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Case Laws
Showing 61 to 80 of 359 Records
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1991 (3) TMI 345
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... ... ..... hell grit is admittedly used by the poultry. Therefore, both the items, shell grit and poultry-feed mineral mixture come within entry No. 80 poultry-feed and cattle feed . Since shell grit and poultry-feed mineral mixture are used by poultry, they are covered by the aforesaid entry No. 80. In the above decision, the Tribunal relied on the opinion of the Professor and Head of the Department of Animal Science and Veterinary Science, Andhra Pradesh Agricultural University, Hyderabad, and also on the opinion of the Andhra Pradesh State Meat and Poultry Development Corporation Limited, Sanathnagar, Hyderabad. Both the bodies had certified stating that shell grit contains minerals like calcium and phosphorous and is used as poultry-feed. In view of this expert opinion, we are in agreement with the learned Tribunal that the aforesaid two items are poultry-feed and are covered by entry No. 80 of the First Schedule. The tax revision case is consequently dismissed. Petition dismissed.
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1991 (3) TMI 344
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... ... ..... ion to the item of turnover in question, there was no occasion for the authorities to consider the further question as to whether and to what extent the essential prerequisites stipulated in section 5(3) are fulfilled by the turnover and the transactions in question. These aspects require proper verification with reference to the relevant records and the counsel on either side are agreed that, if at all, the matter should be relegated to the assessing authority for such verification. Thus, while setting aside the order of the Tribunal, we direct the matter be remitted to the assessing authority with a direction to consider, in the light of the declaration of law by us, the satisfaction of the norms and conditions fixed to consider the claim made by the assessee under section 5(3) of the Central Sales Tax Act, afresh and in accordance with law. The tax (revision) case is allowed in the above terms but in the circumstances, there will be no order as to costs. Petition allowed.
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1991 (3) TMI 343
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... ... ..... that purpose. So far as T.M. egg formula is concerned, it is a borderline case. Even then, it is not possible to say that it is a drug or a medicine because it contains vitamins and its advertised use and actual use is as a nutritional product. We, therefore, answer the question which is referred to us as follows 1.. T.M. poultry formula being a drug or medicine is covered by entry 26(1) of Schedule II, Part A to the Gujarat Sales Tax Act, 1969. 2.. T.M. egg formula, T.M. forte and T.M. 5 can properly be described as poultry-feed and, therefore, they are covered by entry 25 of Schedule I to the Gujarat Sales Tax Act, 1969 and thus they are free from payment of tax on their sales. The question is thus answered in favour of the State so far as T.M. poultry formula is concerned and is answered in favour of the assessee and against the department in so far as it relates to the other products. There shall be no order as to costs in this reference. Reference answered accordingly.
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1991 (3) TMI 342
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... ... ..... lay down any ratio which is helpful to the Revenue. In view of the above discussion it is clear that any subsidy received by a manufacturer cannot be treated as a part of a turnover within the meaning of section 2(s) of the Andhra Pradesh General Sales Tax Act, more so when the transactions are covered by bills as required by statutory provisions. No amount has been paid on behalf of the purchaser nor any such amount collected by the dealer in excess of the price mentioned in the bill. The writ petition is, accordingly, allowed and the assessment order for the assessment year 1983-84 under the Andhra Pradesh General Sales Tax Act dated February 4, 1988, on the file of the Commercial Tax Officer, Panjagutta Division, Hyderabad, to the extent it includes the subsidy as a part of turnover and brings it to tax is set aside. The proceedings under the Act in respect of other items will be decided according to law. No costs. Government Pleader s fee Rs. 500. Writ petition allowed.
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1991 (3) TMI 341
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... ... ..... ter to the Sales Tax Officer especially when the Tribunal itself was of the opinion that the claim of set-off of tax under rule 42 could have been decided on the basis of evidence and material already on record without necessitating any further enquiry into fresh facts or evidence. However, the Tribunal did not permit the applicant to raise the plea of set-off of tax solely on the ground that the said plea was not raised before the lower authorities and, as stated hereinabove, the stand taken by the Tribunal was not just and proper in the facts and circumstances of the present case. 7.. We, therefore, answer the question referred to us in the negative by holding that the Tribunal was not right in law in not allowing the applicant to raise the plea of set-off of tax under rule 42 of the Gujarat Sales Tax Rules, i.e., in favour of the assessee and against the department. Reference is answered accordingly. There shall be no order as to costs. Reference answered in the negative.
