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Case Laws
Showing 121 to 140 of 685 Records
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2006 (2) TMI 606 - ANDHRA PRADESH HIGH COURT
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... ... ..... be taxed differently. 15.. The learned counsel for the petitioners has also placed before us the definition of milk. As we have already framed an opinion that the question before us is not whether skimmed milk powder and UHT milk is milk or not, the question is what is the effect of having two different entries for fresh milk and pasteurised milk and skimmed milk powder and UHT milk . Since there were judgments of this Court and other courts that dehydrated milk was milk, the Legislature, in its wisdom, thought it fit to place the milk and milk products under different categories and tax skimmed milk powder and UHT milk and not to tax fresh milk and pasteurised milk . 16.. For these reasons, we do not find merit in this writ petition which is accordingly dismissed. No costs. W.P. No. 12328 of 2005 17.. It is submitted that this case does not pertain to the controversy involved in the above case. Therefore, this case be listed separately for hearing. Writ petition dismissed.
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2006 (2) TMI 605 - KERALA HIGH COURT
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... ... ..... petitioner wants an exemption, it is for him to make representation as it is for the taxing authority to consider whether exemption should be given or not. He filed exhibit P3 before the Government. It may be considered and disposed of by the Government within three months from the date of receipt of a copy of this judgment. It is submitted by the Standing Counsel appearing for the Kerala Khadi and Village Industries Board that all the KV industries in the State are running at loss, but, they have no say in the imposition of sales tax. If all the industries or any of the industries which were not given the benefit of full exemption are experiencing financial difficulties, it is for them to make representation to the Government and this Court is not empowered to make a direction to the State to give exemption from tax to any particular class of industry. All the writ appeals and writ petition are disposed of accordingly. Writ appeals and writ petition disposed of accordingly.
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2006 (2) TMI 604 - MADHYA PRADESH HIGH COURT
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... ... ..... n that event, the petitioner would be required to pay tax at a higher rate than what he has paid to the respondent. The petitioner is misconceived. The petitioner is not entitled for any relief. The decision of the apex Court in State of Gujarat v. Raipur Manufacturing Co. Ltd. 1967 19 STC 1 stands superseded by legislative enactment. The respondent collected the tax and it was part of the sale price, thus, burden has been rightly passed on to the buyer in view of the circular issued by the Commissioner, Sales Tax. This controversy stands concluded by the Full Bench in Hukumchand Mills Ltd. v. Commissioner of Sales Tax, M.P. 1988 71 STC 101 (MP), in which it has been held that the coal ash is a different commodity and sales tax can be exacted separately on the coal ash as such buyer was required to pay the sales tax. Thus, I find no ground to interfere in this petition in view of the aforesaid decision of the Full Bench of this Court. Writ petition stands dismissed. No costs.
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2006 (2) TMI 603 - KARNATAKA HIGH COURT
Classification of goods - Clarification of the rate of tax applicable - vacuum flask, kerosene wick stove and utensils - Karnataka Value Added Tax Act, 2003 (“the KVAT Act”) - whether the word "utensils" includes a stove and flask? - HELD THAT:- A vessel in a kitchen without a stove is of no use. Similarly, a stove without a vessel is also of no use in a kitchen. They are complementary to each other. Only when both of them are put to use each one of the goods would be useful to a common man. A kitchen without a stove is unthinkable. Irrespective of the strata to which a person belongs every house will have a kitchen and every kitchen will have a stove to cook the food. It is of common use. If we go by the dictionary meaning, a tool or an implement serving a useful purpose, especially for domestic, that is used in a kitchen is a utensil. All utensils are not vessels. But all vessels are utensils. However, the word "utensil" includes a vessel and all other tools and implements which are of use for domestic purpose and in a kitchen. If the legislative intent is kept in mind and the meaning of the word "utensil" as gathered from the aforesaid definition is taken into consideration and the way the entry is worded namely "all utensils" "including" and when what is excluded from this definition is expressly stated it is clear that a stove whether it is a LPG stove or kerosene wick stove would fall within the words "all utensils" and falls within entry No. 5 of the Third Schedule to the Act.
