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Case Laws
Showing 41 to 60 of 220 Records
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1995 (10) TMI 208
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... ... ..... ere italicised. that writ petition or that the said proceedings were deferred by him because of the pendency of the said writ petition. In fact the Commissioner indicated in the impugned order that the deferment was made at the instance of the appellant he stated that the dealer (appellant herein) requested for deferment . But such deferments are not attracted by sub-section (6) of section 20. The learned Government Pleader for Commercial Taxes is unable to show how the Commissioner can rely on the said provision if he had deferred the proceedings before him because the appellant made a request for deferment. The inescapable conclusion therefore is that the impugned order of the Commissioner is beyond the time bounds set by sub-section (3) read with sub-section (6) of section 20 of the Act. In the result, we set aside the order of the Commissioner in CCT s ref. L.V.(2)/L.III(2)3174/85 dated April 18, 1989. The special appeal is accordingly allowed with costs. Appeal allowed.
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1995 (10) TMI 207
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... ... ..... her he accepts the claim or not. This is another reason why we feel that the Commissioner s order cannot be sustained. That apart, the Commissioner has not considered the aspect whether cem powder can be treated as paints/colours according to commercial or popular parlance. Learned counsel for the appellant has endeavoured to substantiate his point by placing before us some literature concerning cement paints and dry distempers. We are not inclined to look into this material, which is sought to be produced for the first time before us. Considering the lacunae in the impugned order of the Commissioner as pointed above, we consider it a fit case to set aside the order and remit the case back to the Commissioner for fresh disposal after giving an opportunity of hearing to the appellants. The appellant s counsel submits that he would file objections within four weeks from today. The appeals are allowed to the extent indicated above. We make no order as to costs. Appeals allowed.
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1995 (10) TMI 206
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... ... ..... nto consideration the arguments advanced on both sides which are similar to the arguments advanced before the Tribunal. Rule 5(1) of the Tamil Nadu General Sales Tax Rules was amended requiring the inclusion of the purchase turnover in respect of the section 7-A in the total turnover of the assessee only on April 16, 1981, in the assessment year 1981-82. The assessment year under consideration is 1980-81. Therefore one cannot expect the assessee to disclose the purchase turnover in the return for the assessment year 1980-81. The decision relied on by the Tribunal would support the above view. Therefore the reasons given by the Tribunal for cancelling the penalty are well-founded. Hence the order passed by the Tribunal in cancelling the penalty under section 12(5) of the Act for noninclusion of section 7-A turnover in the return is in order. Accordingly, we are not inclined to interfere with the same. 5.. In the result, the revision is dismissed. No costs. Petition dismissed.
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1995 (10) TMI 205
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... ... ..... ssing authority treated the gunnies as having been sold along with rice on the footing that there was no separate sale of gunnies for the second time when they were sold along with rice. It shows that the assessing authority himself did not infer a separate contract for the sale of gunnies which were used in the packing of rice. In the absence of a separate contract as regards which there is no finding either express or implied, it is not legally correct to exclude the value of the gunnies from the turnover of rice. The rice having been sold in packed condition and when a separate agreement for the sale of gunnies is not inferable, it is not permissible to dissect the value of the gunnies and to eliminate the same from the turnover of rice. In the circumstances of the case, the gunnies must be deemed to have been sold as integral part of rice and not separately. We, therefore, find no merit in this tax revision case. It is accordingly dismissed. No costs. Petition dismissed.
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1995 (10) TMI 204
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... ... ..... ion in District Controller of Stores, Northern Railway, Jodhpur v. Assistant Commercial Taxation Officer 1976 37 STC 423 (SC), was relied upon where the sale of unserviceable materials and scrap iron by the railway was held by the Supreme Court as liable to tax. The decisions cited which relate to exemption of sale proceeds of business from levy of tax, are not applicable to the facts of the instant case where no sale of business is involved. We, therefore, hold that the sale of plant and machinery, fittings, raw materials, laboratory equipment, stock of stores, furniture and car was incidental to and connected to the closure of business, on the dissolution of the firm and was in the course of business within the meaning of section 2(n) of the APGST Act, 1957, and the proceeds thereof are liable to tax. The Commissioner of Commercial Taxes was right in passing the impugned order. The special appeal is, therefore, dismissed. In the circumstances, no costs. Petition dismissed.