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1991 (3) TMI 340
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... ... ..... its proper spirit and should not be a mere pretence of compliance. The order passed by the learned Additional Commissioner in not recording the reasons, does not satisfy this requirement of law and is laconic in nature. As no reasons have been given the order, annexure 9 in S.B.C.W.P. No. 653 of 1991 and order, annexure 10 in S.B.C.W.P. No. 654 of 1991 stand vitiated. In the result, these writ petitions filed by the petitioners, are allowed. The orders, annexure 9 in S.B. Civil Writ Petition No. 653 of 1991 and annexure 10 in S.B. Civil Writ Petition No. 654 of 1991, passed by the learned Additional Commissioner, Commercial Taxes, Rajasthan, Jaipur, are set aside and the learned Additional Commissioner, Commercial Taxes, Rajasthan, Jaipur, is directed to dispose of the stay applications filed by the petitioners in accordance with law and till then no coercive measures shall be taken against the petitioners for recovering the amount of additional tax. Writ petitions allowed.
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1991 (3) TMI 339
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... ... ..... A reading of the Third Schedule indicates that the various sub-items in the entry iron and steel are treated as different commodities for the purpose of levying sales tax. Wherever the State Legislature wanted to make a difference even in respect of declared goods it has done so as is seen from entry 9 of the Third Schedule relating to hides and skins . While the entry in section 14 of the Central Act considers hides and skins whether dressed or not as one commodity, for the purpose of the Third Schedule they are split into untanned hides and skins and tanned hides and skins and some relief is granted in levy of tax. Therefore, it is clear that whenever Legislature wanted to grant any relief it has done so by making a specific provision. In the absence of any such provision, we cannot accept the contention of the petitioner that the scheme of the Act itself indicates that the goods sold by them are not liable to tax. The revision is, therefore, dismissed. Petition dismissed.
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1991 (3) TMI 338
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... ... ..... correct position and no case is made out to disbelieve the petitioner s reason given for the movement of goods from Mangalore to Kerala. In my opinion, this is an eminently fit case to interfere at the stage of proposition notices, since the ingredients to apply section 3(a) of the Central Sales Tax Act, are totally absent in this case and the petitioner should not be exposed to the proceedings of assessment resulting in demands and driving the assessee to challenge the same in appeals provided under the Act. It must be noticed in this context that the learned Government Advocate was not able to produce the invoices referred to in the statement of objections in support of his contention that the sale took place in Mangalore and the movement of goods from Mangalore to Kerala was pursuant to the said sale. For the reasons stated above, these writ petitions are allowed and the proposition notices dated February 17, 1988 (annexures F and G ), are quashed. Writ petitions allowed.
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1991 (3) TMI 337
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... ... ..... taken action for imposition of penalty by initiating penalty proceedings as in the case before us, i.e., by issuing notice under section 45(1)(b) to impose penalty, it is open to the revisional authority to impose penalty, if the original authority has either refused to impose penalty or omitted or failed to impose penalty. In case where it has omitted to impose penalty despite initiation of penalty proceedings, it can be said that impliedly it has not imposed penalty and the order of not imposing penalty is revisable under section 67 of the said Act. 11.. We are, therefore, of the opinion that the Tribunal was light in holding that the imposition of penalty under section 45(1)(b) of the said Act by the Assistant Commissioner in suo motu was legal and valid. 12.. In the result, we answer all the three questions referred to us in the affirmative, i.e., in favour of the State and against the applicant. There shall be no order as to costs. Reference answered in the affirmative.
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1991 (3) TMI 336
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... ... ..... es of cement cannot be said to be the sale under compulsion. In fact, in the case before us the element of compulsion is not to be found at any stage of transactions, and in fact, there is willingness on the part of appellant-mill company from the very first stage when it approached the court for sanctioning its compromise scheme under section 391 of the Companies Act, and the terms and conditions of the scheme have in no way hampered the power of the appellant-mill company nor have put any restriction on the power of appellant-mill company which can be said to militate against the element of free will in the transaction of sale. 11.. We are of the opinion that the transactions of sale of machineries and plant of unit No. 2 and stock-in-trade were liable to tax under Gujarat Sales Tax Act, 1969. We, therefore, answer the question in affirmative, i.e., in favour of department and against the assessee. There shall be no order as to costs. Reference answered in the affirmative.
