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Case Laws
Showing 81 to 100 of 444 Records
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1999 (3) TMI 597
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... ... ..... G demand notice are accordingly quashed. The assessing authority shall frame fresh assessment keeping in mind the observations made above after providing proper opportunity to the petitioner. Assessment order has been passed in undue haste in violation of principles of natural justice without understanding the accounts or accounting principles. Copy of this order be sent to the Commissioner of Commercial Taxes to issue proper instruction to the assessing authority that frivolous demand as has been created in this case just for the sake of creating the demand is not done. Department is entitled to realize what is due and just and not to act in an arbitrary manner. Creating a huge demand which is not supported by any evidence may affect the business of a dealer and the assessing authority has to be careful while exercising the power of best judgment assessment. It should be done only on the basis of established principles of law and not at the whim and caprice of the officer.
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1999 (3) TMI 596
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... ... ..... ture, it will go to the root of the matter and by a subsequent hearing or a considered order without an effective opportunity of hearing cannot cure the defect. Therefore, I am of the opinion that an opportunity should be given to the petitioner for hearing and fresh orders to be passed. Consequently, exhibit P5 order which was confirmed by exhibits P7 and P9 orders and consequential demands are set aside. Petitioner shall be heard again by the original authority and after hearing the petitioner fresh order shall be passed. Since all the documents are with the petitioner and reply had already been filed, no further adjournment shall be asked by the petitioner and fresh orders shall be passed within two months from the date of receipt of a copy of this judgment. Penalty already paid need be adjusted only after passing fresh order. The original petition is disposed of accordingly. C.M.P. No. 25166 of 1995 in O.P. No. 14066 of 1995 Y dismissed. Petition disposed of accordingly.
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1999 (3) TMI 595
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... ... ..... have taken into consideration only the value of the goods supplied and not towards any charge for the services rendered by the petitioners. The Constitution (Forty Sixth Amendment) came into force on February 2, 1983 and consequently charging provision for works contract, etc., by the respective States came into force subsequent to the present assessment year 1980-81. So, it is obvious that the lower authorities has rightly held that the turnover of Rs. 9,42,521.50 is exigible to tax and the same is the value of the goods supplied which was a primary one and not incidental. So we see no reason to interfere with the orders of the lower authorities and in particular the order of Appellate Tribunal. Hence the revision petition is dismissed. And this tribunal doth further order that this order on being produced be punctually observed and carried into execution by all concerned. Issued under my hand and the seal of this Tribunal on the 19th day of March, 1999. Petition dismissed.
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1999 (3) TMI 594
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... ... ..... gument that the Commissioner of Commercial Taxes exercised his jurisdiction in transferring the assessee s case from one jurisdiction to another erroneously even then this error was one committed in exercise of jurisdiction and would not affect place the resulting order beyond his jurisdiction. We may state that erroneous or even grossly erroneous exercise of jurisdiction does not have the effect of placing the resulting order beyond the jurisdiction of the concerned authority. Such error can only be got corrected by filing appeals/revisions before the appellate or the revisional authority. Erroneous exercise of jurisdiction would not put the order in the category of inherent lack of jurisdiction necessitating the interference by the High Courts in exercise of their jurisdiction under articles 226 and 227 of the Constitution of India. 13.. For the reasons stated above we do not find any merit in these appeals and dismiss the same with no order as to costs. Appeals dismissed.
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1999 (3) TMI 593
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... ... ..... at the time of inspection, on verification of the accounts the petitioner produced the closing stock inventory as on March 31, 1989 before the Intelligence Officer. The Sales Tax Officer, First Circle signed the same on November 15, 1989. Therefore, there is no definite finding by the authorities regarding quantum of tax said to have been evaded. Since tax said to have been evaded is not quantified, maximum penalty that can be imposed is only Rs. 5,000. 2.. Therefore, I set aside the penalty order which is confirmed by exhibit P6 order and hold that since tax evaded is not quantified, maximum penalty of Rs. 5,000 alone can be imposed. As per the interim order of this Court the petitioner had paid Rs. 10,000. That may be accepted as penalty and no further amount will be recovered from the petitioner. Exhibit P6 is modified to the above extent. The original petition is allowed. Order on C.M.P. Nos. 20745 and 16588 of 1995 in O.P. No. 9465 of 1995B dismissed. Petition allowed.
