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1995 (6) TMI 203
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... ... ..... submitted, so as to enable the latter to act in terms of this Order. 15. Since the matter has already been long delayed in view of the present proceedings before this Court, the learned Chief Metropolitan Magistrate, Calcutta, shall take up the matter for the aforesaid purpose, as early as possible, preferably within 3 weeks from the receipt of the lower court record and the copy of this order. The Investigating Agency shall also submit all relevant documents/ papers under Section 173(5) of the Code before the learned Magistrate, if not already submitted, within the aforesaid period for enabling the latter to comply with this order. If the learned Magistrate takes cognizance of the alleged offence, he shall also take effective steps for expeditious trial and disposal of the case. 16. The Revisional application be, accordingly, disposed of Interim Stay, if any, stands vacated. 17. Let a copy of this order, as also the lower court records, go down to the court below forthwith.
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1995 (6) TMI 202
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... ... ..... Muslim Association Hall, Nandavanam, Trivandrum is really indicative of the fact that this is not a case where the detenu was absconding during the period in question. As there is no material to hold that more than five years the detenu was absconding or making himself scares and as also there is no acceptable material to hold that he had gone abroad, the only conclusion possible is that there is no cogent explanation as to the delay in executing the order of detention. In view of the wide gap of 5 years and 3 months between the order of detention and the arrest, it is not possible to hold that there exists genuine apprehension that the detenu is likely to continue in the smuggling activities. We are not satisfied that this is a case where further detention of the detenu is necessary. Exts. P-l and P-3 are quashed. Petitioner's husband (detenu) is ordered to be released from custody unless required to be detained for any other cause. 11. Original Petition stands allowed.
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1995 (6) TMI 201
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... ... ..... les. During the course of the hearing, the learned Advocate had also mentioned at the relevant time when the MODVAT Credit was taken by the appellants the facility for taking the MODVAT Credit based on the certified copies of the Gate Pass or certified triplicate copy of the Bill of Entry in the case of imported goods was available. This aspect, it is seen has also not been gone into by the learned lower authority. It is observed that under Rule 57G the Central Board of Excise & Customs has been authorized to prescribe documents based on which apart from the documents specified under Rule 57G, MODVAT Credit could be taken. The relevant instructions if any issued under Rule 57G in case of loss of documents were not considered by the learned lower authority. In view of the above the learned lower original authority while deciding the issue afresh on remand should take note of the judgment referred to supra and also any instructions issued under Rule 57G as mentioned above.
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1995 (6) TMI 200
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... ... ..... on Bench makes no difference to the Patriarch. It only says that Catholicos is declared to be the spiritual superior of the Knanaya Community. Then it says that in temporal matters, the 1934 Constitution of Malankara Association can be implemented subject to the Knanaya Constitution only until both the Constitutions are reconciled. In all the facts and circumstances of the case, it would be enough to declare that by their acts and conduct, D.19 has accepted that they are an integral unit within the Malankara Church and that, therefore, the 1934 Constitution of the Malankara Church shall govern them but subject to their own Knanaya Constitution until such time the Knanaya Church Samudayam decides otherwise. 130. The appeals cross-objections and applications are disposed of in the above terms. 131. List the matters for further orders after three months along with the draft amendments (suggestions), if any, submitted by the parties pursuant to the directions given hereinbefore.
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1995 (6) TMI 199
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... ... ..... venience and damages being adequate remedy become less important as has been laid down in the decision of the House of Lords, in the case of Richard Wheeler Doherty v. James Clagston Allman and W.C. Dowden, reported in (1878) 3 AC 709. 92. Considering the facts and circumstances of the case, in my view, the ad-interim order passed should continue. 93. Cost costs in the cause. 94. Stay prayed for is refused. 95. The hearing of the suit is expedited as follows - Leave is granted to serve writ of summons by Speed Post upon the defendant. Written statement is to be filed within three weeks after the date of service of the writ of summons. Cross order for discovery within three weeks thereafter. Inspection forthwith thereafter. The suit will appear in the appropriate prospective list two weeks thereafter. 96. All parties concerned including the departments concerned are to act on a signed copy of the operative part of this judgment on the usual undertaking. 97. Order accordingly.