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1991 (3) TMI 335
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... ... ..... f this case, especially when before us there is one partnership firm only namely, M/s. Jalaram Engineering Works, and when the two partners (applicants) of the said partnership firm have retired and the remaining two partners have continued business of the firm. In fact, question which arose before the Supreme Court does not arise in the facts and circumstances of the present case before us and we are only concerned with the question as to whether the retiring partners are liable to pay sales tax for the period subsequent to their retirement in the absence of intimation of their retirement in writing to the authority within stipulated period. We are, therefore, of the opinion that the said decision of the Supreme Court does not deal with the question that is raised before us. 9.. In the result, we answer the questions 1 and 2 in the affirmative, i.e., against the assessee and in favour of department. There shall be no order as to costs. Reference answered in the affirmative.
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1991 (3) TMI 334
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... ... ..... d by the Tribunal in the case of Collector of Central Excise, Calcutta v. IOC, Haldia 1984 ECR 379 . 6. It appears that the above case dealt with only one single item. However there is no bar on applying the same principle in respect of different items also provided the same were loaded one after the other from a common discharge/loading system and from and to the same tanker. But this will be a reasonable approach only if one item follows the other without any intervening mechanism of separating the two. Idea is that if it is inherent in a process that excisable fluids will get mixed up necessarily while loading or discharging, then gains in one should be off set against loss of the other. Subject to this phenomenon being verified by the Assistant Collector, the Government allows adjustment of gains against losses and condone the overall losses only to the extent already allowed by the lower authorities. 7. The revision application is accordingly allowed in the above terms.
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1991 (3) TMI 333
Penalty for wrongful with holding of property ... ... ... ... ..... the premises on the ground that he was a tenant thereof. While considering whether the plea of tenancy is a bona fide plea, it is always necessary to examine and consider the transaction on the basis of which the plea of tenancy is based and if on those facts no plea can be raised, such a plea cannot be entertained. Consequently, I reject the contention of learned counsel for the petitioner-accused that the criminal court has no jurisdiction to entertain the complaint under section 630 of the Companies Act, as the petitioner claims to be a tenant thereof . I respectfully agree with the view expressed by learned judge. In this view of the matter, it cannot be stated that the laun ching of prosecution for the offence under section 630 of the Companies Act is incompetent even in the face of the pendency of the civil litigation between the parties. For the reasons stated above, all the petitions deserve to be dismissed even at the admission stage and are, accordingly, dismissed.
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1991 (3) TMI 332
Winding up - Company when deemed unable to pay its debts ... ... ... ... ..... on grown from the surrounding area. In the absence of any such plea and evidence, it is not possible to apply the decision of E.I.D. Parry s case, AIR 1985 SC 753. Learned counsel also stressed on para 5 of the judgment in Navnit R. Kamani s case 1989 66 Comp Cas 132 (SC). In that case, in the course of winding up, there was a scheme presented. Therefore, in the light of that scheme, the winding up was not allowed. Such a situation does not arise in this case and we have pointed out earlier that no scheme has been presented even though the petition was pending for a long time nor is any such scheme presented before us even though the appeal is pending for more than four years. Hence, the decision in Navnit R. Kamani s case is not of any help to the appel shy lant company. Accordingly, point No. 2 is answered in the negative. For the reasons stated above, the appeal fails and the same is dismissed. In the facts and circumstances of the case, there will be no order as to costs.
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1991 (3) TMI 329
Directors – Power of, Oppression and mismanagement ... ... ... ... ..... this behalf appears to be necessary or feasible. Mr. Kapadia, learned counsel for respondent No. 12, makes an application for a direction to the effect that respondent No. 12 should be allowed to create an encumbrance in favour of its bankers, NMB Postrank group, N. V. Rotterdam. Respondent No. 12 cannot be permited to create such an encumbrance unless the bank is willing to give a suitable undertaking to abide by the ultimate orders of this court or of the appeal court or is put on some terms whatever deemed fit keeping in mind the objective of providing an opportunity to the petitioners and the supporting respondents to test this order in appeal, if so desired. Liberty to respondent No. 12 to make the necessary application in this behalf for permission of the court to create the said encumbrance on affidavit without taking out a judge s summons, after 24 hours notice to the petitioners. On Mr. Zaiwala s application, Judge s Summons No. 88 of 1991 is adjourned for two weeks.
