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2003 (3) TMI 699
... ... ... ... ..... the site so as to constitute electrode plant. What is relevant for the determination as to whether contract is works contract or contract for sale, is that in the execution of contract, there is supply of chattel as such or plant as a unit, after being installed. The mode of payment is wholly irrelevant. It is also irrelevant that the agreement provides to take back the plant if it fails to give full performance during the period of one year from the date of installation of the plant. In view of the above, I hold that the work executed by the applicant was in the nature of works contract and not contract for sale. 13.. In the result, the revision is allowed. The order of Tribunal dated March 8, 1991 is set aside and it is held that the contract executed by the applicant for design, manufacture and installation of complete machinery and equipment of electrode plant was in the nature of works contract and not liable to tax during the year under consideration. Petition allowed.
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2003 (3) TMI 698
... ... ... ... ..... ng transported from the office of booking agency to the Railways when it was intercepted. In view of the decision of division Bench in the case of Union of India, through General Manager/ Northern Railway v. Sales Tax Officer, Mobile Squad, Kanpur 1998 109 STC 1 (All.) 1997 UPTC 997 wherein it is held that if the goods are booked from an out-station to the city booking agency, they will continue to be in custody of the railway while they are being transported from the serving station to the city booking agency from where the goods are to be delivered to the consignees and to such goods-in-transit, protection as envisaged by sub-section (8) of section 28A of the Act will be available. 5.. In this view of the matter, the Tribunal had not committed any error in law in holding that custody of the goods belonged to the Railway and no question of its seizure arose. The impugned order does not call for any interference. The revision lacks merit and is dismissed. Petition dismissed.
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2003 (3) TMI 697
... ... ... ... ..... back the case to the Divisional Level Committee on the short ground that it has taken into consideration new and additional grounds while disposing of the review application, to cut the matter short we examined the objections raised by the Divisional Level Committee in detail. The factual averments made in the writ petition have not been disputed in the counter-affidavit specifically. 13.. For the reasons given above, the writ petition is allowed and the order dated January 19, 1988 (annexure 14 to the writ petition) passed by the Additional Director of Industries, Meerut, is quashed. We further direct the respondents to issue the necessary eligibility certificate under section 4-A of the Act to the petitioner forthwith. Till the issuance of the eligibility certificate by the Divisional Level Committee the assessment proceedings for the assessment years 1982-83 to 1987-88, which were stayed during the pendency of the writ petition, shall remain stayed. Writ petition allowed.
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2003 (3) TMI 696
... ... ... ... ..... and not a manufacturer . In view of the above, said provision of law was not of any help to the petitioner. What has been held by the authorities in the impugned orders is that only. So, on facts, the finding arrived at by the authorities and the Tribunal under the Act, do not suffer from any infirmity whatsoever and the petitioner was found rightly assessed for tax under the Act. 7.. In the above view of the matter, we are clearly of the opinion that no question of law, much less substantial question of law is involved in the matter when the impugned orders show that provision of law has been correctly interpreted with reference to the facts of the matters on hand and as such, these petitions do not require to be admitted. At any rate, the view taken by the authorities and the Tribunal, is not perverse or against any provision of law giving rise to any substantial question of law to be determined by this Court. In the result, the petitions are rejected. Petitions dismissed.
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2003 (3) TMI 695
... ... ... ... ..... st and form XXXI had also been submitted along with bill and builty. The purpose of form XXXI is, to bring to the notice of the department about the import of the goods so that the imported goods may not be escaped from consideration at the time of assessment. Merely because some of the columns of form XXXI were not filled which was merely a procedural defect it cannot be said that the provisions of section 28-A has not been complied. No finding whatsoever has been recorded by any of the authority that there was any attempt on the part of the applicant to evade the tax. Inasmuch as goods were not for resale and were not liable to tax in the hands of the applicant it cannot be said that there was any violation of section 28-A. In the circumstances, the penalty under section 15-A(1)(o) is not sustainable. 14.. In the result, the revision is allowed. The order of Tribunal dated September 3, 1990 is set aside and the penalty under section 15-A(1)(o) is quashed. Petition allowed.