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1995 (10) TMI 203
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... ... ..... perils a substantive right and an enactment which does so is not retrospective unless it says so expressly or by necessary intendment. Payment of institution fee under the Sales Tax Act at the maximum of Rs. 1,000 for the purpose of questioning the tax liability over and above one lakh of rupees does not, in our view, stand on the same footing as the prescription of ad valorem court-fee without any limit, which the Supreme Court considered to have a tendency of impairing or imperilling the right of appeal. We do not, therefore, think that the decision of the Supreme Court in State of Bombay v. Supreme General Films Exchange Ltd. AIR 1960 SC 980 referred to by the Division Bench in the aforementioned case supports the contention of the respondent-assessee. Agreeing with the view expressed by the Division Bench in Srinivas Enterprises case (1992) 15 APSTJ 57, we set aside the order of the Sales Tax Appellate Tribunal and allow the tax revision case. No costs. Petition allowed.
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1995 (10) TMI 202
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... ... ..... s Tax Commissioner, U.P. v. Ram Kumar Agarwal 1967 19 STC 400 (All.) already considered by us, bullion was exchanged for ready-made ornaments manufactured by goldsmith. The Allahabad High Court held it as not of sale of bullion within the meaning of Uttar Pradesh Sales Tax Act, 1948 but was only a barter or exchange transaction. Some other decisions have been cited by the learned Government Pleader for the department, but in view of the above Supreme Court decisions, we do not feel there is any good reason to consider them. We, therefore, hold that the transaction in question, i.e., collecting from customers aluminium scrap or aluminium old articles and supplying new aluminium articles of the same weight, collecting labour charges, would not amount to sale within the meaning of section 2(n) of the Act. Hence, the respondent is not entitled to levy tax on the turnover in question in both the cases. The tax revision cases are, therefore, allowed, with costs. Petitions allowed.
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1995 (10) TMI 201
Whether there are sufficient materials for taking cognizance of the offences under Sections 354 and 509 I.P.C.?
Held that:- The opinion of the Investigating Officer that the allegations contained in the F.I.R. were not substantiated by the statements of witnesses recorded during investigation is not a proper one for we find that there are sufficient materials for taking cognizance of the offences under Sections 354 and 509 I.P.C. We, however, refrain from detailing or discussing those statements and the nature and extent of their corroboration of the F.I.R. lest they create any unconscious impression upon the trial Court, which has to ultimately decide upon their truthfulness, falsity or reliability, after those statements are translated into evidence during trial. For the self same reasons we do not wish to refer to the arguments canvassed by Mr. Sanghi, in support of the opinion expressed in the police (final) report and our reasons in disagreement thereto.
On the conclusions as above we direct the learned Chief Judicial Magistrate, Chandigarh to take cognizance upon the police report in respect of the offences under Sections 354 and 509 IPC and try the case himself in accordance with law. We make it abundantly clear that the learned Magistrate shall not in any way be influenced by any of the observations made by us relating to the facts of the case as our task was confined to the question whether a ‘prima facie case’ to go to the trial was made out or not whereas the learned Magistrate will have to dispose of the case solely on the basis of the evidence to be adduced during the trial. Since both the offences under Sections 354 and 509 IPC are tribal in accordance with Chapter XX of the Criminal Procedure Code we direct the learned Magistrate to dispose of the case, as expeditiously as possible, preferably within a period of six months from the date of communication of this order.
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1995 (10) TMI 200
Waste/scrap obtained not by any process of manufacture but in the course of manufacture of nylon yarn is not liable to Excise duty up to Amendment of Item 15A of the erstwhile Central Excise Tariff.
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1995 (10) TMI 199
Classification ... ... ... ... ..... dgment in case of M/s. Akbar Badrudin Jiwani v. Collector of Central Excise - 1990 (47) E.L.T. 161 (S.C.) 1990 28 ECR 145. 4. emsp Note (k) to the Chapter also requires that flat rolled product must be in the form of coils of successively superimposed layers, or, if in straight length, must conform to the dimensional specification prescribed in the note. At the hearing, Shri Sridharan showed that the product was not in straight length or in coils of successively superimposed layer (i.e. each layer falling exactly upon the layer beneath it), but was in coils of transverse winding, much like thread on a spool. This point has also not been sought to be rebutted by the departmental representative. 5. emsp We therefore hold that the goods are classifiable under heading claimed by the appellant, we allow the appeal. 6. emsp The miscellaneous application filed by the appellant for taking on record an additional evidence was sought to be withdrawn and therefore accordingly dismissed.