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1991 (3) TMI 315
Compromise and arrangement ... ... ... ... ..... ctive. (7)The scheme will be implemented and carried out under this court s supervision and subject to the directions that this court may give from time to time for the better and efficient execution of the scheme. (8)If any difficulty is experienced in the execution or implementation of the scheme hereby approved and modified or any doubt arises as regards the true meaning and scope of any of the terms imposed by this order, parties will be at liberty to apply for further directions. In the result, Company Petition No. 2 of 1991 preferred under section 391(2) of the Companies Act for according sanction to the scheme at annexure D to the petition is allowed with the aforesaid directions. There shall be no order as to costs. In view of the sanctioning of the scheme, Company Application No. 42 of 1991 would not survive and is rejected. Notice discharged. Company Application No. 173 of 1988 filed for advertising, sale or auctioning the property would not survive and is rejected.
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1991 (3) TMI 314
Service of documents on company ... ... ... ... ..... owledge of the decree. PW-1 has, in his evidence, stated that, on November 13, 1985, when he met the landlord, he was not given a satisfactory answer and it is only on November 22, 1985, that he came to know for the first time about the existence of the decree. In Panna Lal v. Murari Lal, AIR 1967 SC 1384, the Supreme Court- has held that when summons has not been duly served, limitation does not start running against the, defendant because he has received some vague information about a decree being passed against him and the knowledge of the decree means the knowledge of the particular decree sought to be set aside. In that view, we are unable to interfere with the judgment and order passed by the learned appellate judge allowing the miscellaneous appeal and setting aside the ex parte decree passed in T. S. No. 13 of 1985. The revision petition is, therefore, dismissed. In the circumstances of the present case, we direct the parties to bear their respective costs themselves.
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1991 (3) TMI 313
Winding up – Exclusion of certain time in computing periods of limitation, Winding up – Power of court to assess damages against delinquent directors, etc.
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1991 (3) TMI 294
Notification No. 55/75-C.E. as amended and No. 104/82-C.E. ... ... ... ... ..... on the point regarding the exemption notification under consideration, is applicable in the present cases. The earlier judgment of the Tribunal was also in the matters relating to the respondents herein. So far as the reliance placed by learned JDR on Supreme Court rsquo s judgment in Chowgule and Co. rsquo s case, mentioned supra, is concerned, he submits that the controversy before the Apex Court was entirely different and the expression ldquo Ocean Going Vessels rdquo occurring in the aforesaid notifications was never before the said Court. Therefore, the ratio of Chowgule and Co. rsquo s case cannot be applied here. 4. emsp We have carefully considered the pleas advanced from both sides. We agree with the learned advocate for the respondents that the judgment of the Supreme Court in Chowgule and Co. rsquo s case has no application in the present facts circumstances. In view of the Tribunals rsquo earlier judgment Nos. 541-544/84-B, dated 16-7-1984, we dismiss this appeal.
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1991 (3) TMI 292
Appeal - Provisional assessment ... ... ... ... ..... he Central Excise Officer and the person filing the appeal must be aggrieved by the said decision or order. The Gujarat High Court in the case of Jamunadass Desai v. C.L. Nangia - AIR 1965 Guj. 215 has held that if the Excise authorities refuse to order provisional assessment under Rule 9B of the Central Excise Rules, the aggrieved party can file an appeal. On the face of the aforesaid Gujarat High Court decision and the statutory provisions of Section 35 of the Central Excises and Salt Act, the finding of the West Regional Bench that no appeal is maintainable against an order of provisional assessment passed under Rule 9B, needs reconsideration particularly when the West Regional Bench itself has held that while ordering provisional assessment, the assessing authority is required to give reasons thereof. Once a reasoned order is required to be passed, as a necessary corollary, the right of appeal accrues to the aggrieved person to get the validity of such reasons determined.
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