In so far as stainless steel vacuum flask is concerned, there should not be any difficulty as it is a vessel which is used for storing beverages like coffee, tea, milk, etc., at a particular temperature which is used by common man in the house or even outside the house. Merely, because a stove or flask is used outside the house also and in hotels and restaurants and in commercial enterprises, it cannot be said that it does not fall within the word "utensil". Having regard to the use of a stove or a flask in kitchen by a common man, the use of those items commercially outside the house is negligible. That cannot be the determining factor.
Thus, the findings recorded by the authority that stoves have a general purpose use both domestic and commercial, it cannot be called as kitchen utensil for purposes of the KVAT Act and that the vacuum flask has a general purpose and they are not only used in household and in commercial establishments, hospitals, etc., for carrying a liquid it cannot make flask a kitchen utensil do not stand to reason. Therefore, the said ruling by the authority holding that the stoves and flasks are to be taxed u/s 4(1)(b) of the Act at 12.5 per cent is hereby set aside. Hence, we are of the view that the phrase "utensils" used in entry No. 5 includes the stainless steel LPG stove, kerosene stove and vacuum flask which are of common utility in a household and the same fall within entry No. 5 and liable to be taxable only at four per cent.
Thus, order dated September 30, 2005 is modified to the extent indicated above and the appeal is allowed.
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2006 (2) TMI 602 - KERALA HIGH COURT
Entry tax as per the Kerala Tax on Entry of Goods into Local Areas Act, 1994 - Whether an excavator not running on inflated tyres, but on iron chain plates such as a caterpillar vehicle or a military tank would be a motor vehicle within the meaning of section 2(28) of the Motor Vehicles Act, 1988 read with section 2(1)(j) of the Kerala Tax - HELD THAT:- Apex Court in Bose Abraham's case[2001 (2) TMI 890 - SUPREME COURT], also has taken the view that excavators and road rollers are motor vehicles within the meaning of sub-section (28) of section 2 read with section 2(1)(j) of the Kerala Tax on Entry of Goods into Local Areas Act, 1994. The excavator in question is mounted on iron plates made into chain such as caterpillar vehicle or a military tank. Such an excavator is used for excavating the earth and loading in lorries.
The decisions in Central Coal Fields Ltd. v. State of Orissa [1992 (4) TMI 239 - SUPREME COURT] would categorically show that the apex Court itself had made a distinction between vehicles fitted with chain plates like caterpillars and military tank and others. The excavator referred to in Bose Abraham's case, was a motor vehicle fitted with inflated tyres and not chain plates like caterpillars or military tank.
Thus, we are in agreement with the learned single Judge that the excavators fitted with chain plates like caterpillars like military tanks are not motor vehicles within the meaning of sub-section (28) of section 2 of the Motor Vehicles Act read with section 2(1)(j) of the Kerala Tax on Entry of Goods into Local Areas Act, 1994. Appeal therefore lacks merit and the same would stand dismissed.
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2006 (2) TMI 601 - MADRAS HIGH COURT
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... ... ..... xemption by order dated July 10, 1991 and the revision of assessment was not for the escaped turnover and only reported turnover was taken into consideration for the purpose of reassessment and, therefore, the assessment does not fall under section 12(2) of the Act. If that be so, when the revision of assessment was not for the escapement of the turnover, the levy of penalty under section 16(2) is not justified. It is further submitted that after disallowance of exemption in the revision, the petitioner submitted the returns and paid the tax also. Therefore, the petitioner has not committed wilful or deliberate suppression or omission of turnover which has escaped from assessment to impose the penalty under section 16(2) of the Act. Therefore, the levy of penalty is set aside. For the reasons stated above, the impugned order dated July 28, 2000 is quashed and the original order of assessment dated July 13, 1990 is restored. The writ petition is, therefore, allowed. No costs.
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2006 (2) TMI 600 - SUPREME COURT
Whether a copy of the bail application is required to be taken into consideration for the purpose of passing an order of preventive detention in terms of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974?
Held that:- As in the fact of this case, we are satisfied that the application for bail was not a vital document copy whereof was required to be supplied to the detenu, in our opinion, the order of detention is not vitiated. There is no merit in the present appeal and it is accordingly dismissed.