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1995 (6) TMI 198
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... ... ..... ection, we may note the following observations made by the Tribunal - "Pointed cross-examination was effected on the witness from the relevant record. The register from where the said driving licence was checked up about its genuine-ness pertains to the year 1971 and the first entry therein was of 17.3.1971 and the last entry was of 12.1.1972. The licence, however, is issued on 17.12.1990. It is thus clear that the relevant record of the relevant year was not even gauged by the Concerned official. It thus cannot be said that licence Ex.R-1 as per the statement of Mahesh Bahusar (Ex.R3) is fake and false." 8. Learned counsel has not been able to show as to how the evidence of Mahesh Bahusar could be treated as relevant for the purpose of holding that the licence of Nachhatar Singh was not valid one. 9. No other point has been argued. 10. For the reasons mentioned above, we hold that the appeal is without substance and is liable to be dismissed. We order accordingly.
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1995 (6) TMI 197
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... ... ..... four arise under the Andhra Pradesh General Sales Tax Act and four arise under the Central Sales Tax Act. 3.. Inasmuch as the point raised in these cases is covered by a Division Bench of this Court to which one of us (Syed Shah Special leave petition by the dealer against this judgment was dismissed by the Supreme Court on October 1, 1996 in S.L.P. (Civil) Nos. 20823-20830 of 1996 See 1997 104 STC (Journal) Frsc 6. Mohammed Quadri, J.) was a member, which held in T.R.C. No. 176 of 1987 on January 31, 1995, State of A.P. v. Jananti Oil Mills Private Ltd. 2000 117 STC 289 (AP) that the benefit of reduced rate of tax could be available only when the raw material was groundnut only but not otherwise and accordingly laid down that entry 24(b) could not be availed in cases of solvent groundnut oil extracted from the groundnut-cake. 4.. We have to hold that there is no illegality in the orders impugned in these appeals. Accordingly, these appeals are dismissed. Appeals dismissed.
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1995 (6) TMI 196
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... ... ..... udicial authorities should apply their mind independently without being influenced by what Public Relations Officer had said. Moreover, the revision should be disposed of by an order giving adequate reasons so that superior authorities and courts are able to understand what were the reasons for allowing or turning down the party s prayer. 7.. The Assistant Commissioner is directed to dispose of the revision within a period of three months from the date of assignment by the Deputy Commissioner. 8.. The applicant will be at liberty to file appeals against the impugned assessments according to law. 9.. The main application is thus disposed of without any order as to costs. 10.. A copy of the order be sent to the Secretary to the Government of West Bengal, Finance (Taxation) Department for looking into the training of officers who are given quasi-judicial powers. S.N. MUKHERJEE (Judicial Member).-I agree. P.R. BALASUBRAMANIAN (Technical Member).-I agree. Application disposed of.
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1995 (6) TMI 195
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... ... ..... nd except the rules mentioned above are not absolutely oppressive, unreasonable and I find that the public interest requires that their validity must be upheld. I also find that they are within the bounds of legislative competence. I find that these rules are suited to the articulate needs of the community. In deciding the legality and validity the long term public interest must be kept in view and the area of freedom of a judge is limited as pointed out by Judge Cardoza in The Nature of the Judicial Process . 64.. Judicial review is an appeal from Phillips drunk to Phillips sober. It is the sober second thought and if in sober second thought it is found that it is beneficial to the public in general and is not transgression of the limit set for, by applying its own wisdom a court cannot set at naught the legislative wisdom. Accordingly this writ application is disposed of as indicated above. 65.. I leave the parties to bear their own costs. Petition disposed of accordingly.
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1995 (6) TMI 194
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... ... ..... n dealer Jagannath Corporation by endorsement of the consignment notes is a subsequent sale which does not attract sales tax over again. Unless C forms are given by the Joshi Jute Corporation to jute mills it cannot claim E-I certificate forms from the jute mills who will issue E-I certificate forms only on receipt of C forms from the Joshi Jute Corporation. Again Joshi Jute Corporation is legally bound to issue E-II certificate to the Cochin dealer Jagannath Corporation who is to give Joshi Jute Corporation C forms. Unless Joshi Jute Corporation gives E-II certificate forms to Cochin dealer, the Cochin dealer cannot get the benefit of subsequent sale at their end. Therefore, demand for further sales tax on these transactions is absolutely illegal, arbitrary, and without jurisdiction. In the result the appeal stands dismissed and the judgment under appeal of the learned single Judge stands affirmed. There will be no order as to costs. VIDYA NAND, J.I agree. Appeal dismissed.
