how and why a manufacturer decides to describe a particular product of his as a generator and another as a generating set. But our view has been fortified by the description of the instruction and the purpose of 200 KVA diesel generating sets which are the products sold by the petitioner therein that the generating sets so sold by them are nothing but generators as noticed by us above. The description shows that the diesel generating sets manufactured by them produces 200 KVA 160KV at 0.8 power factor, 415 volts, three phase electricity. That itself shows that the generating sets so produced and sold are nothing but generators. There is no merit in these tax cases and accordingly they are dismissed. No costs. Petitions dismissed.
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1991 (2) TMI 382
... ... ... ... ..... any stretch of imagination, muthri can be regarded as bread. It is wellsettled principle of interpretation of different entries in the Sales Tax Act that each entry has to be understood by different means in common parlance or in commercial circles. Bread is always made with the help of yeast where the other ingredient is maida or flour of wheat. Further every bread is baked while muthri on the other hand, even though made of maida, is always fried. In common parlance under no stretch of imagination can muthri ever be regarded as bread. The bread is available from baker s shop while muthri is not. It is the halwai who prepares and sells muthri and not the baker. In our opinion, therefore, muthri cannot be regarded as a bread. For the aforesaid reasons, question No. 1 is answered in favour of the dealer while question No. 2 is answered in favour of the department. The petition stands disposed of accordingly. There will be no order as to costs. Reference answered accordingly.
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1991 (2) TMI 381
... ... ... ... ..... r in Coimbatore. The goods were not brought into Andhra Pradesh State nor did they move out of the Andhra Pradesh State. No element of sale had taken place in the Andhra Pradesh State and hence it could not be concluded that there was interState sale in Andhra Pradesh in the hands of the assessee relating to the goods. In this view, the Tribunal took the view that the goods purchased at Bellary were despatched to Coimbatore and that the disputed turnover could not be subjected to tax as relating to inter-State sales in the hands of the assessee and consequently allowed the appeal. We are in complete agreement with the finding of fact recorded by the Sales Tax Appellate Tribunal that the goods were directly sent from Bellary to Coimbatore and that there is no element of sale that had taken place in the Andhra Pradesh State and the disputed turnover could not be subjected to tax in the hands of the assessee. Consequently, the tax revision case is dismissed. Petition dismissed.
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1991 (2) TMI 380
... ... ... ... ..... ably contended that simply because the extent of the limits of taxation are comparatively higher in a particular State and more goods have been brought within the fold of legislation for imposing sales tax or additional tax on sale or purchase, such imposition of tax offends the right to free movement of trade or right under the free movement of goods in inter-State transaction. In considering the case of restriction on inter-State trade or transactions as contemplated under article 301 of the Constitution, it is only necessary to consider whether any restriction directly and not remotely has been brought about on the free movement of goods and trade and not the quantum and degree of taxation in the State imposed on various articles. Viewed from this aspect, section 15B cannot be held to have offended article 301 of the Constitution. In the result, all the special civil applications must fail and accordingly, they are dismissed with no order as to costs. Petitions dismissed.
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1991 (2) TMI 379
... ... ... ... ..... d, therefore, remanded the matter to the Deputy Commissioner to dispose it of afresh. It is settled law that right of appeal or revision are vested rights of parties. In taxation matters the statutory right of appeal or revision are also vested rights and is to be determined from what was the law when the order of assessment was passed. On 26th June, 1984, when the assessment order was passed there was a provision for an unrestricted revision available to the parties against the Revenue and that was a vested right and the amending Act 18 of 1985 could not affect the right, unless it specially takes it away. The amending Act is not retrospective and does not specifically take away such right. Therefore, the right of revision under the unamended section 20(1) was still available and the Tribunal is right in directing the Deputy Commissioner to dispose of the revision in accordance with law, consequently, the revision case is dismissed. No order as to costs. Petition dismissed.
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1991 (2) TMI 378
... ... ... ... ..... hat where the sale is of declared goods without C forms, the rate of Central sales tax will be double the rate of the appropriate State sales tax. The local sales tax on jowar is at 2 per cent as mentioned by us earlier and as per section 8(2)(a), the Central sales tax will be at the rate of 4 per cent. This the Tribunal also held in its judgment. We are in complete agreement with the decision of the Tribunal in T.A. No. 379/87. No other point is urged before us. The learned counsel for the appellant wanted to urge that jowar had ceased to be jowar because it was in seed form. Jowar will remain jowar whatever its form may be. With these remarks, the tax revision case is dismissed. Petition dismissed.
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1991 (2) TMI 377
... ... ... ... ..... er the actual sales tax is paid by the dealers for that period for considering the claim for refund of the tax. It may be noticed that in the assessment order itself exemption was allowed on the ground that it was a case of second purchase and no further check is required. In any case the cross-check should have been completed within three months as contemplated by sub-rule (5) of rule 27-A of the Andhra Pradesh General Sales Tax Rules. In the above circumstances, we find no reason for withholding the refund for all these years. A writ of mandamus is accordingly issued directing the respondent to refund the local sales tax collected from the petitioner for the aforesaid two sets of goods for the aforesaid turnover, within a period of one month from the date of receipt of this order, together with interest calculated at the rate of 12 per cent per annum with effect from November 1, 1986, since the order of assessment was made on July 19, 1986. No costs. Writ petition allowed.