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2006 (2) TMI 599 - MADRAS HIGH COURT
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... ... ..... trol section 3(1)(f) which deals with one type of income and fixes the previous year in respect of that income alone. (emphasis supplied) 5. It is accordingly a settled law that for the purpose of assessment of share income of the assessee, the previous year followed by the firm should alone be followed by the assessee, who is a partner of the said firm, and the said proposition is not applicable to other income of the assessee. 6. Applying the ratio laid down by this Court in Commissioner of Income-tax Vs. Greenham Estates Pvt. Ltd., 2002 254 ITR 402 to the facts and circumstances of this case, we hold that the Tribunal was not right in holding that notwithstanding the previous year with reference to which the firm was assessed being the financial year, the share income of the assessee as a partner in the firm was required to be assessed with reference to the calendar year as the previous year . These references are answered in favour of the Revenue and against the assessee.
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2006 (2) TMI 598 - MADRAS HIGH COURT
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... ... ..... sessee in so far as the agreement is concerned if it falls within the category stated therein. When it is intended under the Double Taxation Avoidance Agreement between India and Malaysia that, even though it is possible for a resident in India to be taxed in terms of Sections 4 and 5 of the Income Tax Act, 1961, if he is deemed to be a resident of contracting State where his personal and economic relations are closer, then his residence in India will become irrelevant, the Double Taxation Avoidance Agreement will have to be interpreted as such and would prevail over Sections 4 and 5 of the Act. 6. The said decision was followed by the Division Bench of this Court (N.V.BALASUBRAMANIAN AND M.THANIKACHALAM, JJ.) in T.C.A.No.182 of 2 004 dated 15.6.2004. 7. In view of the above conclusion, we do not find any error or infirmity in the order of the Tribunal and no substantial question of law would arise for consideration of this Court. Hence, the appeal stands dismissed. No costs.
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2006 (2) TMI 597 - SUPREME COURT
Whether the consumer has committed malpractice or pilferage of energy and if so satisfied proceed to assess to the best of his judgment, the loss sustained by the Board on account of such malpractice or pilferage of energy by the consumer?
Held that:- Appeal dismissed. As has been rightly noted by the High Court in the impugned judgment where the reliance is only on accounts prepared by a person, cross examination is not necessary. But where it is based on reports alleging tampering or pilferage, the fact situation may be different. Before asking for cross examination the consumer may be granted an opportunity to look into the documents on which the adjudication is proposed. In that event, he will be in a position to know as to the author of which statement is necessary to be cross-examined. In the instant case the respondent had not indicated as to why the cross-examination was necessary. If a fresh application is made, the same shall be duly considered by the appellate authority, keeping in view the principles indicated above.
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2006 (2) TMI 596 - ITAT MUMBAI
Validity of assessment order passed in the name of non-existing entity - curable defect within the meaning of section 292B - Rajashree Polyfils Ltd (RPL) has amalgamated with Century Enka Ltd. (“CEL”) at the time of assessment proceedings - HELD THAT:- In the instant case, we find that the return of income was filed in the name of RPL and intimation u/s 143(1) was also issued in the same name. During the course of assessment proceedings, though the assessee has written letter to various authorities, but, we do not find any communication, directly made to the Assessing Officer with regard to the amalgamation of this company though the assessee has joined the assessment proceedings. Since, nothing has been placed on record to prove that the Assessing Officer, despite having full knowledge about the fact of amalgamation of the assessee-company, has passed the assessment order in the name of the entity which is not in existence. In these circumstances, we are of the view that the order in the name of the non-existing entity was passed on account of ignorance of the fact of amalgamation. For this reason, the assessment cannot be held to be invalid and be knocked down.
We, therefore, set aside the order of the CIT(A) and restore the matter to the file of the Assessing Officer to reframe the assessment de novo in terms indicated above. Since, no argument was raised on the merits and the entire assessment is set aside and the matter is restored to the file of the Assessing Officer for fresh assessment, we find no justification to deal with the issues on the merits.
In the result, the appeal of the assessee is allowed for statistical purposes.