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1995 (10) TMI 198
Demand - Limitation - Manufacturer ... ... ... ... ..... t in the plea that M/s. Powerica Limited is the manufacturer. In the result in consideration of the entire evidence on record we hold that the impugned order is sustainable in law and on facts of this case. In this view of the matter, we confirm duty levied under the impugned order. At this juncture the learned Counsel pleaded that the appellants are eligible to take Modvat credit and prayed for suitable direction. It is open to the appellants to submit before the learned adjudicating authority details of the various components and their duty paid nature as per law and the adjudicating authority shall consider the eligibility of the appellants, to avail Modvat credit. Shri Nazeer, the learned Counsel made a fervent plea that the penalty is not called for in the facts of the case and prayed for setting aside the same. Taking into consideration the facts and circumstances of the case, we set aside the penalty, in the result the appeal is dismissed, with the above modifications.
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1995 (10) TMI 197
Restrictions on establishment of place of business in India ... ... ... ... ..... to allow him alone to sign the cheque to withdraw the amount, but in view of the disputes between the plaintiff and the defendants and in view of the preliminary decree passed by me today, it would not be proper and just to allow defendant No. 2 alone to sign the cheque and withdraw the amounts from the bank. I would, therefore, hold that in view of the consent and authorisation given by the plaintiff, the cheques for withdrawal of the amount should be jointly signed by the Local Commissioner, Shri B. B. Gupta, advocate, appointed in this suit and defendant No. 2, Shri Suchcha Singh Anand. I, therefore, pass the following order The withdrawal cheques are to be signed hereinafter for withdrawing the amount from the bank account, jointly by defendant No. 2, Shri Suchcha Singh Anand and Local Commissioner, Shri B. B. Gupta, advocate, and the Kashmiri Gate branch of Canara Bank should honour the said cheque. The copy of this order be also sent to the said bank. I. A. disposed of.
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1995 (10) TMI 191
Deficiency in service, Partnership - Proof of, Doctrine of holding out ... ... ... ... ..... verally for all acts of the firm done while he is a partner. A partner who retires from a firm does not cease to be liable for partnership debts or obligations incurred before his retirement. The crucial date even if it is assumed that the appellants retired is 1-4-1992 when the application for amendment was filed. Till then the appellants are liable under the doctrine of holding out as envisaged by section 28 of the said Act. Even after 1-4-1992, the appellants would be liable as no public notice of retirement is given as required by section 32 of the said Act. The State Commission, therefore, rightly held that all the opposite parties are liable and if the appellants alleged that they are not liable to pay, then they can recover the amount by way of contribution from other partners. The order of the State Commission is upheld for the above reasons. The two appeals fail and are hereby dismissed with costs. We assess Rs. 2,000 as costs in both the appeals. Appeals dismissed.
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1995 (10) TMI 190
Deficiency in service, Distinct forum - Jurisdiction of ... ... ... ... ..... nd the appellants had no opportunity to contest the same. During argument the learned counsel for the appellants referred to the facts of the case and default on the part of the complainants in not remitting the call money of the shares allotted and after expiry of the time fixed for the allotment of right shares, the same could not be allotted. This Commission restrains itself from commenting on this aspect of the matter as this matter was not subject-matter of dispute raised in the complaint. Suffice it to say that the District Forum had no jurisdiction to grant relief in this respect to the complainants. 10. Compensation for delay in sending the duplicate shares as well as costs could not be awarded by the District Forum as there was no deficiency of rendering service on the part of the appellant. 11. For the reasons recorded above, both the appeals are allowed, the impugned orders are set aside. However, there will be no order as to costs. Appeals allowed. SCL q JUNE 1996
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1995 (10) TMI 189
What is the meaning of the word 'each' in the expression "if the permission has not been granted by the stock exchange or each such stock exchange" used in sub-section (1A) of section 73 of the Companies Act, 1956 ?
Held that:- Appeal dismissed. Sub-section (1A) of section 73 requires that where a prospectus states that an application under sub-section (1) has been made for permission for the shares or debentures offered thereby to be dealt in one or more recognised stock exchanges, 'such prospectus shall state the name of the stock exchange or, as the case may be, each such stock exchange'. Thus unless permission is granted by each or everyone of all the stock exchanges named in the prospectus for listing of shares to which application is made by the company, the consequence is to render the entire allotment void.