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2003 (3) TMI 694
... ... ... ... ..... Sanchar Nigam to the contractors on the value consideration deducted ultimately from the final bills, which amounts to sale within the meaning of the RST Act, 1994. Undisputedly, the goods are supplied by the department and the price is deducted later on from the final bills. The same amounts to sale attracting imposition of sales tax. The transaction between the department and the contractor is a sale and hence exigible to sales tax within the provisions of law prevailing in Rajasthan, i.e., the RST Act, 1994. The transaction reveals that ownership passes on to the contractor and that is the reason that the prices are deducted from their final bills. It may also be noticed that the goods are supplied to the contractor on price consideration. In view of this, the ownership of the same does not remain with the departments any more. 28.. Consequently, we find no merit in all these petitions and the same are dismissed. The interim order granted, is vacated. Petitions dismissed.
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2003 (3) TMI 693
... ... ... ... ..... hority directing the petitioner not to realise the sales tax. We have already noticed the law declared by the Supreme Court that payment of sales tax under the provisions of the Andhra Pradesh General Sales Tax Act is upon the dealer. The fact whether he has collected the sales tax or not is immaterial. 75.. For the aforesaid reasons, we are of the considered opinion that the writ petitions are totally devoid of any merit. 76.. The writ petitions fail and shall accordingly stand dismissed with costs. 77.. Consequently, the interim orders earlier granted by this Court shall accordingly stand vacated. 78.. Immediately after pronouncing the judgment, learned counsel for the petitioners made an oral application for grant of a certificate under article 134A of the Constitution of India. In our considered opinion, no substantial question of law as to the interpretation of the Constitution is involved in this case. The oral application is accordingly dismissed. Petitions dismissed.
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2003 (3) TMI 692
... ... ... ... ..... implicit in the sale. All these transactions fall within the ambit of section 3(a) of the Central Sales Tax Act, 1956 and they are inter-State sales, which do not attract the provisions of the Tamil Nadu General Sales Tax Act, 1959 or the Kerala General Sales Tax Act, 1963. 8.. Learned Appellate Assistant Commissioner, in his order, has cited a catena of decisions to come to a similar conclusion and the learned Joint Commissioner (CT) (SMR), Chennai, on wrong presumptions, treated the said sale exigible to tax under the Tamil Nadu General Sales Tax Act, 1959. We are unable to agree with the view taken by the learned Joint Commissioner (CT) (SMR), Chennai 5 and the appeal is allowed accordingly. In the result, T.C. (A) 141 of 1999 is allowed. 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 28th day of March, 2003. Appeal allowed.
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2003 (3) TMI 691
... ... ... ... ..... mendment under the Act which according to the learned counsel for the petitioner is clarificatory in nature. This submission in our view has already been advanced before us and the same has been rejected in the case of Hindustan Lever Ltd. v. State of Bihar reported in 2004 136 STC 396 2003 (1) PLJR 535 (see paragraph 25 of the judgment). The said submission is also rejected. 13.. Learned counsel appearing for the petitioner also relied upon the judgment of the Supreme Court in the case of State of Bihar v. Bihar Chamber of Commerce reported in 1996 103 STC 1 in support of the submission that once the entry tax has been paid with regard to scheduled goods no additional burden by way of tax under the Bihar Sales Tax Act is to be created. We do not find any merit in the aforesaid submission. The apex Court in the said judgment upheld the vires of the Act. 14.. In the result, the writ application is allowed in part to the extent indicated above. Writ application partly allowed.
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2003 (3) TMI 690
... ... ... ... ..... as already been subjected to tax under the Act and the same has become final the penalty imposed as per annexure C order will be limited equal to the tax sought to be evaded. On the other hand, if the transaction has not been subjected to tax at the hands of the petitioner the penalty imposed as per annexure C order will be limited to one and a half times the tax sought to be evaded. 13.. The Sales Tax Officer (Enquiry) will modify the penalty order with notice and opportunity to the petitioner and the consignee, viz., English India Clays Ltd., Veli, Thiruvananthapuram, in that regard. The petitioner is free to adduce evidence as to whether it was assessed to tax on the transaction in question. The Sales Tax Officer (Enquiry) will also verify as to whether the transaction in question had been subjected to tax under the Act from the concerned assessing authority before passing orders as directed. The tax revision case is disposed of as above. Petition disposed of accordingly.
