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Showing 101 to 120 of 692 Records
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2006 (7) TMI 644
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... ... ..... correctness and validity of Section-3A has not at all been considered by the Supreme Court. We record our displeasure on that part. The Supreme Court, as observed by us in the earlier paragraph, has pointedly observed that Section-3A relates to or is relatable to the production or manufacture and not to the annual production capacity. 27. Each of the petitions is dismissed with costs of Rs.10,000/- in each case. Rule is discharged. 28. At this stage, the learned Counsel for the petitioners submits that the petitioners be given some time to approach the appropriate Appellate Forum, enabling them to challenge the correctness, validity and propriety of the order impugned. We would leave the petitioners with the liberty to approach the concerned Appellate Forum with an application for condonation of delay and exclusion of time spent in these proceedings. If such application is made by the petitioners, then, the same would be decided by the Appellate Forum in accordance with law.
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2006 (7) TMI 643
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... ... ..... cable to the case. In the light of the above decision, it is clear that the State has got priority over the claim of the appellant. So, the appellant cannot claim priority over tax dues to the State. Hence, the claim of the appellant is not maintainable and is liable to be rejected. It is brought to our notice that the paper publication was not given for the sale of property by the Commercial Tax Department. No doubt it is the valuable property. If paper publication is given for sale of the property, it will fetch good price for the properties. So, if the properties are sold for the higher price, after realising the dues to the State, the bank can realise its dues. It will be a wise step for both the parties. Hence, the first respondent/ Commercial Tax Department is directed to give wide publication throughout the country for sale of the properties, as per the law. With the above direction, the writ appeal is disposed of. No costs. Consequently, connected W.A.M.P. is closed.
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2006 (7) TMI 642
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... ... ..... ea blending ceased to be a manufacturing activity from the date the amendment came into effect, the exemption was no longer available because of statutory intervention by the Legislature. In view of the pronouncement of the Supreme Court in the decisions discussed hereinbefore we are unable to accept that the petitioners had any inviolable or irrevocable vested right which could not be interfered with by legislative enactments. According to us the petitioners were possessing and enjoying legal rights on the basis of the inclusive definition of manufacture in section 2(17) of the 1994 Act and statutory amendment of the definition of manufacture in section 2(17) of the 1994 Act obliterated and/or annihilated those legal rights prospectively from the date of such amendment. We make it clear that we have not considered constitutionality of the amendment. For the foregoing reasons the applications are disposed of. No order as to costs. B.K. MAJUMDAR (Technical Member). - I agree.
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2006 (7) TMI 641
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... ... ..... rendering complete justice to the petitioner with direction to rehear the parties. Hence, the application is allowed on contest without cost. The revisional order passed on September 3, 2003 by the West Bengal Commercial Taxes Appellate and Revisional Board in the revision case No. 690 of 2002-03 is set aside and the case is remanded to the West Bengal Commercial Taxes Appellate and Revisional Board with request to re-hear the parties giving the petitioner opportunity to prove (i) payments of the price of goods throug haccount payee cheques or bank drafts to M/s. Lokenath Enterprise and/or trade licence of Lokenath Enterprise at the time of purchase and (ii) identification of the goods exported on purchase (iii) agreement and/or orders before purchase of the goods exported as well as (iv) to meet the queries of the board of subject-matter. A copy hereof be sent to the West Bengal Commercial Tax and Appellate and Revisional Board. B.K. MAJUMDAR (Technical Member). - I agree.
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2006 (7) TMI 640
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... ... ..... are produced by mechanical crushing have suffered tax. In order to claim second sale exemption, the petitioner has to produce proof of tax sufferance on the same goods by producing bill or cash memorandum in terms of rule 32(13) of the Kerala General Sales Tax Rules, 1963. The Tribunal found that the petitioner has not satisfied the requirement of the Rules for granting exemption on second sales. We do not go into the question whether the second sale exemption itself is tenable because the item purchased is not the item sold by petitioner. Since there is no need to consider this question as exemption was declined by the Tribunal for want of proof of payment of tax on purchases, we do not think it necessary to consider the issue. The tax revision cases are, therefore, devoid of any merit and they are dismissed. However, whatever amount the petitioner has remitted in the name of compounding fee, should be credited towards tax and balance only should be recovered with interest.