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1999 (3) TMI 592
Can the sentence, passed on a convicted person under the Narcotic Drugs and Psychotropic Substances Act, 1985 be suspended during the pendency of appeal presented by him?
Held that:- The upshot of the all discussion is that Section 32A of the Act has taken away the powers of the court to suspend a sentence passed on persons convicted of offences under the Act (except Section 27) either during pendency of any appeal or otherwise. Similarly, the power of the Government under Section 432, 433 and 434 of the Criminal Procedure Code have also been taken away. Section 32A would have an overriding effect with regard to the powers of suspension, commutation and remission provided under the Criminal Procedure Code.
the appellant has voiced a concern that if High Courts have no power to suspend sentence under any contingency its consequence is that long duration of pendency of appeals would result in serious miscarriage of justice in many cases. We are aware of such hard consequences which might erupt. The solution to such problems can be worked out by Parliament. Till then the High Courts should direct the Registry to board appeals under the Act on a priority basis and dispose them of as early as possible. As a temporary measure to lessen the problem we direct the Registry of each High Court to include every appeal (against conviction of offences under the Act) in the hearing list as soon as such appeal becomes ripe for hearing.
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1999 (3) TMI 591
Whether the complaint filed by the respondent under Section 138 of the Negotiatiable Instruments Act is within or beyond time as it is contended that it is not filed within one month from the date on which the cause of action arose under clause (c) of the proviso to Section 138 of the Negotiable Instruments Act?
Held that:- Appeal dismissed. The period of one month for filing the complaint will be reckoned from the day immediately following the day on which the period of 15 days from the date of the receipt of the notice by the drawer, expires. Period of 15 days, in the present case, expired on 14th October, 1995. So cause of action for filing complaint would arise from 15th October, 1995. That day(15th October) is to be excluded for counting the period of one month. Complaint is filed on 15th November, 1995. The result would be that the complaint filed on 15th November is within time.
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1999 (3) TMI 590
SALE OR WORKS CONTRACT — PHOTOGRAPHY — PHOTOGRAPHER TAKING PHOTOGRAPHS FOR CUSTOMER AND SUPPLYING PRINTS — NO PROCESSING CARRIED
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1999 (3) TMI 589
Production based assessment ... ... ... ... ..... its that the other Bench may or may not take the same view as in the present case. He, therefore prays that a different view is possible and the appeal may be kept pending. 5. emsp We have heard the rival submissions. We find that the facts in the instant are identical to those in the case of M/s. Minakashi Castings. We, therefore hold that the ratio of the judgment of this Tribunal squarely covers the present cases. The contention of the ld. JDR that the appeal may be kept pending, is not acceptable in view of the fact that the decision on the identical issue is available and the same has not been stayed so far. In this view of the matter, we hold that these are a fit cases for remand, therefore, the cases are remanded back to the adjudicating authority to determine the capacity of the furnace in terms of Section 3A after giving the appellants an opportunity of being heard in person and pass appropriate orders in accordance with law. The appeals are allowed by way of remand.
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1999 (3) TMI 588
Service Tax – Share Broker – Penalty for not filing of service tax return ... ... ... ... ..... ii) R.K. Somani, 1999 (113) E.L.T. 111 (T) 1998 (28) RLT 54. 5. I find that. The law laid down in the first two judgments is not relevant inasmuch as the appellant in the present case had admittedly transacted business. In the last named judgment, interpretation of Section 77 may require further analysis. 6. What is relevant in this case is that the appellant was under a genuine belief that he was not required to perform under the service tax rules but as a matter of abundant precaution, he had sought the advice of the Jurisdictional Officer. The advice was received only after the show cause notices were issued. In such a situation where the department had knowledge that the appellant was not discharging his obligation, pending receipt of advice sought, it was not appropriate for the appellant to have been subjected to penal proceedings. On this account alone, the appeal succeeds and is allowed. Consequential relief is ordered. 7. The stay application also stands disposed of.