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2006 (2) TMI 595 - ITAT MUMBAI
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... ... ..... less interest than B who has not paid any advance-tax till the next instalment fallen due. If the departmental stand were to be accepted both A and B will be changed with the same liability towards interest. This will act to the disadvantage of a person who has taken extra pain to pay the tax due to the Government as a true citizen. Moreover, the Government has already used the money of Rs. 1,00,000 deposited into its coffers on 16th June. Ignoring such payment, it will be unfair and inequitable on the part of the revenue to ask the taxpayer to pay interest on a sum which was already paid by him on 16th June. This will only result in absurd position. That cannot be the intention of the Legislature. 7. In the light of the discussion above, and respectfully following the Amritsar Bench decision of the Tribunal, we accept the assessee rsquo s working of interest under section 234C of the Act and direct the Assessing Officer accordingly. 8. In the result, the appeal is allowed.
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2006 (2) TMI 594 - SUPREME COURT
Whether a persons should be removed from service for an act of misconduct?
Held that:- Appeal dismissed. It is not in dispute that the Lok Ayukta was the disciplinary authority. The power to impose punishment on the Appellant vested only in him. The office of a Lok Ayukta is of great importance. People approach Lok Ayukta with various grievances. They require urgent enquiry. It is not difficult to presume that only because such complaints were received, a practice developed that no almirah should kept under lock and key. The Appellant must be presumed to have knowledge thereabout. Despite the same he had put his almirah under lock and key. He refused to hand over the key when called upon to do so. He did not cross-examine the only witness who was available. He also did not examine himself. He did not examine any defence witness. He did not show any remorse and in that view of the matter, in the peculiar facts and circumstances of the case, we are of the opinion that it cannot be said that the order of punishment passed by the Lok Ayukta suffered from any infirmity.
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2006 (2) TMI 593 - GAUHATI HIGH COURT
Contract is to render a service, if such a contract is a works contract, the States are empowered to levy a sales tax on the material used therein.
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2006 (2) TMI 592 - CESTAT, BANGALORE
Order - Speaking order ... ... ... ... ..... deration, we are of the considered opinion that the Commissioner (A) was justified in proceeding with the case, as he had given three clear opportunities to the appellants. However, after recording all the submissions of the appellant in Para 4 including the citations, he has not discussed the same in the operative portion of his order. Thereby the order cannot be said to be a speaking order. For that reason, the matter is required to be remanded back to the Commissioner (A) for de novo consideration. The appellant shall not withdraw the amount deposited till the matter is disposed of by the Commissioner (A) afresh in the de novo consideration. The appellant shall be given an opportunity to contest the matter in terms of principles of natural justice. The matter shall be re-decided within four months from the receipt of this order. The stay applications and appeals are allowed by remand to the Commissioner (A) for de novo consideration. (Pronounced and dictated in open Court)
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2006 (2) TMI 591 - CESTAT, NEW DELHI
Cenvat/Modvat - rejection of refund application - Two units with in same factory - HELD THAT:- It is clear from the record and submissions of both sides that there is only one juridical person in the present case, i.e. Mahabir Jute Mills Ltd. There is no separate legal standing for the yarn manufacturing facility, even though it is being referred to by the appellant as Mahabir Syntex. A perusal of the ground plan makes it clear that both lines of production are situated in the same factory premises and the generators are supplying electricity to both the lines of production. In this legal and factual situation, the finding in the order that the two units are separate entities cannot be upheld.
Claim for Modvat credit, the specific provision in the Rule is for “a manufacturer” to take credit of duty paid on any input received “in the factory”. As we have already noted, there is only one manufacturer with two lines of production and one factory. Therefore, credit originally taken by the appellant was entirely in terms of the Rule and the lower authorities were in error in directing the appellant to return the credit amount.
Thus, the appeal succeeds and is allowed after setting aside the impugned order. Credit which was returned in cash by the appellant shall be returned to the appellant in cash.