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2003 (3) TMI 689
... ... ... ... ..... ied on the provisions of section 17(6) of the Kerala General Sales Tax Act, 1963 as amended from time to time which enlarges the period of limitation for completion of the assessment in cases where the assessments were pending as on April 1, 1993, and also the provisions of section 17A which further extends the period of limitation. 6.. We have perused the aforesaid provisions, we do not find any application of those provisions to the facts of the present case. This is for the reason that even as on July 29, 1993, more than 12 years have elapsed since the assessment years under consideration. When assessments are thus barred as beyond the reasonable time, there is no scope for application of the provisions of sections 17(6), 17A and 17(8) of the Act, as relied on by the Government Pleader. In the above circumstances, we do not find any reason to interfere with the conclusion reached by the Tribunal. These two tax revision cases are accordingly dismissed. Petitions dismissed.
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2003 (3) TMI 688
... ... ... ... ..... on to section 45-A one has to abandon the concept of literal construction in regard to the term date of hearing and has to construe it as the date of order. That makes the provision sanguine, purposive, logical and workable. 16.. In view of the aforesaid analysis we answer the reference by stating that limitation of thirty days for an application under section 45-A(a) of the M.P. General Sales Tax Act, 1958 would commence from August 13, 1981 on the date which the ex parte order Here italicised. was passed and not from July 27, 1981 when the case was set out for ex parte order. To put it succinctly the provision enshrined under section 45-A(a) would convey the meaning that the computation of limitation has to commence from the date of passing of the ex parte order and not from the date of hearing. 17.. Resultantly, the reference is answered in favour of the assessee and against the Revenue. 18.. The M.C.C. is accordingly disposed of. Reference answered in favour of assessee.
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2003 (3) TMI 687
... ... ... ... ..... i.e., he summoned the record, issued notice to the assessee and after hearing the assessee came to the conclusion that the order passed by the Appellate Deputy Commissioner need not be interfered with and closed the suo motu proceedings. What all the Commissioner has done in this case is while agreeing with the Appellate Deputy Commissioner, directed the Commercial Tax Officer to follow the guidelines issued by the Supreme Court in various cases and decide the matter afresh. Therefore, there is no cause of concern to the appellant about the order made by the Commissioner of Commercial Taxes. 11.. For all the reasons, we dismiss both the appeals. No order as to costs. 12.. Since the appeals filed by the assessee are dismissed, we direct the Commercial Tax Officer, Miryalaguda, to complete reassessment as ordered by the Commissioner of Commercial Taxes as expeditiously as possible as the assessment involved in this case is for the years 1988-89 and 1989-90. Appeals dismissed.
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2003 (3) TMI 686
... ... ... ... ..... about the correctness of the decision of the division Bench in Black Stones case 2001 124 STC 130 (Raj) (2001) 3 RLW 1486 and, therefore, we consider it appropriate to refer the following questions of law for consideration and decision by a larger Bench (i) Whether the expression for any reason used in section 30(1)(b) of the Rajasthan Sales Tax Act, 1994 and the expression in any way and under any circumstances used in section 30(1)(c) of the Rajasthan Sales Tax Act, 1994, are of wide import and include the realm even mere change of opinion? (ii) Whether the law laid down by the division Bench in Black Stones Rubber Industriess case reported in 2001 124 STC 130 (Raj) (2001) 3 RLW 1486, runs contrary to the law laid down in earlier division Bench decisions and the decisions of the apex Court? 11.. Let the matter be placed before the honourable Chief Justice for constitution of the larger Bench for consideration of above referred questions. Question referred to larger Bench.
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2003 (3) TMI 685
... ... ... ... ..... ed to relief to the extent that he has produced the forms. The learned advocate appearing for the department also relied on a judgment of the Madhya Pradesh High Court reported in 1978 41 STC 484 Commissioner of Sales Tax, M.P. v. Bombay Textile Stores for the proposition that the C forms should not only contain the registration number but should also contain the date of registration and in the absence of the date of registration, the C forms cannot be entertained. 10.. This view is directly opposed to the view taken by the Division Bench of this Court, which is binding on me. Therefore, I refuse to take notice of this judgment relied on by Mrs. S. Roy. 11.. The petition, accordingly, succeeds. 12.. There will be an order in terms of prayers (a) and (b). 13.. It is however made clear that the forms will be accepted to the extent indicated above. 14.. There will be no order as to costs. 15.. Urgent xerox certified copy be given to the parties if applied for. Petition allowed.