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1995 (10) TMI 171
Customs House Agent - Licence - Cancellation ... ... ... ... ..... p After hearing both sides, we find that the proceedings resulting in the passing of the impugned order were mainly against the CHA as per the CHA Regulations. These regulations do not contemplate debarring of the employees under any provisions of the Regulations. The employee of the CH Agents firm are issued with identity passes by the Asst. Collector and cancellation of any identity passes was not the issue before the Collector. Moreover both these appellants were neither party to the proceedings in terms of the Custom House Agents Regulations, nor were they issued notices, proposing revocation of their passes. Hence the order contained in Para 23 adversely affecting these two appellants has been passed in gross violation of the principles of natural justice and is also not falling within the purview of the proceedings under CHA Regulations against the CHA firm. We therefore set aside that part of the order contained in Para 23 affecting the interests of the two appellants.
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1995 (10) TMI 170
Value of clearances - Words and Phrases - Demand - Limitation ... ... ... ... ..... o defines dummy is an imaginary player whose hand is exposed and played by his partner, one who is mere tool of another. This, it is clear to us, is not the case here. 9. emsp We also note that the show cause notice has not clearly spelt out which of the omissions or commissions listed in proviso to Section 11A are proposed to be relied upon to invoke extended period. This proviso refers to omissions and commissions of a very serious nature like fraud, suppression, etc. and, therefore, any of such omissions and commissions cannot be merely inferred to sustain demand for larger period. Since, however, we propose to allow the appeal on merits alone, we do not consider it necessary to elaborate further on the question of time-bar. 10. emsp Considering the evidence on record and the series of decisions of the Tribunal, we hold that in these circumstances, the clearances of these three cannot be clubbed together. In the result, we set aside the impugned order and allow the appeal.
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1995 (10) TMI 168
Modvat - Declaration ... ... ... ... ..... considered the submissions of both the sides. In the letter dated 11th January, 1989, the appellants have referred to the declaration of 26-9-1988 and enclosed photo copies of Gate Passes received till date in order to avail the facility of Modvat credit in the manufacture of final products. In the classification list filed with effect from 1-4-1990, Electric motors have been declared, and on the reverse of the classification list, (which has been approved by the Department), the appellants have clearly stated that they shall be claiming Modvat on items No. 1 and 2 namely Electric fans and motors. Further, in the orders of the Tribunal cited by the appellants (supra), declaration made by the assessees in the classification list in regard to the availing of Modvat Scheme was held to be sufficient for the purpose of extending Modvat credit. In the result, we hold that the appellants are entitled to the benefit of Modvat credit, set aside the impugned order and allow the appeal.
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1995 (10) TMI 167
Cabinet - TV front cabinet with metal inserts entirely made of plastic ... ... ... ... ..... and other articles made of plastic having some metal parts would continue to be exempted as articles of plastics under Notification 182/82, dated 11-5-1982. Even commercially the TV front cabinet is known as article made of plastic which fall under Tariff Item 15A(2) and exempted under Notification 68/71 prior to 28-2-1982 and exempted under Notification 149/82, dated 22-4-1982 during the period 1-03-1982 to 10-5-1982. Since the articles made of plastic became classifiable under Tariff Item 68 on amendment of Tariff Item 15A(2) by Finance Act, 1982 which covered under Tariff Item 15A(2) specific items like film, sheets, etc. they continue to enjoy benefit of exemption under Tariff Item 68 as was the case under Tariff Item 15A(2) prior to 11-5-1982. In the light of the above, we hold that the benefit of Notification 182/82, dated 11-5-1982 is available to the disputed item. Accordingly, we uphold the order of the lower appellate authority and reject the appeal. The CO abates.
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1995 (10) TMI 166
Stainless steel plates imported ... ... ... ... ..... o need to go beyond the plain and simple meaning of the notification to look at the intention of the legislature. It was within the competence of the legislature to issue the notification in the form in which it stood. The Supreme Court rsquo s judgment in the Novopan India case, relied upon by Shri Koshy itself is clear that a notification is to be construed strictly. The case in fact would not even go to the extent of the notification considered by the Supreme Court in the Bombay Oil Industries case, where, it is clear, the specifications for test of import tallow were erroneous. Therefore as held by the Supreme Court in that judgment, the amending notification of 1983 cannot be considered to be clarifying the earlier notification or to have retrospective effect. Neither of these two judgments had been carded down when the Tribunal passed its earlier order in the appellant rsquo s own appeal. That order therefore cannot bind us. 6. emsp In the result, we dismiss the appeal.
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