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2006 (7) TMI 639
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... ... ..... sistant Collector about the manner and mode in which the assessment should be made. Useful reference can also be had on the judgment of the Supreme Court in the case of State of Goa v. Leukoplast (India) Ltd. reported in 1997 105 STC 318, wherein it is held as follows (page 319) . . . These were basically questions of fact which should have been agitated before the statutory appellate authority. There was no reason for the assessee to by-pass the statutory remedy and approach the court with a writ petition and the High Court ought not to have allowed the assessee to by-pass the statutory remedies where the questions could have been properly agitated and ascertained. The writ petition is not maintainable and hence dismissed. No costs. However, the appellate authority is hereby directed to consider the materials being produced before them and decide the issue on merits and not being influenced by any external issues. Consequently, connected miscellaneous petition is dismissed.
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2006 (7) TMI 638
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... ... ..... sales turnover. Even though decisions are not exactly on the point arising for decision in this case, the principle laid down therein support the case of the petitioner. Since we have found that the compensation amount if at all assessable as value of goods has to be considered at the hands of TISCO, there is no need to consider whether it is a turnover assessable in the hands of the petitioner. All what is required herein is to consider whether the payment of compensation justifies rejection of books of account and addition to the turnover. We are of the view that from the foregoing facts, the payment of compensation is unrelated to trading and is admittedly for the shortage of goods noticed from the godown of TISCO which was under the management of the petitioner and there is no justification to reject the petitioner 39 s trading accounts and make addition to the turnover. In the circumstances, tax revision case is allowed cancelling the addition sustained by the Tribunal.
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2006 (7) TMI 637
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... ... ..... e may be, setting aside the assessment and directing the assessing authority to make a fresh assessment. When the section empowers the Tribunal to entertain an appeal within a period of 120 days and conferring further power to entertain an appeal, which has been filed even further period of 120 days, totally 240 days, the Tribunal cannot have any further power to condone the delay of more than 240 days. The issue is not res intergra, which has been repeatedly held by the Division Bench of this court in several occasions, one among them is the Full Bench Division Bench judgment in the case of State of Tamil Nadu v. E.P. Nawab Marakkadai reported in 1996 100 STC 1. Hence, the orders of the Tribunal which are impugned in these writ petitions are to be set aside and the same are set aside in view of ambiguous statutory provision and also the law laid down in the above said case. The writ petitions are allowed. No costs. Consequently, connected miscellaneous petitions are closed.
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2006 (7) TMI 636
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... ... ..... h Court in respect of an earlier assessment year on the very same issues. Whether the controversy raised in this case is covered by an earlier judgment of the High Court is a matter to be decided by the Assistant Collector. He will have to decide all questions of fact and law. He has to make whatever enquiries he thinks necessary for determination of the value of excisable goods. The High Court in exercise of its jurisdiction cannot give guidance to Assistant Collector about the manner and mode in which the assessment should be made. In view of the above discussion, it is open to the petitioner to face the assessment order in accordance with law by submitting the explanation along with the relevant materials and the assessing officer is directed to consider the case of the petitioner and the material produced by them in accordance with law. With this observation, the writ petition is dismissed. No costs. Consequently, the connected miscellaneous petitions are also dismissed.
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2006 (7) TMI 635
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... ... ..... aw officer 39 s word that the assessing officer would follow the due process of law atleast in future, the impugned order is set aside and the matter is remitted back to the authority to consider the objections filed by the petitioner on April 20, 2006 and proceed further in accordance with law. With this observation, the writ petition is disposed of. The assessing officer is directed to pay a sum of Rs. 3,000 to the assessee, which shall be paid within a period of ten days from today from his own pocket and not from the tax-payer money. However, after passing the above order, the learned counsel appearing for the petitioner submits that the petitioner will have to face the assessing officer everyday and such imposition of fine would cause unnecessary hardship to him. Accepting the said submission, the respondent-assessing officer is hereby directed to pay the costs of Rs. 3,000 from out of his own pocket to the legal service authority within a period of ten days from today.