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1995 (6) TMI 193
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... ... ..... ntire works contract after deducting therefrom the charges towards labour and services which would cover among other things cost of consumables such as water, electricity and fuel, etc., used in the execution of the works contract, the property in which is not transferred in the course of execution of the works contract. In view of the above decision of the apex Court, it has to be held that the cost of the consumables used in the execution of works contract, the property in which is not transferred in the course of the execution of the works contract, will certainly come within the purview of labour charges and other like charges contemplated under sub-section (2)(e) of section 3-B of the Act. Therefore, such cost of consumables has to be excluded from the total turnover of a dealer in calculating the taxable turnover for the purposes of levy of tax under section 3-B(1) of the Act. Accordingly, following the said decision, these tax cases are dismissed. Petitions dismissed.
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1995 (6) TMI 192
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... ... ..... ned Government Pleader expresses that the matter would be unnecessarily delayed if certain stipulations are not made for receiving the documents and for submitting the reply. Therefore, I direct the petitioner to appear before the first respondent on June 26, 1995, with his advocate to receive the documents seized from his custody by the first respondent on October 1, 1994, after giving necessary endorsement, and after complying with the requirements provided under rule 34(10) of the Kerala General Sales Tax Rules. If the first respondent wants copies of the documents seized he can very well take out photo copies of the documents which are liable to be returned. The reply to the show cause notice already issued shall be submitted by the petitioner on or before July 10, 1995. After receiving the reply the first respondent shall conduct enquiry as required under law and pass final orders as expeditiously as possible. The original petition is allowed as above. Petition allowed.
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1995 (6) TMI 191
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... ... ..... , makes it clear that the said section classifies the dealers in three categories. The dealers having net turnover between Rs. 3 lakhs and Rs. 50 lakhs fall in the first category. The dealers having turnover of more than Rs. 50 lakhs but less than one crore fall in the second category and dealers having turnover of one crore or more fall in the third category. The obvious intention of the Legislature is to grant the relief by providing lesser rate of additional tax on the turnover in case of small dealers whose turnover is less. Once the turnover of a dealer exceeds Rs. 1 crore, he falls under the third category and for the purposes of levying additional tax, his turnover cannot be divided in three categories for granting benefit of lesser rate of tax. In this view of the matter, we do not find any illegality in the order of the Tribunal warranting our interference in the revision. The tax revision case fails and we dismiss the same. No order as to costs. Petition dismissed.
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1995 (6) TMI 190
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... ... ..... of turnover tax. In other words, non-payment of turnover tax will be no ground for refusing issuance of declaration forms when prayed for, but this direction will apply only to the case of the applicant. Accordingly, the application is disposed of. Respondents are directed that non-payment of turnover tax by the applicant will be no ground for refusing to issue declaration forms to the applicant, as and when prayed for, until a finding is given in the course of assessment of tax for any particular period to the effect as to whether turnover tax is payable or not by the applicant on the basis of a finding as to whether the goods in question are declared goods or not. Respondents will be at liberty to make such a finding in course of a proper assessment proceeding for any period. In that case, the applicant will be free to avail of the legal remedies of any such finding against which it may feel aggrieved. There will be no order for costs. Application disposed of accordingly.
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1995 (6) TMI 189
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... ... ..... whether the petitioner incurred substantial loss on account of fire accident and that the factory has not been working, etc., are all matters that cannot be gone into in these petitions. However, the petitioner shall be at liberty, if so advised to point out these extenuating circumstances before the trial court at the appropriate stage. 12.. It is needless to point out that power under section 482 of Cr.P.C., is one of exceptional nature. It can be invoked only to prevent the abuse of process of court or otherwise to secure the ends of justice. It has to be exercised sparingly with circumspection. In the absence of any legal bar against the institution or continuance of the proceedings in respect of the alleged offences or abuse of the process of any court, inherent jurisdiction of the High Court under section 482 of Cr.P.C. to quash the proceedings of this nature cannot be exercised. 13. For the above reasons, all the criminal petitions are dismissed. Petitions dismissed.