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2003 (3) TMI 684
... ... ... ... ..... ncome-tax. When once the assessment for the year 1994-95 had reached finality, there is no valid ground to reopen the said assessment on the basis of a decision rendered by the High Court at a later point of time in the case of some other assessee. Section 55 of the Tamil Nadu General Sales Tax Act, 1959 is for the purpose of rectifying the error apparent on the face of records and such provision cannot be applied to the instant case. Therefore, the prayer of the petitioner is liable to be dismissed. In the result, Original Petition No. 1124 of 2002 is liable to be dismissed and accordingly, the same is dismissed. Reported as Indian Sugar and General Industry Export Import Corporation Ltd. v. Commercial Tax Officer 2002 127 STC 339 (Mad.) 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 7th day of March, 2003. Petition dismissed.
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2003 (3) TMI 683
... ... ... ... ..... rs establishment amounted only to conversion of the property and the original characteristic of the product was not changed and there was no process of manufacture. 11.. Both learned counsel for the respondents are unable to dispute the proposition that before the impugned order was passed, the petitioner will be entitled to a show-cause notice. It is needless to mention that the deferral scheme which was implemented in favour of the petitioner consequent on an agreement executed by the petitioner, results in civil consequences when the said scheme is sought to be withdrawn. Therefore, the necessity to issue show cause notice cannot be dispensed with. 12.. In the result, in the absence of show cause notice, the impugned proceedings are liable to be quashed. The writ petition is allowed with liberty to the respondents to proceed afresh after issuing show cause notice to the petitioner. No costs. Connected miscellaneous petition is closed as unnecessary. Writ petition allowed.
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2003 (3) TMI 682
... ... ... ... ..... from the judicial pronouncement of the Supreme Court. Although the policy decision taken by the Board is not a sacrosanct against the unreasonableness doctrine, the court must take special care, for constitutional reasons, not to pass judgment on such policy, particularly when such policy falls within the domain of finances in the absence of the court finding any apparent constitutional flaw or element of irrationality and arbitrariness. Therefore, we are of the considered opinion that the impugned policy evolved by the Board in fixing uniform rate of price for coffee payable to the coffee growers throughout India is in consonance with the duty cast on the Coffee Board and the objectives to be achieved by it under the Act. In conclusion, we hold that no ground is made out by the appellants to interfere with the order of the learned single Judge. We do not find any merit in these writ appeals and they are accordingly dismissed with no order as to cost. Writ appeals dismissed.
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2003 (3) TMI 681
... ... ... ... ..... ral Sales Tax Act. Proviso (iii) of section 3-AAAA exempts from levy of tax under section 3-AAAA in case goods are sold within the State or in the course of inter-State trade or commerce or exports out of the territory of India, in the same form and condition in which he had purchased them. 7.. In the present case, proviso (iii) to section 3-AAAA as amended by U.P. Act No. 31 of 1995 with effect from April 1, 1974 clearly applies to the fact of the case and thus tax levied under section 3-AAAA is not justified. Tribunal upheld the levy on the basis of section 3-AAAA which stood at that time but now has been substituted by new section 3-AAAA, referred above by U.P. Act No. 31 of 1995 with retrospective effect from April 1, 1974 as a result, old section does not exist and only new section exist. 8.. In the result, the revision is allowed and the order dated September 18, 1990 is set aside. Tribunal is directed to pass the order under section 11(8) of the Act. Petition allowed.
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2003 (3) TMI 680
... ... ... ... ..... September 7, 1981, pumping set has been specifically excluded from agricultural implement and by Notification No. ST-II5784/X dated September 7, 1981, pumping set has been specifically included in the machinery, therefore, after September 7, 1981, diesel engine pumping sets is liable to tax as a machinery and not as an agricultural implement. 17.. In the result, Revision No. 1735 of 1990 relating to assessment year 1979-80, Revision No. 1736 of 1990 relating to assessment year 1980-81 are dismissed and Revision No. 1737 of 1990 relating to assessment year 1981-82 is partly allowed and it is held that diesel engine pumping set up to the period of September 6, 1981 is liable to tax as an agricultural implement and thereafter, for the period September 7, 1981 to March 31, 1982, it is liable to tax as a machinery. Tribunal is directed to pass necessary orders under section 11(8) of the Act. Revision Nos. 1735 and 1736 of 1990 dismissed. Revision No. 1737 of 1990 partly allowed.
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