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1991 (2) TMI 376
... ... ... ... ..... unsel for the petitioner, however, drew our attention to a judgment of this Court in State of Tamil Nadu v. Prabakaran and Company (1990) 2 SISTC 124, in which it is indicated that in explanation to entry 84 in the case of timber and bamboo purchased by the forest contractors in the auction of forest coupes conducted by the Forest Department of the Government, the sale by such contractors of such timber and bamboo in any form or size shall be deemed to be the first sale and the sale by the Forest Department in such auction of forest coupes shall not be the first sale. In any case, the first sale would be by the contractor, and in the case of the petitioner who is not a contractor, we do not have any foundational facts for this contention. The Tribunal has concluded rightly and held that the sale of eucalyptus trees is taxable as bamboo and timber at the rate of 5 per cent. There is no merit in the petition. The tax case is accordingly dismissed. No costs. Petition dismissed.
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1991 (2) TMI 375
... ... ... ... ..... (26)(iii), it will have to be held that since iron scrap, even after they were converted into M.S. round bars, did not go out of the description of the entry iron and steel , the sale of M.S. round bars will have to be regarded as resale . The view which we are taking is also supported by the decision of the Bombay High Court in Shree Ratn Steel Rolling Mills v. State of Maharashtra 1983 53 STC 202. We are, therefore, of the opinion that as the description of both the goods purchased as well as the goods sold by the applicant remained the same even after the goods purchased, viz., iron scrap, were turned into M.S. round bars, the applicant was entitled to deduction under section 7(ii) read with section 2(26)(ii) of the Act and rule 3(xvii) of the Rules, or section 2(26)(iii). Accordingly we answer the question referred to us in the negative, that is, in favour of the assessee and against the department. Each party shall bear its own costs. Reference answered in the negative.
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1991 (2) TMI 374
... ... ... ... ..... ed in the name of detergent powders and detergent liquids. No doubt, as found by the Tribunal, alkyl benzene sulphonate has got properties of detergent, but, such properties can be found in many other commodities, yet they cannot be so-called such commodities are understood by their common name and a differently (sic). All chemicals have their properties. The students of chemistry read and understand the properties of such chemicals and analyse but, only by dint of such properties all chemicals cannot be allowed to be marketed as goods which are sold for a specific purpose. The Tribunal evidently has fallen in error. It is conceded before us that if not a detergent alkyl benzene sulphonate is a chemical. That being the position, we have no hesitation in holding that the order of the Tribunal cannot be sustained. The same is accordingly set aside. The tax case is allowed. The order of the Appellate Assistant Commissioner in this behalf is restored. No costs. Petition allowed.
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1991 (2) TMI 373
... ... ... ... ..... s and whether the production of form No. XXI was a must and there could be other modes of proof of the facts contemplated under the said rule. In the case on hand the question is whether the petitioner has really discharged the burden, and in our view, the petitioner has not substantiated with sufficient and proper material that they are only second purchasers and as such their transactions in question do not attract the levy under the Act. That apart, in case the appellants have paid any sales tax to the mills, it is for them to take appropriate proceedings to recover the same, but they cannot escape their liability on the plea that they have already paid tax to the mills, which in law they were not obliged to pay. 8.. For all the reasons stated above, we see no reason to interfere with the order of the Tribunal and consequently the tax revision case fails and shall stand dismissed but in the circumstances of the case, there will be no order as to costs. Petition dismissed.
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1991 (2) TMI 372
... ... ... ... ..... nterference. We, therefore, find that the Tribunal was perfectly justified in holding that the turnover of Rs. 3,03,563 assessed to tax at 5 per cent by invoking the provisions of section 7-A of the Act by the assessing authority was not legally correct and thus, was unsustainable. To attract liability to tax under section 7-A(1)(a) of the Act, it must be established that the purchased goods were consumed or used in the manufacture of other goods for sale. Since the assessee did not consume the cut-end woods in the manufacture of other goods, because shooks and planks continued to retain the identity of timber only, he could not attract liability to tax under section 7-A(1)(a) of the Act. The order of the Tribunal, under revision, therefore, does not call for any interference at our hands in exercise of the revisional jurisdiction under section 38 of the Act. Consequently, the revision fails and is dismissed. There shall, however, be no order as to costs. Petition dismissed.
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1991 (2) TMI 371
... ... ... ... ..... ntioned in the writ petition. Be that as it may, when the documents and papers seized under the Act of 1941 are to be returned to the applicants for reasons already stated, it will be for the concerned authorities to decide as to what further steps they should take in the matter. 12.. From what has been stated above, the application is to succeed in part. 13.. The application is, therefore, allowed in part. Let the documents seized by the Inspector of Commercial Taxes, attached to the Bureau of Investigation on March 12, 1982, under the Act of 1941 as well as Act of 1954, be returned to the applicants within one month from this date. The notices issued to Messrs. Kailash Brothers, 72, Cotton Street, Calcutta-700 007 on March 20, 1982 and thereafter for investigation under the Act of 1954, are quashed. 14.. The application is thus disposed of. We make no order as to costs. P.C. BANERJI (Technical Member)-I agree. L.N. RAY (Judicial Member)-I agree. Application partly allowed.
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1991 (2) TMI 370
... ... ... ... ..... he export merchants and the sale by the export merchants. True, Polythene bags were separately sold, but banians were sold in the Polythene bags and the transfer of title in the bags along with the transfer of title in the banians is not in dispute. The Tribunal has also said It is common knowledge that the banians cannot be exported without being packed and the packing materials are part and parcel of the commodity exported and the value of the packing materials is included in the sales turnover of the exporter. The rule indicated in the judgment of this Court in the case of Commissioner of Income-tax v. Poly-ene General Industries 1976 104 ITR 242 (Mad.), in our view, is fully attracted to the facts of this case. The Tribunal has committed no error of law in holding that the Polythene bags were also sold in the course of export by the purchasers from the assessees. There is no merit in these petitions. The petitions are accordingly dismissed. No costs. Petitions dismissed.
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