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1995 (6) TMI 188
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... ... ..... erved that the power conferred on the registering authority under sub-section (10) of section 12 of the Act shall be exercised for the purpose for which it was intended and any order passed by such authority shall not be either arbitrary or unreasonable . It has also to be pointed out that another Division Bench of this Court in Dwaraka Pershad Badari Pershad v. State of Andhra Pradesh 1992 87 STC 177 rejected the contention that when dealers registered their names with the department they should be deemed to be genuine dealers. It will be open to the authorities concerned to cancel, modify or amend the certificate of registration issued to the petitioner by an order passed under and in accordance with sub-section (17) of section 12. In the result, the writ petition is allowed with costs and the respondents are directed to issue registration certificates to the petitioner under the Act and also under the Central Act. Advocate s fee is fixed at Rs. 750. Writ petition allowed.
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1995 (6) TMI 187
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... ... ..... e and to assess the dealer in the normal manner as provided under the Act. Clause 2 of exhibit P1 states that the permission granted is liable for cancellation if the dealer fails to pay the amount fixed and demanded by the assessing authority within the time stipulated in the notice of demand in any month. The said clause enables the assessing authority to cancel the permission granted to the dealer on default. That does not mean that in every case of default the permission is liable to be cancelled. It is for the assessing authority to choose the mode, that is, either to cancel the permission or not. Relying on clause 2 of exhibit P1 petitioner cannot compel the assessing authority to cancel the permission. As the petitioner has agreed to the course of option and as the assessing authority wants only to enforce the same the former cannot dodge payment of tax on the aforesaid plea. We see no merit in the original petition. Original petition is dismissed. Petition dismissed.
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1995 (6) TMI 186
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... ... ..... rst respondent-firm of timber by the State Government from which logs were made by the respondent-firm cannot be made liable to sales tax as it would amount to levying tax at two points in the same series of sales by successive dealers, assuming without deciding that the retrospectively substituted definition of dealer in clause (c) of section 2 of the Orissa Sales Tax Act, 1947, is valid. 8.. This being the settled position of law, I hold that the timber logs and sawn timbers are same commodity and the finding in the impugned order dated June 20, 1986 that they (logs and sawn timber) are different and separate items cannot be the correct finding and accordingly, the same is quashed. If that is quashed, the demand notices issued in terms of this order shall also stand quashed. 9.. Accordingly, this writ application is allowed and the annexures G, H, I, J, K, L, M and N to the writ application shall stand quashed. I leave the parties to bear their own costs. Petition allowed.
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1995 (6) TMI 185
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... ... ..... . The other two properties involved were very small investments in the nature of annual subscription of Rs. 220 till 1969, and Rs. 650 thereafter up to 1983, towards insurance premia, and a monthly subscription of about Rs. 140 or so during 1974 to 1983 towards the chit fund subscription. These could be legitimately drawn from the business income of the appellant when there is evidence on record that he did have, besides the partnership business, also lorry business and had been filing even incometax returns in respect of that business right from the year 1968-69, and he could have tangible source of income to make these investments towards insurance policies and chit fund. For all these reasons, we are of the considered opinion that the order of forfeiture, in this case, of the properties owned by the appellant, is not sustainable and is liable to be quashed. We, accordingly, allow the appeal and set aside the order passed under section 7(1) of the Act on September 15, 1994.
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1995 (6) TMI 184
Entitled to benefit of Notification No. 201/79-C.E. as amended. ... ... ... ... ..... ocess of manufacture to be treated as raw material having been used in the end product. This issue has been considered in the case of Ballarpur Industries and case law cited on behalf of the appellants that even if an item used for Chemical reaction at intermediate stage is treatable as raw material used in the manufacture of finished product and even if an input is burnt up and does not retain its identity still it be eligible for set off of duty in terms of Notification 201/79 and amended Notification No. 105/82 as it was rightly pointed out by the Counsels for the appellants. Having regard to the submissions made before us with reference to the facts and technical literature by the appellants and the same had not been controverted, and following the ratio of the decisions cited by the appellants, we are of the view that carbon paste used in the manufacture of calcium carbide was entitled to the benefit of Notification No. 201/79. Accordingly, all these appeals are allowed.
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