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1999 (3) TMI 587
SSI Exemption - Brand name - Jurisdiction of Appellate Tribunal ... ... ... ... ..... appellant and the Water Development Society, ldquo WDS rdquo in the monogram presumably representing Water Development Society and ldquo Winsome rdquo representing the appellants. Such a combination-monogram, it appears prima facie, is unlikely to be the monogram of Water Development Society. Therefore, it is necessary to investigate whether this is a trade name/trade mark and if it is, whether it is of Water Development Society. We, therefore, feel that the case is required to be remanded to the Commissioner for verification and specific finding on the use of trade mark of another person on the goods. The appeal is accordingly allowed by way of remand, for a decision on classification by the jurisdictional Assistant Commissioner and a decision on the eligibility to the small-scale exemption by the jurisdictional Commissioner. Needless to say, the authorities shall give the appellant full opportunity to present their case before both the authorities in the remand proceedings.
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1999 (3) TMI 586
Modvat/Cenvat - Fuel oil used for generation of electricity captively ... ... ... ... ..... to the manufacture of the notified final product, and on this ground alone has dismissed the appeal. Clause (d) clearly lays down that the input so used for generation of electricity would eligible for Modvat credit irrespective of whether the said generated electricity is used for the manufacture of the final product or for elsewhere or for any other purpose but used within the premises of the factory. It is not on dispute that the electricity so generated was used within the factory premises only. Therefore, applying the ratio of the decision cited above and more particularly that of Rathi Alloys and Steel Ltd. supra, we find that the error so contained on the face of this record needs to be rectified. We, therefore, recall the final order No. 322/97, dated 13-1-1997 and in consideration of the submissions made and the analyses contained above and following respectfully the ratio of all these decisions cited above, we allow the appeal with consequential relief, as per law.
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1999 (3) TMI 585
Refund - Limitation ... ... ... ... ..... l filed by the party and party is claiming the refund in consequence of the order of the Tribunal. I agree with this view and accordingly, the department has no case on this issue. However, there is some justification in the arguments advanced on behalf of the Revenue that issue with reference to the unjust enrichment in terms of Section 11-B of the Act requires to be examined by the adjudicating authority. In view of the observations made by the Supreme Court in the case of M/s. Mafatlal Industries Ltd. v. Union of India reported in 1997 (89) E.L.T. 247. I am of the view that issue requires to be examined by the adjudicating authority before sanctioning the refund. I am also not convinced with the arguments advanced on behalf of the respondents that there is a clear finding by the Commissioner and unjust enrichment is not applicable to this case. In the view, I have taken, matter is remanded to the Assistant Collector to pass an appropriate order in view of the observations.
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1999 (3) TMI 584
Demand - Limitation ... ... ... ... ..... h evidence on the basis of which it could be alleged that there was a suppression or wilful mis-statement of facts by the appellants. The same basis on which the first show cause notice was issued forms the basis of second show cause notice. It is also on record that those documents on the basis of which the demand has been raised i.e. RT 12 returns and the gate passes were all along with the Revenue they could easily make out the case within the normal period of six months if the Department had not shown any negligence. We are of the view that in the facts and circumstances of the case, there is no warrant for invoking the larger period of five years, as has been done by the adjudicating authority. Accordingly, we hold that the demand of duty is barred by time. Therefore, we set aside the demand of duty. In the facts and circumstances there is no warrant of imposition of penalty as well. Therefore, we set aside the penalty. In short, demand of duty and penalty are set aside.