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2006 (7) TMI 634
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... ... ..... assessing officer based on enquiry, is upheld. The next question to be considered is whether the estimation of first sales of arrack is justified or not. It is seen that this court has upheld the order of the Tribunal in a similar case where unaccounted purchase of liquor was presumed from the accounts maintained by the assessee and the Tribunal 39 s order which confirmed the assessment, was upheld by this court. This decision is rendered in K.C. Sunil Kumar v. State of Kerala 1994 2 KTR 32. In the case above referred, we find that the purchase quantity by the petitioner is accepted by the Department and the unaccounted purchase quantity was estimated by applying market price as in this case and we see no reason to deviate from the same. Above all, the questions raised are only pure questions of facts and we find solid factual basis and materials for the Tribunal to sustain the assessment. In such circumstances, the tax revision cases are devoid of merits and are dismissed.
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2006 (7) TMI 633
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... ... ..... y condonation petitions were filed. By separate orders, the Tribunal dismissed the delay condonation petitions and consequently appeals were found not maintainable and dismissed by the orders which are subject-matter in these revision cases. We find that even though in the impugned orders, the Tribunal has stated that the appeals are dismissed, in effect, these are orders of the Tribunal refusing to admit the appeals beyond the period of limitation by virtue of the proviso to section 39(1) of the KGST Act consequent upon their dismissing the delay condonation petitions. Therefore, in our view, the impugned orders declining to entertain the appeals by the Tribunal are not revisable under section 41(1) of the KGST Act. However, it will be open to the petitioner to challenge the impugned orders probably in a writ petition. So long as the Revisions are not maintainable under the statute, we are unable to entertain the revision cases. The revision cases are accordingly dismissed.
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2006 (7) TMI 632
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... ... ..... e a prima facie case in their favour and therefore the pre-deposit of the amount should be waived and since the issue is of a recurring nature and revenue involved is high the matter may be listed for early hearing. Shri Pardeshi, learned J.D.R. submits that subsequent to the decision of CESTAT in Homa Engineering Works 2005 2 STT 157 Board had issued a clarification stating that shipping service will also be covered by port service and therefore the waiver of pre-deposit of duty should not be granted. Shri Pardeshi however could not produce the circular. We have considered the submissions. We find that prima facie the appellants have made out a case in their favour in view of the Tribunal decision in the case of Homa Engineering Works 2005 2 STT 157 and therefore, we grant full waiver of the pre-deposit of duty and penalty till disposal of the appeal. Since the amount involved is high and issue is of recurring nature the matter is fixed for early hearing on August 28, 2006.
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2006 (7) TMI 631
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... ... ..... ay film is a special type of film which can be used only in x-ray apparatus and not in photographic cameras and x-ray films are commonly believed to be different from photographic films. As photographic films and plates did not cover x-ray films, the residuary clause under section 5 of the Act of 1941 was applicable to x-ray films. For the foregoing reasons, the impugned assessment order, appellate order and the revisional order are set aside. The assessing authority is directed to reassess the petitioners 39 tax liability for the year 1992-93 on the basis that x-ray films were not included and covered by the term photographic films and plates in section 5(1)(d) of the Bengal Finance (Sales Tax) Act, 1941. Such reassessment is to be completed by October 31, 2006 and the assessing officer will give appropriate opportunity of hearing to the petitioners or their authorised representative. Application is allowed. No order as to costs. B.K. MAJUMDAR (Technical Member). - I agree.
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2006 (7) TMI 630
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... ... ..... the Supreme Court had already settled the issue and it is no longer res integra. For the reasons stated hereinbefore we allow this application in part. We set aside the decision and order of the Board in respect of the disputed additional discount claimed to be trade discount and hold that the said discount was not a trade discount and could not be deducted from the sale price or turnover under the West Bengal Sales Tax Act, 1994. On the basis of the judgment of the Supreme Court in Government of India v. Madras Rubber Factory Ltd. 1995 77 ELT 433, we hold that the turnover discount was a trade discount and qualified for exclusion from sale price or turnover under the aforesaid Act of 1994 and do not accept the petitioner 39 s contention to the contrary with regard to the said turnover discount . The judgment and order of the Board is set aside in part to the extent indicated above. Application is disposed of. No order as to costs. B.K. MAJUMDAR (Technical Member) - I agree.