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2006 (2) TMI 590 - CESTAT, MUMBAI
Cenvat/Modvat - Availment of credit after expiry of limitation ... ... ... ... ..... of time in the Modvat Rules and such stipulation was not applicable retrospectively. The Commissioner (A) has referred Rule 57G which is core provision and lays down the procedure for availment of credit as well as connected procedural matters. The documents that would form the basis of availment of credit are spelt out in sub-rule (5) of Rule 57G itself in specific terms. Sub-rule (5) of Rule 57G prescribes a time limit within which the manufacturer must take credit in his book of accounts. All these aspects were discussed in the impugned order. In the present case, the appellants have availed the Modvat credit on 14-3-1996 on the basis of invoice no. 566, dated 18-2-1995 i.e., after one year from the date of issue of the invoice. Therefore, the Commissioner (A) has upheld the impugned order. After going through written submissions filed by the appellants and the case record, I find no merits in this appeal filed by the assessee. Accordingly dismissed. (Pronounced in Court)
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2006 (2) TMI 589 - CESTAT, NEW DELHI
Cenvat/Modvat - Declaration - General description ... ... ... ... ..... rther in terms of Notification No. 7/99-C.E. (N.T.), dated 9-2-1999 read with CBEC Circular No. 441/7/99-CX., dated 23-2-1999, credit is not deniable for violation of procedural requirements and proceedings are to be initiated only in cases where there was no duty payment on the input. 8. emsp In the present case, there is no dispute raised about payment of duty on the inputs and receipt and utilisation of the inputs by the appellant. Therefore, denial of credit is clearly contrary to Notification No. 7/99-C.E. (N.T.), dated 9-2-1999 and Board rsquo s circular. Revenue rsquo s appeal before the Commissioner had been filed without any application of mind and an unmerited vexation of the appellant. Commissioner (Appeals) was being too indulgent in entertaining such a frivolous appeal. Law expects better of that Office. 9. emsp In the result, the impugned order is set aside and the appeal is allowed, with consequential relief, if any, to the appellant. (Pronounced in the Court).
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2006 (2) TMI 588 - CESTAT, MUMBAI
Cenvat/Modvat - Inputs cleared as such - Returned to factory ... ... ... ... ..... the manufacture of final product i.e. paints in a company like appellants. It is the submission of the appellants that after reprocessing the returned goods, instead of sending back to the job worker, they themselves have used inventory in the manufacture of paints. Once the reprocessed goods are used in the manufacture of final product, the question of Modvat credit does not arise. This position settled in catena of decision as cited below - (i) CCE, Merrut v. Tin Mfg. Co. - 2000 (119) E.L.T. 290 (T-LB) - 2000 (39) RLT - 197 (CEGAT) (ii) Alcobex Metals Ltd. v. Coll. Cent. Excise - 1993 (68) E.L.T. 146 (Tribunal) (iii) Vikas Forging Pvt. Ltd. v. CCE, Delhi - 2004 (177) E.L.T. 819 (Tribunal) (iv) Rane TRW Sterling Systems Ltd. v. CCE, Trichy - 2003 (60) RLT 677 (CESTAT) The aforesaid decisions are squarely cover the issue in favour of the appellants. Thus the impugned order is to be set aside, accordingly it is set aside. In the result, appeal is allowed. (Pronounced in Court)
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2006 (2) TMI 587 - SETTLEMENT COMMISSION, CUSTOMS AND CENTRAL EXCISE,
Settlement of case - Maintainability of application - Demand and interest ... ... ... ... ..... is settled in terms of Section 32F(7) of the Central Excise Act, 1944 as per the terms and conditions given below - (I). The duty liability is settled at Rs.17,87,271/-. Since this was reported to have been paid no further duty is payable. (II). Immunity from interest in excess of 10 simple interest per annum is granted. The Revenue shall calculate the interest for the period from November 2002 to November 2005 accordingly and convey to the applicant within 15 days from the date of receipt of this order and the applicant shall pay the same within 15 days thereafter and report compliance to the Bench as well as the Revenue. 8. emsp The above immunities are granted in terms of Section 32K(1) of the Central Excise Act, 1944. The attention of the applicant is also drawn to sub-sections (2) and (3) of Section 32K ibid, in this regard. The above settlement shall be void if it is subsequently found by the Commission that it has been obtained by fraud or mis-representation of facts.
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