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1999 (3) TMI 583
Confiscation of goods - Accountal of goods - Modvat/Cenvat - Demand - Clandestine manufacture and removal
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1999 (3) TMI 578
Manufacture ... ... ... ... ..... them joining them by welding does not amount to process of manufacture. No evidence has been brought forth on record by the Revenue that any new commodity known to the market emerges as such. The name, no doubt as given by the appellants, is only for the purpose of identification of the various parts fabricated by the appellants. They do not have any commercial identity. In view of the foregoing we are satisfied that the impugned order-in-appeal deserves to be set aside. We order accordingly and allow the appeal with consequential relief to the appellant. 7. emsp As regards the Appeal No. E/3169/92, it is pointed out by the ld. Advocate that the only item involve in this appeal is Clamps which has already been dealt with in the aforesaid Appeal E/3168/92.Therefore, our finding in respect of the above Appeal would clearly apply to Appeal E/3169. Accordingly we set aside the impugned order in this Appeal also as well allow the Appeal with consequential relief to the appellant.
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1999 (3) TMI 577
SSI Exemption vis-a-vis Modvat - Benefit of exemption Notification No. 175/86-C.E. ... ... ... ... ..... , Chandigarh v. CCE, Chandigarh reported in 1999 (107) E.L.T. 596 (Tribunal) 1998 (29) RLT 859 (CEGAT). Tribunal in this judgment has taken note of dismissal of appeal by Revenue against Tribunal rsquo s judgment in the case of Faridabad Tools Pvt. Ltd. as reported in 1996 (82) E.L.T. A149. In view of this dismissal of Revenue rsquo s appeal, Tribunal rsquo s judgment in Kamani Food reported in 1995 (75) E.L.T. 202 is no longer a good law. 2. emsp Relying on Tribunal rsquo s judgment in the case of Ess Ess Engineers (supra), we dismiss the appeal of the Revenue.
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1999 (3) TMI 574
Manufacture - Paper - Carbon paper - Excisability vis-a-vis manufacture - Classification of goods - Exemption - Modvat/ Cenvat - Demand - Limitation -Penalty - Quantum
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1999 (3) TMI 571
Natural justice - Hearing ... ... ... ... ..... he Commissioner had confirmed Rs. 82.83 lakhs on M/s. Mili Detergent Industries Rs. 5.83 lakhs on M/s. Superchem Industries and Rs. 2.35 lakhs on M/s. Jalaram Chemical Industries and imposed penalties ranging from Rs. 20 lakhs to Rs. 25,000/-. It is extremely unreasonable to expect the noticees to be ready to present their case at such short notice, especially considering that the proceedings were going on for two years earlier and the Commissioner himself took four months thereafter to pass the order. The order is in violation of the principles of natural justice. 6. Shri Vipin Kumar Jain assures that he will attend the hearing and will not seek adjournment without just cause and prays for a month rsquo s advance notice of hearing. We find this reasonable. 7. Appeals are allowed, and the orders in so far as it relates to the appellants before us are set aside. The Commissioner shall, after giving an opportunity of personal hearing to them, pass orders in accordance with law.
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1999 (3) TMI 568
Production capacity based duty ... ... ... ... ..... h the team of experts has taken place. At the same time, we are not able to accept that it should be from 8th November, 1997. There is nothing other than the assessee rsquo s word to say that the change has taken place on that date. There is however, a communication exchanged between the assessee and the local Superintendent. The assessee in its letter dated 17th December, 1998 had intimated the Superintendent that change had taken place from 8th November, 1997 and declaration has been given on 24th November, 1997. Superintendent has replied to this letter on 18th December, 1998 confirming that he had verified the change on 24th November, 1997. It is therefore reasonable to accept that on 24th November, 1997 that the parameter had been changed. The installed capacity therefore is effective from that date. 6. emsp The appeal is allowed to this extent and the impugned order set aside. The Commissioner shall determine the duty payable accordingly and indicate it to the assessee.
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