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2006 (7) TMI 629
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... ... ..... hase of sugarcane between the occupiers of factories and the sugarcane growers or sugarcane growers 39 co-operative societies and accordingly no fees can be collected under the Market Act on such transactions of sale and purchase of sugarcane between the occupiers of factories and the sugarcane growers or sugarcane growers 39 co-operative societies. Accordingly, demands of market fees under the Market Act which are contrary to the aforesaid declarations are quashed and the market fees collected from the petitioners contrary to the aforesaid declarations in respect of which refund has been claimed in the respective writ petitions, be refunded to the petitioners. We clarify that this judgment will apply prospectively and will not apply to fees already collected by Market Committees under the Market Act in respect of which writ petitions for refund have not been filed before this court. Considering the facts and circumstances of the case, the parties shall bear their own costs.
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2006 (7) TMI 628
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... ... ..... the previous years. From the records of the present trade tax revision, it is apparently clear that except for survey conducted on November 28, 1987, no other material whatsoever has been referred or relied upon by the authorities for enhancing the turnover of the assessee in respect of assessment years 1984-85, 1985-86 and 1986-87. In view of the aforesaid the assessment of the turnover made by the assessing authority as well as the tax liability fastened thereto is based on no evidence whatsoever. Accordingly the order of assessment passed in respect of the assessment years 1984-85, 1985-86 and 1986-87 cannot be legally sustained and is hereby quashed. The Trade Tax Revision Nos. 426 of 2006, 480 of 2006 and 481 of 2006 are allowed. So far as the assessment year 1987-88 is concerned, the enhancement of the turnover and the tax liability worked out thereon, is based on material facts as noticed during survey. The Trade Tax Revision No. 427 of 2006 is accordingly dismissed.
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2006 (7) TMI 627
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... ... ..... ntract. Therefore, he estimated the sale price of the goods at 70 per cent of the total consideration received and assessed the same as inter-State sales. The transaction obviously involves sale of materials. Even if the petitioner 39 s case of works contract outside the State is accepted, Karnataka has similar law as in Kerala for assessment of sales tax on works contract. The petitioner should have taken registration and got the assessments for works contract in Karnataka. In the absence of any assessment in Karnataka and particularly when the petitioner has consigned goods from Kerala to Karnataka, we do not find any ground to interfere with the orders of the Tribunal sustaining the CST assessments at 70 per cent of the total sale proceeds received from Karnataka. In the circumstances, the sales tax revision cases filed against the orders of the Tribunal confirming CST assessments for all the years, namely, S.T. Rev. Nos. 111, 120, 129, 131 and 143 of 2003, are dismissed.
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2006 (7) TMI 626
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... ... ..... d will be liable to be paid. Similar view has been expressed in Frick India Limited v. State of Haryana 1994 95 STC 188 (SC), Maruti Wire Industries Pvt. Ltd. v. Sales Tax Officer 2001 122 STC 410 (SC) and Full Bench of this court in United Riceland Limited v. State of Haryana 1997 104 STC 362. Since, the facts of the case are not in dispute and the matter is covered by the law laid down by the honourable Supreme Court in J.K. Synthetics Ltd. 39 s case 1994 94 STC 422 we treat the question proposed as having been referred to this court, to avoid unnecessary delay. Similar view was taken by a Division Bench of this court in S.T.C. No. 19 of 1992, Chaudhary Tractor Company v. State of Haryana decided on May 29, 2006. Accordingly, we answer the questions in favour of the assessee and against the Revenue and hold that liability to pay interest as a result of reassessment would arise from the date of demand and not from the date of return. The petition is disposed of accordingly.
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2006 (7) TMI 625
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... ... ..... dded to the purchase value. At the time of import and on the date of order the prevailing view was that no seizure could be made on the ground of under-invoicing. Considering all these circumstances we are inclined to reduce the penalty from Rs. 1,20,530 to Rs. 90,000. For the reasons aforesaid we do not find any illegality or infirmity in the seizure of the goods. We also hold that the petitioner is liable to pay penalty. However we reduce the penalty from Rs. 1,20,530 to Rs. 90,000. The petitioner will deposit the penalty amount in accordance with this order by August 15, 2006. If the penalty amount is paid by the aforesaid date, the bank guarantee would be released. If the petitioner fails to pay penalty by the aforesaid date, the respondents will be at liberty to invoke and encash the bank guarantee and to take steps in accordance with law for realisation of the balance amount. Application is disposed of. No order as to costs. B.K. MAJUMDAR (Technical Member). - I agree.
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